throbber
Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.3 Page 1 of 32
`
`Samuel C. Straight (7638)
`RAY QUINNEY & NEBEKER P.C.
`36 South State Street, Suite 1400
`P.O. Box 45385
`Salt Lake City, Utah 84145-0385
`Telephone: (801) 532-1500
`sstraight@rqn.com
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH CENTRAL DIVISION
`
`
`
`
`KOSS CORPORATION,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`SKULLCANDY, INC.,
`
` Defendant.
`
`
`
`
`
`
`
`
`Case No.
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`DEMAND FOR JURY TRIAL
`
`
`
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`
`
`Plaintiff, Koss Corporation (“Koss”), files this complaint for patent infringement against
`
`Skullcandy, Inc. (“Skullcandy” or “Defendant”) alleging, based on its own knowledge as to itself
`
`and its own actions, and based on information and belief as to all other matters, as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action arising under the patent laws of the United States, 35 U.S.C.
`
`§ 1 et seq., including specifically 35 U.S.C. § 271, based on Skullcandy’s willful infringement of
`
`U.S. Patent Nos. 10,206,025 (“the ’025 Patent”), 10,368,155 (“the ’155 Patent”), 10,469,934
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.4 Page 2 of 32
`
`(“the ’934 Patent”), 10,491,982 (“the ’982 Patent”), and 10,506,325 (“the ’325 Patent”)
`
`(collectively “the Patents-in-Suit”).
`
`THE PARTIES
`
`2.
`
`Plaintiff Koss Corporation is a corporation existing under the laws of the State of
`
`Delaware having its principal place of business located at 4129 North Port Washington Avenue,
`
`Milwaukee, Wisconsin 53212.
`
`3.
`
`Koss markets a complete line of high-fidelity headphones and audio accessories.
`
`Koss’s products, branded under the Koss brand name or private label brands, are sold at various
`
`retail chains throughout the United States and the world, including Walmart stores and other
`
`large brick-and-mortar establishments, as well as direct to customers in at least the following
`
`cities in this District: Salt Lake City, Provo and St. George.
`
`4.
`
`On information and belief, Skullcandy is a Delaware Corporation with a principal
`
`place of business at 6301 N. Landmark Dr., Park City, Utah 84098. On information and belief
`
`Skullcandy may be served in this district through its registered agent CT Corporation System at
`
`1108 East South Union Avenue, Midvale, Utah, 84047.
`
`5.
`
`On information and belief, Skullcandy has transacted business in this district and
`
`has committed acts of direct and indirect infringement in this District by, among other things,
`
`importing, offering to sell, and selling products that infringe the asserted patents to businesses in
`
`this district including, but not limited to Target, Best Buy, Kohl’s, Office Depot, Office Max,
`
`and Wal-Mart stores located in, inter alia, Salt Lake City, Provo, St. George and other cities
`
`within this district.
`
`-2-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.5 Page 3 of 32
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`JURISDICTION AND VENUE
`
`6.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a) because the claims herein arise under the patent laws of the United States, 35 U.S.C. § 1
`
`et seq., including 35 U.S.C. § 271.
`
`7.
`
`This Court has personal jurisdiction over Skullcandy, which has continuous and
`
`systematic contacts with this Judicial District, and having its principal place of business here.
`
`8.
`
`Venue in the District of Utah is proper pursuant to 28 U.S.C. § 1400(b).
`
`Skullcandy has committed acts of infringement in the District of Utah and Skullcandy has a
`
`regular and established place of business, at least at its headquarters located at 6301 N.
`
`Landmark Dr., Park City, Utah 84098.
`
`9.
`
`On information and belief, Skullcandy has transacted business in this district and
`
`has committed acts of direct and indirect infringement in this District by, among other things,
`
`importing, offering to sell, and selling products that infringe the asserted patents to businesses in
`
`this district including, but not limited to Target, Best Buy, Kohl’s, Office Depot, Office Max,
`
`and Wal-Mart stores located in, inter alia, Salt Lake City, Provo, St. George and other cities
`
`within this district.
`
`KOSS’S LEGACY OF AUDIO INNOVATION
`
`10.
`
`Koss was founded in 1953 as a television rental company in Milwaukee,
`
`Wisconsin.
`
`11.
