NovelPoint Tracking LLC v. Kyocera Communications, Inc
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION NOVELPOINT TRACKING LLC Plaintiff, v. KYOCERA COMMUNICATIONS, INC. Defendant. COMPLAINT NovelPoint Tracking LLC files this Complaint against Kyocera Communications, Inc. (“Defendant”) for infringement of United States Patent No. 6,442,485. THE PARTIES 1. Plaintiff NovelPoint Tracking LLC (“NPT”) is a Texas limited liability company Case No. 2:12-cv-00741 PATENT CASE JURY TRIAL DEMANDED
with its principal place of business at 1300 Ballantrae Dr., Allen TX, 75013 in the Eastern District of Texas. 2. Defendant Kyocera Communications, Inc. is a California Corporation with a
principal address of 10300 Campus Point Drive, San Diego, CA 92121 in the United States. Clicking on the “where to buy” link on the Defendant’s homepage directs inquiries made by persons such as NPT (with a zip code of 75013) to resellers located in the Eastern District of Texas. Defendant’s Registered Agent in the State of Texas is 211 E. 7th Street, Suite 620, Austin, Texas 78701.
NATURE OF THE ACTION 3. This is a civil action for infringement of United States Patent No. 6,442,485 (the
“Patent-in-Suit”), arising under the Patent Laws of the United States, 35 U.S.C. § 1 et seq. JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. §§ 1331 (Federal Question) and 1338(a) (Patents). 5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and 1400(b)
because Defendant has committed acts of infringement in the United States and maintains a place of business in this district and is deemed to reside in this district for purposes of this action. 6. This Court has personal jurisdiction over Defendant and venue is proper in this
district because Defendant has committed, and continues to commit, acts of infringement in the State of Texas, including in this district and/or has engaged in continuous and systematic activities in the State of Texas, including in this district. THE PATENT-IN-SUIT 7. The Patent-in-Suit, entitled “Method and Apparatus for an Automatic Vehicle
Location, Collision Notification, and Synthetic Voice,” was duly and legally issued by the United States Patent and Trademark Office on August 27, 2002. A copy of the Patent-in-Suit is attached hereto as Exhibit A. 8. NPT is the exclusive owner of all rights, title, and interest in the Patent-in-Suit,
including the right to exclude others and to enforce, sue and recover damages for past and future infringement thereof. INFRINGEMENT OF THE PATENT-IN-SUIT 9. NPT incorporates paragraphs 1 through 9 by reference as if fully stated herein.
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10. 11.
The Patent-in-Suit is valid and enforceable. Defendant has directly infringed, and continues to directly infringe, one or more
claims of the Patent-in-Suit under 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by making, using, selling, offering for sale, and/or importing products and/or methods encompassed by those claims. 12. Third parties, including Defendant’s affiliates, agents, and customers, have
infringed, and continue to infringe, one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by using, selling, and/or offering for sale in the United States, and/or importing into the United States, products supplied by Defendant. 13. Upon information and belief, based on the information presently available to
NPT, absent discovery, and in the alternative to direct infringement, NPT contends that Defendant has induced infringement, and continues to induce infringement, of one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(b). Defendant has actively, knowingly, and intentionally induced, and continues to actively, knowingly, and intentionally induce, infringement of the Patent-in-Suit by making, using, importing, and selling or otherwise supplying products to third parties, including at a minimum its affiliates, agents, and customers, with the knowledge and intent that such third parties will use, sell, offer for sale, and/or import, products supplied by Defendant to infringe the Patent-in-Suit; and with the knowledge and intent to encourage and facilitate the infringement through the dissemination of the products and/or the creation and dissemination of promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to such products.
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14.
