Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 1 of 32
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`Civil Action No. 6:21-cv-00735
`
`Plaintiff,
`
` Jury Trial Requested
`
`v.
`
`GOOGLE, LLC,
`
`Defendant.
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`This is an action for patent infringement in which Ancora Technologies, Inc. makes the
`
`following allegations against Google, LLC (“Google”):
`
`RELATED CASE
`
`1.
`
`This case is related to the actions Ancora Technologies, Inc. v. Roku, Inc. (W.D. Tex.
`
`Jul. 16, 2021); Ancora Technologies Inc. v. Nintendo Co. Ltd. et al. (W.D. Tex. Jul. 16, 2021); and
`
`Ancora Technologies Inc. v. Vizio, Inc. (W.D. Tex. Jul. 16, 2021)—each of which was filed on July
`
`16, 2021, in the United States District Court for the Western District of Texas, Waco Division,
`
`asserting infringement of United States Patent No. 6,411,941.
`
`PARTIES
`
`2.
`
`Plaintiff Ancora Technologies, Inc. is a corporation organized and existing under the
`
`laws of the State of Delaware with a place of business at 23977 S.E. 10th Street, Sammamish,
`
`Washington 98075.
`
`3.
`
`Defendant Google, LLC is a limited liability corporation organized under the laws of
`
`Delaware. Google maintains a regular and established place of business in this district at 500 West
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 2 of 32
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`2nd Street, Austin, Texas, 78701. Google may be served with process through its registered agent,
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`the Corporation Service Company, at 211 East 7th Street, Suite 620, Austin Texas 78701. Google is
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`registered to do business in the State of Texas and has been since at least November 17, 2006.
`
`JURISDICTION AND VENUE
`
`4.
`
`This action arises under the patent laws of the United States, Title 35 of the United
`
`States Code, such that this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a).
`
`5.
`
`This Court also has personal jurisdiction over Google including because Google
`
`maintains a regular and established place of business in the Western District of Texas, including at
`
`500 West 2nd Street, Austin, Texas, 78701.
`
`6.
`
`In addition, directly or through intermediaries, Google has committed acts within the
`
`Western District of Texas giving rise to this action and/or has established minimum contacts with the
`
`Western District of Texas such that the exercise of jurisdiction would not offend traditional notions
`
`of fair play and substantial justice.
`
`7.
`
`For example, Google has placed or contributed to placing infringing products like the
`
`Nexus 6P and Pixelbook into the stream of commerce via an established distribution channel
`
`knowing or understanding that such products would be sold and used in the United States, including
`
`in the Western District of Texas.
`
`8.
`
`Further, on information and belief, Google also has derived substantial revenues from
`
`infringing acts in the Western District of Texas, including from the sale and use of infringing
`
`products like the Nexus 6P and Pixelbook.
`
`9.
`
`In addition, venue is proper under 28 U.S.C. § 1391(b)-(c) and 28 U.S.C. § 1400 as
`
`Google maintains a regular and established place of business in the Western District of Texas,
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`
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`2
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 3 of 32
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`including at least at 500 West 2nd Street, Austin, Texas, 78701. In re HTC Corp., 889 F.3d 1349,
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`1354 (Fed. Cir. 2018); In re Cray Inc., 871 F.3d 1355, 1362-63 (Fed. Cir. 2017).
`
`10.
`
`Furthermore, Google employs at its regular and established place of business at 500
`
`West 2nd Street, Austin, Texas, individuals with responsibility for Google Cloud servers which, as
`
`set forth below, are utilized by Google to transmit infringing over-the-air (“OTA”) software updates
`
`to the Accused Devices.
`
`THE ASSERTED PATENT
`
`11.
`
`This lawsuit asserts causes of action for infringement of United States Patent No.
`
`6,411,941 (“the ’941 Patent”), which is entitled “Method of Restricting Software Operation Within a
`
`License Limitation.”
`
`12.
`
`The U.S. Patent and Trademark Office duly and legally issued the ’941 Patent on
`
`June 25, 2002.