`
`In 1958, John C. Koss invented the world’s first SP/3 Stereophone as part of a
`
`“private listening system” that would enable the wearer to listen to a phonograph without
`
`disturbing others in the vicinity:
`
`-3-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.6 Page 4 of 32
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`
`
`12.
`
`The SP/3 Stereophone provided, for the first time, a high-quality stereophonic
`
`headphone that approximated the sounds of a concert hall.
`
`13.
`
`John C. Koss demonstrated the SP/3 Stereophone at a Wisconsin audio show in
`
`1958. Initially designed to demonstrate the high-fidelity stereo sound that a portable phonograph
`
`player delivered, these revolutionary SP/3 Stereophones became the hit of the show.
`
`14.
`
`The SP/3 Stereophone has since been enshrined in the Smithsonian Museum’s
`
`collection in Washington, DC, with John C. Koss delivering the SP/3 for enshrinement along
`
`with an explanation of the story of the SP/3 in 1972:
`
`-4-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.7 Page 5 of 32
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`15.
`
`Koss’s commitment to headphone development continued into the 1960s and
`
`beyond. In 1962, Koss developed and brought to market the PRO/4 Stereophone, which was
`
`bestowed with Consumer Union Magazine’s #1 choice award in 1963:
`
`
`
`
`
`16.
`
`Due to the success and quality of the Pro/4, the United States government
`
`awarded Koss with a contract to install fifty (50) Pro/4 units in the staff, press, and presidential
`
`quarters of Air Force One. Passengers accessing the aircraft’s state-of-the-art entertainment
`
`system listened to the system using the Pro/4:
`
`-5-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.8 Page 6 of 32
`
`17.
`
`In 1970, Koss moved its World Headquarters to the current location at 4129 North
`
`Port Washington Ave., Milwaukee, Wisconsin:
`
`
`
`18.
`
`Also in 1970, Koss set the standard for full-size professional headphones with its
`
`
`
`Pro/4AA:
`
`-6-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.9 Page 7 of 32
`
`19.
`
`At the time of introduction, the Pro/4AA were regarded as the first dynamic
`
`headphones to deliver true full frequency and high-fidelity performance with noise-isolating
`
`
`
`capabilities.
`
`20.
`
`Koss continued improving its Stereophone product line throughout the 1970s and
`
`into the 1980s. In 1984, Koss introduced the Porta Pro, an acclaimed product that set
`
`performance and comfort standards for on-the-go listening:
`
`-7-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.10 Page 8 of 32
`
`
`
`21.
`
`The Porta Pro continues to be one of the most popular headphone products around
`
`the world, particularly because of its exceptional audio fidelity and performance capabilities. In
`
`fact, as recently as 2008, CNET awarded the Porta Pros a four-star rating of 8.3 (out of 10), with
`
`a performance score of 9 (out of 10), stating that “there’s no denying the sound quality here:
`
`they’re
`
`the
`
`ideal companion for mobile audiophiles and home
`
`theater enthusiasts.”
`
`(https://www.cnet.com/reviews/koss-portapro-with-case-review/).
`
`22.
`
`In 1965, Koss introduced the award-winning speaker, the Acoustech X, which
`
`was heralded as a breakthrough product by Billboard Magazine, touting its concert hall quality
`
`and ability to accurately amplify an acoustic guitar to large concert halls. Acoustic System
`
`Succeeds In Classical Guitar Concert, BILLBOARD, May 27, 1967, at 71.
`
`-8-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.11 Page 9 of 32
`
`23.
`
`Following on Acoustech X, Koss went on to develop a number of additional
`
`products: the world’s first computer maximized loudspeaker in 1976; the Kossfire speaker line
`
`in the 1980s; the dynamic audio/video Dynamite bookshelf series speaker line; a line of
`
`portable/desktop computer speakers that employed a unique magnetic shield to protect nearby
`
`computer video and data equipment; and an amplified portable loudspeaker, the M/100, in early
`
`1987.
`
`24.
`
`In 1987, Koss pioneered one of the earliest completely wireless infrared speaker
`
`systems: the JCK 5000. In 1986, Koss also unveiled a portable speaker, the KSC/50, which was
`
`utilized by thousands of members of the United States military during the Gulf War in 1990.
