Case 6:21-cv-00603-ADA Document 1 Filed 06/11/21 Page 1 of 86
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`SMART MOBILE TECHNOLOGIES LLC,
`
`Civil Action No. 6:21-cv-00603
`
`Plaintiff,
`
`v.
`
`JURY TRIAL DEMANDED
`
`APPLE INC.,
`
`Defendant.
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Smart Mobile Technologies LLC ("Smart Mobile"), by and through its attorneys,
`
`hereby alleges the following:
`
`I.
`
`NATURE OF THE ACTION
`
`1.
`
`This is a patent infringement action for damages and other appropriate remedies for
`
`Defendant Apple Inc.'s ("Apple") unauthorized and infringing manufacture, use, sale, offering for
`
`sale, and/or importation of products incorporating Smart Mobile's patented inventions.
`
`2.
`
`Smart Mobile is the owner of all right, title, and interest in and to United States
`
`Patent No. 8,442,501 (the "'501 Patent"), issued May 14, 2013 and titled "Dynamically
`
`Configurable IP Based Wireless Devices And Networks." A true and correct copy of the '501
`
`Patent is attached hereto as Exhibit A.
`
`3.
`
`Smart Mobile is the owner of all right, title, and interest in and to United States
`
`Patent No. 8,472,936 (the "'936 Patent"), issued June 25, 2013 and titled "Dynamically
`
`Configurable IP Based Wireless Devices And Wireless Networks." A true and correct copy of the
`
`'936 Patent is attached hereto as Exhibit B.
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`4.
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`Smart Mobile is the owner of all right, title, and interest in and to United States
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`Patent No. 8,472,937 (the "'937 Patent"), issued June 25, 2013 and titled "Dynamically
`
`Configurable IP Based Mobile Devices And Networks." A true and correct copy of the '937 Patent
`
`is attached hereto as Exhibit C.
`
`5.
`
`Smart Mobile is the owner of all right, title, and interest in and to United States
`
`Patent No. 8,761,739 (the "'739 Patent"), issued June 24, 2014 and titled "Dynamically
`
`Configurable IP Based Wireless Devices And Networks." A true and correct copy of the '739
`
`Patent is attached hereto as Exhibit D.
`
`6.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 8,824,434 (the "'434 Patent"), issued September 2, 2014 and titled "Portable Wireless
`
`Device With Dual RF Communication And Antennas." A true and correct copy of the '434 Patent
`
`is attached hereto as Exhibit E.
`
`7.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 8,842,653 (the "'653 Patent"), issued September 23, 2014 and titled "Wireless Devices
`
`With Transmission Control And Multiple Paths Of Communication." A true and correct copy of
`
`the '653 Patent is attached hereto as Exhibit F.
`
`8.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 8,982,863 (the “’863 Patent”), issued March 17, 2015 and titled “Controller and Server
`
`System for Networking.” A true and correct copy of the ’863 Patent is attached hereto as Exhibit
`
`G.
`
`9.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,019,946 (the "'946 Patent"), issued April 28, 2015 and titled "Wireless And Cellular
`
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`Voice And Data Transmission With Multiple Paths Of Communication." A true and correct copy
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`of the '946 Patent is attached hereto as Exhibit H.
`
`10.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,049,119 (the "'119 Patent"), issued June 2, 2015 and titled "Dynamically Configurable
`
`Mobile Device and Cellular Phones With Functions." A true and correct copy of the '119 Patent
`
`is attached hereto as Exhibit I.
`
`11.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,191,083 (the "'083 Patent"), issued November 17, 2015 and titled "Wireless Device
`
`With Multichannel Data Transfer." A true and correct copy of the '083 Patent is attached hereto
`
`as Exhibit J.
`
`12.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,319,075 (the "'075 Patent"), issued April 19, 2016 and titled "Wireless Devices With
`
`Transmission Control And Multiple Internet Protocol (IP) Based Paths Of Communication." A
`
`true and correct copy of the '075 Patent is attached hereto as Exhibit K.
`
`13.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,614,943 (the "'943 Patent"), issued April 4, 2017 and titled "System To Interface
`
`Internet Protocol (IP) Based Wireless Devices With Subtasks And Channels." A true and correct
`
`copy of the '943 Patent is attached hereto as Exhibit L.
`
`14.
