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Eset v. Lodsys

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Eset v. Lodsys Powered By Docstoc
					 1   Nicola A. Pisano (State Bar No. 151282)
     napisano@jonesday.com
 2   Jose L. Patiño (State Bar No. 149568)
     jlpatino@jonesday.com
 3   JONES DAY
     12265 El Camino Real
 4   Suite 200
     San Diego, CA 92130
 5   Telephone:     858.314.1200
     Facsimile:     858.314.1150
 6
     Attorneys for Plaintiff ESET, LLC
 7

 8                                   UNITED STATES DISTRICT COURT
 9                               SOUTHERN DISTRICT OF CALIFORNIA
10

11

12   ESET, LLC,
13

14
                        Plaintiff,                     CASE NO.       '11CV1285 WQHRBB
              v.
15                                                     COMPLAINT FOR
                                                       DECLARATORY JUDGMENT
16
     LODSYS, LLC,

17                      Defendant.
18

19

20
              Plaintiff ESET, LLC (“ESET”) hereby alleges for its Complaint for Declaratory Judgment
21
     against Defendant Lodsys, LLC (“Defendant”) as follows:
22

23                                      NATURE OF THE ACTION

24            1.     This is an action for a declaratory judgment that ESET does not infringe any valid

25   claim of United States Patent Nos. 5,999,908 (“the ‘908 patent”), 7,133,834 (“the ‘834 patent”),
26
     7,222,078 (“the ‘078 patent”) or 7,620,565 (“the ‘565 patent”) (collectively, the “Asserted
27

28
     SDI-93921v1                                    -1-                                   COMPLAINT
 1   Patents”), and for a declaratory judgment that the claims of each of the Asserted patent are
 2   invalid.
 3
              2.    A true and correct copy of the ‘908 patent is attached hereto as Exhibit A.
 4
              3.    A true and correct copy of the ‘834 patent is attached hereto as Exhibit B.
 5
              4.    A true and correct copy of the ‘078 patent is attached hereto as Exhibit C.
 6

 7            5.    A true and correct copy of the ‘565 patent is attached hereto as Exhibit D.

 8                                            THE PARTIES

 9          6.      Plaintiff ESET is a California Limited Liability Corporation having a place of
10
     business at 610 W Ash Street, Suite 1900, San Diego, California 92101.
11
              7.    On information and belief, Lodsys is a Texas limited liability company having a
12
     place of business at 505 East Travis Street, Suite 207, Marshall, Texas 75670.
13
                                      JURISDICTION AND VENUE
14

15          8.      This action arises under the Patent Laws of the United States, Title 35, United

16   States Code 35 U.S.C. § 1, et seq., and under the Federal Declaratory Judgment Act, 28 U.S.C. §§
17   2201 and 2202. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
18
     §§ 1331, 1338(a), 2201 and 2202.
19
            9.      This action is filed to resolve an actual and justiciable controversy between the
20
     parties hereto. Defendant’s conduct towards ESET establishes that a real and substantial dispute
21

22   exists between the parties regarding Defendant’s allegations that ESET’s products infringe the

23   ‘908 patent, the ‘834 patent, the ‘078 patent and/or the ‘565 patent. This dispute is both definite

24   and concrete and admits of specific relief through a decree of a conclusive character. As set forth
25   in succeeding paragraphs herein, there is a conflict of asserted rights among the parties and an
26
     actual controversy exists between ESET and the Defendant with respect to the infringement,
27
     validity and scope of the ‘908 patent, the ‘834 patent, the ‘078 patent and the ‘565 patent.
28
     SDI-93921v1                                     -2-                                   COMPLAINT
 1            10.   Upon information and belief, this Court has personal jurisdiction over Lodsys
 2   because Lodsys has purposefully availed itself of the benefits and protections of the laws of this
 3
     State, including this Judicial District, in connection with its conduct in wrongfully asserting the
 4
     Asserted Patents against ESET, and in pursuing licensing and enforcement activities regarding the
 5
     Asserted Patents throughout California.
 6

 7            11.   Venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and/or 1400.