`
`Related to the KSC/50, Koss’s KSC/5000 included a built-in amplifier. Those products were
`
`profiled in a Newsweek feature on October 12, 1987:
`
`-9-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.12 Page 10 of 32
`
`
`
`25.
`
`Over the following years, Koss continued to expand its portable speaker offerings,
`
`including by expanding into speakerphones for teleconferencing systems with the Speakeasy
`
`line, followed by various additional wireless models for portable use.
`
`26.
`
`Elite musicians including Tony Bennett, Les Brown, and Frank Sinatra Jr., have
`
`used Koss headphones, including the Pro/4, while recording and/or performing. Koss’s official
`
`spokespeople have included music legends Mel “the Velvet Fog” Tormé and Doc Severinsen,
`
`trumpet-playing bandleader for Johnny Carson’s Tonight Show band.
`
`-10-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.13 Page 11 of 32
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`27.
`
`28.
`
`In 1979, John C. Koss was inducted into the Audio Hall of Fame.
`
`In 2000, John C. Koss was inducted into the inaugural class of the Consumer
`
`Electronics Hall of Fame.
`
`29.
`
`In 2004, John C. Koss was inducted into the Wisconsin Business Hall of Fame.
`
`KOSS DEVELOPS THE FIRST EVER TRUE WIRELESS HEADPHONES
`
`30.
`
`Continuing its culture of innovation in high-fidelity audio equipment, in the early
`
`2000s, Koss began developing what became known as the “Striva” project. The vision for the
`
`Striva project was borne out of Koss’s recognition that wireless headphones were going to be an
`
`integral part of peoples’ audio consumption. In particular, Koss recognized that as radios were
`
`needing progressively less power and as batteries and other power sources became smaller and
`
`more efficient, people would eventually consume audio content through headphones wirelessly
`
`connected to some kind of a source, be it a handheld computing device or in the cloud.
`
`31.
`
`In the early 2000s, Koss began making substantial monetary investments in the
`
`Striva project, with the goal of bringing “True Wireless” listening to its loyal customers as the
`
`next in a long series of headphone innovations.
`
`32.
`
`Koss recognized that the future was a wireless world, complete with mobile
`
`internet connectivity that went beyond traditional hardwired, or computer-based, network
`
`topologies. It recognized that wireless ubiquity was coming, and would extend to wearable
`
`devices, including Koss’s area of expertise: the headphone.
`
`33. With these recognitions in mind, Koss made a substantial commitment to
`
`investing in what it saw as the future of headphone technology. This work eventually became
`
`the Striva project, and over the course of its work, Koss invested tens of millions of dollars
`
`-11-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.14 Page 12 of 32
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`developing chips, fabrication techniques, prototype headphones, and other related technology to
`
`bring the Striva vision to life.
`
`34.
`
`In particular, Koss’s work on Striva resulted in the development of a system-on-
`
`chip smaller than a human fingertip that could provide audio and wireless communications
`
`processing on a low power budget for incorporation into headphones of various form factors:
`
`
`
`35.
`
`Koss’s work to develop Striva also predicted some of the interactions that modern
`
`headphone users take for granted today. In particular, Koss recognized early on that the
`
`inclusion of a microphone (with appropriate voice recognition software and circuitry) could
`
`provide a convenient, hands-free way to interact with wireless headphones. Koss developed
`
`technology that could react to such voice prompts, and in fact implemented prototypes that
`
`reacted to users saying “Striva” into a headphone-mounted microphone to begin a voice-based
`
`interaction to, for example, switch tracks or adjust headphone volume.
`
`36.
`
`Koss also recognized a headphone concept that users today take for granted:
`
`different headphones for different applications. In particular, as part of the Striva project, Koss
`
`developed different form factors with different performance capabilities depending on
`
`-12-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.15 Page 13 of 32
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`anticipated use. Over-ear headphones provided users with higher-quality sound, ambient noise
`
`dampening capabilities, and better battery life (due to additional battery real estate), while in-ear
`
`headphones provided portability and capability in a smaller, less-intrusive package.
`
`37.
`
`Koss developed prototype in-ear headphones that relied on its chip development
`
`efforts, with working prototypes from the mid-2000s looking very much like commonly-known
`
`consumer products that flood the market a decade-and-a-half later:
`
`
`
`38.