`
`13.
`
`Subsequent to issue, and at least by December 21, 2004, all right, title, and interest in
`
`the ’941 Patent, including the sole right to sue for any infringement, were assigned to Ancora
`
`Technologies, Inc., which has held, and continues to hold, all right, title, and interest in the ’941
`
`Patent.
`
`14.
`
`The president of Ancora Technologies, Inc.—Mr. Miki Mullor—is one of the
`
`inventors of the ’941 Patent.
`
`15.
`
`A reexamination certificate to the ’941 Patent subsequently was issued on June 1,
`
`2010.
`
`16.
`
`Since being assigned to Ancora Technologies, Inc., the ’941 Patent has been asserted
`
`in patent infringement actions filed against Microsoft Corporation, Dell Incorporated, Hewlett
`
`Packard Incorporated, Toshiba America Information Systems, Apple Inc., HTC America, Inc., HTC
`
`
`
`3
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 4 of 32
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`Corporation, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., LG Electronics,
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`Inc., LG Electronics U.S.A., Inc., Sony Mobile Communications AB, Sony Mobile
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`Communications, Inc., Sony Mobile Communications (USA) Inc., Lenovo Group Ltd., Lenovo
`
`(United States) Inc., Motorola Mobility, LLC, TCT Mobile (US) Inc., and Huizhou TCL Mobile
`
`Communication Co., Ltd.
`
`17.
`
`In the course of these litigations, a number of the ’941 Patent’s claim terms have been
`
`construed, and the validity of the ’941 Patent has been affirmed repeatedly.
`
`18.
`
`For example, in December 2012, the United States District Court for the Northern
`
`District of California issued a claim construction order construing the terms (1) “volatile memory”;
`
`(2) “non-volatile memory”; (3) “BIOS”; (4) “program”; (5) “license record”; and (6) “verifying the
`
`program using at least the verification structure.” Ancora Techs., Inc. v. Apple Inc., No. 11–CV–
`
`06357 YGR, 2012 WL 6738761, at *1 (N.D. Cal. Dec. 31, 2012).
`
`19.
`
`Further, the court rejected Apple’s indefiniteness arguments and further held that, at
`
`least with respect to Claims 1-3 and 5-17, “[t]he steps of the Claim do not need to be performed in
`
`the order recited.” Ancora Techs., Inc. v. Apple Inc., No. 11–CV–06357 YGR, 2012 WL 6738761, at
`
`*5, *13 (N.D. Cal. Dec. 31, 2012).
`
`20.
`
`Subsequently, the United States Court of Appeals for the Federal Circuit affirmed the
`
`district court’s rejection of Apple’s indefiniteness argument. Ancora Techs., Inc. v. Apple, Inc., 744
`
`F.3d 732, 739 (Fed. Cir. 2014).
`
`21.
`
`The Federal Circuit also agreed with Ancora Technologies, Inc. that “the district court
`
`erred in construing ‘program’ to mean ‘a set of instructions for software applications that can be
`
`executed by a computer’”—holding that, as Ancora had argued, the term should be accorded its
`
`
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`4
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 5 of 32
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`normal meaning of “‘a set of instructions’ for a computer.” Ancora Techs., Inc. v. Apple, Inc., 744
`
`F.3d 732, 734-35, 737 (Fed. Cir. 2014).
`
`22.
`
`Subsequently, in a more recent decision, the Federal Circuit held that the ’941 Patent
`
`satisfied § 101 as a matter of law—stating: “[W]e conclude that claim 1 of the ’941 patent is not
`
`directed to an abstract idea.” Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343 (Fed. Cir. 2018),
`
`as amended (Nov. 20, 2018).
`
`23.
`
`In addition, the Patent Trial and Appeal Board rejected HTC’s request to institute
`
`covered business method review proceedings on the ’941 Patent—explaining that “the ’941
`
`[P]atent’s solution to the addressed problem is rooted in technology, and thus, is a ‘technical
`
`solution’” and also rejecting HTC’s argument that “the ’941 [P]atent recites a technological solution
`
`that is not novel and nonobvious.”
