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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`NO.
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`
`
`COMPLAINT
`
`DEMAND FOR JURY TRIAL
`
`ANCORA TECHNOLOGIES, INC.,
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`
`
`
`
`Plaintiff,
`
`v.
`
`TCL CORP.,
`TCL COMMUNICATION LTD., TCL
`COMMUNICATION HOLDINGS
`LTD. AND
`TCL COMMUNICATION
`TECHNOLOGY HOLDINGS LTD.
`
`
`
`Defendants.
`
`COMPLAINT - 1
`Case No.
`
`Roku EX1022
`U.S. Patent No. 6,411,941
`
`

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`1.
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`Plaintiff, ANCORA TECHNOLOGIES, INC. (“Ancora”), for its Complaint
`
`against TCL Corp., TCL Communication Ltd., TCL Communication Technology Holdings
`
`Ltd., (collectively “TCL”) herein, states as follows:
`
`I.
`Plaintiff Ancora Technologies, Inc. is a corporation organized and existing
`
`THE PARTIES
`
`2.
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`under the laws of the State of Delaware and having a place of business at 23977 S.E. 10th
`
`Street, Sammamish, Washington 98075.
`3.
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`Upon information and belief, TCL Corp. is a corporation duly organized and
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`existing under the laws of the People’s Republic of China, having an address of No. 26, the
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`Third Road, Zhongkai Avenue, Huizhou City, Guangdong, P.R. China 516006.
`4.
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`Upon information and belief, TCL Communication Ltd. is a corporation duly
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`organized and existing under the laws of the People’s Republic of China, having an address of
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`7/F, Block F4, TCL International E City Zhong Shan Yuan Road, Nanshan District, Shenzhen
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`China.
`
`5.
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`Upon information and belief, TCL Communication Holdings Ltd. is a
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`corporation existing under the laws of China, with a principal place of business at TCL Tower,
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`15th floor, Gaoxin Nan Yi Road, Nanshan District, Shenzhen, Guangong, 518057 P.R. China.
`6.
`
`Upon information and belief, TCL Communication Technology Holdings Ltd.
`
`(“TCT”) is a corporation duly organized and existing under the laws of the People’s Republic
`
`of China, having an address of Block F4, TCL Communication Technology Building, TCL
`
`International E City, Zhong Shan Yuan Road, Nanshan District, Shenzhen, Guangdong, P.R.
`
`China, 518052.
`7.
`
`Upon information and belief, TCT is licensed to make, use, and sell Alcatel-
`
`branded mobile devices in the United States.
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`COMPLAINT - 2
`Case No.
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`http://www.tctusa.com/
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`https://us.alcatelmobile.com/about-us/
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`8.
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`Upon information and belief, TCT is licensed to make, use, and sell Blackberry-
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`branded mobile devices in the United States.
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`COMPLAINT - 3
`Case No.
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`http://www.tctusa.com/
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`https://blackberrymobile.com/us/about-us/
`9.
`The Defendants identified in paragraphs 2-5 above are an interrelated group of
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`companies which together comprise a manufacturer and seller of Android mobile devices in the
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`
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`COMPLAINT - 4
`Case No.
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`United States, including Android mobile devices that are sold under the Alcatel and Blackberry
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`brands.
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`II.
`This is an action for infringement of United States patents arising under 35
`
`JURISDICTION
`
`10.
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`U.S.C. §§ 271, 281, and 284–85, among others. This Court has subject matter jurisdiction of
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`the action under 28 U.S.C. § 1331 and § 1338(a).
`11.
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`This Court has personal jurisdiction over Defendants pursuant to due process
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`and/or the Texas Long Arm Statute because, inter alia, (i) Defendants have done and continue
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`to do business in Texas and (ii) Defendants have committed and continue to commit acts of
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`patent infringement in the State of Texas, including making, using, offering to sell, and/or
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`selling accused products in Texas, and/or importing accused products into Texas, including by
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`Internet sales and sales via retail and wholesale stores, inducing others to commit acts of patent
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`infringement in Texas, and/or committing a least a portion of any other infringements alleged
`
`herein. In addition, or in the alternative, this Court has personal jurisdiction over Defendants
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`pursuant to Fed. R. Civ. P. 4(k)(2).
