Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 1 of 63 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
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`OPENTV, INC.’S COMPLAINT FOR PATENT INFRINGEMENT
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`vs.
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`Defendant.
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`Case No. 2:17-cv-31
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`Jury Trial Demanded
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`OPENTV, INC.,
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`
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` Plaintiff,
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`NFL ENTERPRISES, LLC
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`1
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`Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 2 of 63 PageID #: 2
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`
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff OpenTV, Inc. (“OpenTV”), by and through the undersigned counsel, hereby
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`brings this action and makes the following allegations of patent infringement relating to U.S.
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`Patent Nos. 7,996,861, 7,421,729, 7,028,327, 7,950,033, 7,055,169, 7,020,888 and 6,233,736
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`against Defendant NFL Enterprises, LLC. (“NFLE”), and alleges as follows upon actual
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`knowledge with respect to itself and its own acts, and upon information and belief as to all other
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`matters:
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`1.
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`NATURE OF THE ACTION
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`This is an action for patent infringement. OpenTV alleges that NFLE infringes
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`U.S. Patent No. 7,996,861 (“the ’861 Patent”), U.S. Patent No. 7,421,729 (“the ’729 Patent”),
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`U.S. Patent No. 7,028,327 (“the ’327 Patent”), U.S. Patent No. 7,950,033 (“the ’033 Patent”),
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`U.S. Patent No. 7,055,169 (“the ’169 Patent”), U.S. Patent No. 7,020,888 (“the ’888 Patent”) and
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`U.S. Patent No. 6,233,736 (“the ’736 Patent) copies of which are attached as Exhibits A-G,
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`respectively (collectively “the OpenTV Patents”).
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`2.
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`NFLE has been on notice of its infringement of all of the OpenTV Patents except
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`the ’888 Patent since at least November 30, 2015 by virtue of a letter emailed from Joe
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`Chernesky, Senior Vice President, IP & Innovation of the Kudelski Group to Michael Buchwald,
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`counsel of the National Football League (NFL). NFLE has been on notice of its infringement of
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`the ’888 Patent by no later than the filing date of this Complaint.
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`3.
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`OpenTV alleges that NFLE directly and indirectly infringes the OpenTV Patents
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`by making, using, offering for sale, and selling its online video services and inducing and
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`contributing to the infringement of others. OpenTV seeks damages and other relief for NFLE’s
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`infringement of the OpenTV Patents.
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`4.
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`THE PARTIES
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`Plaintiff OpenTV is a Delaware corporation with its principal place of business at
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`275 Sacramento St., San Francisco, California, 94111.
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`5.
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`Upon information and belief, Defendant NLFE is a Delaware limited liability
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`corporation with its principal office at 280 Park Avenue, 15th Floor, New York, NY 10017.
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`NFLE can be served through its registered agent, The Corporation Trust Company, Corporation
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`Trust Center, 1209 Orange Street, Wilmington, DE 19801.
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`6.
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`According to NFLE’s website, NFLE offers infringing products and services for
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`sale and use throughout the United States, including in the Eastern District of Texas. In addition,
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`NFLE advertises its infringing products and services throughout the Eastern District of Texas
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`and claims financial benefits through conducting its business in Texas.
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`JURISDICTION AND VENUE
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`This action for patent infringement arises under the Patent Laws of the United
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`7.
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`States, 35 U.S.C. § 1 et. seq. This Court has original jurisdiction under 28 U.S.C. §§ 1331 and
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`1338.
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`8.
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`This Court has both general and specific personal jurisdiction over NFLE because
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`NFLE has committed acts within the Eastern District of Texas giving rise to this action and has
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`established minimum contacts with this forum such that the exercise of jurisdiction over NFLE
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`would not offend traditional notions of fair play and substantial justice. Defendant NFLE,
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`directly and through subsidiaries and intermediaries (including distributors, retailers, franchisees
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`and others), has committed and continues to commit acts of infringement in this District by,
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`among other things, making, using, testing, selling, licensing, importing, and/or offering for
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`sale/license products and services that infringe the OpenTV Patents.
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`9.