Upon information and belief, based on the information presently available to
NPT, absent discovery, and in the alternative to direct infringement, NPT contends that Defendant has contributed, and continues to contribute, to the infringement by third parties (including its affiliates, agents, and customers) of one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(c) by selling, offering for sale, and/or importing Defendant’s products, knowing that those products constitute a material part of the inventions of the Patent-in-Suit, knowing that those products are especially made or adapted to infringe the Patent-in-Suit, and knowing that those products are not staple articles of commerce suitable for substantial noninfringing use. 15. Defendant’s Echo by Kyocera smartphone is an example of an infringing product
and/or method. 16. NPT put Defendant on notice of the Patent-in-Suit and Defendant’s infringement
thereof at least as early as the date of filing of this complaint. 17. Patent-in-Suit. 18. Defendant’s actions complained of herein are causing irreparable harm and NPT has been and continues to be damaged by Defendant’s infringement of the
damages to NPT and will continue to do so unless and until Defendant is enjoined and restrained by the Court. 19. Defendant’s conduct in infringing the Patent-in-Suit renders this case exceptional
within the meaning of 35 U.S.C. § 285. JURY DEMAND 20. Plaintiff NPT hereby demands a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, NPT prays for judgment as follows:
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A. B.
That Defendant has infringed one or more claims of the patent-in-suit; That Defendant account for and pay all damages necessary to adequately
compensate NPT for infringement of the patent-in-suit, such damages to be determined by a jury, and that such damages be trebled and awarded to NPT with pre-judgment and post-judgment interest; C. That Defendant and its officers, directors, agents, servants, affiliates, employees,
divisions, branches, subsidiaries, parents, and all others acting in concert or actively participating with them, be permanently enjoined from directly or indirectly infringing the patent-in-suit; or, in the alternative, judgment that Defendant account for and pay to NPT an ongoing postjudgment royalty reflecting Defendant’s deliberate continuing infringement; D. That this case be declared an exceptional case within the meaning of 35 U.S.C.
§ 285 and that NPT be awarded the attorney fees, costs, and expenses that it incurs prosecuting this action; and E. proper. DATED: December 2, 2012 Respectfully submitted, __/s/ Everett Upshaw____________________ Everett Upshaw LAW OFFICE OF EVERETT UPSHAW, PLLC 13901 Midway Rd. Suite 102-208 Dallas TX 75244 P: 214.680.6005 [email protected] Rhiannon Kelso LAW OFFICE OF EVERETT UPSHAW, PLLC 13901 Midway Rd. Suite 102-208 Dallas TX 75244 P: 469.371.3303 [email protected]
ATTORNEYS FOR PLAINTIFF
That NPT be awarded such other and further relief as this Court deems just and
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with its principal place of business at 1300 Ballantrae Dr., Allen TX, 75013 in the Eastern District of Texas. 2. Defendant Kyocera Communications, Inc. is a California Corporation with a
principal address of 10300 Campus Point Drive, San Diego, CA 92121 in the United States. Clicking on the “where to buy” link on the Defendant’s homepage directs inquiries made by persons such as NPT (with a zip code of 75013) to resellers located in the Eastern District of Texas. Defendant’s Registered Agent in the State of Texas is 211 E. 7th Street, Suite 620, Austin, Texas 78701.
NATURE OF THE ACTION 3. This is a civil action for infringement of United States Patent No. 6,442,485 (the
“Patent-in-Suit”), arising under the Patent Laws of the United States, 35 U.S.C. § 1 et seq. JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. §§ 1331 (Federal Question) and 1338(a) (Patents). 5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and 1400(b)
because Defendant has committed acts of infringement in the United States and maintains a place of business in this district and is deemed to reside in this district for purposes of this action. 6. This Court has personal jurisdiction over Defendant and venue is proper in this
district because Defendant has committed, and continues to commit, acts of infringement in the State of Texas, including in this district and/or has engaged in continuous and systematic activities in the State of Texas, including in this district. THE PATENT-IN-SUIT 7. The Patent-in-Suit, entitled “Method and Apparatus for an Automatic Vehicle
Location, Collision Notification, and Synthetic Voice,” was duly and legally issued by the United States Patent and Trademark Office on August 27, 2002. A copy of the Patent-in-Suit is attached hereto as Exhibit A. 8. NPT is the exclusive owner of all rights, title, and interest in the Patent-in-Suit,
including the right to exclude others and to enforce, sue and recover damages for past and future infringement thereof. INFRINGEMENT OF THE PATENT-IN-SUIT 9. NPT incorporates paragraphs 1 through 9 by reference as if fully stated herein.
