Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`FINTIV, INC.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`§
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`§
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`Civil Action No.: 1:19-CV-01238-ADA
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`JURY TRIAL DEMANDED
`
`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Fintiv, Inc. (“Fintiv”), by and through its attorneys, for its Second Amended
`
`Complaint against Defendant Apple Inc. (“Apple”), hereby alleges the following:
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`I.
`
`NATURE OF THE ACTION
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`This is a patent infringement action to end Defendant’s unauthorized and infringing
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`manufacture, use, sale, offering for sale, and/or importation of methods and products incorporating
`
`Plaintiff’s patented inventions.
`
`Fintiv is the owner of all right, title, and interest in and to United States Patent No.
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`8,843,125 (the “’125 Patent”), issued September 23, 2014 and titled “System and Method for
`
`Managing Mobile Wallet and its Related Credentials.” A true and correct copy of the ’125 Patent
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`is attached hereto as Exhibit A.
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`Apple manufactures, provides, sells, offers for sale, imports, and/or distributes
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`products and services which directly infringe the ’125 Patent. Further, Apple indirectly infringes
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 2 of 25
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`the ’125 Patent by inducing and/or contributing to infringement by others, including Apple device
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`users, card issuers, and card issuer’s authorized service providers.
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`Fintiv seeks monetary damages and prejudgment interest for Defendant’s past and
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`continuing infringement of the ’125 Patent.
`
`II.
`
`PARTIES
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`Plaintiff Fintiv, Inc. is a Delaware corporation having a principal place of business
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`at 801 Barton Springs, Austin, Texas 78704. Fintiv is a corporation in good standing in the State
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`of Delaware. A true and correct copy of the Certificate of Good Standing issued by Delaware’s
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`Secretary of State is attached hereto as Exhibit B.
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`Defendant Apple Inc. is a corporation organized and existing under the laws of
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`California and has a regular and established places of business at 12535 Riata Vista Circle and
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`5501 West Parmer Lane, Austin, Texas. Apple employs thousands of people, including hundreds
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`of engineers, who work at these locations in Texas. The work done at these Apple locations in
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`Texas includes work related to Apple’s iPhones and Apple Watch products. Apple can
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`electronically access documents at its facilities in California and elsewhere from these locations in
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`Austin, Texas, as found, inter alia, in e-Watch Inc. v. Apple Inc., No. 2:13-CV-01061-JRG-RSP,
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`2016 WL 7338342, at *2 (E.D. Tex. Dec. 19, 2016) and TracBeam, LLC v. Apple Inc., No. 6:14-
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`CV-680, 2015 WL 5786449 (E.D. Tex. Sept. 29, 2015).
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`Apple also operates brick-and-mortar Apple Stores at Barton Creek Square, Austin,
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`Texas and at Apple Domain Northside, Austin, Texas. See www.apple.com/retail/. Apple uses,
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`offers for sale and sells iPhones and Apple Watch products that include Apple’s Wallet
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`functionality at these Apple Stores. Apple may be served with process through its registered agent
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`for service in Texas: CT Corporation System, 1999 Bryant Street, Suite 900, Dallas, Texas 75201.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 3 of 25
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`III.
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`JURISDICTION AND VENUE
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`This is an action for patent infringement, which arises under the Patent Laws of the
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`United States, in particular, 35 U.S.C. §§ 271, 281, 282, 284, and 285. The Court has jurisdiction
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`over the subject matter of this action under 28 U.S.C. §§ 1331 and 1338(a).
`
`This Court has personal jurisdiction over Apple because it has committed acts
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`giving rise to this action within Texas and within this judicial district. Defendant also regularly
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`does business or solicits business in this District and in Texas, engages in other persistent courses
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`of conduct and derives substantial revenue from products and/or services provided in this District
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`and in Texas, and has purposefully established substantial, systematic, and continuous contacts
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`within this District and should reasonably expect to be sued in a court in this District. For example,
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`Apple has offices in this District and has a Texas registered agent for service. Apple operates a
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`website that solicits sales of the infringing products by consumers in this District and in Texas, has
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`entered into partnerships with numerous resellers and distributors to sell and offer for sale the
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`infringing products to consumers in this District and in Texas, both online and in stores, and offers
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`support service to customers in this District and Texas. Given these contacts, the Court’s exercise
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`of jurisdiction over Apple will not offend traditional notions of fair play and substantial justice.