 8         ALLEGATIONS SUPPORTING DECLARATORY JUDGMENT JURISDICTION

 9            12.   ESET realleges and incorporates herein by reference each and every allegation
10
     contained in paragraphs 1-11.
11
              13.   Through communications and conduct, Defendant has repeatedly threatened
12
     assertion of the ‘908 patent, the ‘834 patent, the ‘078 patent and/or the ‘565 patent against
13
     ESET’s NOD32 Antivirus 4 product.
14

15            14.   On or about March 28, 2011, Defendant sent a letter to ESET alleging that ESET

16   “is infringing at least claim 1 of US 7,620,565 and claim 1 of US 7,222,078 as it relates to your
17   provision of notice of available product updates and assisting in the download and installation of
18
     those updates with respect to your ESET NOD32 Antivirus 4.” The March 28, 2011 letter also
19
     offered a license to ESET under “the Lodsys Patents,” which was defined as including the ‘908
20
     patent, the ‘834 patent, the ‘078 patent and the ‘565 patent. A copy of the March 28, 2011 letter
21

22   is included as attached Exhibit E.

23            15.   On June 7, 2011, Defendant sent ESET an e-mail message enclosing an

24   “Infringement Claim Chart” in which Defendant alleged that ESET’s Smart Security 4 product
25   infringed claim 1 of the ‘078 patent. Defendant’s message enclosing the claim chart stated that
26
     Defendant’s goal was “resolving this issue with a minimum of expense and hassle for your
27

28
     SDI-93921v1                                     -3-                                    COMPLAINT
 1   client.” A copy of the June 7, 2011 e-mail and “Infringement Claim Chart” are included in the
 2   attached Exhibit F.
 3
                                      FIRST CLAIM FOR RELIEF
 4
                    (Declaratory Judgment of Non-infringement of the ‘908 patent)
 5
              16.   ESET realleges and incorporates herein by reference each and every allegation
 6

 7   contained in paragraphs 1-15.

 8            17.   Based on the above-stated conduct, ESET is informed and believes, and on that

 9   basis avers, the Defendant contends that ESET’s NOD32 Antivirus and Smart Security 4
10
     products infringe one or more claims of the ‘908 patent.
11
              18.   Accordingly, an actual controversy exists between ESET and the Defendant as to
12
     whether or not ESET has infringed, or is infringing the ‘908 patent; has contributed to
13
     infringement, or is contributing to infringement of the ‘908 patent; and has induced infringement,
14

15   or is inducing infringement of the ‘908 patent.

16            19.   The controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and
17   28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a judgment, that by its
18
     activities ESET has not infringed and is not infringing any valid and enforceable claim of the
19
     ‘908 patent; has not contributed to infringement and is not contributing to infringement of the
20
     ‘908 patent; and/or has not induced infringement and is not inducing infringement of the ‘908
21

22   patent. Such a determination and declaration is necessary and appropriate at this time.

23                                   SECOND CLAIM FOR RELIEF

24                  (Declaratory Judgment of Non-infringement of the ‘834 patent)
25            20.   ESET realleges and incorporates herein by reference each and every allegation
26
     contained in paragraphs 1-19.
27

28
     SDI-93921v1                                       -4-                                 COMPLAINT
 1            21.   Based on the above-stated conduct, ESET is informed and believes, and on that
 2   basis avers, the Defendant contends that ESET’s NOD32 Antivirus and Smart Security 4
 3
     products infringe one or more claims of the ‘834 patent.
 4
              22.   Accordingly, an actual controversy exists between ESET and the Defendant as to
 5
     whether or not ESET has infringed, or is infringing the ‘834 patent; has contributed to
 6

 7   infringement, or is contributing to infringement of the ‘834 patent; and has induced infringement,

 8   or is inducing infringement of the ‘834 patent.