`
`In 2012, Koss introduced Wi-Fi-enabled headphones, the result of its Striva
`
`project, which BizTimes hailed as the first wireless headphones to use Wi-Fi transmission and
`
`credited Koss with “introducing personal listening to the Internet.” (https://biztimes.com/koss-
`
`creates-wireless-headphones-for-wi-fi-music-access/).
`
`39.
`
`In April 2012, Koss brought to market both an in-ear and over-ear embodiment of
`
`the Striva vision, with the Striva Pro model being the first true Wi-Fi over the ear headphones
`
`(and mirroring many features and aesthetics modern-day users expect in wireless, over-ear
`
`headphones):
`
`-13-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.16 Page 14 of 32
`
`40.
`
`The Striva Tap, a smaller, in-ear version of the Striva Pro Wi-Fi headphone,
`
`provided users with some of the features that modern-day consumers take for granted in in-ear
`
`headphones, like independent wireless earphones with touch gestures to control listening
`
`preferences by manipulating the surface of the headphones:
`
`
`
`
`
`-14-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.17 Page 15 of 32
`
`41.
`
`Koss also developed (though ultimately did not market) a smart speaker that
`
`incorporated many of the Striva features, albeit in a non-wearable form factor. The Striva-based
`
`speaker product had a capacitive touch interface to mimic the features of the Striva headphones,
`
`and also included a microphone for voice control. In addition, the Striva-based speaker had the
`
`capability to be included in a distributed network as part of a precursor to the presently
`
`understood Internet of Things, such that the input devices (e.g., the microphone) could be used to
`
`control other items in the distributed network (e.g., light switches). The speaker therefore
`
`allowed, for example, a user to say “Striva, turn on the lights,” and the lights would turn on.
`
`42.
`
`The Striva-based speaker product, referred to as the LS2, exists as a working
`
`prototype:
`
`43.
`
`Unfortunately, the economic reality of Koss’s market position did not permit it to
`
`bring its Striva-based product vision to the masses. In particular, due to events abroad (and
`
`Koss’s reliance on sales into those foreign countries), Koss’s supply chain and customer base
`
`were thrown into upheaval in the late-2000’s and early-2010’s.
`
`
`
`-15-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.18 Page 16 of 32
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`44. Moreover, Koss conducted market research during the mid-2000’s, and concluded
`
`that given the market that was likely to develop for wireless headphones, larger companies with
`
`more manufacturing capability would become a substantial threat to bringing Striva fully to
`
`market. As a result, Koss invested substantially on part-purchasing, machinery, fabrication, and
`
`the like.
`
`45.
`
`The circumstances above, and other circumstances outside of Koss’s control,
`
`meant that the advanced features first developed for Striva were not able to be fully experienced
`
`by the majority of the purchasing public.
`
`46.
`
`Koss brings the instant lawsuit because the industry has caught up to Koss’s
`
`early-2000s vision: the technology Koss developed as part of its substantial Striva investment
`
`has become standardized, with whole listening ecosystems having been built around the
`
`techniques Koss conceived of over a decade ago.
`
`47. More fundamentally, Koss is responsible for creating an entire headphone
`
`industry beginning from its release of the pioneering Stereophone as a ubiquitous way to
`
`consume information in 1958. Skullcandy and others are reaping enormous benefits due to John
`
`C. Koss’s vision, and Koss Corporation’s commitment to that vision, for more than six decades.
`
`THE PATENTS-IN-SUIT
`
`48.
`
`On February 12, 2019, U.S. Patent No. 10,206,025, entitled “System with
`
`Wireless Earphones,” was duly and legally issued by the United States Patent and Trademark
`
`Office. A true and accurate copy of the ’025 Patent is attached hereto as Exhibit F.
`
`-16-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.19 Page 17 of 32
`
`49.
`
`On July 30, 2019, U.S. Patent No. 10,368,155, entitled “System with Wireless
`
`Earphones,” was duly and legally issued by the United States Patent and Trademark Office. A
`
`true and accurate copy of the ’155 Patent is attached hereto as Exhibit G.
`
`50.
`
`On November 5, 2019, U.S. Patent No. 10,469,934, entitled “System with
`
`Wireless Earphones,” was duly and legally issued by the United States Patent and Trademark
`
`Office. A true and accurate copy of the ’934 Patent is attached hereto as Exhibit H.