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`Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§ 1391(b),
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`(c) and l400(b) because Apple has an established place of business in this District, including at
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`12535 Riata Vista Circle and 5501 West Parmer Lane, Austin, Texas, has committed acts within
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`this judicial district giving rise to this action, and Apple continues to conduct business in this
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`judicial district, including one or more acts of making, selling, using, importing and/or offering for
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`sale infringing products or providing support service to Apple’s customers in this District.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 4 of 25
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`IV.
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`THE PATENT-IN-SUIT
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`The ’125 Patent relates to management of virtual cards stored on mobile devices
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`and discloses provisioning a contactless card in a mobile device with a mobile wallet application.
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`The specification of the ’125 Patent identifies technical problems in the prior art
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`and claims improvement to these problems. For instance, the specification explains that prior art
`
`lacked “an effective means to manage various payment applets residing within the mobile device.”
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`(’125 Patent at 1:63-67.) Moreover, prior art implementations did not enable a user to “view any
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`account specific information stored within the SE [Secure Element] or manage such applications
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`with or without the use of POS [Point of Sale] equipment.” Id. at 2:19-29. The specification
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`further explains that “[a]nother limitation of current mobile wallet applications is the lack of
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`support providing for such technology. . . . Accordingly, users may often be bombarded with
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`various applications that may be inapplicable to the user, making the process more difficult than
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`necessary.” Id. at 2:30-44. Finally, the prior art did not allow for an easy way to update
`
`information: “As various service providers operate independently from one another, when an
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`update is required by a particular service provider, each individual application is typically updated
`
`separately.” Id. at 2:45-52. In essence, the ’125 Patent claims a technical solution to these
`
`problems through a mobile wallet application and mobile wallet management system to store
`
`contactless cards in a secure element. The claimed technical solution is further incorporated in at
`
`least claims 11, 13-14, 16-18, and 20-25 of the ’125 patent.
`
`Fintiv owns all substantial and material rights to and interests in the ’125 Patent,
`
`including the right to recover damages for all past and future infringement thereof.
`
`The ’125 Patent is valid and enforceable.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 5 of 25
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`COUNT I: DIRECT INFRINGEMENT OF THE ’125 PATENT
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`Fintiv incorporates paragraphs 1 through 15 herein by reference.
`
`Apple, without authorization or license from Fintiv, has been and is presently
`
`directly infringing, literally or under the doctrine of equivalents, at least claims 11, 13-14, 16-18,
`
`and 20-25 of the ’125 Patent, as infringement is defined by 35 U.S.C. § 271(a), including through
`
`making, using (including for testing purposes), selling, offering for sale, and/or importing
`
`infringing products. Apple is thus liable for direct infringement of the ’125 Patent pursuant to 35
`
`U.S.C. § 271(a). Exemplary infringing products include Apple iPhone devices (including, at least,
`
`iPhone 6, 6 Plus, 6s, 6s Plus, SE, 7, 7 Plus, 8, 8 Plus, X, XR, XS, XS Max), Apple Watch devices
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`(including, at least, Series 1, Series 2, Series 3, and Series 4), and the Apple Wallet Application
`
`(collectively, “the Apple Devices”).
`
`Claim 11, for example, recites:
`
`A method for provisioning a contactless card applet in a mobile device comprising a mobile
`wallet application, the method comprising:
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`activating the mobile wallet application;
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`connecting to a Trusted Service Manager (TSM) system;
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`synchronizing the mobile wallet application with the TSM system;
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`displaying a contactless card applet based on attributes of the mobile device;
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`receiving a selection of a contactless card applet;
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`retrieving a widget and a wallet management applet (WMA) corresponding to the
`contactless card applet; and
`
`provisioning the selected contactless card applet, the widget, and the WMA.
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to provision a contactless card in a mobile device that includes a mobile wallet
`
`application. All of this functionality is disclosed in at least claim 11 of the ’125 patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 6 of 25
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`https://www.apple.com/apple-pay/ (last visited on 11/6/2018).