 9            23.   The controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and
10
     28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a judgment, that by its
11
     activities ESET has not infringed and is not infringing any valid and enforceable claim of the
12
     ‘834 patent; has not contributed to infringement and is not contributing to infringement of the
13
     ‘834 patent; and/or has not induced infringement and is not inducing infringement of the ‘834
14

15   patent. Such a determination and declaration is necessary and appropriate at this time.

16                                    THIRD CLAIM FOR RELIEF
17                  (Declaratory Judgment of Non-infringement of the ‘078 patent)
18
              24.   ESET realleges and incorporates herein by reference each and every allegation
19
     contained in paragraphs 1-23.
20
              25.   Based on the above-stated conduct, ESET is informed and believes, and on that
21

22   basis avers, that the Defendant contends that ESET’s NOD32 Antivirus and Smart Security 4

23   products infringe one or more claims of the ‘078 patent.

24            26.   Accordingly, an actual controversy exists between ESET and the Defendant as to
25   whether or not ESET has infringed, or is infringing the ‘078 patent; has contributed to
26
     infringement, or is contributing to infringement of the ‘078 patent; and has induced infringement,
27
     or is inducing infringement of the ‘078 patent.
28
     SDI-93921v1                                       -5-                                 COMPLAINT
 1            27.   The controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and
 2   28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a judgment, that by its
 3
     activities ESET has not infringed and is not infringing any valid and enforceable claim of the
 4
     ‘078 patent; has not contributed to infringement and is not contributing to infringement of the
 5
     ‘078 patent; and/or has not induced infringement and is not inducing infringement of the ‘078
 6

 7   patent. Such a determination and declaration is necessary and appropriate at this time.

 8                                   FOURTH CLAIM FOR RELIEF

 9                  (Declaratory Judgment of Non-infringement of the ‘565 patent)
10
              28.   ESET realleges and incorporates herein by reference each and every allegation
11
     contained in paragraphs 1-27.
12
              29.   Based on the above-stated conduct, ESET is informed and believes, and on that
13
     basis avers, that the Defendant contends that ESET’s NOD32 Antivirus and Smart Security 4
14

15   products infringe one or more claims of the ‘565 patent.

16            30.   Accordingly, an actual controversy exists between ESET and the Defendant as to
17   whether or not ESET has infringed, or is infringing the ‘565 patent; has contributed to
18
     infringement, or is contributing to infringement of the ‘565 patent; and has induced infringement,
19
     or is inducing infringement of the ‘565 patent.
20
              31.   The controversy is such that, pursuant to Federal Rule of Civil Procedure 57 and
21

22   28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a judgment, that by its

23   activities ESET has not infringed and is not infringing any valid and enforceable claim of the

24   ‘565 patent; has not contributed to infringement and is not contributing to infringement of the
25   ‘565 patent; and has not induced infringement and is not inducing infringement of the ‘565
26
     patent. Such a determination and declaration is necessary and appropriate at this time.
27

28
     SDI-93921v1                                       -6-                                 COMPLAINT
 1                                    FIFTH CLAIM FOR RELIEF
 2                       (Declaratory Judgment of Invalidity of the ‘908 patent)
 3
               32.   ESET realleges and incorporates herein by reference each and every allegation
 4
     contained in paragraphs 1-31.
 5
               33.   Based on the above-stated conduct, ESET is informed and believes, and on that
 6

 7   basis avers, that the Defendant contends that ESET infringes one or more claims of the ‘908

 8   patent.

 9             34.   ESET denies that it infringes any valid and enforceable claim of the ‘908 patent,
10
     and avers that the assertions of infringement cannot be maintained consistently with statutory
11
     conditions of patentability and the statutory requirements for disclosure and claiming that must be
12
     satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and 112.
13
               35.   Accordingly, an actual controversy exists between ESET and the Defendant as to
14

15   the validity of the ‘908 patent. The controversy is such that, pursuant to Federal Rule of Civil

16   Procedure 57 and 28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a
17   judgment, that the ‘908 patent is invalid. Such a determination and declaration is necessary and
18
     appropriate at this time.
19
                                      SIXTH CLAIM FOR RELIEF
20
                         (Declaratory Judgment of Invalidity of the ‘834 patent)
21

22             36.   ESET realleges and incorporates herein by reference each and every allegation

23   contained in paragraphs 1-35.