`
`Smart Mobile is also the owner of all right, title, and interest in and to United States
`
`Patent No. 9,756,168 (the "'168 Patent"), issued September 5, 2017 and titled "Multifunction
`
`Mobile Devices And Appliance Control." A true and correct copy of the '168 Patent is attached
`
`hereto as Exhibit M.
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`15.
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`Apple makes, uses, offers for sale, sell, and/or imports into the United States
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`products that directly infringe the '501, '936, '937, '739, '434, '653, ‘863, '946, '119, '083, '075, '943,
`
`and '168 Patents (collectively, the "Patents in Suit"). Further, Apple indirectly infringes one or
`
`more of the Patents in Suit by inducing and contributing to infringement by others, including users
`
`of Apple devices, and by exporting components used in the making of Apple devices that would,
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`if combined in the United States, infringe the Smart Mobile patents.
`
`16.
`
`Smart Mobile seeks monetary damages, prejudgment interest, injunctive relief, and
`
`other relief for Apple's infringement of Patents in Suit.
`
`II.
`
`PARTIES
`
`17.
`
`Smart Mobile is a Delaware limited liability company having a principal place of
`
`business at 7600 Chevy Chase Drive, Building 2, Suite 300, Austin, Texas 78752. Smart Mobile
`
`develops mobile device software and technologies for scientists and engineers.
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`18.
`
`Upon information and belief, Defendant Apple Inc. is a corporation organized and
`
`existing under the laws of California and has one or more regular and established places of business
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`in the Austin, Texas area, including at 12545 Riata Vista Circle, Austin, Texas. In November 2019,
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`Apple stated that it had approximately 7,000 employees in Austin and that it expected to open, in
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`2022, a $1 billion, 3-million-square-foot campus with capacity for 15,000 employees. See
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`https://www.apple.com/newsroom/2019/11/apple-expands-in-austin/. The work done at Apple's
`
`location in Texas includes work related to Apple's iPhone products.
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`19.
`
`Upon information and belief, Apple also operates retail stores locations in the
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`Western District of Texas ("WDTX"), including two in Austin, two in San Antonio, and one in El
`
`Paso. See www.apple.com/retail/. Apple uses, offers for sale, and sells iPhones at these retail
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`stores.
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`20.
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`Apple may be served with process through its registered agent for service in Texas:
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`CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
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`III.
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`JURISDICTION AND VENUE
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`21.
`
`This is an action for patent infringement, which arises under the Patent Laws of the
`
`United States, in particular, 35 U.S.C. §§ 271, 281, 282, 284, and 285. The Court has jurisdiction
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`over the subject matter of this action under 28 U.S.C. §§ 1331 and 1338(a).
`
`22.
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`This Court has personal jurisdiction over Apple because Apple has committed acts
`
`giving rise to this action within Texas and within WDTX. Defendant also regularly does business
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`or solicits business in WDTX and in Texas, engages in other persistent courses of conduct and
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`derives substantial revenue from products and services provided in WDTX and in Texas, and has
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`purposefully established substantial, systematic, and continuous contacts with WDTX and Texas
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`and should reasonably expect to be sued in a court in WDTX and Texas. For example, as alleged
`
`above, Apple has retail and non-retail locations within WDTX. The website www.apple.com
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`solicits sales of infringing products to consumers in WDTX and in Texas. Given these contacts,
`
`the Court's exercise of jurisdiction over Apple will not offend traditional notions of fair play and
`
`substantial justice.
`
`23.
`
`Venue in WDTX is proper pursuant to 28 U.S.C. §§ 1391(b), (c), and l400(b)
`
`because Apple has regular and established places of business in WDTX, including at 12545 Riata
`
`Vista Circle, Austin, Texas, has committed acts within this judicial district giving rise to this
`
`action, and Apple continues to conduct business in this judicial district, including making, using
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`offering to sell, selling, and/or importing infringing products and providing support service to
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`Apple's customers in WDTX.
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`IV.
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`THE PATENTS-IN-SUIT
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`24.
`
`The '501, '936, '937, '739, '119, and '168 Patents share a common specification. The
`
`patents are related by a chain of continuation and divisional applications to an application filed on
`
`June 9, 2000, which was a continuation-in-part of an application filed on June 4, 1999. The ‘501,
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`‘936, ‘937, ‘739, and ‘119 Patents, in addition, claim priority to an even earlier application, filed
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`December 16, 1996. The '501, '936, '937, '739, '119, and '168 Patents disclose and claim improved
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`wireless communications systems and devices having voice and data communication capability,
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`the capability to switch dynamically between wireless networks, and the capability of
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`communicating with a server that enhances the functionality of the devices.