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`Venue is proper in this district and division under 28 U.S.C. §§1391(b)-(d) and
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`1400(b) because NFLE has transacted business in the Eastern District of Texas and has
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`committed acts of direct and indirect infringement in the Eastern District of Texas.
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`A. OpenTV
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` BACKGROUND
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`10. OpenTV is a U.S. subsidiary company of Kudelski SA. Kudelski SA and its
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`subsidiaries, including OpenTV, make up the various companies of The Kudelski Group. The
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`history of The Kudelski Group is one highlighted by 60 years of innovation, award winning
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`products, and loyal, long-term customers who entrust The Kudelski Group with their business.
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`Today, The Kudelski Group is a major employer in the United States, Europe, Asia, and
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`elsewhere, providing jobs in manufacturing, engineering, research and development, marketing,
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`sales, and many other specialties, with headquarters in Cheseaux-sur-Lausanne, Switzerland and
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`Phoenix, Arizona.
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`11. The Kudelski Group was founded in 1951 by Stefan Kudelski successfully
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`launching portable recording devices for cinema, TV and radio recording. The success of its
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`products allowed The Kudelski Group to expand its technology into the digital television
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`domain. In 1989, The Kudelski Group launched its first conditional access systems for pay TV.
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`Over the next 10 years (1990-1999) The Kudelski Group continued to expand its technology
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`development in the digital TV space, providing global, universally compatible solutions to
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`manage, organize, enhance, market, and secure digital content, regardless of whether it was
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`transmitted over managed or unmanaged networks and broadcasted linearly or on demand.
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`Today, The Kudelski Group is led by Stefan’s son, Andre Kudelski, and Andre Kudelski has led
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`the company into an era where digital television is The Kudelski Group’s core business.
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`12. Throughout his career, Stefan Kudelski received numerous awards and honors for
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`his technological achievements. For example, Mr. Kudelski received four Oscars from the
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`Academy of Motion Picture Arts and Sciences: three Scientific or Technical Awards in 1965,
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`1977, 1978, and the Gordon E. Sawyer Award in 1990. Mr. Kudelski also received two Emmy
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`Awards, as well as Gold Medals from L. Warner, Audio Engineering Society, Lyra and
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`Eurotechnica. Mr. Kudelski was also recognized by the FBI for his technology contribution in
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`audio recording.
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`13. Today, digital television is The Kudelski Group’s core business. With that, The
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`Kudelski Group has become a world leader in digital security and convergent media solutions for
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`the delivery of digital and interactive content. The Kudelski Group’s innovations are
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`continuously contributing to the evolution of the digital television ecosystem, enabling operators
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`to extend their multimedia offerings across the entire digital ecosystem to numerous client
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`devices through traditional managed networks as well as Internet delivery.
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`14. The Kudelski Group has also grown as a leader in the digital television domain
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`through acquisitions of pioneering technology companies, including such notable companies as
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`Lysis (2001), Livewire (2001), MediaGuard (2004), SmarDTV (2006), OpenTV (2007), and
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`Conax (2014).
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`15. OpenTV is headquartered in San Francisco, California, has offices throughout the
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`world, and employs hundreds of people worldwide, including more than 120 in the United
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`States. OpenTV develops software that provides its customers with high quality technology,
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`services, and end-to-end solutions enabling intuitive and personalized viewing experiences for
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`consumers. OpenTV’s software solutions enable a variety of advanced and interactive services
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`for television, including advanced user interfaces, video-on-demand (“VOD”), personal video
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`recording (“PVR”), high-definition (“HD”), interactive and addressable advertising, and a
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`variety of enhanced television applications. OpenTV’s software has been shipped in over 200
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`million set-top boxes. OpenTV has 80 worldwide customers that run OpenTV solutions,
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`including 40 OEMs.
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`16. OpenTV’s success as a member of The Kudelski Group is due in large part to its
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`worldwide emphasis on intellectual property. OpenTV benefits from one of the earliest and
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`broadest patent portfolios in the industry. OpenTV’s patented technology has been vital in
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`allowing OpenTV’s customers
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`to accelerate
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`technological progress, enhance market
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`opportunities, and improve profitability. To date, OpenTV owns over 770 issued patents
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`worldwide.
