Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 1 of 32
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`
`
`THE HONORABLE JAMES L. ROBART
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
`
`
`CYWEE GROUP LTD.,
`Plaintiff,
`
`v.
`HTC CORPORATION; and HTC
`AMERICA, INC.,
`Defendants.
`
` Civil Action No. 17-cv-932-JLR
`
`SECOND AMENDED COMPLAINT
`FOR PATENT INFRINGEMENT
`
`JURY TRIAL DEMANDED
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`
`
`Plaintiff CyWee Group Ltd. (“Plaintiff” or “CyWee”), by and through its
`undersigned counsel, files this Second Amended Complaint against Defendants
`HTC Corporation and HTC America, Inc. as follows:
`THE PARTIES
`1.
`CyWee is a corporation existing under the laws of the British Virgin
`Islands with a principal place of business at 3F, No. 28, Lane 128, Jing Ye 1st Road,
`Taipei, Taiwan 10462.
`
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 2 of 32
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`2.
`CyWee is a world-leading technology company that focuses on
`building products and providing services for consumers and businesses. CyWee has
`one of the most significant patent portfolios in the industry, and is a market leader
`in its core development areas of motion processing, wireless high definition video
`delivery, and facial tracking technology.
`3.
`On information and belief, Defendant HTC Corporation (“HTC Corp.”)
`is a Taiwanese corporation with a principle place of business at No. 23, Xinghua
`Road, Taoyuan District, Taoyuan, 330, Taiwan. HTC Corp. manufactures and
`provides to the United States a wide variety of products and services, including
`consumer electronics such as mobile phones and tablets.
`4.
`On information and belief, Defendant HTC America, Inc. (“HTC
`America”) is a Washington corporation with a principal place of business located at
`13920 SE Eastgate Way, Suite 400, Bellevue, Washington 98005. Upon information
`and belief, HTC America is a wholly-owned subsidiary of HTC Corp. Upon
`information and belief, HTC America is HTC Corp.’s United States business with
`respect to mobile phones and tablets, and HTC America imports, sells, offers for
`sale, and markets HTC Corp.’s mobile phones and tablets in the United States.
`5.
`Defendants HTC Corp. and HTC America are collectively referred to
`as “Defendants” or “HTC.” HTC is doing business in the United States and, more
`particularly, in the State of Washington and the Western District of Washington, by
`designing, marketing, making, using, selling, importing, and/or offering for sale
`products that infringe the patent claims involved in this action or by transacting other
`business in this District.
`
`JURISDICTION AND VENUE
`This action arises under the patent laws of the United States, 35 U.S.C.
`
`6.
`
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 3 of 32
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`§ 1 et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
`and 1338(a).
`7.
`This Court has personal jurisdiction over each Defendant. Each
`Defendant has conducted and does conduct business within the State of Washington.
`Each Defendant has purposefully and voluntarily availed itself of the privileges of
`conducting business in the United States, the State of Washington, and the Western
`District of Washington by continuously and systematically placing goods into the
`stream of commerce through an established distribution channel with the expectation
`that they will be purchased by consumers in the Western District of Washington.
`Additionally, Defendants have previously submitted to this Court’s jurisdiction by
`availing themselves of this court’s authority and filing suit in this district. See HTC
`Corp. and HTC Am., Inc. v. Telefonaktiebolaget LM Ericsson and Ericsson Inc., No.
`2:17-cv-00534 (W.D. Wash. Apr. 6, 2017). Plaintiff’s causes of action arise directly
`from Defendants’ business contacts and other activities in the State of Washington
`and the Western District of Washington. Additionally, HTC America is incorporated
`in Washington. Accordingly, this Court has personal jurisdiction over HTC America
`in that it resides in this District.
`8.
`Upon information and belief, each Defendant has committed acts of
`infringement in this District giving rise to this action and does business in this
`District, including making sales and/or providing service and support for their
`respective customers in this District. Defendants purposefully and voluntarily sold
`one or more of their infringing products with the expectation that they would be
`purchased by consumers in this District. These infringing products have been and
`continue to be purchased by consumers in this District. Defendants have committed
`acts of patent infringement within the United States, the State of Washington, and
`
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 4 of 32
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`the Western District of Washington.
`9.
`Venue is proper as to HTC America under 28 U.S.C. § 1400(b) in that
`HTC America is incorporated in Washington and, therefore, resides in this District.
`TC Heartland LLC v. Kraft Food Grps. Brands LLC, 581 U.S. ___, 2017 WL
`2216934, at *8 (2017).