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`25.
`
`The '434, '653, ‘863, '946, '083, '075, and '943 Patents share a common
`
`specification. The patents are related by a chain of continuation applications to an application filed
`
`on July 17, 2000, which was a continuation-in-part of an application filed on June 4, 1999 (the
`
`same application that is related to the '168 and '936 Patents). The ‘434 Patent, in addition, claims
`
`priority to an even earlier application, filed December 16, 1996. The '434, '653, ‘863, '946, '083,
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`'075, and '943 Patents disclose and claim enhancements to mobile device communications
`
`functionality. The patents taught, among other things, that by using transmit and receive units,
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`coupled with one or more processors configured to process multiple signal or data streams in
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`parallel, transmission bottlenecks could be mitigated and enhanced transmission capabilities –
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`such as the ability to multiplex signal streams or access multiple signal streams simultaneously or
`
`sequentially – could be achieved.
`
`V.
`
`APPLE'S KNOWLEDGE OF THE PATENTS-IN-SUIT
`
`26.
`
`On information and belief, Apple has known of at least the '501, '936, '937, '739,
`
`'434, '653, '946, and '119 patents, as well as the applications that later issued as the '168, '083, '075,
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`and '943 patents, since at least approximately the latter half of 2015.
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`27.
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`In or about May 2015, Global Technology Transfer Group, Inc. ("GTT"), a patent
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`transaction advisory and consultancy company, was engaged to assist with the divestment or
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`certain patents and patent applications owned by a prior owner of the patents (the "Smart Mobile
`
`Portfolio"), including the '501, '936, '937, '739, '434, '653, ‘863, '946, and '119 patents, as well as
`
`the applications that later issued as the '168, '083, '075, and '943 patents.
`
`28.
`
`GTT created, among other things, a thirteen page summary of the Smart Mobile
`
`Portfolio ("Portfolio Summary"). The Portfolio Summary noted that there were 24 issued US
`
`patents and 27 US applications assigned to Smart Mobile. The Portfolio Summary identified
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`"relevant markets" as including mobile devices, mobile streaming devices, wireless networks, and
`
`software defined networks. The Portfolio Summary highlighted seven "exemplary patents,"
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`including the '653 and '936 patents, and included an accompanying spreadsheet containing a full
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`list.
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`29.
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`As to the '936 Patent, the Portfolio Summary highlighted pertinence "for companies
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`that provide both wireless devices and servers (application store servers). These targets provide
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`application stores where applications with functional instructions can be downloaded to mobile
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`devices. The mobile devices execute the instructions to provide new functionality at the mobile
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`device."
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`30.
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`As to the '653 patent, the Portfolio Summary stated, among other things, that
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`"[c]laim 1 is applicable to mobile devices that support multipath TCP. … Claim 1 and 17 are also
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`applicable to devices that supports Voice over LTE (VoLTE) along with Wi-Fi Calling and a
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`handover between the two. Claim 14 is applicable to devices that maintain two separate IP
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`addresses (one for Wi-Fi and another for cellular)."
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`31.
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`As to the '863 Patent, the Portfolio Summary stated, among other things, that "[t]he
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`‘863 patent provides a system for controlling Internet Protocol (IP) based wireless devices, IP
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`based cellular phones, networks or network switches by servers.”
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`32.
`
`On information and belief, during the latter half of 2015, GTT contacted various
`
`potentially interested parties, including Apple, to solicit interest in acquiring the Smart Mobile
`
`Portfolio.
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`33.
`
`On information and belief, GTT communicated with Denise Kerstein, whose
`
`responsibilities at Apple pertained to patent acquisitions.
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`34.
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`Upon information and belief, GTT created a virtual "data room" that contained
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`information and materials pertinent to the Smart Mobile Portfolio, including the Portfolio
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`Summary and an accompanying spreadsheet containing a list of all of the patents and application
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`in the Smart Mobile portfolio.
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`35.
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`Upon information and belief, Apple accessed the virtual data room, and the
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`Portfolio Summary and spreadsheet, sometime during the latter half of 2015 and thereby gained
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`notice of at least the '501, '936, '937, '739, '434, '653, ‘863, '946, and '119 patents, as well as the
`
`applications that later issued as the '168, '083, '075, and '943 patents.