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`17. OpenTV is the owner of all right title and interest in the OpenTV Patents. The
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`OpenTV Patents cover various key technologies in online digital television services.
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`B. NFLE
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`18. Upon information and belief, NFLE was formed in 2002 as a limited liability
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`company in Delaware.
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`19. Upon information and belief, NFLE offers products and services that are widely
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`used in this District and throughout the United States, including but not limited to, the following
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`applications that provide, among other things, a streaming interactive video content experience to
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`users: NFL.com, Watch NFL Network/NFL Redzone, NFL Now, NFL Game Pass, NFL
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`Mobile, the NFL App, and NFL Fantasy Football. These applications and services are provided
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`to users in various forms on numerous content platforms including, but not limited to, mobile
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`phones and tablets, personal computers, set-top boxes and streaming media connected devices.
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`COUNT 1: INFRINGEMENT OF THE ’861 PATENT
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`20.
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`The allegations of paragraphs 1-20 of this Complaint are incorporated by
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`reference as though fully set forth herein.
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`Patent.
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`21.
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`22.
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`OpenTV owns by assignment the entire right, title, and interest in the ’861
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`The ’861 Patent was issued by the United States Patent and Trademark Office on
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`August 9, 2011 and is titled “Flexible Interface for Secure Input of Pin Code.” A true and
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`correct copy of the ’861 Patent is attached hereto as Exhibit A.
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`23.
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`24.
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`Pursuant to 35 U.S.C. § 282, the ’861 Patent is presumed valid.
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`A person of ordinary skill in the art reading the ’861 Patent would understand
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`that the patent’s disclosure and claims are rooted in complex computer-implemented operations
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`that require complex computer hardware and software technologies that can be used to overcome
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`the problem of how to authenticate a user’s right to access protected (e.g., pay per view) content.
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`By way of example, such complex technology can comprise, among other things, a security
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`manager. Prior to granting access to protected content, an application which provides access to
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`protected content sends a request for a PIN to the user’s device prior to granting access to the
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`protected content. However, to avoid compromising the secrecy of the PIN code, the PIN code
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`is supplied to the security manager rather than the application requesting the PIN code. The
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`security manager then verifies to the application that the user is authorized to have access to the
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`protected content without ever disclosing the PIN code to the application, thus protecting the
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`PIN’s confidentiality for future use.
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`25. Upon information and belief, NFLE has directly infringed at least Claim 9 of the
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`’861 Patent in violation of 35 U.S.C. § 271 et seq., by making, using, testing, selling, licensing,
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`importing, and/or offering for sale/license without authority its Watch NFL Network/NFL
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`Redzone applications (the “Watch NFL Network Application”) incorporating authorization
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`functionality (collectively, “the ’861 Infringing Instrumentalities”) in the exemplary manner
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`described below:
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`A. The ’861 Infringing Instrumentalities meet all of the elements of Claim 9 of
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`the ’861 Patent in that they provide executable instructions for authenticating
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`a PIN code of a user in order to run an application.
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`B. When a subscriber attempts to access the Watch NFL Network Application
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`through, for example, the NFL.com website or Watch NFL Network mobile
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`application, he or she receives a request for user authentication from the
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`application.
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`Screenshot of the Watch NFL Network MVPD selection screen for
`authenticating with a service provider’s TV Everywhere service
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`Screenshot of an exemplary MVPD login iFrame
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`C. Information about the PIN code entering key-pressing operations by the user
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`are supplied to the Watch NFL Network Application and displayed in
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`encrypted (i.e., obfuscated) form, and the ’861 Infringing Instrumentalities use
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`an authentication service manager to authenticate the subscribers such that the
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`entered PIN code is not supplied to the application.
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`Screenshot of MVPD login iFrame showing obfuscated PIN entry
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`D. Once it is determined that the PIN code of the user matches the registered PIN
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`code, authorization to run the application is given.
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`Screenshot illustrating the Authentication process
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`Screenshot illustrating NFL Network authorization by the security manager
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`Exemplary screenshot illustrating service access to the Watch NFL Network
`application after successful authentication
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`26. NFLE has thus infringed, and continues to infringe, at least Claim 9 of the ’861
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`Patent by making, using, testing, selling, licensing, importing, and/or offering for sale/license the
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`’861 Infringing Instrumentalities, and operating them such that all steps of at least Claim 9 of the
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`’861 Patent are performed, including within this District. Moreover, NFLE fully implements,
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`manages, directs and supports the use of the ’861 Infringing Instrumentalities by its customers.