`
`51.
`
`On November 26, 2019, U.S. Patent No. 10,491,982, entitled “System with
`
`Wireless Earphones,” was duly and legally issued by the United States Patent and Trademark
`
`Office. A true and accurate copy of the ’982 Patent is attached hereto as Exhibit I.
`
`52.
`
`On December 10, 2019, U.S. Patent No. 10,506,325, entitled “System with
`
`Wireless Earphones,” was duly and legally issued by the United States Patent and Trademark
`
`Office. A true and accurate copy of the ’325 Patent is attached hereto as Exhibit J.
`
`53.
`
`The Patents-in-Suit represent Koss’s significant investment into the wireless
`
`headphone and wearable technology space, including its commitment in the form of decades of
`
`research and millions of dollars.
`
`DEFENDANT’S KNOWLEDGE OF THE PATENTS-IN-SUIT
`
`54.
`
`On July 10, 2020, Defendant was notified of its infringement by way of the letter
`
`attached hereto as Exhibit K.
`
`FIRST CAUSE OF ACTION
`
`(Infringement of the ’025 Patent)
`
`55.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 54 as if set forth herein.
`
`-17-
`
`

`

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`56.
`
`Koss owns all substantial rights, interest, and title in and to the ’025 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’025 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`57.
`
`The ’025 Patent generally describes wireless earphones that comprise a
`
`transceiver circuit for receiving streaming audio from a data source, such as a digital audio
`
`player or a computer, over a wireless network.
`
`58.
`
`The written description of the ’025 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct
`
`from and improved upon what may have been considered conventional or generic in the art at the
`
`time of the invention.
`
`59.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold,
`
`and/or offered for sale products and/or systems, including systems in which its Skullcandy-
`
`branded products and/or systems, including the Sesh TWS headphones and others identified in
`
`the attached claim charts, are incorporated (“Accused Headphones”).
`
`60.
`
`As set forth in the attached non-limiting claim charts (Exhibits A-1–A-16),
`
`Skullcandy has infringed and is infringing at least Claims 1-28, 38, 40-50, 52, 55 and 56 of the
`
`’025 Patent by making, having made, using, importing, supplying, distributing, selling, and/or
`
`offering for sale the Accused Headphones. In particular, the use of the Accused Headphones by
`
`Skullcandy to, for example, demonstrate those products in brick-and-mortar stores in Salt Lake
`
`City, Utah or to, for example, test those products, constitute acts of direct infringement of Claims
`
`1-28, 38, 40-50, 52, 55 and 56 of the ’025 Patent.
`
`-18-
`
`

`

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`
`61.
`
`Skullcandy actively induces infringement of at least Claims 1-28, 38, 40-50, 52,
`
`55 and 56 of the ’025 Patent by selling the Accused Headphones with instructions as to how to
`
`use the Accused Headphones in a system such as that recited in the ‘025 Patent. Skullcandy
`
`aids, instructs, or otherwise acts with the intent to cause an end user to use the Accused
`
`Headphones. Skullcandy knew of the ’025 Patent and knew that its use and sale of the Accused
`
`Headphones infringe at least Claims 1-28, 38, 40-50, 52, 55 and 56 of the ’025 Patent.
`
`62.
`
`Skullcandy is also liable for contributory infringement of at least Claims 1-28, 38,
`
`40-50, 52, 55 and 56 of the ’025 Patent by providing, and by having knowingly provided, a
`
`material part of the instrumentalities, namely the Accused Headphones, used to infringe Claims
`
`1-28, 38, 40-50, 52, 55 and 56 of the ’025 Patent. The Accused Headphones have no substantial
`
`non-infringing uses. When an end user uses the Accused Headphones in combination with, for
`
`example, a smart phone such as, for example, an Apple iPhone and/or a periphery device, such
`
`as, for example, an Apple Watch, the end user directly infringes Claims 1-28, 38, 40-50, 52, 55
`
`and 56 of the ’025 Patent. Skullcandy knew that the Accused Headphones were especially made
`
`for use in an infringing manner prior to the filing of this lawsuit. For at least the reasons set forth
`
`above, Skullcandy contributes to the infringement of the ’025 Patent by others.
`
`63.