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10. 11.
The Patent-in-Suit is valid and enforceable. Defendant has directly infringed, and continues to directly infringe, one or more
claims of the Patent-in-Suit under 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by making, using, selling, offering for sale, and/or importing products and/or methods encompassed by those claims. 12. Third parties, including Defendant’s affiliates, agents, and customers, have
infringed, and continue to infringe, one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(a), either literally and/or under the doctrine of equivalents, by using, selling, and/or offering for sale in the United States, and/or importing into the United States, products supplied by Defendant. 13. Upon information and belief, based on the information presently available to
NPT, absent discovery, and in the alternative to direct infringement, NPT contends that Defendant has induced infringement, and continues to induce infringement, of one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(b). Defendant has actively, knowingly, and intentionally induced, and continues to actively, knowingly, and intentionally induce, infringement of the Patent-in-Suit by making, using, importing, and selling or otherwise supplying products to third parties, including at a minimum its affiliates, agents, and customers, with the knowledge and intent that such third parties will use, sell, offer for sale, and/or import, products supplied by Defendant to infringe the Patent-in-Suit; and with the knowledge and intent to encourage and facilitate the infringement through the dissemination of the products and/or the creation and dissemination of promotional and marketing materials, supporting materials, instructions, product manuals, and/or technical information related to such products.
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14.
Upon information and belief, based on the information presently available to
NPT, absent discovery, and in the alternative to direct infringement, NPT contends that Defendant has contributed, and continues to contribute, to the infringement by third parties (including its affiliates, agents, and customers) of one or more claims of the Patent-in-Suit under 35 U.S.C. § 271(c) by selling, offering for sale, and/or importing Defendant’s products, knowing that those products constitute a material part of the inventions of the Patent-in-Suit, knowing that those products are especially made or adapted to infringe the Patent-in-Suit, and knowing that those products are not staple articles of commerce suitable for substantial noninfringing use. 15. Defendant’s Echo by Kyocera smartphone is an example of an infringing product
and/or method. 16. NPT put Defendant on notice of the Patent-in-Suit and Defendant’s infringement
thereof at least as early as the date of filing of this complaint. 17. Patent-in-Suit. 18. Defendant’s actions complained of herein are causing irreparable harm and NPT has been and continues to be damaged by Defendant’s infringement of the
damages to NPT and will continue to do so unless and until Defendant is enjoined and restrained by the Court. 19. Defendant’s conduct in infringing the Patent-in-Suit renders this case exceptional
within the meaning of 35 U.S.C. § 285. JURY DEMAND 20. Plaintiff NPT hereby demands a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, NPT prays for judgment as follows:
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A. B.
That Defendant has infringed one or more claims of the patent-in-suit; That Defendant account for and pay all damages necessary to adequately
compensate NPT for infringement of the patent-in-suit, such damages to be determined by a jury, and that such damages be trebled and awarded to NPT with pre-judgment and post-judgment interest; C. That Defendant and its officers, directors, agents, servants, affiliates, employees,
divisions, branches, subsidiaries, parents, and all others acting in concert or actively participating with them, be permanently enjoined from directly or indirectly infringing the patent-in-suit; or, in the alternative, judgment that Defendant account for and pay to NPT an ongoing postjudgment royalty reflecting Defendant’s deliberate continuing infringement; D. That this case be declared an exceptional case within the meaning of 35 U.S.C.
§ 285 and that NPT be awarded the attorney fees, costs, and expenses that it incurs prosecuting this action; and E. proper. DATED: December 2, 2012 Respectfully submitted, __/s/ Everett Upshaw____________________ Everett Upshaw LAW OFFICE OF EVERETT UPSHAW, PLLC 13901 Midway Rd. Suite 102-208 Dallas TX 75244 P: 214.680.6005 [email protected] Rhiannon Kelso LAW OFFICE OF EVERETT UPSHAW, PLLC 13901 Midway Rd. Suite 102-208 Dallas TX 75244 P: 469.371.3303 [email protected]
ATTORNEYS FOR PLAINTIFF
That NPT be awarded such other and further relief as this Court deems just and
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