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`27. NFLE’s customers have been and are now infringing, including under 35 U.S.C.
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`§271(a), at least Claim 9 of the ’861 Patent by using the ’861 Infringing Instrumentalities.
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`28. NFLE has, since at least November 30, 2015 and by no later than the filing of this
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`Complaint, known or been willfully blind to the fact that such acts by its customers of using ’861
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`Infringing Instrumentalities directly infringe at least Claim 9 of the ’861 Patent.
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`29. NFLE’s knowledge of the ’861 Patent, which covers operating the ’861 Infringing
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`Instrumentalities in their intended manner and such that all limitations of at least Claim 9 of the
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`’861 Patent are met, made it known to NFLE that its customers’ use of the ’861 Infringing
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`Instrumentalities would directly infringe the ’861 Patent, or, at the very least, rendered NFLE
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`willfully blind to such infringement.
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`30. Having known or been willfully blind to the fact that its customers’ use of the
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`’861 Infringing Instrumentalities in their intended manner and such that all limitations of at least
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`Claim 9 of the ’861 Patent are met would directly infringe the ’861 Patent, NFLE, upon
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`information and belief, actively encouraged and continues to actively encourage its customers to
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`directly infringe the ’861 Patent by using, selling, licensing, offering to sell/license, or importing
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`the said ’861 Infringing Instrumentalities, and by, for example, marketing the ’861 Infringing
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`Instrumentalities to customers; working with its customers to implement, install and operate the
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`’861 Infringing Instrumentalities and components thereof; fully supporting and managing its
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`customers’ continued use of the ’861 Infringing Instrumentalities; and providing technical
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`assistance to customers during their continued use of the ’861 Infringing Instrumentalities. See,
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`e.g., http://nflnonline.nfl.com/.
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`31. NFLE induces its users to infringe at least Claim 9 of the ’861 Patent at least by
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`encouraging them to install and operate the ’861 Infringing Instrumentalities, which, alone or in
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`combination with the users’ devices, satisfy all the limitations of at least Claim 9 of the ’861
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`Patent. For example, NFLE advertises and promotes the features of its Watch NFL Network
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`Application on its websites NFL.com and nflnonline.nfl.com, and encourages its users to
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`configure and operate their mobile and computer devices in an infringing manner (see, e.g.,
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`http:// http://nflnonline.nfl.com/). In response, NFLE’s users acquire, configure and operate the
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`Watch NFL Network Application such that all the limitations of at least Claim 9 of the ’861
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`Patent are practiced. NFLE has been aware of the ’861 Patent since at least November 30, 2015.
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`32. Thus, NFLE has specifically intended to induce, and has induced, its customers to
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`infringe at least Claim 9 of the ’861 Patent, and NFLE has known of or been willfully blind to
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`such infringement. NFLE has advised, encouraged, and/or aided its customers to engage in
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`direct infringement, including through its encouragement, advice and assistance to customers to
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`use the ’861 Infringing Instrumentalities.
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`33. Based on, among other things, the foregoing facts, NFLE has induced, and
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`continues to induce, infringement under 35 U.S.C. § 271(b) of at least Claim 9 of the ’861
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`Patent.
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`34.
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`Further, NFLE sells, provides and/or licenses to its customers ’861 Infringing
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`Instrumentalities that are especially made and adapted—and specifically intended by NFLE—to
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`be used as components and material parts of the inventions covered by the ’861 Patent. For
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`example, NFLE provides applications and software, which customers configure and use in a
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`manner such that all limitations of at least Claim 9 of the ’861 Patent are met, and without which,
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`NFLE’s customers would be unable to use and avail of the ’861 Infringing Instrumentalities in
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`their intended manner.
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`35. Upon information and belief, NFLE also knew that the ’861 Infringing
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`Instrumentalities operate in a manner that satisfy all limitations of at least Claim 9 of the ’861
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`Patent.