24             37.   Based on the above-stated conduct, ESET is informed and believes, and on that
25   basis avers, that the Defendant contends that ESET infringes one or more claims of the ‘834
26
     patent.
27

28
     SDI-93921v1                                    -7-                                    COMPLAINT
 1             38.   ESET denies that it infringes any valid and enforceable claim of the ‘834 patent,
 2   and avers that the assertions of infringement cannot be maintained consistently with statutory
 3
     conditions of patentability and the statutory requirements for disclosure and claiming that must be
 4
     satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and 112.
 5
               39.   Accordingly, an actual controversy exists between ESET and the Defendant as to
 6

 7   the validity of the ‘834 patent. The controversy is such that, pursuant to Federal Rule of Civil

 8   Procedure 57 and 28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a

 9   judgment, that the ‘834 patent is invalid. Such a determination and declaration is necessary and
10
     appropriate at this time.
11
                                     SEVENTH CLAIM FOR RELIEF
12
                         (Declaratory Judgment of Invalidity of the ‘078 patent)
13
               40.   ESET realleges and incorporates herein by reference each and every allegation
14

15   contained in paragraphs 1-39.

16             41.   Based on the above-stated conduct, ESET is informed and believes, and on that
17   basis avers, that the Defendant contends that ESET infringes one or more claims of the ‘078
18
     patent.
19
               42.   ESET denies that it infringes any valid and enforceable claim of the ‘078 patent,
20
     and avers that the assertions of infringement cannot be maintained consistently with statutory
21

22   conditions of patentability and the statutory requirements for disclosure and claiming that must be

23   satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and 112.

24             43.   Accordingly, an actual controversy exists between ESET and the Defendant as to
25   the validity of the ‘078 patent. The controversy is such that, pursuant to Federal Rule of Civil
26
     Procedure 57 and 28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a
27

28
     SDI-93921v1                                    -8-                                    COMPLAINT
 1   judgment, that the ‘078 patent is invalid. Such a determination and declaration is necessary and
 2   appropriate at this time.
 3
                                      EIGHTH CLAIM FOR RELIEF
 4
                          (Declaratory Judgment of Invalidity of the ‘565 patent)
 5
               44.   ESET realleges and incorporates herein by reference each and every allegation
 6

 7   contained in paragraphs 1-43.

 8             45.   Based on the above-stated conduct, ESET is informed and believes, and on that

 9   basis avers, that the Defendant contends that ESET infringes one or more claims of the ‘565
10
     patent.
11
               46.   ESET denies that it infringes any valid and enforceable claim of the ‘565 patent,
12
     and avers that the assertions of infringement cannot be maintained consistently with statutory
13
     conditions of patentability and the statutory requirements for disclosure and claiming that must be
14

15   satisfied for patent validity under at least one of 35 U.S.C. §§ 101, 102, 103, and 112.

16             47.   Accordingly, an actual controversy exists between ESET and the Defendant as to
17   the validity of the ‘565 patent. The controversy is such that, pursuant to Federal Rule of Civil
18
     Procedure 57 and 28 U.S.C. § 2201 et seq., ESET is entitled to a declaration, in the form of a
19
     judgment, that the ‘565 patent is invalid. Such a determination and declaration is necessary and
20
     appropriate at this time.
21