`
`24.
`
`This Court likewise issued a claim construction order construing or adopting the plain
`
`and ordinary meaning of various claims of the ’941 Patent, including (1) “non-volatile memory”; (2)
`
`“license”; (3) “license record”; (4) “volatile memory”; (5) “BIOS”; (6) “memory of the BIOS”; (7)
`
`“program”; (8) “selecting a program residing in the volatile memory”; (9) “using an agent to set up a
`
`verification structure in the erasable, non-volatile memory of the BIOS”; (10) “set up a verification
`
`structure”; (11) “verifying the program using at least the verification structure”; (12) “acting on the
`
`program according to the verification”; (13) “first non-volatile memory area of the computer”; (14)
`
`the Claim 1 preamble; and (15) the order of Claim 1 steps. Ancora Technologies, Inc. v. LG
`
`Electronics, Inc., 1:20-cv-00034-ADA, at Dkt. 69 (W.D Tex. June 2, 2020).
`
`25.
`
`Finally, and most recently, the United States District Court for the Central District of
`
`California issued a claim construction order construing the terms (1) “volatile memory”; (2)
`
`“selecting a program residing in the volatile memory”; (3) “set up a verification structure”; (4)
`
`
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`5
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 6 of 32
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`“license record”; (5) “memory of the BIOS”; and (6) the whole of Claim 8. Ancora Techs., Inc v.
`
`TCT Mobile (US), Inc., et al., No. 8:19-cv-02192-GW-AS, ECF No. 66 & 69 (C.D. Cal. Nov. 18-19,
`
`2020).
`
`COUNT 1 – INFRINGEMENT
`
`26.
`
`Plaintiff repeats and incorporates by reference each preceding paragraph as if fully set
`
`forth herein and further state:
`
`27.
`
`Google has infringed the ’941 Patent in violation of 35 U.S.C. § 271(a) by, prior to
`
`the expiration of the ’941 Patent, selling, and/or offering for sale in the United States, and/or
`
`importing into the United States, without authorization, products and/or operating system software
`
`for products that are capable of performing at least Claim 1 of the ’941 Patent literally or under the
`
`doctrine of equivalents and, without authorization, then causing such products to perform each step
`
`of at least Claim 1 of the ’941 Patent.
`
`28.
`
`At a minimum, such Accused Products include those servers/software utilized by
`
`Google to transmit an over-the-air (“OTA”) software update, as well as those smartphones, laptops,
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`smart home devices and other devices and technology that included Google’s operating system
`
`software and to which Google sent or had sent an OTA update that caused such device to perform
`
`the method recited in Claim 1 prior to the expiration of the ’941 Patent.
`
`29.
`
`Such Accused Products include products like the Nexus 6P and Pixelbook, which—as
`
`detailed below—Google configured such that it would be capable of performing each step of Claim
`
`1 of the ’941 Patent and subsequently provided one or more OTA updates that caused the device to
`
`perform each step of Claim 1.1
`
`
`1 This description of infringement is illustrative and not intended to be an exhaustive or limiting
`explanation of every manner in which each Accused Product infringes the ’941 patent. Further, on
`information and belief, the identified functionality of the Nexus 6P and Pixelbook are representative
`of components and functionality present in all Accused Products.
`
`
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`6
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`

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`30.
`
`Such Accused Products also include products like the Nexus 6, Nexus 9, Nexus
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`Player, Nexus 6P, Google Pixel C, Chromebook Pixel, Pixelbook, Pixel Slate, Chromecast 1st
`
`Generation, Chromecast 2nd Generation, Chromecast Audio, Chromecast Ultra, Chromecast 3rd
`
`Generation, Google Home, Home Mini, Home Max, Home Hub / Nest Hub, Google Wifi AC1200,
`
`Nest Thermostat, Nest Thermostat v1.12, Nest Thermostat Generation 2, Nest Thermostat
`
`Generation 2 V2.8, Nest Protect, Nest Cam Indoor, Nest Thermostat Gen 3, Nest T3019US, Nest
`
`T3021US, Nest T3032US, Nest Cam Outdoor, Nest Cam IQ, Nest Secure, Nest Guard, Nest Detect,
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`Nest Tag, Nest Hello, Nest Thermostat E, Nest T4000ES, and Nest T5000SF, as well as any
`
`predecessor models to such devices, to which Google sent, or had sent, an OTA update prior to the
`
`expiration of the ’941 Patent.