`10. Venue is proper as to HTC Corp. under 28 U.S.C. § 1391(c)(3) in that
`it is not a resident of the United States and may, therefore, be sued in any judicial
`district. Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 714
`(1972).
`11. Upon information and belief, HTC America is an agent of HTC Corp.
`and is held out to the public as such. See, e.g., http://www.htc.com/us/terms
`/copyright/ (last visited June 9, 2017) (naming HTC America as HTC Corp.’s
`“Copyright Agent”); https://www.theverge.com/2013/9/13/4728670/layoffs-hit-htc-
`america-as-the-company-struggles-to-turn-itself-around (last visited June 9, 2017)
`(describing layoff at HTC’s America division with statement from HTC Corp.
`regarding its decision as to the layoff).
`12. Further, upon information and belief, HTC America operates under the
`“HTC” trademark; offers, sells, services, and/or distributes only HTC products; and
`coordinates its policies and operations with those of HTC Corp. to benefit and
`primarily serve the interests of HTC Corp. Upon information and belief, for
`consumers of the products accused in this Complaint, there is no substantive
`difference between HTC America and HTC Corp.
`13. Accordingly, venue is further proper as to HTC Corp. under 28 U.S.C.
`§ 1400(b) in that, upon information and belief, HTC Corp. has a regular and
`established place of business in this District—namely, the place of business of its
`
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 5 of 32
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`subsidiary/agent, HTC America—and has committed acts of infringement herein.
`BACKGROUND
`14. The Industrial Technology Research Institute (“ITRI”) is a Taiwanese
`government- and industry-funded research and development center. In 2007,
`CyWee, which was started at ITRI, was formed. Its goal was to provide innovative
`motion-sensing technologies, such as those claimed in the patents-in-suit. Dr. Shun-
`Nan Liu and Chin-Lung Li, two of the inventors of the patents-in-suit, came to
`CyWee from ITRI. The third inventor, Zhou “Joe” Ye joined CyWee from private
`industry as its President and served as CEO from 2006 to 2016.
`15. The inventors, Zhou Ye, Chin-Lung Li, and Shun-Nan Liou, conceived
`of the claims of the patents-in-suit—U.S. Patent No. 8,441,438 (the “’438 Patent”)
`and U.S. Patent No. 8,552,978 (the “’978 Patent”)—at CyWee Group Ltd., located
`at 3F, No. 28, Lane 128, Jing Ye Road, Taipei.
`16. Several claims of the patents-in-suit are entitled to a priority date of at
`least January 6, 2010 based on U.S. Provisional Application Serial No. 61/292,558,
`filed January 6, 2010 (“Provisional Application”).
`17. Before May 22, 2009, CyWee began working on the “JIL Game Phone
`Project” or “JIL Phone.” Before July 29, 2009, CyWee developed a solution for the
`JIL Phone that practiced several claims of the ’438 Patent. Those claims were
`diligently and constructively reduced to practice thereafter through the filing of the
`Provisional Application and were diligently and actually reduced to practice as
`discussed below. Accordingly, CyWee is entitled to a priority date of at least July
`29, 2009 for several claims of the ’438 Patent.
`18. The JIL Phone was reduced to practice by at least September 25, 2009.
`The JIL Phone practiced several claims of both patents-in-suit. Accordingly, CyWee
`
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 6 of 32
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`is entitled to a priority date of at least September 25, 2009 for several claims of the
`patents-in-suit.
`PATENT INFRINGEMENT OF U.S. PATENT NO. 8,441,438
`19. Plaintiff repeats and re-alleges each and every allegation of paragraphs
`1-18 as though fully set forth herein.
`20. The ’438 Patent, titled “3D Pointing Device and Method for
`Compensating Movement Thereof,” was duly and legally issued by the United States
`Patent and Trademark Office on May 14, 2013 to CyWee Group Limited, as assignee
`of named inventors Zhou Ye, Chin-Lung Li, and Shun-Nan Liou.
`21. CyWee is the owner of all right, title, and interest in and to the ’438
`Patent with full right to bring suit to enforce the patent, including the right to recover
`for past infringement damages.
`22. The ’438 Patent claims, inter alia, a machine capable of detecting,
`measuring, and calculating the movements and rotations of the machine—utilizing,
`inter alia, a six-axis motion sensor module, a data transmitting unit, and a computing
`processor in one or more claimed configurations—and methods for measuring and
`calculating the movements and rotations of a device within a spatial reference frame.