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`36. The authorization functionality in the ’861 Infringing Instrumentalities is
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`specially made and adapted to infringe at least Claim 9 of the ’861 Patent. Upon information and
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`belief, the authorization functionality in the ’861 Infringing Instrumentalities is not a staple
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`article or commodity of commerce, and, because the functionality is designed to work with the
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`’861 Infringing Instrumentalities solely in a manner that is covered by at least claim 9 of the ’861
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`Patent, it does not have a substantial non-infringing use. At least since November 30, 2015 and
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`by no later than the filing of this Complaint, based on the forgoing facts, NFLE has known or
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`been willfully blind to the fact that such functionality is especially made and adapted for—and is
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`in fact used in—’861 Infringing Instrumentalities in a manner that is covered by the ’861 Patent.
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`37. Based on, among other things, the foregoing facts, NFLE has contributorily
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`infringed, and continues to contributorily infringe, at least Claim 9 of the ’861 Patent under 35
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`U.S.C. § 271(c).
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`38. NFLE’s acts of infringement of the ’861 Patent have been willful and intentional
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`under the standard announced in Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.Ct. 1923, 195 L.Ed
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`2d 278 (2016). Since at least November 30, 2015, NFLE has willfully infringed the ’861 Patent
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`by refusing to take a license and continuing to make, use, test, sell, license, import, and/or offer
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`for sale/license the ’861 Infringing Instrumentalities. NFLE has been aware that it infringes the
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`’861 Patent since at least November 30, 2015 and instead of taking a license, NFLE has opted to
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`make the business decision to “efficiently infringe” the ’861 Patent. In doing so, NFLE willfully
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`infringed the ’861 Patent.
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`39. NFLE’s acts of direct and indirect infringement have caused, and continue to
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`cause, damage to OpenTV, and OpenTV is entitled to recover damages sustained as a result of
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`NFLE’s wrongful acts in an amount subject to proof at trial. The infringement of OpenTV’s
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`exclusive rights under the ’861 Patent has damaged and will continue to damage OpenTV,
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`causing irreparable harm, for which there is no adequate remedy at law, with the balance of
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`hardships between OpenTV and NFLE, and the public interest, warranting an injunction.
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`COUNT 2: INFRINGEMENT OF THE ’729 PATENT
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`40.
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`The allegations of paragraphs 1-20 of this Complaint are incorporated by
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`reference as though fully set forth herein.
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`Patent.
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`41.
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`42.
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`OpenTV owns by assignment the entire right, title, and interest in the ’729
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`The ’729 Patent was issued by the United States Patent and Trademark Office on
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`September 2, 2008 and is titled “Generation and Insertion of Indicators Using An Address Signal
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`Applied To A Database.” A true and correct copy of the ’729 Patent is attached hereto as
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`Exhibit B.
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`43.
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`Pursuant to 35 U.S.C. § 282, the ’729 Patent is presumed valid.
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`44. A person of ordinary skill in the art reading the ’729 Patent would understand that
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`the patent’s disclosure and claims are rooted in complex computer-implemented operations that
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`require complex computer hardware and software technologies that can be used to overcome the
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`problem of how to insert content (additional information) at the relevant time into a video stream
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`(e.g., a television program) so that the additional information is provided when it directly relates
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`to the current content of the video stream. By way of example, the ’729 Patent provides a system
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`and method for inserting content into a video stream by generating video indicators, such as tags
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`and markers, which can be inserted in a video signal provided to a set-top box or viewer’s
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`computer. In exemplary embodiments, the content identification tags can provide information
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`regarding upcoming video segments and markers that indicate the beginning/end of video
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`segments and can automatically connect the system to an interactive web page overlay,
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`alternative video source information, or any other information that may be useful in viewing or
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`controlling the video signal. In an exemplary embodiment, the video signal also includes video
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`segment markers that indicate the beginning and ending of each video segment. These video
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`segment markers are associated with the tags through a unique ID associated with each marker.