`
`31.
`
`For example, Claim 1 of the ’941 Patent claims “a method of restricting software
`
`operation within a license for use with a computer including an erasable, non-volatile memory area
`
`of a BIOS of the computer, and a volatile memory area; the method comprising the steps of: [1]
`
`selecting a program residing in the volatile memory, [2] using an agent to set up a verification
`
`structure in the erasable, non-volatile memory of the BIOS, the verification structure accommodating
`
`data that includes at least one license record, [3] verifying the program using at least the verification
`
`structure from the erasable non-volatile memory of the BIOS, and [4] acting on the program
`
`according to the verification.”
`
`32. When Google transmitted an OTA update like its Nexus 6P Version 7.0, 7.1, 8.0, and
`
`8.1 updates, Google performed and/or caused devices like the Nexus 6P to perform each element of
`
`Claim 1 as part of its Google-specified, pre-configured software update process:
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`
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`7
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 8 of 32
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`https://android.googlesource.com/platform/external/avb/+/master/README.md#Build-System-
`Integration.
`
`
`
`
`
`
`https://source.android.com/devices/tech/ota.
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`https://source.android.com/security/verifiedboot.
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`
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`8
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 9 of 32
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`https://source.android.com/devices/tech/ota/nonab.
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`
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`33.
`
`In particular, each Nexus 6P contains both erasable, non-volatile memory in the form
`
`of flash memory and volatile memory in the form of RAM memory. Such non-volatile memory
`
`includes a cache or data partition which—on information and belief—is an example of BIOS
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`memory:
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`
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`
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`9
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 10 of 32
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`https://support.google.com/nexus/answer/6102470?hl=en-
`GB&ref_topic=3415518#zippy=%2Cnexus-p.
`
`
`https://source.android.com/devices/tech/ota/nonab.
`
`34.
`
`Further, as detailed above, each Nexus 6P was configured by Google to repeatedly
`
`check to see if a new software update was available, including through the following method:
`
`
`
`https://support.google.com/nexus/answer/7680439?hl=en-GB&ref_topic=3415518.
`
`35.
`
`During this process, one or more OTA servers owned or controlled by Google set up
`
`a verification structure in the erasable, non-volatile memory of the BIOS of the Nexus 6P by
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`transmitting to the device an OTA update, which the Nexus 6P is configured by Google to save to
`
`
`
`
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`10
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 11 of 32
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`the erasable, non-volatile memory of its BIOS. As noted previously, on information and belief, such
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`BIOS areas include what Google refers to as the cache or data memory area partition.
`
`36.
`
`This OTA update contains a verification structure that includes data accommodating
`
`at least one license record.
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`37.
`
`Examples of such a license record includes include a cryptographic signature or key:
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`https://source.android.com/devices/tech/ota/sign_builds.
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`38.
`
`Other examples include a cryptographic hash or hash tree:
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`https://source.android.com/security/verifiedboot/verified-boot.
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`
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`11
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 12 of 32
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`What is it?
`
`Verified boot is the process of assuring the end user of the integrity of the software mnning on a device. It typically starts with a read—only portion of
`the device firmware which loads code and executes it only after cryptographically verifying that the code is authentic and doesn't have any known
`security flaws. AVB is one implementation of verified boot.