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 47
`
`(last visited
`
`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to activate a mobile wallet application. All of this functionality is disclosed in at least
`
`claim 11 of the ‘125 patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 7 of 25
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`https://www.apple.com/apple-pay/ (last accessed on 11/6/2018).
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 47
`
`(last visited
`
`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to connect to a Trusted Service Manager (TSM) system. All of this functionality is
`
`disclosed in at least claim 11 of the ’125 Patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 8 of 25
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`https://support.apple.com/en-us/HT203027 (last accessed on 9/5/2018).
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 47
`
`(last visited
`
`11/6/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 9 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 48-49 (last visited
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`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to synchronize the mobile wallet application with the TSM system. All of this
`
`functionality is disclosed in at least claim 11 of the ’125 Patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 10 of 25
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`https://support.apple.com/en-us/HT203027 (last accessed on 9/5/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 11 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 48-49 (last visited
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`11/6/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 12 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 49
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`(last visited
`
`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to display a contactless card applet based on attributes of the mobile device. All of
`
`this functionality is disclosed in at least claim 11 of the ’125 Patent.
`
`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 47
`
`(last visited
`
`11/6/2018).
`
`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 48
`
`(last visited
`
`11/6/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 13 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 48-49 (last visited
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`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to receive a selection of a contactless card applet. All of this functionality is disclosed
`
`in at least claim 11 of the ’125 Patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 14 of 25
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`https://support.apple.com/en-us/HT203027 (last accessed on 9/5/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 15 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 48-49 (last visited
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`11/6/2018).
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 49
`
`(last visited
`
`11/6/2018).
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`- 15 -
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 16 of 25
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`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to retrieve a widget and a wallet management applet (WMA) corresponding to the
`
`contactless card applet. All of this functionality is disclosed in at least claim 11 of the ’125 Patent.
`
`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 49
`
`(last visited
`
`11/6/2018).
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`- 16 -
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 17 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 50
`
`(last visited
`
`11/6/2018).
`
`As reflected in Apple’s own product literature illustrated below, the Apple Devices
`
`are enabled to provision the selected contactless card applet, the widget, and the WMA. All of
`
`this functionality is disclosed in at least claim 11 of the ’125 Patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 18 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 49
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`(last visited
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`11/6/2018).
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 19 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf at p. 50
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`(last visited
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`11/6/2018).
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`COUNT II:
`
`INDIRECT INFRINGEMENT OF THE ’125 PATENT
`
`Fintiv incorporates paragraphs 1 through 25 herein by reference.
`
`At least since Apple’s receipt of notice and/or the filing of the original Complaint
`
`on December 21, 2018 (Dkt. 1), Apple has been indirectly infringing, and continues to indirectly
`
`infringe, at least claims 11, 13-14, 16-18, and 20-25 of the ’125 Patent through its partners’ and
`
`service operators’, including merchants and end-users, direct infringement of at least claims 11,
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`13-14, 16-18, and 20-25 of the ’125 Patent through, at least, use of the Apple Devices that include
`
`the Apple infringing embedded technology, without authorization or license from Fintiv. Such
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`partners and service operators include hundreds of banks in the United States. See
`
`https://support.apple.com/en-us/HT204916 (last visited 4/2/2019).
`
`Apple is contributing to the infringement by others and/or inducing infringement
`
`by others, by, among other things, providing a mobile wallet that enables the provisioning of
`
`contactless cards. Apple has also contributed and/or induced, and continues to contribute and/or
`
`induce the infringement of at least claims 11, 13-14, 16-18, and 20-25 of the ’125 Patent by
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`contributing to and/or inducing its partners and service operators to use Apple’s products, such
`
`as the Apple Devices, in an infringing manner as described above, including encouraging and
`
`instructing its partners and service operators through software and documentation provided by
`
`Apple. For example, Apple’s websites specifically instruct and show end-users how to install
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`and manage cards (e.g., debit and credit cards) through Apple Wallet on Apple Devices. See,
`
`e.g., https://support.apple.com/en-us/HT204506 (last visited 4/8/2019);
`
`https://support.apple.com/en-us/HT204003 (last visited 4/8/2019);
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 20 of 25
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`https://www.apple.com/business/site/docs/iOS_Security_Guide.pdf (last visited 4/8/2019);
`
`https://developer.apple.com/wallet/ (last visited 4/2/2019);
`
`https://developer.apple.com/library/archive/documentation/UserExperience/Conceptual/PassKit_
`
`PG/index.html#//apple_ref/doc/uid/TP40012195 (last visited 4/2/2019).
