Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 1 of 7 PageID# 1
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`FILED
`
`INNOVATIVE COMMUNICATIONS
`
`TECHNOLOGIES, INC.,
`
`)
`
`)
`
`c,
`
`Plaintiff,
`
`)
`
`Case No.
`
`vs.
`
`)
`
`VIVOX, INC.,
`
`) JURY TRIAL DEMANDED
`
`Defendant.
`
`)
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Innovative Communications Technologies, Inc. ("ICTI") for its Complaint
`
`against Defendant Vivox, Inc. ("Vivox" or "Defendant") alleges as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff ICTI is a Delaware corporation, with its principal place of business at
`
`1655 Fort Mycr Drive, #700. Arlington, VA 22209.
`
`2.
`
`Defendant Vivox is a Delaware corporation with a principal place of business at
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`2-4 Mercer Road. Natick, MA 01760.
`
`3.
`
`On information and belief. Defendant Vivox designs, develops, manufactures,
`
`and/or sells voice over internet protocol ("VoIP") products and/or services in the United States
`
`including Vivox's VoiceEverywhere Game Connect. For example, on information and belief.
`
`Vivox offers to sell and sells its VoIP products and/or services to game publishers to incorporate
`
`into online games.
`
`JURISDICTION AND VENUE
`
`4.
`
`This is an action for patent infringement that arises under the patent laws of the
`
`United States, Title 35 U.S.C. §1 el seq. and seeks damages and injunctive relief as provided in
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`FILED
`
`INNOVATIVE COMMUNICATIONS
`
`TECHNOLOGIES, INC.,
`
`)
`
`)
`
`c,
`
`Plaintiff,
`
`)
`
`Case No.
`
`vs.
`
`)
`
`VIVOX, INC.,
`
`) JURY TRIAL DEMANDED
`
`Defendant.
`
`)
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Innovative Communications Technologies, Inc. ("ICTI") for its Complaint
`
`against Defendant Vivox, Inc. ("Vivox" or "Defendant") alleges as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff ICTI is a Delaware corporation, with its principal place of business at
`
`1655 Fort Mycr Drive, #700. Arlington, VA 22209.
`
`2.
`
`Defendant Vivox is a Delaware corporation with a principal place of business at
`
`2-4 Mercer Road. Natick, MA 01760.
`
`3.
`
`On information and belief. Defendant Vivox designs, develops, manufactures,
`
`and/or sells voice over internet protocol ("VoIP") products and/or services in the United States
`
`including Vivox's VoiceEverywhere Game Connect. For example, on information and belief.
`
`Vivox offers to sell and sells its VoIP products and/or services to game publishers to incorporate
`
`into online games.
`
`JURISDICTION AND VENUE
`
`4.
`
`This is an action for patent infringement that arises under the patent laws of the
`
`United States, Title 35 U.S.C. §1 el seq. and seeks damages and injunctive relief as provided in
`
`
`
`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 2 of 7 PageID# 2
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`35 U.S.C. § 281, §§ 283-285. This Court has subject matter jurisdiction under 28 U.S.C. § 1331
`
`and§ 1338(a).
`
`5.
`
`Venue is proper in this district under 28 U.S.C. §§ 1391(c) and 1400(b).
`
`6.
`
`This Court has personal jurisdiction over Defendant because Defendant has done
`
`and is doing substantial business in this District, both generally and with respect to the
`
`allegations in this Complaint, and Defendant has committed one or more acts of infringement in
`
`this District.
`
`THE ASSERTED PATENTS
`
`7.
`
`ICTI is the assignee of United States Patent Nos. 6,108,704; 6,513,066;
`
`6,701,365; 6,131,121; and 6,009,469 (collectively, the "Asserted Patents").
`
`8.
`
`The Asserted Patents were previously litigated in Nel2Phone, Inc. v. eliay, Inc., et
`
`ai, Civil Action No. 06-2469 (D.N.J.) ("Prior Litigation").
`
`9.
`
`In 2009, Skype, Inc. ("Skype"). one of the defendants in the Prior Litigation,
`
`requested that certain claims of the Asserted Patents be reexamined by the United States Patent
`
`and Trademark Office.
`
`10.
`
`During reexamination, the Hxamincr considered over one thousand cited
`
`references.
`
`11.