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`VI.
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`THE INFRINGING APPLE DEVICES AND RELATED FUNCTIONALITIES
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`36.
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`Apple designs, markets and sells, among other things, wireless portable electronic
`
`devices, such as the iPhone smartphone, iPad tablet and Apple Watch. Apple’s iPhone, iPad, and
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`Watch all run proprietary Apple operating system software – iOS for the iPhone, iPadOS for the
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`iPad (beginning in September 2019; previously, the iPad ran iOS) and watchOS for the Watch.
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`37.
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`Apple’s iPhone, iPad, and Watch products are designed to function as part of an
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`integrated ecosystem of products and services that includes Apple’s App Store and the applications
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`(“apps”) that are available on Apple’s App Store. In order to access many of these features, a user
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`must create an Apple ID, which Apple encourages users to do when they set up an iPhone, iPad or
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`other Apple device. In addition, Apple supports these products with periodic operating system
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`updates. On information and belief, applications in Apple App Store and operating system updates
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`are stored on and provided to Apple products from servers owned and/or operated by Apple.
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`38.
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`The iPhone, iPad, and Watch are configured to communicate wirelessly via at least
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`Wi-Fi. In addition, all Apple iPhones and certain models of iPad and Watch are configured for
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`communication via a cellular network.
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`39.
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`Apple has incorporated different functionalities for dynamically switching between
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`cellular and Wi-Fi networks into its iPhone, iPad, and Watch products. For example, with the
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`release of iOS 7 on or about September 18, 2013, Apple incorporated a new functionality a user
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`would not directly see but that would have a large impact on the quality of the user experience –
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`multipath TCP (MPTCP). MPTCP is a communications functionality involving the simultaneous
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`use of cellular and Wi-Fi networks, which Apple incorporated into iOS to support user requests
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`made to the Siri application.
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`40.
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`On information and belief, Apple’s implementation of MPTCP works as follows:
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`when a user vocalizes a request to Siri, the request is streamed to Apple, where it is processed by
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`a server, and the result is sent back to the user's iPhone or iPad. In order to reduce the incidence of
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`communication failures and delays resulting from user mobility, iOS establishes an MPTCP
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`connection over both the Wi-Fi and cellular channels at the start of the session; if the user moves
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`away from the Wi-Fi access point sufficiently that the connection degrades sufficiently or fails,
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`the session is continued over the already-established cellular channel.
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`41.
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`Apple's implementation of MPTCP to support the Siri application was, in Apple's
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`words, "a great success." For example, Apple boasted at its 2017 Worldwide Developers'
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`Conference in June 2017 that its implementation of MPTCP had resulted in a "5x reduction in
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`network failures" and had enabled time to first word to be "20% faster in the 95th percentile." The
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`use of MPTCP was so effective at enhancing the user experience that Apple opened the API for
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`MPTCP in 2017, and incorporated MPTCP support for its native Maps and Music applications
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`with the release of iOS 13 in September 2019.
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`42. MPTCP is not the only dynamic switching technology incorporated into iOS and
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`iPadOS. For example, beginning on or about September 19, 2012 with the release of iOS 6,
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`FaceTime – Apple's proprietary video-telephony product that facilitates audio and visual
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`communication between supported Apple products – has supported communications over cellular
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`networks as well as Wi-Fi networks. FaceTime Audio, an audio-only version, is available on any
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`iOS device that supports iOS 7 or newer versions of iOS, and supports audio calls over cellular
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`networks as well as Wi-Fi networks. On devices that are both cellular and Wi-Fi enabled,
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`FaceTime will default to Wi-Fi if the device has a Wi-Fi internet connection but will switch to
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`cellular if the Wi-Fi connection is lost, then back to Wi-Fi if the connection is re-established.
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`43.
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`As another example, with the release of iOS 8 on or about September 17, 2014,
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`Apple incorporated Wi-Fi Calling, which enables an Apple device to dynamically switch to a
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`Wi-Fi from a cellular connection to support a voice call when cellular reception is poor.
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`44.
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`And with the release of iOS 9 on September 16, 2015, Apple added Wi-Fi Assist,
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`which enables an Apple device to switch from a Wi-Fi to a cellular connection when Wi-Fi is
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`unstable.
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`45.