22                                        PRAYER FOR RELIEF

23             WHEREFORE, plaintiff ESET prays for a judgment as follows:

24             1.    For a declaration that its products do not infringe any valid claim of the ‘908
25   patent;
26
               2.    For a declaration that assertions of infringement of the ‘908 patent cannot be
27
      maintained consistently with statutory conditions of patentability and the statutory requirements
28
     SDI-93921v1                                     -9-                                    COMPLAINT
 1    for disclosure and claiming that must be satisfied for patent validity under one or more of 35
 2    U.S.C. §§ 101, 102, 103, and 112;
 3
               3.    For a declaration that the claims of the ‘908 patent are invalid under one or more
 4
     of 35 U.S.C. §§ 101, 102, 103, and 112;
 5
               4.    For a declaration that its products do not infringe any valid claim of the ‘834
 6

 7   patent;

 8             5.    For a declaration that assertions of infringement of the ‘834 patent cannot be

 9   maintained consistently with statutory conditions of patentability and the statutory requirements
10
     for disclosure and claiming that must be satisfied for patent validity under one or more of 35
11
     U.S.C. §§ 101, 102, 103, and 112;
12
               6.    For a declaration that the claims of the ‘834 patent are invalid under one or more
13
     of 35 U.S.C. §§ 101, 102, 103, and 112;
14

15             7.    For a declaration that its products do not infringe any valid claim of the ‘078

16   patent;
17             8.    For a declaration that assertions of infringement of the ‘078 patent cannot be
18
     maintained consistently with statutory conditions of patentability and the statutory requirements
19
     for disclosure and claiming that must be satisfied for patent validity under one or more of 35
20
     U.S.C. §§ 101, 102, 103, and 112;
21

22             9.    For a declaration that the claims of the ‘078 patent are invalid under one or more

23   of 35 U.S.C. §§ 101, 102, 103, and 112;

24             10.   For a declaration that its products do not infringe any valid claim of the ‘565
25   patent;
26
               11.   For a declaration that assertions of infringement of the ‘565 patent cannot be
27
     maintained consistently with statutory conditions of patentability and the statutory requirements
28
     SDI-93921v1                                     -10-                                   COMPLAINT
 1   for disclosure and claiming that must be satisfied for patent validity under one or more of 35
 2   U.S.C. §§ 101, 102, 103, and 112;
 3
              12.    For a declaration that the claims of the ‘565 patent are invalid under one or more
 4
     of 35 U.S.C. §§ 101, 102, 103, and 112;
 5
              13.    For a preliminary and permanent injunction enjoining and restraining Defendant
 6

 7   and its respective officers, partners, employees, agents, parents, subsidiaries or anyone in privity

 8   with them, and all persons acting in concert with them and each of them:

 9            a.     from making any claims to any person or entity that any product of ESET infringes
10
              the ‘908 patent, the ‘834 patent, the ‘078 patent and/or the ‘565 patent;
11
              b.     from interfering with, or threatening to interfere with the manufacture, sale, or use
12
              of any ESET’s products by ESET, its customers, distributors, predecessors, successors or
13
              assigns; and
14

15            c.     from instituting or prosecuting any lawsuit or proceeding, placing in issue the right

16            of ESET, its customers, distributors, predecessors, successors or assigns, to make, use or
17            sell products which allegedly infringe the ‘908 patent, the ‘834 patent, the ‘078 patent
18
              and/or the ‘565 patent.
19
              14.    For an award to ESET of its reasonable attorneys’ fees and costs of suit incurred
20
     herein; and
21

22            15.    For such other and further relief as the Court may deem proper.

23

24

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28
     SDI-93921v1                                     -11-                                   COMPLAINT
 1                                               JURY DEMAND
 2            Plaintiff respectfully requests a trial by jury of all issues so triable.
 3

 4   Dated: June 10, 2011                                   JONES DAY

 5

 6                                                          By: /s/ Nicola A. Pisano
                                                                  Nicola A. Pisano
 7
                                                            Attorneys for Plaintiff
 8                                                          ESET, LLC

 9

10

11

12

13

14

15

16

17

18

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     SDI-93921v1                                        -12-                              COMPLAINT
2JS 44 (Rev. 11/04)                                                          CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a)     PLAINTIFFS                                                                                          DEFENDANTS
           ESET, LLC                                                                                           LODSYS, LLC

    (b) County of Residence of First Listed Plaintiff               San Diego, CA                              County of Residence of First Listed Defendant             Harrison, TX
                               (EXCEPT IN U.S. PLAINTIFF CASES)                                                                                (IN U.S. PLAINTIFF CASES ONLY)
                                                                                                                       NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
                                                                                                                              LAND INVOLVED.