`The Declaration of Nicholas Gans, Ph.D. (the “Gans Decl.”) regarding the nature of
`the ’438 Patent and the ’978 Patent and the technologies claimed therein is attached
`hereto as “Exhibit C” and is incorporated by reference as if fully set forth herein.
`23. The ’438 Patent is directed to useful and novel particular embodiments
`and methods for detecting, measuring, and calculating motion within a spatial
`reference frame. See Gans. Decl. ¶ 16. Specifically, the ’438 Patent claims a novel
`system involving multiple sensor types and a novel method for using those sensors
`to overcome the limitations of the individual sensor types in accurately determining
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 7 of 32
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`the orientation of a device. See id. ¶¶ 13-26. The ’438 Patent is not intended to, and
`does not, claim every possible means of detecting, measuring, and calculating
`motion within a spatial reference frame. There are alternative methods to
`determining orientation within a spatial reference frame, such as systems and
`methods utilizing computer vision algorithms and/or cameras. See id. ¶¶ 23-26.
`Accordingly, the ’438 Patent is not directed to, and does not claim, the mere concept
`of motion sensing or of detecting, measuring, and calculating motion within a spatial
`reference frame.
`24. Each and every claim of the ’438 Patent is valid and enforceable and
`each enjoys a statutory presumption of validity separate, apart, and in addition to the
`statutory presumption of validity enjoyed by every other of its claims. 35 U.S.C. §
`282.
`
`25. CyWee is informed and believes, and thereupon alleges, that HTC has
`been, and is currently, directly and/or indirectly infringing one or more claims of the
`’438 Patent in violation of 35 U.S.C. § 271, including as stated below.
`26. CyWee is informed and believes, and thereupon alleges, that HTC has
`directly infringed, literally and/or under the doctrine of equivalents, and will
`continue to directly infringe claims of the ’438 Patent by making, using, selling,
`offering to sell, and/or importing into the United States products that embody or
`practice the apparatus and/or method covered by one or more claims of the ’438
`Patent, including but not limited to Defendants’ following devices:
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 8 of 32
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` HTC One M9
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` HTC 10
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`HTC One A9
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`HTC Bolt
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`HTC U Ultra
`27. The foregoing devices are collectively referred to as the “’438 Accused
`Products” and include the below specifications and features.
`28. On information and belief, HTC indirectly infringes the ’438 Patent by
`inducing others to infringe one or more claims of the ’438 Patent through sale and/or
`use of the ’438 Accused Products. On information and belief, at least as a result of
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 9 of 32
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`the filing of this action, HTC is aware of the ’438 Patent; is aware that its actions
`with regards to distributors, resellers, and/or end users of the ’438 Accused Products
`would induce infringement; and despite such awareness will continue to take active
`steps—such as, creating and disseminating the ’438 Accused Products, and product
`manuals, instructions, promotional and marketing materials, and/or technical
`materials to distributors, resellers, and end users—encouraging other’s infringement
`of the ’438 Patent with the specific intent to induce such infringement.
`29. The HTC 10 includes a display screen.
`30. The HTC 10 includes a housing.
`31. The HTC 10 includes a 3-axis accelerometer.
`32. The HTC 10 includes a 3-axis gyroscope.
`33. The HTC 10 includes at least one printed circuit board (“PCB”).
`34. The HTC 10 includes a 3-axis accelerometer attached to a PCB.
`35. The HTC 10 includes a 3-axis gyroscope attached to a PCB.
`36. The HTC 10 includes a 3-axis accelerometer that is capable of
`measuring accelerations.
`37. The HTC 10 includes a 3-axis gyroscope that is capable of measuring
`rotation rates.
`38. The HTC 10 runs an AndroidTM operating system.
`39. The HTC 10 includes a 3-axis accelerometer that is capable of
`measuring accelerations using a “Sensor Coordinate System” as described in the
`AndroidTM developer
`library. See https://developer.android.com/guide/topics
`/sensors/sensors_overview.html (describing “Sensor Coordinate System”).
`40. The HTC 10 includes a 3-axis gyroscope that is capable of measuring
`rotation rates using a “Sensor Coordinate System.”
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 10 of 32
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`41. The HTC 10 includes a processor that is capable of processing data
`associated with measurement from a 3-axis accelerometer.
`42. The HTC 10 includes a processor that is capable of processing data
`associated with measurement from a 3-axis gyroscope.