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`Apple incorporated yet another connectivity technology, "Multiple Input Multiple
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`Output" (MIMO), to support Wi-Fi communications in its iPad Mini 2 and iPad Air tablets,
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`released in or about November 2013. MIMO involves the use of multiple antennas on a device to
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`enhance a wireless connection, such as a cellular or Wi-Fi connection. Every subsequent model of
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`iPad incorporated this technology to support at least Wi-Fi connectivity.
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`46.
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`Apple incorporated MIMO support for Wi-Fi into its iPhone line beginning with
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`the iPhone 6s and iPhone 6s Plus, released on or about September 25, 2015. Every subsequent
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`model of iPhone (with the exception of the iPhone SE (1st gen)) included this technology for Wi-Fi,
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`and the iPhone XS and XS Max and subsequent models added MIMO technology for LTE as well.
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`COUNT I: INFRINGEMENT OF THE '501 PATENT
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`47.
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`Smart Mobile incorporates paragraphs 1 through 46 herein by reference.
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`48.
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`Direct Infringement: Apple directly infringed at least claim 1 of the '501 Patent
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`by: (i) making and using, within the United States, systems comprising one or more Apple servers
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`and Apple iPhone 5c, 5s, 6, 6 Plus, 6s, 6s Plus, SE (1st gen.), 7, and 7 Plus devices, and systems
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`comprising Apple iPad Air (A1475; A1476), Air 2 (A1567), iPad Mini (1st Gen) (A1454; A1455),
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`Mini 2 (A1490; A1491), Mini 3 (A1550), Mini 4 (A1550), iPad Pro 12.9" (A1652), and Pro 9.7"
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`(A1674; A1675) devices; and (ii) making and using, within the United States, infringing systems
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`by downloading and installing, causing the download and installation of, or enabling or facilitating
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`the download and installation of, one or more updates of iOS 8, iOS 9, and iOS 10, to Apple iPhone
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`4s, 5, 5c, 5s, 6, 6 Plus, SE (1st gen), 6s, 6s Plus, 7, and 7 Plus devices, and to Apple iPad Air
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`(A1475; A1476), Air 2 (A1567), iPad 2 (A1397; A1396), iPad (3rd Gen.) (A1403; A1430), iPad
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`(4th Gen.) (A1459; A1460), iPad Mini (1st Gen) (A1454; A1455), Mini 2 (A1490; A1491), Mini 3
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`(A1550), Mini 4 (A1550), iPad Pro 12.9" (A1652), and Pro 9.7" (A1674; A1675) devices
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`(collectively, "the '501 Infringing Devices"), from a server owned and/or operated by or at the
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`direction of Apple.
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`49.
`
`As one non-limiting example of the claims of the '501 Patent infringed by systems
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`comprising the '501 Infringing Devices, claim 1 of the '501 Patent recites:
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`50.
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`The '501 Infringing Devices were wireless devices which supported voice and data
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`communications.
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`51.
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`On information and belief, Apple owned and/or used, or directed and controlled the
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`use of, one or more servers, including its iOS updates servers.
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`52.
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`The '501 Infringing Devices each had a memory and a processor that were
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`communicatively coupled with one another.
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`53.
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`The memory of the '501 Infringing Devices stored functional instructions including
`
`instructions for use in providing a plurality of functions to the device, at least one of the functional
`
`instructions provided for switching between one or more networks including at least one public
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`network. For example, functional instructions stored within the device enabled the device to switch
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`between a public cellular network and a Wi-Fi network at least in connection with use of MPTCP
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`to support the Siri application, and with the use of Wi-Fi Assist, FaceTime, FaceTime Audio and
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`Wi-Fi Calling.
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`54.
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`The memory of the '501 Infringing Devices further stored a plurality of
`
`communication protocols that facilitated communication between Apple's servers and the device.
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`For example, the memory of the '501 Infringing Devices stored protocols for LTE and Wi-Fi (at
`
`least IEEE 802.11ac), each of which facilitated communication between Apple's servers and the
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`device.
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`55.
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`Apple's servers served as a primary repository or exchange to deliver various
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`functions to the '501 Infringing Devices. For example, Apple's iOS updates servers delivered
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`various functions to the devices by updating the operating system software on the devices. On
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`information and belief, such updates included iOS 8 (released on September 17, 2014), iOS 9
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`(released on September 16, 2015), and iOS 10 (released on September 13, 2016).