   (c) Attorney’s (Firm Name, Address, and Telephone Number)                                                    Attorneys (If Known)                       '11CV1285 WQHRBB
       Nicola A. Pisano, JONES DAY                                                                         Kelley, Donion, Gill, Huck & Goldfarb LLC
       12265 El Camino Real, Ste. 200, San Diego, CA 92130                                                 701 Fifth Avenue, Suite 6800, Seattle, WA 98104
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)                                          III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff
                                                                                                            (For Diversity Cases Only)                                       and One Box for Defendant)
u1       U.S. Government                 ✘
                                         u   3 Federal Question                                                                       PTF        DEF                                        PTF      DEF
           Plaintiff                             (U.S. Government Not a Party)                         Citizen of This State          u 1        u 1    Incorporated or Principal Place      ✘ 4 u4
                                                                                                                                                                                             u
                                                                                                                                                                                            --yeb
                                                                                                                                                        of Business In This State

u2       U.S. Government             ✘ 4 Diversity
                                     u
                                     --------yeb                                                       Citizen of Another State          u 2      u 2   Incorporated and Principal Place     u 5     ✘ 5
                                                                                                                                                                                                     u
                                                                                                                                                                                                     ---
           Defendant                                                                                                                                       of Business In Another State
                                                  (Indicate Citizenship of Parties in Item III)
                                                                                                                                                                                                     yeb
                                                                                                       Citizen or Subject of a           u 3      u 3   Foreign Nation                       u 6      u 6
                                                                                                         Foreign Country
IV. NATURE OF SUIT                   (Place an “X” in One Box Only)
          CONTRACT                                           TORTS                                     FORFEITURE/PENALTY                          BANKRUPTCY                     OTHER STATUTES
u   110 Insurance                        PERSONAL INJURY                  PERSONAL INJURY              u 610 Agriculture                   u 422 Appeal 28 USC 158         u   400 State Reapportionment
u   120 Marine                       u    310 Airplane                 u 362 Personal Injury -         u 620 Other Food & Drug             u 423 Withdrawal                u   410 Antitrust
u   130 Miller Act                   u    315 Airplane Product              Med. Malpractice           u 625 Drug Related Seizure                 28 USC 157               u   430 Banks and Banking
u   140 Negotiable Instrument                Liability                 u 365 Personal Injury -                of Property 21 USC 881                                       u   450 Commerce
u   150 Recovery of Overpayment      u    320 Assault, Libel &              Product Liability          u   630 Liquor Laws                      PROPERTY RIGHTS            u   460 Deportation
       & Enforcement of Judgment             Slander                   u 368 Asbestos Personal         u   640 R.R. & Truck                u 820 Copyrights                u   470 Racketeer Influenced and
u   151 Medicare Act                 u    330 Federal Employers’            Injury Product             u   650 Airline Regs.               u 830 Patent
                                                                                                                                           ✘                                      Corrupt Organizations
u   152 Recovery of Defaulted                Liability                      Liability                  u   660 Occupational                u 840 Trademark                 u   480 Consumer Credit
       Student Loans                 u    340 Marine                    PERSONAL PROPERTY                     Safety/Health                                                u   490 Cable/Sat TV
       (Excl. Veterans)              u    345 Marine Product           u 370 Other Fraud               u   690 Other                                                       u   810 Selective Service
u   153 Recovery of Overpayment              Liability                 u 371 Truth in Lending                      LABOR                     SOCIAL SECURITY               u   850 Securities/Commodities/
        of Veteran’s Benefits        u    350 Motor Vehicle            u 380 Other Personal            u   710 Fair Labor Standards        u 861 HIA (1395ff)                     Exchange
u   160 Stockholders’ Suits          u    355 Motor Vehicle                 Property Damage                   Act                          u 862 Black Lung (923)          u   875 Customer Challenge
u   190 Other Contract                       Product Liability         u 385 Property Damage           u   720 Labor/Mgmt. Relations       u 863 DIWC/DIWW (405(g))               12 USC 3410
u   195 Contract Product Liability   u    360 Other Personal                Product Liability          u   730 Labor/Mgmt.Reporting        u 864 SSID Title XVI            u   890 Other Statutory Actions
u   196 Franchise                            Injury                                                           & Disclosure Act             u 865 RSI (405(g))              u   891 Agricultural Acts
      REAL PROPERTY                        CIVIL RIGHTS                 PRISONER PETITIONS             u   740 Railway Labor Act             FEDERAL TAX SUITS             u   892 Economic Stabilization Act
u   210 Land Condemnation            u    441 Voting                   u 510 Motions to Vacate         u   790 Other Labor Litigation      u 870 Taxes (U.S. Plaintiff     u   893 Environmental Matters
u   220 Foreclosure                  u    442 Employment                      Sentence                 u   791 Empl. Ret. Inc.                  or Defendant)              u   894 Energy Allocation Act
u   230 Rent Lease & Ejectment       u    443 Housing/                     Habeas Corpus:                      Security Act                u 871 IRS—Third Party           u   895 Freedom of Information
u   240 Torts to Land                        Accommodations            u   530 General                                                          26 USC 7609                       Act
u   245 Tort Product Liability       u    444 Welfare                  u   535 Death Penalty                                                                               u   900Appeal of Fee Determination
u   290 All Other Real Property      u    445 Amer. w/Disabilities -   u   540 Mandamus & Other                                                                                   Under Equal Access
                                             Employment                u   550 Civil Rights                                                                                       to Justice
                                     u    446 Amer. w/Disabilities -   u   555 Prison Condition                                                                            u   950 Constitutionality of
                                             Other                                                                                                                                State Statutes
                                     u    440 Other Civil Rights