`
`Koss has been damaged as a result of the infringing conduct by Skullcandy
`
`alleged above. Thus, Skullcandy is liable to Koss in an amount that compensates it for such
`
`infringement, which by law cannot be less than a reasonable royalty, together with interest and
`
`costs as fixed by this Court under 35 U.S.C. § 284.
`
`64.
`
`Skullcandy’s infringement of the ’025 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
`-19-
`
`

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`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.22 Page 20 of 32
`
`65.
`
`Skullcandy has been aware that it infringes the ’025 Patent since at least July 10,
`
`2020, upon the receipt of the letter attached as Exhibit K. Skullcandy has also been aware that it
`
`infringes the ’025 Patent since the filing of a litigation in the Western District of Texas as Civil
`
`Action No. 6:20-cv-00664, alleging substantially the same allegations as are alleged herein, and
`
`the subsequent service of infringement contentions in that same civil action. Since obtaining
`
`knowledge of its infringing activities, Skullcandy has failed to cease its infringing activities.
`
`66.
`
`Skullcandy’s infringement of the ’025 Patent is, has been, and continues to be,
`
`willful, intentional, deliberate, and/or in conscious disregard of Koss’s rights under the patent.
`
`67.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’025 Patent.
`
`SECOND CAUSE OF ACTION
`
`(Infringement of the ’155 Patent)
`
`68.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 67 as if set forth herein.
`
`69.
`
`Koss owns all substantial rights, interest, and title in and to the ’155 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’155 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`70.
`
`The ’155 Patent generally describes wireless earphones that comprise a
`
`transceiver circuit for receiving streaming audio from a data source, such as a digital audio
`
`player or a computer, over a wireless network.
`
`71.
`
`The written description of the ’155 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct
`
`-20-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.23 Page 21 of 32
`
`from and improved upon what may have been considered conventional or generic in the art at the
`
`time of the invention.
`
`72.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold,
`
`and/or offered for sale products and/or systems, including systems in which its Skullcandy-
`
`branded products and/or systems, including the Crusher headphones, and others identified in the
`
`attached claim charts, are incorporated (“Accused Headphones”).
`
`73.
`
`As set forth in the attached non-limiting claim charts (Exhibits B-1–B-16),
`
`Skullcandy has infringed and is infringing at least Claims 1-3, 6, 8 and 11-14 of the ’155 Patent
`
`by making, having made, using, importing, supplying, distributing, selling, and/or offering for
`
`sale the Accused Headphones. In particular, the use of the Accused Headphones by Skullcandy
`
`to, for example, demonstrate those products in brick-and-mortar stores in Salt Lake City, Utah or
`
`to, for example, test those products, constitute acts of direct infringement of Claims 1-3, 6, 8 and
`
`11-14 of the ’155 Patent.
`
`74.
`
`Skullcandy actively induces infringement of at least Claims 1-3, 6, 8 and 11-14 of
`
`the ’155 Patent by selling the Accused Headphones with instructions as to how to use the
`
`Accused Headphones in a system such as that recited in the ’155 Patent. Skullcandy aids,
`
`instructs, or otherwise acts with the intent to cause an end user to use the Accused Headphones.
`
`Skullcandy knew of the ’155 Patent and knew that its use and sale of the Accused Headphones
`
`infringe at least Claims 1-3, 6, 8 and 11-14 of the ’155 Patent.
`
`75.
`
`Skullcandy is also liable for contributory infringement of at least Claims 1-3, 6, 8
`
`and 11-14 of the ’155 Patent by providing, and by having knowingly provided, a material part of
`
`the instrumentalities, namely the Accused Headphones, used to infringe Claims 1-3, 6, 8 and 11-
`
`-21-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.24 Page 22 of 32
`
`14 of the ’155 Patent. The Accused Headphones have no substantial non-infringing uses. When
`
`an end user uses the Accused Headphones in combination with, for example, a smart phone such
`
`as, for example, an Apple iPhone and/or a peripheral device such as, for example, an Apple
`
`Watch, the end user directly infringes Claims 1-3, 6, 8 and 11-14 of the ’155 Patent. Skullcandy
`
`knew that the Accused Headphones were especially made for use in an infringing manner prior
`
`to the filing of this lawsuit. For at least the reasons set forth above, Skullcandy contributes to the
`
`infringement of the ’155 Patent by others.