`
`The VBMeta struct
`
`The central data structure used in AVB isthe VBMeta struct. This data structure contains a number of descriptors {and other metadata) and all of this
`data is cryptographicallysigned. Descriptors are used for image hashes. image hashtree metadata. and socalled chainedpartitions A simple example
`is the following:
`
`vbmete
`
`Hash for boot
`Hashtree metadata for system
`Hashtree metadata for vendo r
`
`(signed by keyO)
`
`system
`payload
`hashtree
`
`vendor
`payload
`hashtree
`
`“'
`
`(”that
`partitions)
`
`where the vbmeta partition holds the hash for the boot partition in a hash descriptor. Forthe system and vendor partitions a hashtree follows
`the filesystem data and the vbmeta partition holds the root hash, salt. and offset of the hashtree in hashtree descriptors. Because the VBMeta struct
`in the vbmeta partition is cryptographically signed. the boot loader can check the signature and verify it was made by the owner of keyo (by e.g.
`embedding the public part of key@ land thereby trust the hashes used for boot . system , and vendor .
`
`A chained partition descriptor is used to delegate authority - it contains the name of the partition where authority is delegated as well as the public key
`that is tmsted for signatures on this particular partition. As an example. consider the following setup:
`
`
`
`
`
`
`
`vbmete
`Hash for boot
`Hashtree metadata for system
`Hashtree metadata for vendor
`
`Chained partitions:
`xyz —> keprub
`
`(signed by keyo)
`
`xyz
`payload
`hashtree
`vbmeta
`(signed by
`key?)
`
`footer
`
`...
`
`(other
`partitions)
`
`In this setup the xyz partition has a hashtree for integrity—checking. Following the hashtree is a VBMeta struct which contains the hashtree descriptor
`with hashtree metadata [root hash. salt offset. etc.) and this stmct is signed with keyl . Finally. at the end of the partition is a footer which has the
`offset of the VBMeta struct.
`
`This setup allows the bootloader to use the chain partition descriptor to find the footer at the end of the partition [using the name in the chain
`partition descriptor} which in turns helps locate the VBMeta struct and verify that it was signed by keyl [using key1_pub stored in the chain
`partition descriptor}. Cmcially. because there's a footer with the offset the xyz partition can be updated without the vbmeta partition needing any
`changes.
`
`
`
`
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`12
`12
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 13 of 32
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`https://android.googlesource.com/platform/external/avb/+/master/README.md#the-vbmeta-digest.
`
`
`39.
`
`Other examples include x509 and/or root certificate authority:
`
`
`
`https://source.android.com/devices/tech/ota/sign_builds.
`
`40.
`
`Once the verification structure has been set up in the BIOS, the Nexus 6P is
`
`configured by Google to reboot, load the OTA update into its volatile memory (e.g., RAM), and
`
`then use the at least one license record from the BIOS to verify the OTA update as part of its secure
`
`
`
`or verified boot process:
`
`https://source.android.com/devices/bootloader.
`
`
`
`
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`13
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 14 of 32
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`
`https://source.android.com/devices/tech/ota/nonab.
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`
`
`41.
`
`If the OTA update is verified, the Nexus 6P is further configured to load and execute
`
`the update.
`
`https://source.android.com/devices/tech/ota/nonab.
`
`
`
`
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`14
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 15 of 32
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`42.
`
`Further, during the infringing time period, Google performed or caused to be
`
`performed each of the Claim 1 steps identified above by providing an OTA update to each Accused
`
`Product: https://developers.google.com/android/ota.
`
`43.
`
`In addition, during the infringing time period, when Google transmitted an OTA
`
`update to Chrome OS for Pixelbook, Google performed and/or caused devices like the Pixelbook to
`
`perform each element of Claim 1 as part of its Google-specified, pre-configured software update
`
`process.
`
`https://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot.
`
`
`
`
`
`15
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 16 of 32
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`https://support.google.com/pixelbook/answer/9133875?hl=en.
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`
`
`
`
`16
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 17 of 32
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`https://chromium.googlesource.com/aosp/platform/system/update_engine/#Life-of-an-A_B-Update.
`
`44.