`12.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), 1391(c), and
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`1400(b) because (i) Defendants have done and continue to do business in this district; (ii)
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`Defendants have committed and continue to commit acts of patent infringement in this district,
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`including making, using, offering to sell, and/or selling accused products in this district, and/or
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`importing accused products into this district, including by internet sales and sales via retail and
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`wholesale stores, and/or inducing others to commit acts of patent infringement in this district;
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`and (iii) Defendants are foreign entities.
`13.
`Venue is proper as to Defendants, which are organized under the laws of the
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`People’s Republic of China, Hong Kong, and Canada. 28 U.S.C. § 1391(c)(3) provides that “a
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`defendant not resident in the United States may be sued in any judicial district, and the joinder
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`COMPLAINT - 5
`Case No.
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`of such a defendant shall be disregarded in determining where the action may be brought with
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`respect to other defendants.”
`
`III. BACKGROUND
`On June 25, 2002, U.S. Patent No. 6,411,941 (“the ’941 patent”) entitled
`
`14.
`
`“Method Of Restricting Software Operation Within A License Limitation” was duly and legally
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`issued. (See Exhibit A, U.S. Patent No. 6,411,941.) A reexamination certificate also issued to
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`the ’941 Patent on June 1, 2010 where the patentability of all claims was confirmed by the
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`United States Patent Office. (Exhibit B, Ex Parte Reexamination Certificate Issued Under 35
`
`U.S.C. § 307.)
`15.
`
`The ‘941 patent has been involved in litigation against Microsoft Corporation,
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`Dell Incorporated, Hewlett Packard Incorporated, and Toshiba America Information Systems.
`
`(See 2009-cv-00270, Western District of Washington).
`16.
`
`The '941 patent has also been involved in litigation against Apple Incorporated.
`
`(See 2015-cv-03659, Northern District of California).
`17.
`
`The '941 patent is currently involved in litigation against HTC America, Inc. and
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`HTC Corporation. (See 2016-cv-01919, Western District of Washington).
`18.
`
`The '941 patent is currently involved in litigation against Samsung Electronics
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`America, Inc. and Samsung Electronics Co., Ltd. (See 2019-cv-00385, Western District of
`
`Texas).
`19.
`
` The '941 patent is currently involved in litigation against LG Electronics USA,
`
`Inc. and LG Electronics, Inc. (See 2019-cv-00384, Western District of Texas).
`20.
`The ‘941 patent was involved in a Covered Business Method proceeding before
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`the U.S. Patent and Trademark Office (See PTAB-CBM2017-00054). The U.S. Patent and
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`Trademark Office denied institution of the petition filed by HTC and found the ‘941 patent
`
`recites a “technological improvement to problems arising in prior art software and hardware
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`COMPLAINT - 6
`Case No.
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`methods of restricting an unauthorized software program’s operation.” (See PTAB-CBM2017-
`
`00054, Paper No. 7 at pg. 9).
`
`21.
`
`The U.S. Court of Appeals for the Federal Circuit further issued an order on
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`November 16, 2018 regarding the validity of the ‘941 patent. (See CAFC 18-1404, Dkt. # 39.)
`
`In this appeal, the U.S. Court of Appeals for the Federal Circuit held:
`[T]he claimed invention moves a software-verification structure to a BIOS
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`location not previously used for this computer-security purpose and alters how the
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`function is performed (in that the BIOS memory used for verification now
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`interacts with distinct computer memory to perform a software-verification
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`function), yielding a tangible technological benefit (by making the claimed system
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`less susceptible to hacking).
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`CAFC 18-1404, Dkt. # 39, pg. 13.
`
`22.
`
`The U.S. Court of Appeals for the Federal Circuit further issued an order on
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`March 3, 2014 regarding claim construction and invalidity of the ‘941 Patent. (See CAFC 13-
`
`1378, Dkt. # 57).
`23.
`
`Ancora is the owner of all right, title and interest in the ’941 patent.
`
`IV. COUNT I – PATENT INFRINGEMENT
`Ancora realleges the preceding paragraphs as though set forth fully herein.
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`TCL has infringed the ’941 patent in violation of 35 U.S.C. § 271(a) by, prior to
`
`24.
`25.