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`45. Upon information and belief, NFLE, alone or through agents or third parties
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`acting under NFLE’s direction and control, has directly infringed at least Claim 1 of the ’729
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`Patent in violation of 35 U.S.C. § 271 et seq., by making, using, testing, selling, licensing,
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`importing, and/or offering for sale/license in the United States without authority its NFL Game
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`Pass application with Big Play Markers, and further including NFLE functionality for processing
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`and encoding video stream content with Big Play Markers (collectively, “the ’729 Infringing
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`Instrumentalities”), in the exemplary manner described below:
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`A. One or more of the ’729 Infringing Instrumentalities meet all the elements of
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`at least Claim 1 of the ’729 Patent, including generating and inserting
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`indicators
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`into a video stream.
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` In particular,
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`the ’729 Infringing
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`Instrumentalities comprise time code signals to synchronize play highlights
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`with the NFL video stream content, e.g., game video content accessed through
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`NFL Game Pass or similar viewer functionality that may display “play
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`highlight” or “Big Play Markers.”
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`B. One or more of the ’729 Infringing Instrumentalities generate a time code
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`signal that is synchronized with the video stream and apply the time code
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`signal to an address generator that decodes the time code signal and generates
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`a corresponding address signal that is applied to a database storing a plurality
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`of indicators. In particular, NFLE generates time code signals with its game
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`video content and those time code signals are decoded and used to index a
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`database of metadata for play highlights that is correlated to “play highlight”
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`or “Big Play” indicators.
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`C. One or more of the ’729 Infringing Instrumentalities accesses a set of
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`indicators that are stored in said database using said address signal as an
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`address into said database and encodes said video stream with said set of
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`indicators accessed from said database using said address signal. In
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`particular, the ’729 Infringing Instrumentalities comprise time code signals to
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`synchronize play highlights with the NFL video stream content, e.g., game
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`video content accessed
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`through NFL Game Pass or similar viewer
`
`functionality that may display “play highlight” or “Big Play Markers.” The
`
`time code signals are used to index a play highlights database maintained by
`
`or on behalf of NFLE via corresponding address signals. This allows a set of
`
`indicators for the “play highlights” or “Big Play” feature to be encoded in the
`
`video stream supplied by or on behalf of NFLE, for example as XML-encoded
`
`data indicating availability of a play highlight.
`
`Exemplary source for the Big Play metadata in the NFL Game Pass
`application
`
`
`
`
`
`15
`
`

`

`Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 17 of 63 PageID #: 17
`
`
`
`Exemplary UI view of the NFL Game Pass application showing time encoded
`Big Play Markers
`
`
`
`
`
`
`Exemplary screenshot of the NFL Game Pass UI showing a Big Play highlight
`summary dialog window
`
`46. NFLE has thus infringed, and continues to infringe, at least Claim 1 of the ’729
`
`Patent by making, using, testing, selling, licensing, importing, and/or offering for sale/license
`
`’729 Infringing Instrumentalities, and operating them such that all steps of at least Claim 1 of the
`
`’729 Patent are performed, including within this District. In addition, NFLE directs its agents or
`
`third parties to perform acts of infringement under NFLE direction and control. Moreover,
`
`
`
`16
`
`

`

`Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 18 of 63 PageID #: 18
`
`NFLE and/or agents thereof fully implement, manage, and support the ’729 Infringing
`
`Instrumentalities by its customers.
`
`47. NFLE’s users, customers, agents or other third parties (collectively, “third party
`
`infringers”) have been and are now infringing, including under 35 U.S.C. § 271(a), at least Claim
`
`1 of the ’729 Patent by using the ’729 Infringing Instrumentalities.
`
`48. NFLE has, since at least November 30, 2015 and by no later than the filing of this
`
`Complaint, known or been willfully blind to the fact that the third party infringers’ use of the
`
`’729 Infringing Instrumentalities directly infringe at least Claim 1 of the ’729 Patent.
`
`49. NFLE’s knowledge of the ’729 Patent, which covers operating the ’729 Infringing
`
`Instrumentalities in their intended manner and such that all limitations of at least Claim 1 of the
`
`’729 Patent are met, made it known to NFLE that the third party infringers’ use of the ’729
`
`Infringing Instrumentalities would directly infringe the ’729 Patent, or, at the very least, rendered
`
`NFLE willfully blind to such infringement.