`
`Apple has specifically intended to encourage its partners and service operators use
`
`its products that infringe at least claims 11, 13-14, 16-18, and 20-25 of the ’125 Patent by, at a
`
`minimum, providing access to support, training, tutorials, and instructions, including a video
`
`demonstration with a step-by-step guide detailing how to use Apple Wallet, for its infringing
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`products to its partners and service operators to enable them to infringe at least claims 11, 13-14,
`
`16-18, and 20-25 of the ’125 Patent, as described above. See, e.g.,
`
`https://developer.apple.com/videos/play/wwdc2018/720/?time=1347 (last visited 4/2/2019);
`
`https://developer.apple.com/library/archive/documentation/UserExperience/Conceptual/PassKit_
`
`PG/YourFirst.html#//apple_ref/doc/uid/TP40012195-CH2-SW1 (last visited 4/2/2019).
`
`Apple has known, at least as early as the service of the original Complaint, that its
`
`infringing products, such as Apple Wallet on Apple Devices, cannot be used without infringing
`
`the technology claimed in the ’125 Patent, as described above, and are not staple articles of
`
`commerce suitable for substantial non-infringing uses. Apple has known, at least as early as the
`
`service of the original Complaint, that its infringing products, such as Apple Wallet on Apple
`
`Devices, are especially made or adapted for use that results in infringement of the ’125 Patent as
`
`described above.
`
`Fintiv has been damaged by Apple’s infringement of the ’125 Patent and will
`
`continue to be damaged by such infringement. Fintiv is entitled to recover damages from Apple
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 21 of 25
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`to compensate it for Apple’s infringement, as alleged above, in an amount measured by no less
`
`than a reasonable royalty under 35 U.S.C. § 284.
`
`COUNT III: DECLARATORY JUDGMENT OF VALIDITY
`OF THE ’125 PATENT
`
`Fintiv incorporates paragraphs 1 through 31 herein by reference.
`
`The ’125 Patent is valid as it fully complies with the conditions and requirements
`
`of patentability set forth in Title 35 of the United States Code, particularly 35 U.S.C. §§ 102 and
`
`103.
`
`Apple filed an Inter Partes Review petition IPR 2020-00019 (“IPR Petition”) on
`
`October 28, 2019 and supplemented the IPR Petition on December 9, 2019. The IPR Petition
`
`identifies the following allegedly invalidating prior art references: (1) U.S. Patent Publication No.
`
`2010/0138518 A1 to Aiglstorfer (“Aiglstorfer”); (2) U.S. Patent Publication No. 2010/0190437
`
`A1 to Buhot (“Buhot”); and (3) Chinese Patent Publication No. CN 101459902 A to Wang
`
`(“Wang”).
`
`The IPR Petition raises two 35 U.S.C. § 103 obviousness grounds. The first
`
`ground includes claims 11, 13-14, 16-17, and 23-25 and is based on the combination of
`
`Aiglstorfer, Buhot, and Wang and the second ground includes claims 18 and 20-22 and is based
`
`on the combination of Aiglstorfer and Wang (collectively “References”).
`
`Contrary to Apple’s assertions, claims 11, 13-14, 16-18, and 20-25 are not invalid
`
`based on any argument raised in the IPR Petition.
`
`There is an actual controversy, within the meaning of 28 U.S.C. §§ 2201 and 2202
`
`between Fintiv and Apple as to whether the References invalidate one or more claims of the ’125
`
`Patent.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 22 of 25
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`Fintiv requests a judicial determination and declaration of the respective rights
`
`and duties of the parties based on the References. Such a determination and declaration are
`
`necessary and appropriate at this time so the parties may ascertain their respective rights and
`
`duties in this regard.
`
`V.
`
`DEMAND FOR JURY TRIAL
`
`Fintiv demands a trial by jury of any and all issues triable of right before a jury.