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`the expiration of the ’941 patent, selling, and/or offering for sale in the United States, and/or
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`importing into the United States, without authorization, products that are capable of performing
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`at least Claim 1 of the ’941 patent literally or under the doctrine of equivalents and/or, without
`
`authorization, causing products to perform each step of at least Claim 1 of the ’941 patent.
`26.
`Accused Products include, but are not limited to, the Alcatel 3c/33x/3v/3L;
`
`Alcatel 1c/1x/1/1t7/1T10; Alcatel A3/A3XL/A7XL/A7/A2XL/A3A; Alcatel A5; Alcatel IDOL
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`COMPLAINT - 7
`Case No.
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`4/4S/5; Alcatel POP 4/4S/4PLUS; Alcatel PIXI 4(4)/4(5)/4(6); Blackberry KeyONE; and
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`Blackberry Key2 (“Accused Devices”).
`
`27.
`
`Upon information and belief, TCL began selling the accused Alcatel products
`
`between 2016 - 2018.
`28.
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`Upon information and belief, TCL began selling the Blackberry KeyONE in
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`2017.
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`https://blackberrymobile.com/press-room/
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`29.
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`Upon information and belief, TCL began selling the Blackberry Key2 in 2018.
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`COMPLAINT - 8
`Case No.
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`https://blackberrymobile.com/press-room/
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`
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`30.
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`At a minimum, the Accused Products include servers/software utilized by TCL
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`to transmit an over-the-air (“OTA”) software update, as well as those smartphones and other
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`devices and technology that received from TCL, or received at TCL’s direction, an OTA update
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`that caused such device to perform the method recited in Claim 1 prior to the expiration of the
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`’941 patent.
`31.
`
`Such Accused Products are configured by TCL such that they are capable of
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`performing each step of Claim 1 of the ‘941 patent and to which TCL provided one or more
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`OTA updates before the expiration of the ‘941 patent that would cause a TCL device to
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`perform each step of Claim 1 in order to upgrade its operating system. (See e.g.,
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`https://www.att.com/devicehowto/tutorial.html#!/stepbystep/id/stepbystep_KM1231051?make
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`=BlackBerry&model=BBB100&gsi=mpo8f8;
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`https://support.sprint.com/support/pages/printTemplate.jsp?articleId=WServiceAdvisory_542_
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`GKB92134-dvc9760001prd.)
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`COMPLAINT - 9
`Case No.
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`32.
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`For example, Claim 1 of the ’941 patent claims “a method of restricting software
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`operation within a license for use with a computer including an erasable, non-volatile memory
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`area of a BIOS of the computer, and a volatile memory area; the method comprising the steps
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`of: [1] selecting a program residing in the volatile memory, [2] using an agent to set up a
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`verification structure in the erasable, non-volatile memory of the BIOS, the verification
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`structure accommodating data that includes at least one license record, [3] verifying the
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`program using at least the verification structure from the erasable non-volatile memory of the
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`BIOS, and [4] acting on the program according to the verification.”
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`33. When TCL transmitted an OTA update, TCL performed and/or caused to be
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`performed each of these elements as part of what is described as “verified boot”:
`
`
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`
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`https://source.android.com/security/verifiedboot
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`
`
`34.
`
`In particular, each mobile device contains both erasable, non-volatile memory in
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`the form of ROM and volatile memory in the form of RAM.
`35.
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`Further, each mobile device was configured by TCL to perform the below
`
`described process (or one substantially like it) in order to install an OTA update:
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`COMPLAINT - 10
`Case No.
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`https://source.android.com/devices/tech/ota/nonab
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`36.
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`For example, during this process, a program running on one or more OTA
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`servers owned and/or controlled by TCL set up a verification structure in the erasable, non-
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`volatile memory of the BIOS of the Accused Products by transmitting to the device an OTA
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`update. The Accused Products are then configured by TCL to save to a partition (e.g., the
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`“cache” or “A/B” partitions) of the erasable, non-volatile memory of its BIOS.
`37.
`
`The OTA update contains a verification structure that include data
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`accommodating at least one license record. Examples of such a license record include a
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`cryptographic signature or key:
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`COMPLAINT - 11
`Case No.
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`https://source.android.com/devices/tech/ota/sign_builds
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`38.