`
`In particular, each Pixelbook contains both erasable, non-volatile memory in the form
`
`of flash memory and volatile memory in the form of RAM memory. Such non-volatile memory
`
`includes an alternate partition or “slot” which—on information and belief—is an example of BIOS
`
`memory:
`
`https://support.google.com/pixelbook/answer/7503982?hl=en&ref_topic=7504137
`
`
`
`https://support.google.com/pixelbook/answer/7504948?hl=en.
`
`
`
`
`
`https://chromium.googlesource.com/aosp/platform/system/update_engine/#Life-of-an-A_B-Update.
`
`
`
`17
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`

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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 18 of 32
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`45.
`
`Further, as detailed above, each Pixelbook was configured by Google to repeatedly
`
`check to see if a new software update was available, including through the following methods:
`
`https://support.google.com/pixelbook/answer/9134767?hl=en.
`
`https://support.google.com/pixelbook/answer/9133875?hl=en.
`
`
`
`18
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 19 of 32
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`46.
`
`During this process, one or more OTA servers owned or controlled by Google set up
`
`a verification structure in the erasable, non-volatile memory of the BIOS of the Pixelbook by
`
`transmitting to the device an OTA update, which the Pixelbook is configured by Google to save to
`
`the erasable, non-volatile memory of its BIOS. As noted previously, on information and belief, such
`
`BIOS areas include what Google refers to as the target slot or inactive partition.
`
`47.
`
`This OTA update contains a verification structure that includes data accommodating
`
`at least one license record.
`
`48.
`
`Examples of such a license record include a cryptographic signature or key or a
`
`cryptographic hash or hash tree:
`
`https://chromium.googlesource.com/aosp/platform/system/update_engine/#Life-of-an-A_B-Update.
`
`
`
`
`
`19
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 20 of 32
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`https://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot-data-structures
`
`https://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot-data-structures.
`
`
`
`https://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot-data-structures.
`
`
`
`
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`20
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`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 21 of 32
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`http://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot.
`
`49.
`
`Other examples include x509 and/or root certificate authority:
`
`
`
`
`
`https://chromium.googlesource.com/chromiumos/third_party/arm-trusted-firmware/+/v1.2-
`rc0/docs/trusted-board-boot.md.
`
`50.
`
`Once the verification structure has been set up in the BIOS, the Pixelbook is
`
`configured by Google to apply the update to the inactive partition or slot, and upon reboot, load the
`
`OTA update into its volatile memory (e.g., RAM), and then use the at least one license record from
`
`the BIOS to verify the OTA update as part of its secure or verified boot process prior to launching
`
`the operating system:
`
`
`
`21
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 22 of 32
`
`https://www.chromium.org/chromium-os/chromiumos-design-docs/firmware-boot-and-recovery.
`
`51.
`
`If the OTA update is verified, the Pixelbook is further configured to load and execute
`
`
`
`the update.
`
`
`
`22
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 23 of 32
`
`https://www.chromium.org/chromium-os/chromiumos-design-docs/verified-boot-data-structures.
`
`52.
`
`Further, during the infringing time period, Google performed or caused to be
`
`performed each of the Claim 1 steps identified above by providing an OTA update to each Accused
`
`
`
`Product.
`
`53.
`
`In addition, and as described above for the Google Nexus 6P and Pixelbook, during
`
`the infringing time period Google performed or caused to be performed each of the Claim 1 steps
`
`identified and described above when it transmitted an OTA update to other Accused Products such
`
`as the Chromecast or Nest Thermostat, Google performed and/or caused devices like the Chromecast
`
`and Nest Thermostat to perform each element of Claim 1 as part of its Google-specified, pre-
`
`configured software update process, including as reported by various third parties.
`
`
`
`23
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 24 of 32
`
`
`
`
`
`
`
`https://support.google.com/chromecast/answer/6292664?hl=en-IN.
`
`https://support.google.com/googlenest/answer/7188572?co=GENIE.Platform%3DAndroid&hl=en-
`AU.
`
`https://support.google.com/googlenest/answer/9335964?hl=en&co=GENIE.Platform=Android#z
`ippy=%2Chow-to-get-software-updates
`
`
`
`24
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 25 of 32
`
`https://support.google.com/googlenest/answer/7188572?co=GENIE.Platform%3DAndroid&hl=e
`n-AU.