`
`56.
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`Apple's servers enabled dynamic conversion of the '501 Infringing Devices from a
`
`first function to a second function to provide a plurality of functions at the wireless device. For
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`example, iOS updates provided to the '501 Infringing Devices by Apple's servers enabled the
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`devices to dynamically convert from communicating via LTE to communicating via Wi-Fi, and
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`vice-versa, to enable a plurality of functions at the wireless device, at least in connection with use
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`of MPTCP to support the Siri application and with the use of Wi-Fi Assist, FaceTime, FaceTime
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`Audio and Wi-Fi Calling.
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`57.
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`Apple made the system of at least claim 1 of the '501 Patent at least each time Apple
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`imported or caused the importation into the U.S. of a ‘501 Infringing Device, and/or each time
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`Apple configured a server to deliver various functions to the '501 Infringing Devices, at least in
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`the form of iOS updates. Apple used the system of at least claim 1 of the '501 Patent at least each
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`time an Apple server delivered functions to a ‘501 Infringing Device by delivering iOS updates
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`that enabled the device to dynamically convert from a first function to a second function.
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`58.
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`Indirect Infringement: Apple indirectly infringed at least claim 1 of the '501
`
`Patent, including by (i) inducing users of Apple devices to make and use systems that infringe the
`
`'501 Patent, and (ii) contributing to infringement of the '501 Patent.
`
`59.
`
`Apple induced infringement of the '501 Patent by (i) selling Apple iPhone 5c, 5s,
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`6, 6 Plus, 6s, 6s Plus, SE (1st gen.), 7, and 7 Plus devices, and Apple iPad Air (A1475; A1476),
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`Air 2 (A1567), iPad Mini (1st Gen) (A1454; A1455), Mini 2 (A1490; A1491), Mini 3 (A1550),
`
`Mini 4 (A1550), iPad Pro 12.9" (A1652), and Pro 9.7" (A1674; A1675) devices, and (ii) prompting
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`and encouraging users of the devices to create an Apple ID for use with the device, or to sign in
`
`with a user's existing Apple ID using the device, which configured Apple's server to deliver
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`functions to the device, at least in the form of iOS updates.
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`60.
`
`In addition, Apple induced infringement of the '501 Patent by prompting and
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`encouraging users of the devices to download and install one or more updates of iOS 8, iOS 9, and
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`iOS 10 (collectively, the '501 Infringing iOS Updates”), to the '501 Infringing Devices.
`
`61.
`
`On information and belief, users of the '501 Infringing Devices directly infringed
`
`the '501 Patent at least by (i) making a system comprising a '501 Infringing Device and an Apple
`
`server (e.g., Apple's iOS updates servers) by creating an Apple ID for use with a user's '501
`
`Infringing Device and thereby configuring Apple's servers to deliver functions to the device, at
`
`least in the form of iOS updates; and thereafter (ii) using the system, for example to receive or
`
`install iOS updates from Apple's servers for the '501 Infringing Devices.
`
`62.
`
`On information and belief, based on at least the facts alleged at paragraphs 26-35
`
`above, Apple knew of the '501 Patent since at least the latter half of 2015.
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`63.
`
`On information and belief, Apple intended that users of '501 Infringing Devices
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`(a) make a system comprising a '501 Infringing Device and an Apple server (e.g., Apple's iOS
`
`updates servers) by creating an Apple ID for use with a user's '501 Infringing Device and thereby
`
`configuring Apple's servers to deliver functions to the device by delivering iOS updates that
`
`enabled the device to dynamically convert from a first function to a second function; and (b) use
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`the system, for example to receive or install iOS updates from Apple's servers for the '501
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`Infringing Devices. On information and belief, Apple knew that, or acted with willful blindness to
`
`the likelihood that, users' making and using such systems comprising '501 Infringing Devices
`
`constituted infringement of the '501 Patent.
`
`64.
`
`Apple contributed to the infringement of the '501 Patent by offering to sell and
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`selling within the United States, and/or importing into the United States, '501 Infringing Devices,
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`each including the infringing structure and functionality identified above and each a component of
`
`the patented system of claim 1 of the '501 Patent that constituted a material part of the invention.
`
`On information and belief, Apple knew that, or acted with willful blindness to the likelihood that,
`
`the '501 Infringing Devices were especially made or especially adapted for use in an infringement
`
`of the '501 Patent, and not a staple article or commodity of commerce suitable for substantial
`
`noninfringing use.