`
`VI.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Fintiv respectfully requests that the Court:
`
`A.
`
`Enter a judgment that Apple directly infringes, contributorily infringes, and/or
`
`induces infringement of one or more claims of the ’125 Patent;
`
`B.
`
`Enter a judgment awarding Plaintiff Fintiv all damages adequate to compensate it
`
`for Defendant Apple’s direct or contributory infringement of, or inducement to
`
`infringe, the ’125 Patent, including all pre-judgment and post-judgment interest at
`
`the maximum rate permitted by law;
`
`C.
`
`Enter a declaration and judgment that claims 11, 13-14, 16-18, and 20-25 of the
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`’125 Patent are valid pursuant to Title 35 of the United States Code, particularly
`
`D.
`
`E.
`
`35 U.S.C. §§ 102 and 103, as they relate to the References;
`
`Declare this case exceptional pursuant to 35 U.S.C. §285; and
`
`Award Plaintiff Fintiv its costs, disbursements, attorneys’ fees, and such further
`
`and additional relief as is deemed appropriate by this Court.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 23 of 25
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`Dated: January 30, 2020
`
`RESPECTFULLY SUBMITTED,
`By: /s/ Andy Tindel
`
`J. Mark Mann (Texas Bar No. 12926150)
`mark@themannfirm.com
`G. Blake Thompson (Texas Bar No. 24042033)
`blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 W. Main Street
`Henderson, Texas 75652
`913 Franklin Ave., Suite 201
`Waco, Texas 76701
`Telephone: (903) 657-8540
`Facsimile: (903) 657-6003
`Andy Tindel (Texas Bar No. 20054500)
`atindel@andytindel.com
`MANN | TINDEL | THOMPSON
`112 E. Line Street, Suite 304
`Tyler, Texas 75702
`Telephone: (903) 596-0900
`Facsimile: (903) 596-0909
`Craig D. Cherry (Texas Bar No. 24012419)
`ccherry@haleyolson.com
`HALEY & OLSON, P.C.
`100 N. Ritchie Road, Suite 200
`Waco, Texas 76712
`Telephone: (254) 776-3336
`Facsimile: (254) 776-6823
`
`Jonathan K. Waldrop (CA Bar No. 297903)
`(Admitted in this District)
`jwaldrop@kasowitz.com
`Darcy L. Jones (CA Bar No. 309474)
`(Admitted in this District)
` djones@kasowitz.com
`Marcus A. Barber (CA Bar No. 307361)
`(Admitted in this District)
` mbarber@kasowitz.com
`John W. Downing (CA Bar No. 252850)
`(Admitted in this District)
` jdowning@kasowitz.com
`Heather S. Kim (CA Bar No. 277686)
`(Admitted in this District)
`hkim@kasowitz.com
`Jack Shaw (CA Bar No. 309382)
`(Admitted in this District)
` jshaw@kasowitz.com
`
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 24 of 25
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`KASOWITZ BENSON TORRES LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, California 94065
`Telephone: (650) 453-5170
`Facsimile: (650) 453-5171
`
`Daniel C. Miller (NY Bar No. 4232773)
`(Admitted in this District)
`KASOWITZ BENSON TORRES LLP
`1399 New York Avenue NW, Suite 201
`Washington, DC 20005
`Telephone: (202) 760-3400
`Facsimile: (202) 760-3401
`Email: dcmiller@kasowitz.com
`
`Rodney R. Miller (Texas Bar No. 24070280)
`(Admitted in this District)
`KASOWITZ BENSON TORRES LLP
`1349 West Peachtree Street N.W., Suite 1500
`Atlanta, Georgia 30309
`Telephone: (404) 260-6080
`Facsimile: (404) 260-6081
`Email: rmiller@kasowitz.com
`
`Attorneys for Plaintiff
`FINTIV, INC.
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`Case 6:21-cv-00926-ADA Document 92 Filed 01/30/20 Page 25 of 25
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`CERTIFICATE OF SERVICE
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`A true and correct copy of the foregoing instrument was served or delivered electronically
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`via U.S. District Court [LIVE] — Document Filing System, to all counsel of record, on this 30th
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`day of January, 2020.
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`/s/ Andy Tindel
`Andy Tindel
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`- 25 -
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