`43. The AndroidTM operating system that runs on the HTC 10 uses the
`measurement from a 3-axis accelerometer included in the device.
`44. The AndroidTM operating system that runs on the HTC 10 uses the
`measurement from a 3-axis gyroscope included in the device.
`45. The AndroidTM operating system that runs on the HTC 10 uses the
`measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`46. The HTC One M9 includes a display screen.
`47. The HTC One M9 includes a housing.
`48. The HTC One M9 includes a 3-axis accelerometer.
`49. The HTC One M9 includes a 3-axis gyroscope.
`50. The HTC One M9 includes at least one PCB.
`51. The HTC One M9 includes a 3-axis accelerometer attached to a PCB.
`52. The HTC One M9 includes a 3-axis gyroscope attached to a PCB.
`53. The HTC One M9 includes a 3-axis accelerometer that is capable of
`measuring accelerations.
`54. The HTC One M9 includes a 3-axis gyroscope that is capable of
`measuring rotation rates.
`55. The HTC One M9 runs an AndroidTM operating system.
`56. The HTC One M9 includes a 3-axis accelerometer that is capable of
`measuring accelerations using a “Sensor Coordinate System” as described in the
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 11 of 32
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`library. See https://developer.android.com/guide/topics
`AndroidTM developer
`/sensors/sensors_overview.html (describing “Sensor Coordinate System”).
`57. The HTC One M9 includes a 3-axis gyroscope that is capable of
`measuring rotation rates using a “Sensor Coordinate System.”
`58. The HTC One M9 includes a processor that is capable of processing
`data associated with measurement from a 3-axis accelerometer.
`59. The HTC One M9 includes a processor that is capable of processing
`data associated with measurement from a 3-axis gyroscope.
`60. The AndroidTM operating system that runs on the HTC One M9 uses
`the measurement from a 3-axis accelerometer included in the device.
`61. The AndroidTM operating system that runs on the HTC One M9 uses
`the measurement from a 3-axis gyroscope included in the device.
`62. The AndroidTM operating system that runs on the HTC One M9 uses
`the measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`63. The HTC One A9 includes a display screen.
`64. The HTC One A9 includes a housing.
`65. The HTC One A9 includes a 3-axis accelerometer.
`66. The HTC One A9 includes a 3-axis gyroscope.
`67. The HTC One A9 includes at least one PCB.
`68. The HTC One A9 includes a 3-axis accelerometer attached to a PCB.
`69. The HTC One A9 includes a 3-axis gyroscope attached to a PCB.
`70. The HTC One A9 includes a 3-axis accelerometer that is capable of
`measuring accelerations.
`71. The HTC One A9 includes a 3-axis gyroscope that is capable of
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 12 of 32
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`measuring rotation rates.
`72. The HTC One A9 runs an AndroidTM operating system.
`73. The HTC One A9 includes a 3-axis accelerometer that is capable of
`measuring accelerations using a “Sensor Coordinate System” as described in the
`AndroidTM developer
`library. See https://developer.android.com/guide/topics
`/sensors/sensors_overview.html (describing “Sensor Coordinate System”).
`74. The HTC One A9 includes a 3-axis gyroscope that is capable of
`measuring rotation rates using a “Sensor Coordinate System.”
`75. The HTC One A9 includes a processor that is capable of processing
`data associated with measurement from a 3-axis accelerometer.
`76. The HTC One A9 includes a processor that is capable of processing
`data associated with measurement from a 3-axis gyroscope.
`77. The AndroidTM operating system that runs on the HTC One A9 uses the
`measurement from a 3-axis accelerometer included in the device.
`78. The AndroidTM operating system that runs on the HTC One A9 uses the
`measurement from a 3-axis gyroscope included in the device.
`79. The AndroidTM operating system that runs on the HTC One A9 uses the
`measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`80. The HTC Bolt includes a display screen.
`81. The HTC Bolt includes a housing.
`82. The HTC Bolt includes a 3-axis accelerometer.
`83. The HTC Bolt includes a 3-axis gyroscope.
`84. The HTC Bolt includes at least one PCB.
`85. The HTC Bolt includes a 3-axis accelerometer attached to a PCB.
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`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 13 of 32
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`86. The HTC Bolt includes a 3-axis gyroscope attached to a PCB.
`87. The HTC Bolt includes a 3-axis accelerometer that is capable of
`measuring accelerations.
`88. The HTC Bolt includes a 3-axis gyroscope that is capable of measuring
`rotation rates.