`
`https://support.google.com/googlenest/answer/9263516?hl=en#zippy=%2Cnest-thermostat-e-and-
`nest-learning-thermostat.
`
`
`
`25
`
`
`
`
`
`
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 26 of 32
`
`https://dzone.com/articles/the-best-ways-to-update-iot-devices-over-the-air.
`
`https://arstechnica.com/gadgets/2018/10/google-home-hub-under-the-hood-its-nothing-like-other-
`google-smart-displays/.
`
`
`
`
`
`https://fenix.tecnico.ulisboa.pt/downloadFile/1689244997256539/MEIC-ist173009-Tomas-Pinho-
`resumo_alargado.pdf.
`
`54.
`
`Further, Google expressly conditions participation in the OTA update process and the
`
`receipt of the benefit of a software update on the performance of each of the above steps.
`
`55.
`
`Primarily, as described above, Google pre-configures/programs each Accused
`
`Product to perform the above described steps upon receiving an OTA update from Google.
`
`56.
`
`Further, Google not only set the time and conditions under which a user could receive
`
`and install an OTA update, but Google required all users to accept and install such updates.
`
`
`
`26
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 27 of 32
`
`57.
`
`For example, Google stated the following in its Terms of Service (applicable from
`
`April 14, 2014, to October 15, 2017):
`
`https://policies.google.com/terms/archive/20140414.
`
`58.
`
`As another example, Google stated the following in its March 25, 2014 Google
`
`
`
`Chrome OS Terms of Service:
`
`https://www.google.com/chromebook/termsofservice.html#index.
`
`59.
`
`As another example, Google stated the following in its Nest End User License
`
`Agreement (EULA):
`
`
`
`https://nest.com/legal/eula/.
`
`
`
`27
`
`
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 28 of 32
`
`60.
`
`As another example, Google stated that Google Nest Wifi and Google WiFi receives
`
`automatic software updates “to make sure you always have the latest security features and protection
`
`from recently discovered security threats”:
`
`
`
`https://support.google.com/googlenest/answer/6309220?hl=en&ref_topic=9832039.
`
`61.
`
`Further, Google emphasizes the benefits associated with using OTA updates to update
`
`the software of its Accused Products, including by advertising that, in one analysis, 87% of all Nexus
`
`owners were “running the latest security update after a month,” and that “it takes about one and a
`
`half
`
`calendar weeks
`
`for
`
`the OTA
`
`to
`
`reach
`
`every Google
`
`device”:
`
`https://source.android.com/devices/tech/ota/ab/ab_faqs; https://source.android.com/security/bulletin/
`
`pixel.
`
`62.
`
`As another example, Google stated that severe security vulnerabilities required
`
`critical or urgent action to apply OTA software updates as soon as possible, explaining: “The most
`
`severe of these issues are Critical security vulnerabilities in device-specific code that could enable
`
`arbitrary code execution within the context of the kernel, leading to the possibility of a local
`
`permanent device compromise, which may require reflashing the operating system to repair the
`
`device.” https://source.android.com/security/bulletin/2016-12-01.
`
`63.
`
`As another example, Google advertises the “great new features” and other benefits
`
`associated with updating Accused Products to new versions of the Android Operating System. See
`
`https://developer.android.com/about/versions/pie/android-
`
`
`
`28
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 29 of 32
`
`9.0; https://developer.android.com/about/versions/oreo; https://developer.android.com/about/version
`
`s/nougat; https://developer.android.com/about/versions/marshmallow.
`
`64.
`
`Google also identified the specific benefits associated with each OTA update:
`
`https://source.android.com/security/bulletin; https://source.android.com/security/bulletin/pixel;
`
`https://developer.android.com/about/versions;
`
`https://chromereleases.googleblog.com/search/label/Chrome%20OS;
`
`https://support.google.com/googlenest/answer/9263516?hl=en&ref_topic=9361783; .