`
`During reexamination, the Examiner also considered Skypc's submissions,
`
`including its brief in support of its request for ex pctrle reexamination. a supporting declaration,
`
`claim charts, its comments on Net2Phone's validity expert's opinions, and the parties* claim
`
`construction briefing from the prior litigation.
`
`
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`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 3 of 7 PageID# 3
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`12.
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`The Examiner confirmed the validity of numerous claims of the Asserted Patents,
`
`many without any amendments, over all of the cited references and over all of Skype's
`
`submissions.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,108,704
`
`COUNT I
`
`13.
`
`ICTI incorporates paragraphs 1 through 12 as if fully set forth herein.
`
`14.
`
`On August 22, 2000, United States Patent No. 6,108,704 ("the '704 Patent"),
`
`entitled "POINT-TO-POINT INTERNET PROTOCOL" (Exhibit A), duly and legally issued.
`
`ICTI owns all rights, title, and interest in and to the '704 Patent, including the right to sue for
`
`past infringement.
`
`15.
`
`On October 26, 2010, an Ex Parte Reexamination Certificate (Exhibit B) duly and
`
`legally issued for the '704 Patent.
`
`16.
`
`The claims of the '704 Patent are valid and enforceable.
`
`17.
`
`Defendant Vivox has infringed and is infringing the '704 Patent, by at least
`
`selling, offering to sell, and using VoIP products and/or services, such as VoiceEverywhere
`
`Game Connect, that infringe one or more claims of the '704 Patent. Defendant Vivox has done
`
`so without authority and therefore has infringed the "704 Patent as set forth in 35 U.S.C. § 271.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,513,066
`
`COUNT II
`
`18.
`
`ICTI incorporates paragraphs 1 through 12 as if fully set forth herein.
`
`19.
`
`On January 28, 2003, United States Patent No. 6.513.066 ("the '066 Patent"),
`
`entitled "ESTABLISHING A POINT-TO-POINT INTERNET COMMUNICATION" (Exhibit
`
`C), duly and legally issued. ICTI owns all rights, title, and interest in and to the '066 Patent,
`
`including the right to sue for past infringement.
`
`
`
`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 4 of 7 PageID# 4
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`20.
`
`On November 23, 2010, an Ex Parte Reexamination Certificate (Exhibit D) duly
`
`and legally issued for the '066 Patent.
`
`21.
`
`The claims of the '066 Patent are valid and enforceable.
`
`22.
`
`Defendant Vivox has infringed and is infringing the '066 Patent, by at least
`
`selling, offering to sell, and using VoIP products and/or services, such as VoiceEverywhere
`
`Game Connect, that infringe one or more claims of the '066 Patent. Defendant Vivox has done
`
`so without authority and therefore has infringed the '066 Patent as set forth in 35 U.S.C. § 271.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,701,365
`
`COUNT III
`
`23.
`
`ICTI incorporates paragraphs 1 through 12 as if fully set forth herein.
`
`24.
`
`On March 2, 2004, United States Patent No. 6.701,365 ("the '365 Patent"),
`
`entitled "POINT-TO-POINT INTERNET PROTOCOL" (Exhibit E), duly and legally issued.
`
`ICTI owns all rights, title, and interest in and to the '365 Patent, including the right to sue for
`
`past infringement.
`
`25.
`
`On August 3, 2010, an Ex Parte Reexamination Certificate (Exhibit F) duly and
`
`legally issued for the '365 Patent.
`
`26.
`
`The claims of the '365 Patent are valid and enforceable.
`
`27.
`
`Defendant Vivox has infringed and is infringing the "365 Patent, by at least
`
`selling, offering to sell, and using VoIP products and/or services, such as VoiceEverywhere
`
`Game Connect, that infringe one or more claims of the '365 Patent. Defendant Vivox has done
`
`so without authority and therefore has infringed the '365 Patent as set forth in 35 U.S.C. § 271.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,131,121
`
`COUNT IV
`
`28.
`
`ICTI incorporates paragraphs 1 through 12 as if fully set forth herein.
`
`
`
`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 5 of 7 PageID# 5
`
`29.