`
`76.
`
`Koss has been damaged as a result of the infringing conduct by Skullcandy
`
`alleged above. Thus, Skullcandy is liable to Koss in an amount that compensates it for such
`
`infringement, which by law cannot be less than a reasonable royalty, together with interest and
`
`costs as fixed by this Court under 35 U.S.C. § 284.
`
`77.
`
`Skullcandy’s infringement of the ’155 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
`78.
`
`Skullcandy has been aware that it infringes the ’155 Patent since at least July 10,
`
`2020, upon the receipt of the letter attached as Exhibit K. Skullcandy has also been aware that it
`
`infringes the ’155 Patent since the filing of a litigation in the Western District of Texas as Civil
`
`Action No. 6:20-cv-00664, alleging substantially the same allegations as are alleged herein, and
`
`the subsequent service of infringement contentions in that same civil action. Since obtaining
`
`knowledge of its infringing activities, Skullcandy has failed to cease its infringing activities.
`
`79.
`
`Skullcandy’s infringement of the ’155 Patent is, has been, and continues to be,
`
`willful, intentional, deliberate, and/or in conscious disregard of Koss’s rights under the patent.
`
`80.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’155 Patent.
`
`-22-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.25 Page 23 of 32
`
`THIRD CAUSE OF ACTION
`
`(Infringement of the ’982 Patent)
`
`81.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 80 as if set forth herein.
`
`82.
`
`Koss owns all substantial rights, interest, and title in and to the ’982 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’982 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`83.
`
`The ’982 Patent generally describes wireless earphones that comprise a
`
`transceiver circuit for receiving streaming audio from a data source, such as a digital audio
`
`player or a computer, over a wireless network.
`
`84.
`
`The written description of the ’982 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct
`
`from and improved upon what may have been considered conventional or generic in the art at the
`
`time of the invention.
`
`85.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold,
`
`and/or offered for sale products and/or systems, including systems in which its Skullcandy
`
`products and/or systems, including the Indy Fuel headphones, and others identified in the
`
`attached claim charts, are incorporated (“Accused Indy-branded Headphones”).
`
`86.
`
`As set forth in the attached non-limiting claim charts (Exhibit D-1), Skullcandy
`
`has infringed and is infringing at least Claims 1–6, 8, 10, 11 and 15-20 of the ’982 Patent by
`
`making, having made, using, importing, supplying, distributing, selling, and/or offering for sale
`
`-23-
`
`

`

`Case 2:21-cv-00203-DBB-JCB Document 2 Filed 04/01/21 PageID.26 Page 24 of 32
`
`the Accused Indy-branded Headphones. In particular, the use of the Accused Indy-branded
`
`Headphones by Skullcandy to, for example, demonstrate those products in brick-and-mortar
`
`stores in Salt Lake City, Utah or to, for example, test those products, constitute acts of direct
`
`infringement of Claims 1–6, 8, 10, 11 and 15-20 of the ’982 Patent.
`
`87.
`
`Skullcandy actively induces infringement of at least Claims 1–6, 8, 10, 11 and 15-
`
`20 of the ’982 Patent by selling the Accused Indy-branded Headphones with instructions as to
`
`how to use the Accused Indy-branded Headphones in a system such as that recited in the ’982
`
`Patent. Skullcandy aids, instructs, or otherwise acts with the intent to cause an end user to use
`
`the Accused Indy-branded Headphones. Skullcandy knew of the ’982 Patent and knew that its
`
`use and sale of the Accused Indy-branded Headphones infringe at least Claims 1–6, 8, 10, 11 and
`
`15-20 of the ’982 Patent.
`
`88.
`
`Skullcandy is also liable for contributory infringement of at least Claim 1 of the
`
`’982 Patent by providing, and by having knowingly provided, a material part of the
`
`instrumentalities, namely the Accused Indy-branded Headphones, used to infringe Claim 1 of the
`
`’982 Patent. The Accused Indy-branded Headphones have no substantial non-infringing uses.
`
`When an end user uses the Accused Indy-branded Headphones in combination with, for
`
`example, a smart phone such as, for example, Apple iPhone and/or a peripheral devices such as,
`
`for example, an Apple Watch, the end user d

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