V. ORIGIN                   (Place an “X” in One Box Only)                                                                                                                                 Appeal to District
u
✘ 1      Original        u 2    Removed from                u 3Remanded from                      u4
                                                                                            Reinstated or                u 5
                                                                                                                  Transferred from
                                                                                                                  another district    u 6 Multidistrict                          u 7       Judge from
                                                                                                                                                                                           Magistrate
         Proceeding             State Court                    Appellate Court              Reopened              (specify)                  Litigation                                    Judgment
                                        Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
                                             35 U.S.C. Sec. 1 et seq., 28 U.S.C. Secs. 2201 and 2202
VI. CAUSE OF ACTION                          Brief description of cause:
                      Declaratory Judgment of Noninfringement/Invalidity US Patent Nos. 5,999,908, ,7,133,834, 7,222,078, 7,620,565
VII. REQUESTED IN     u CHECK IF THIS IS A CLASS ACTION     DEMAND $                       CHECK YES only if demanded in complaint:
     COMPLAINT:          UNDER F.R.C.P. 23                                                 JURY DEMAND:         u Yes
                                                                                                                ✔         u No
VIII. RELATED CASE(S)
                       (See instructions):
      IF ANY                               JUDGE                                     DOCKET NUMBER

DATE                                                                       SIGNATURE OF ATTORNEY OF RECORD
    06/10/2011                                                              /s/ Nicola A. Pisano
FOR OFFICE USE ONLY

    RECEIPT #                    AMOUNT                                      APPLYING IFP                                        JUDGE                         MAG. JUDGE

				
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posted:6/17/2011
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