`
`On October 10, 2000, United States Patent No. 6,131,121 ("the '121 Patent"),
`
`entitled "POINT-TO-POINT COMPUTER NETWORK COMMUNICATION UTILITY
`
`UTILIZING DYNAMICALLY ASSIGNED NETWORK PROTOCOL ADDRESSES" (Exhibit
`
`G), duly and legally issued. ICTI owns all rights, title, and interest in and to the '121 Patent,
`
`including the right to sue for past infringement.
`
`30.
`
`On December 14, 2010, an Ex Parte Reexamination Certificate (Exhibit H) duly
`
`and legally issued for the '121 Patent.
`
`31.
`
`The claims of the ' 121 Patent are valid and enforceable.
`
`32.
`
`Defendant Vivox has infringed and is infringing the '121 Patent, by at least
`
`selling, offering to sell, and using VoIP products and/or services, such as VoiceEverywhere
`
`Game Connect, that infringe one or more claims of the '121 Patent. Defendant Vivox has done
`
`so without authority and therefore has infringed the ' 121 Patent as set forth in 35 U.S.C. § 271.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,009,469
`
`COUNT V
`
`33.
`
`ICTI incorporates paragraphs 1 through 12 as if fully set forth herein.
`
`34.
`
`On December 28, 1999, United States Patent No. 6,009,469 ("the *469 Patent"),
`
`entitled "GRAPHIC USER INTERFACE FOR INTERNET TELEPHONY APPLICATION"
`
`(Exhibit 1), duly and legally issued. ICTI owns all rights, title, and interest in and to the '469
`
`Patent, including the right to sue for past infringement.
`
`35.
`
`On May 10, 2011, an Ex Parte Reexamination Certificate (Exhibit J) duly and
`
`legally issued for the '469 Patent.
`
`36.
`
`The claims of the '469 Patent are valid and enforceable.
`
`37.
`
`Defendant Vivox has infringed and is infringing the '469 Patent, by at least
`
`selling, offering to sell, and using VoIP products and/or services, such as VoiceEverywhere
`
`
`
`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 6 of 7 PageID# 6
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`Game Connect, that infringe one or more claims of the '469 Patent. Defendant Vivox has done
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`so without authority and therefore has infringed the '469 Patent as set forth in 35 U.S.C. § 271.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff prays that this Court:
`
`(A)
`
`Enter a judgment in favor of ICTI that Defendant Vivox has infringed the '704
`
`Patent, the '066 Patent, the '365 Patent, the '121 Patent, and the '469 Patent;
`
`(B)
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`Enter an injunction prohibiting Vivox from making, using, selling, or offering for
`
`sale infringing products and/or services in the United States;
`
`(C)
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`Award ICTI damages in an amount sufficient to compensate ICTI for Vivox's
`
`infringement of the Asserted Patents, but no less than a reasonable royalty, together with interest
`
`(both pre-and post-judgment), costs, and disbursements as fixed by this Court under 35 U.S.C.
`
`§284;
`
`(D)
`
`Declare this case exceptional under 35 U.S.C. § 285 and award ICTI its
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`reasonable attorneys' fees, expenses and costs incurred in this action; and
`
`(E)
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`Grant ICTI such other and further relief as this Court may deem just and proper.
`
`
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`Case 2:12-cv-00007-RGD-LRL Document 1 Filed 01/04/12 Page 7 of 7 PageID# 7
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`DEMAND FOR JURY TRIAL
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`Pursuant to Fed. R. Civ. P. 38, ICTI respectfully demands a trial by jury on all issues
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`properly triable by a jury in this action.
`
`Dated: January 4, 2012
`
`D. Sean TraindT(43260)
`
`KIRKLAND & ELLIS LLP
`
`655 Fifteenth Street, N.W.
`
`Washington, D.C. 20005-5793
`
`(202) 879-5000
`
`(202) 879-5200
`
`dtrainor@ki rkl and .com
`
`Co wise I for Plaintiff Innovative
`
`Communications Technologies, Inc.
`
`Of Counsel:
`
`David K. Callahan, P.C.
`
`Jessica C. Kaiser
`
`Archit P. Shah
`
`Kirkland & Ellis LLP
`
`300 North LaSalle
`
`Chicago, IL 60654
`
`Phone: (312)862-2000
`
`Facsimile: (312)862-2200
`
`david.callahan@kirkland.com
`
`jessica.kaiser@kirkland.com
`
`archit.shah@kirkland.com
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