`
`65.
`
`In addition, Apple contributed to infringement of at least claim 1 of the '501 Patent
`
`by, among other things, offering and providing one or more of the '501 Infringing iOS Updates to
`
`users of the '501 Infringing Devices. The '501 Infringing iOS Updates included code for providing
`
`the infringing functionalities referenced above, which constituted a material part of the invention
`
`claimed in the '501 Patent. On information and belief, Apple knew that, or acted with willful
`
`blindness to the likelihood that, code for providing the infringing functionalities referenced above
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`Case 6:21-cv-00603-ADA Document 1 Filed 06/11/21 Page 16 of 86
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`was especially made or adapted for use in an infringement of the '501 Patent and was not a staple
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`article or commodity of commerce suitable for substantial noninfringing use.
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`COUNT II: INFRINGEMENT OF THE '936 PATENT
`
`66.
`
`Smart Mobile incorporates paragraphs 1 through 65 herein by reference.
`
`67.
`
`Direct Infringement: Apple directly infringed at least claim 1 of the '936 Patent
`
`by: (i) making and using, within the United States, systems comprising one or more Apple servers
`
`and Apple iPhone 5c, 5s, 6, 6 Plus, 6s, 6s Plus, SE (1st gen.), 7, and 7 Plus devices, and systems
`
`comprising Apple iPad Air (A1475; A1476), Air 2 (A1567), iPad Mini (1st Gen) (A1454; A1455),
`
`Mini 2 (A1490; A1491), Mini 3 (A1550), Mini 4 (A1550), iPad Pro 12.9" (A1652), and Pro 9.7"
`
`(A1674; A1675) devices; and (ii) making and using, within the United States, infringing systems
`
`by downloading and installing, causing the download and installation of, or enabling or facilitating
`
`the download and installation of, one or more updates of iOS 8, iOS 9, and iOS 10, to Apple iPhone
`
`4s, 5, 5c, 5s, 6, 6 Plus, SE (1st gen), 6s, 6s Plus, 7, and 7 Plus devices, and to Apple iPad Air
`
`(A1475; A1476), Air 2 (A1567), iPad 2 (A1397; A1396), iPad (3rd Gen.) (A1403; A1430), iPad
`
`(4th Gen.) (A1459; A1460), iPad Mini (1st Gen) (A1454; A1455), Mini 2 (A1490; A1491), Mini 3
`
`(A1550), Mini 4 (A1550), iPad Pro 12.9" (A1652), and Pro 9.7" (A1674; A1675) devices
`
`(collectively, "the '936 Infringing Devices"), from a server owned and/or operated by or at the
`
`direction of Apple.
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`Case 6:21-cv-00603-ADA Document 1 Filed 06/11/21 Page 17 of 86
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`68.
`
`As one non-limiting example of the claims of the '936 Patent infringed by systems
`
`comprising the '936 Infringing Devices, claim 1 of the '936 Patent recites:
`
`
`
`69.
`
`The '936 Infringing Devices were wireless devices which supported voice and data
`
`communications.
`
`70.
`
`On information and belief, Apple owned and/or used, or directed and controlled the
`
`use of, one or more servers, including its "App Store" and iOS updates server(s).
`
`71.
`
`The '936 Infringing Devices each had a memory and a processor that were
`
`communicatively coupled with one another.
`
`72.
`
`The memory of the '936 Infringing Devices stored functional instructions including
`
`instructions for use in providing a plurality of functions to the device, at least one of the functional
`
`instructions provided for switching between one or more networks including at least one public
`
`network. For example, functional instructions stored within the device enabled the device to switch
`
`between a public cellular network and a Wi-Fi network at least in connection with use of MPTCP
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`to support the Siri application, and with the use of Wi-Fi Assist, FaceTime, FaceTime Audio and
`
`Wi-Fi Calling.
`
`73.
`
`The memory of the '936 Infringing Devices further stored a plurality of
`
`communication protocols that facilitated communication between Apple's server and the device.
`
`For example, the memory of the '936 Infringing Devices stored protocols for LTE and Wi-Fi (at
`
`least IEEE 802.11ac), each of which facilitated communication between Apple's server and the
`
`device.
`
`74.
`
`Apple's servers were configured to send to '936 Infringing Devices a