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`Such license record also may comprise a cryptographic hash or hash tree:
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`https://source.android.com/security/verifiedboot/verified-boot.
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`39.
`
`Once the verification structure has been set up in the BIOS, the Accused
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`Products are configured by TCL to reboot into recovery mode, load the OTA update into its
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`volatile memory (e.g., RAM), and use the at least one license record from the BIOS to verify
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`the OTA update.
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`COMPLAINT - 12
`Case No.
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`40.
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`If the OTA update is verified, the Accused Products are configured to load and
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`execute the update.
`
`41.
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`In sum, as described above, once TCL has set up the verification structure by
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`transmitting to a device an OTA update, each Accused Product is configured to automatically
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`perform each of the remaining Claim 1 steps.
`42.
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`Further, on information and belief, when TCL provided OTA updates, TCL
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`performed or caused to be performed each of the Claim 1 steps.
`43.
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`Further, TCL conditions participation in the OTA update process and the receipt
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`of the benefit of a software update on the performance of each of the above steps.
`44.
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`Primarily, as described above, TCL pre-configures/programs each Accused
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`Product to perform the above described steps upon receiving an OTA update from TCL.
`45.
`
`Further, TCL takes steps to ensure that each Accused Product cannot install an
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`OTA update except by performing each of the above described steps.
`46.
`
`Further, TCL emphasizes the benefits associated with updating the software of
`
`its Accused Products.
`47.
`
`Further, TCL controlled the manner of the performance of such method. As set
`
`forth above, TCL configured each Accused Product such that, upon receiving an OTA update,
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`it would automatically perform each remaining step of the claimed method.
`48.
`
`TCL also controlled the timing of the performance of such method by
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`determining when to utilize its OTA servers/software to set up a verification structure in each
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`Accused Product.
`49.
`
`TCL also had the right and ability to stop or limit infringement simply by not
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`performing the initial step of using its OTA servers/software to set up a verification structure in
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`each Accused Product. Absent this action by TCL, the infringement at issue would not have
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`occurred.
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`COMPLAINT - 13
`Case No.
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`50.
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`TCL’s infringement has caused damage to Ancora, and Ancora is entitled to
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`recover from TCL those damages Ancora has sustained as a result of TCL’s infringement.
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`V.
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`DEMAND FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment as follows:
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`A.
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`Declaring that TCL has infringed United States Patent No. 6,411,941 in violation
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`of 35 U.S.C. § 271;
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`B.
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`Awarding damages to Ancora arising out of this infringement, including enhanced
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`damages pursuant to 35 U.S.C. § 284 and prejudgment and post-judgment interest, in an amount
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`according to proof;
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`C.
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`Awarding such other costs and relief the Court deems just and proper, including
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`any relief that the Court may deem appropriate under 35 U.S.C. § 285.
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`VI. DEMAND FOR JURY TRIAL
`Ancora respectfully demands a trial by jury of any and all issues triable of right by a
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` SIEBMAN FORREST BURG
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` & SMITH, LLP
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` Federal Courthouse Square
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` 300 N. Travis
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` Sherman, TX 75090
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` (903) 870-0070
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` (903) 870-0066 Telefax
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` Clyde M. Siebman
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` Texas State Bar #18341600
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` clydesiebman@siebman.com
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` Elizabeth S. Forrest
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` Texas State Bar #24086207
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` elizabethforrest@siebman.com
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`jury in the above-captioned action.
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`DATED: August 27, 2019
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`COMPLAINT - 14
`Case No.
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` By: /s/ Clyde M. Siebman
` Clyde M. Siebman
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`BROOKS KUSHMAN P.C.
`John P. Rondini (pending admission pro hac vice)
`Mark A Cantor (pending admission pro hac vice)
`John S. LeRoy (pending admission pro hac vice)
`Marc Lorelli (pending admission pro hac vice)
`1000 Town Center, 22nd Floor
`Southfield, Michigan 48075-1238
`Tel.: (248) 358-4400
`Fax: (248) 358-3351
`Email: jrondini@brookskushman.com
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` mcantor@brookskushman.com
`jleroy@brookskushman.com
`mlorelli@brookskushman.com
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`Attorneys for Plaintiff Ancora Technologies, Inc.
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`COMPLAINT - 15
`Case No.
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