`
`50. Having known or been willfully blind to the fact that the third party infringers’
`
`use of the ’729 Infringing Instrumentalities in their intended manner and such that all limitations
`
`of at least Claim 1 of the ’729 Patent are met would directly infringe the ’729 Patent, NFLE,
`
`upon information and belief, actively encouraged and continues to actively encourage the third
`
`party infringers to directly infringe the ’729 Patent by using, selling, licensing, offering to
`
`sell/license, or importing said ’729 Infringing Instrumentalities, and by, for example, marketing
`
`the ’729 Infringing Instrumentalities to the third party infringers; working with the third party
`
`infringers to implement, install and operate the ’729 Infringing Instrumentalities and components
`
`thereof; fully supporting and managing the third party infringers’ continued use of the ’729
`
`Infringing Instrumentalities; and providing technical assistance to the third party infringers
`
`
`
`17
`
`

`

`Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 19 of 63 PageID #: 19
`
`during
`
`their continued use of
`
`the
`
`’729
`
`Infringing
`
`Instrumentalities.
`
` See, e.g.,
`
`https://gamepass.nfl.com/nflgp/secure/schedule;
`
`http://gamepass.nfl.com/nflgp/console.jsp;
`
`https://digitalcare.nfl.com/hc/en-us/categories/200275708-Game-Pass.
`
`51. NFLE induces the third party infringers to infringe at least Claim 1 of the ’729
`
`Patent at least by directing or encouraging them to install and operate the ’729 Infringing
`
`Instrumentalities, which, alone or in combination with the third party infringers’ devices, satisfy
`
`all the limitations of at least Claim 1 of the ’729 Patent. For example, NFLE advertises and
`
`promotes the features of the ’729 Infringing Instrumentalities on its websites nfl.com and
`
`https://gamepass.nfl.com/nflgp/secure/schedule, and encourages the third party infringers to
`
`configure and operate their mobile and computer devices in an infringing manner (see, e.g.,
`
`https://gamepass.nfl.com/nflgp/secure/schedule;
`
`http://gamepass.nfl.com/nflgp/console.jsp;
`
`https://digitalcare.nfl.com/hc/en-us/categories/200275708-Game-Pass). In response, the third
`
`party infringers acquire, configure and operate the ’729 Infringing Instrumentalities such that all
`
`the limitations of at least Claim 1 of the ’729 Patent are practiced. NFLE has been aware of the
`
`’729 Patent since at least November 30, 2015.
`
`52. Thus, NFLE has specifically intended to induce, and has induced, the third party
`
`infringers to infringe at least Claim 1 of the ’729 Patent, and NFLE has known of or been
`
`willfully blind to such infringement. NFLE has advised, encouraged, and/or aided the third party
`
`infringers to engage in direct infringement, including through its encouragement, advice, and
`
`assistance to the third party infringers to set up and use the ’729 Infringing Instrumentalities.
`
`53. Based on, among other things, the foregoing facts, NFLE has induced, and
`
`continues to induce, infringement under 35 U.S.C. § 271(b) of at least Claim 1 of the ’729
`
`Patent.
`
`
`
`18
`
`

`

`Case 2:17-cv-00031-JRG-RSP Document 1 Filed 01/12/17 Page 20 of 63 PageID #: 20
`
`54.
`
`Further, NFLE sells, provides and/or licenses to the third party infringers the ’729
`
`Infringing Instrumentalities that are especially made and adapted—and specifically intended by
`
`NFLE—to be used as components and material parts of the inventions covered by at least claim
`
`1 of the ’729 Patent. For example, NFLE provides content, applications and software, which the
`
`third party infringers configure and use in a manner that all limitations of at least Claim 1 of the
`
`’729 Patent are met, and without which the third party infringers would be unable to use and
`
`avail of the ’729 Infringing Instrumentalities in their intended manner.
`
`55. Upon information and belief, NFLE also knew that the ’729 Infringing
`
`Instrumentalities operate in a manner that satisfy all limitations of at least Claim 1 of the ’729
`
`Patent.
`
`56. The indicator generation and insertion functionality in the ’729 Infringing
`
`Instrumentalities is specially made and adapted to infringe at least Claim 1 of the ’729 Patent.
`
`Upon information and belief, such functionality in the ’729 Infringing Instrumentalities