`89. The HTC Bolt runs an AndroidTM operating system.
`90. The HTC Bolt includes a 3-axis accelerometer that is capable of
`measuring accelerations using a “Sensor Coordinate System” as described in the
`AndroidTM developer
`library. See https://developer.android.com/guide/topics
`/sensors/sensors_overview.html (describing “Sensor Coordinate System”).
`91. The HTC Bolt includes a 3-axis gyroscope that is capable of measuring
`rotation rates using a “Sensor Coordinate System.”
`92. The HTC Bolt includes a processor that is capable of processing data
`associated with measurement from a 3-axis accelerometer.
`93. The HTC Bolt includes a processor that is capable of processing data
`associated with measurement from a 3-axis gyroscope.
`94. The AndroidTM operating system that runs on the HTC Bolt uses the
`measurement from a 3-axis accelerometer included in the device.
`95. The AndroidTM operating system that runs on the HTC Bolt uses the
`measurement from a 3-axis gyroscope included in the device.
`96. The AndroidTM operating system that runs on the HTC Bolt uses the
`measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`97. The HTC U Ultra includes a display screen.
`98. The HTC U Ultra includes a housing.
`
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
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`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 14 of 32
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`99. The HTC U Ultra includes a 3-axis accelerometer.
`100. The HTC U Ultra includes a 3-axis gyroscope.
`101. The HTC U Ultra includes at least one PCB.
`102. The HTC U Ultra includes a 3-axis accelerometer attached to a PCB.
`103. The HTC U Ultra includes a 3-axis gyroscope attached to a PCB.
`104. The HTC U Ultra includes a 3-axis accelerometer that is capable of
`measuring accelerations.
`105. The HTC U Ultra includes a 3-axis gyroscope that is capable of
`measuring rotation rates.
`106. The HTC U Ultra runs an AndroidTM operating system.
`107. The HTC U Ultra includes a 3-axis accelerometer that is capable of
`measuring accelerations using a “Sensor Coordinate System” as described in the
`AndroidTM
`developer
`library.
`See
`https://developer.android.com
`/guide/topics/sensors/sensors_overview.html
`(describing “Sensor Coordinate
`System”).
`108. The HTC U Ultra includes a 3-axis gyroscope that is capable of
`measuring rotation rates using a “Sensor Coordinate System.”
`109. The HTC U Ultra includes a processor that is capable of processing data
`associated with measurement from a 3-axis accelerometer.
`110. The HTC U Ultra includes a processor that is capable of processing data
`associated with measurement from a 3-axis gyroscope.
`111. The AndroidTM operating system that runs on the HTC U Ultra uses the
`measurement from a 3-axis accelerometer included in the device.
`112. The AndroidTM operating system that runs on the HTC U Ultra uses the
`measurement from a 3-axis gyroscope included in the device.
`
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
`
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 15 of 32
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`113. The AndroidTM operating system that runs on the HTC U Ultra uses the
`measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`114. HTC’s actions with regards to distributors, resellers, and/or end users
`of the ’438 Accused Products induce infringement of the patent by others, and HTC
`is aware that its actions induce infringement. Despite such awareness, HTC
`continues to take active steps—such as creating and disseminating the ’438 Accused
`Products, and product manuals, instructions, support materials, promotional and
`marketing materials, and/or technical materials to distributors, resellers, and end
`users—encouraging others to infringe the ’438 Patent with the specific intent to
`induce such infringement.
`115. HTC provides manuals and instructions for the ’438 Accused Products
`and/or provides instructional and support materials on its website that teach and
`instruct its customers to operate those products in ways that practice the claimed
`invention. For instance, HTC provides user guides for each of the Accused Products,
`and those user guides describe how to use HTC’s “Motion Launch” feature, which
`is a feature that gives users the ability to use motion combined with other gestures
`to perform various device functions.1 See Exhibit D, p. 40-43 (HTC One M9 User
`Guide); Exhibit E, p. 42-45 (HTC One A9 User Guide); Exhibit F, p. 36-39 (HTC
`10 User Guide); Exhibit G, p. 91-95 (HTC Bolt User Guide); Exhibit H, p. 44-47
`(HTC U Ultra User Guide); Exhibit I, p. 45-48 (HTC U11 User Guide); Exhibit J, p.