`
`65.
`
`As another example, Google explains that its automatic updates to its Nest devices,
`
`such as
`
`the Nest Thermostat, “improve
`
`the performance of the Product Software”:
`
`https://nest.com/legal/eula/.
`
`66.
`
`As another example, Google states that its automatic updates to Chrome OS devices,
`
`such as its Pixelbook, “are designed to improve, enhance and further develop the Software and may
`
`take the form of bug fixes, enhanced functions, new software modules and completely new
`
`versions”: https://www.google.com/chromebook/termsofservice.html.
`
`67.
`
`Further, Google controlled the manner in which each OTA update could be
`
`performed, including by pre-configuring each Accused Product such that, upon receiving an OTA
`
`update from Google, the device would automatically perform each remaining step of the claimed
`
`method.
`
`68.
`
`Google also controlled the timing of the performance of such method by determining
`
`when to utilize its OTA servers/software to set up a verification structure in each Accused Product.
`
`69.
`
`For example, Google uses Google Cloud servers to transmit data to and support the
`
`Accused Products, including, on information and belief, its OTA servers to provide OTA updates to
`
`Accused Products.
`
`
`
`29
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 30 of 32
`
`70.
`
`Various third parties also have reported such functionality:
`
`https://www.fastcompany.com/90358396/that-major-google-outage-meant-some-nest-users-couldnt-
`unlock-doors-or-use-the-ac.
`
`
`
`
`
`30
`
`
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 31 of 32
`
`https://support.google.com/googlenest/thread/55022253/new-google-wifi-firmware-12871-57-12-
`bandwidth-speed-cut-in-half?hl=en.
`
`71.
`
`Google also had the right and ability to stop or limit infringement simply by not
`
`performing the initial step of using its OTA servers/software to set up a verification structure in each
`
`Accused Product. Absent this action by Google, the infringement at issue in this lawsuit would not
`
`have occurred.
`
`72.
`
`Google’s infringement has caused damage to Ancora, and Ancora is entitled to
`
`recover from Google those damages that Ancora has sustained as a result of Google’s infringement.
`
`DEMAND FOR JURY TRIAL
`
`73.
`
`Ancora hereby demands a jury trial for all issues so triable.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff prays for judgment as follows:
`
`A.
`
`Declaring that Google has infringed United States Patent No. 6,411,941 in violation
`
`of 35 U.S.C. § 271;
`
`B.
`
`Awarding damages to Ancora arising out of this infringement, including enhanced
`
`damages pursuant to 35 U.S.C. § 284 and prejudgment and post-judgment interest, in an amount
`
`according to proof;
`
`C.
`
`Awarding such other costs and relief the Court deems just and proper, including any
`
`relief that the Court may deem appropriate under 35 U.S.C. § 285.
`
`Date: July 16, 2021
`
`
`
`
`
`
`
`
`
`/s/ Andres Healy
`
`Andres Healy (WA 45578)
`SUSMAN GODFREY LLP
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101
`Tel: (206) 516-3880
`Fax: 206-516-3883
`ahealy@susmangodfrey.com
`
`
`
`
`
`31
`
`

`

`Case 6:21-cv-00735 Document 1 Filed 07/16/21 Page 32 of 32
`
`Lexie G. White (TX 24048876)
`SUSMAN GODFREY LLP
`1000 Louisiana Street, Suite 5100
`Houston, Texas 77002
`Tel: (713) 651-9366
`Fax: (713) 654-6666
`lwhite@susmangodfrey.com
`
`Charles Ainsworth
`State Bar No. 00783521
`Robert Christopher Bunt
`State Bar No. 00787165
`PARKER, BUNT & AINSWORTH, P.C.
`100 E. Ferguson, Suite 418
`Tyler, TX 75702
`903/531-3535
`E-mail: charley@pbatyler.com
`E-mail: rcbunt@pbatyler.com
`
`COUNSEL FOR PLAINTIFF ANCORA
`TECHNOLOGIES, INC.
`
`
`
`
`
`32
`
`