`44-47 (HTC U11 life User Guide). According to HTC’s user guides for the Accused
`
`1 Two of the Accused Products were not specifically identified in the non-exclusive list of
`products in CyWee’s original complaint, but CyWee has identified them in its infringement
`contentions. The first, the HTC U11, was released on June 9, 2017, which was seven days prior
`to CyWee’s original complaint. The second, the HTC U11 Life, was released after CyWee’s
`original complaint was filed.
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
`
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 16 of 32
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`Products, the Motion Launch feature allows for the use of “a combination of simple
`gestures,” including motion gestures, as an alternate means of performing various
`smartphone functions. Id. Among other things, the user guides teach uses of the
`Motion Launch feature which depend upon device orientation, such as waking up
`and unlocking the screen by lifting the device to portrait orientation and tapping the
`screen, waking the device to the home widget panel, raising to wake the device to
`“HTC BlinkFeed,” and using motions to activate the device’s camera. Id. HTC’s
`manuals also instruct users to troubleshoot Motion Launch errors by using the
`correct motion gesture to properly orient the device into the appropriate position to
`launch the desired feature. Id.
`116. In addition to the Motion Launch features, HTC’s user guides for the
`Accused Products also teach consumers how to use optional “motion gestures” to
`control certain functions of each device. See Exhibit D, p. 31-32; Exhibit E, p. 33-
`34; Exhibit F, p. 26-27; Exhibit H, p. 34-35; Exhibit I, p. 35-36 (HTC U11 User
`Guide); Exhibit J, p. 34-35. For instance, users are instructed on how to utilize a
`device’s orientation to “lift the phone to auto answer a call,” and how to “turn the
`phone over to mute it” if the phone is facing up when a call comes in, and how to
`use motion gestures to control the ring volume for a call. Id. All of these advertised
`features require determination of the device’s orientation and track the claims of the
`’438 Patent.
`117. HTC’s online customer support documents also instruct consumers on
`methods for using the Motion Launch features as well as motion gestures for the
`Accused Products. See Exhibit K (HTC One M9 Motion Launch); Exhibit L (HTC
`One M9 Motion Gestures); Exhibit M (HTC One A9 Motion Launch); Exhibit N
`(HTC One A9 Motion Gestures); Exhibit O (HTC 10 Motion Launch); Exhibit P
`
`
`PLAINTIFF’S SECOND AMENDED COMPLAINT
` FOR PATENT INFRINGEMENT
`CIVIL ACTION NO. 17-CV-932
`
`
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN ST., STE. 3300
`DALLAS, TEXAS 75202
`(T) 214.593.9110
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`Case 2:17-cv-00932-JLR Document 61 Filed 03/09/18 Page 17 of 32
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`(HTC 10 Motion Gestures); Exhibit Q (HTC Bolt Motion Launch); Exhibit R (HTC
`Bolt Motion Gestures); Exhibit S (HTC U Ultra Motion Launch); Exhibit T (HTC
`U Ultra Motion Gestures); Exhibit U (HTC U11 Motion Launch); Exhibit V (HTC
`U11 Motion Gestures); Exhibit W (HTC U11 life Motion Launch); Exhibit X (HTC
`U11 life Motion Gestures). The documents describe how Motion Launch enables
`users to use a device’s orientation to wake the device up to the lock screen, to unlock
`the device, to wake the device to the home widget panel, to wake the device to “HTC
`BlinkFeed,” and to use motion sensing to launch the device camera. Id. The
`documents describe how to use motion sensing technology to lift the device in order
`to answer a call, to flip the device over to mute a call, and to raise the device in order
`to lower ring volume. Id. HTC has also released a tutorial video, linked to its support
`page, which demonstrates the functionality of the Motion Launch feature. See
`Exhibit Y (Screenshot of HTC One M8 Motion Launch Tutorial video); see also
`https://www.youtube.com/watch?v=1cXiem8zc-g (last visited Mar. 8, 2018). And
`HTC’s online FAQ page provides instructions to users which confirm that certain
`motion gestures are required in order to utilize the Motion Launch functionality. See
`Exhibit Z (HTC FAQ – Why is my phone not responding to Motion Launch
`gestures?). These instructional and support materials, among others, demonstrate
`that HTC actively induces users to operate their products in ways that practice the
`claimed invention. Notably, the HTC U11 Life, and its corresponding User Guide
`and support materials, were not released until November 3, 2017, almost five months
`after the initial filing of this lawsuit. See http://bgr.com/2017/11/02/htc-u11-plus-
`release-date-u11-life-release-date-us/ (last visi