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8/2/2019 Ryonet v. Lodsys et. al.
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1COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
Kurt M. Rylander, WSBA No. 27819
rylander@rylanderlaw.com
Mark E. Beatty, WSBA No. 37076
beatty@rylanderlaw.com
RYLANDER & ASSOCIATES PC
406 West 12th StreetVancouver, WA 98660
Tel: 360.750.9931
Fax: 360.397.0473
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTONTACOMA DIVISION
RYONET CORPORATION,
a Washington Corporation,
Plaintiff(s),
v.
LODSYS, LLC, a Texas limited
liability company; and LODSYSGROUP, LLC, a Texas limited
liability company,
Defendant(s).
No._________________
COMPLAINT FOR
DECLARATORY JUDGMENT
(An action related to Patents)
COMES NOW Plaintiff, RYONET CORPORATION, by and through
undersigned counsel, and by this Complaint seeks declaratory judgment
against Defendants LODSYS, LLC and LODSYS GROUP, LLC (collectively
Lodsys), and alleges as follows:
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2COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
JURISDICTION AND VENUE
1. This is an action for a declaratory judgment that RYONET does
not infringe any valid claim of United States Patent Nos. 5,999,908 (the "'908
patent), 7,133,834 (the "'834 patent), 7,222,078 (the "'078 patent), and
7,620,565 (the "'565 patent), and collectively hereinafter, the Asserted
Patents", and for a declaratory judgment that the claims of the Asserted
Patents are invalid.
2. The United States Patent & Trademark Office has instituted
reexamination proceedings related to the 078 patent and the 565 patent.
3. Exhibit Ahereto, and incorporated herein, is a true and correct
copy of the '908 patent.
4. Exhibit B hereto, and incorporated herein, is a true and correct
copy of the '834 patent.
5. Exhibit C hereto, and incorporated herein, is a true and correct
copy of the '078 patent.
6. Exhibit D hereto, and incorporated herein, is a true and correct
copy of the '565 patent.
7. This action arises under the patent laws of the United States,
Title 35 of the United States Code (35 U.S.C. 1, et seq.), and under the
Federal Declaratory Judgment Act (28 U.S.C. 2201 and 2202).
8. This Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. 1331 (federal question) and 1338(a) (action arising
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3COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
under an Act of Congress relating to patents).
9. Plaintiff is informed and believes and on that basis alleges that
this Court has personal jurisdiction over Lodsys because it has constitutionally
sufficient contacts with Washington so as to make personal jurisdiction proper
in this Court. Plaintiff is informed and believes and on that basis alleges that
Lodsys maintains ongoing contractual relationships within this district and
conducts or solicits business within this district.
10. Venue is proper in this district pursuant to 28 U.S.C. 1391(b),
(c) and 1400(b).
11. There are presently pending or recently closed numerous
declaratory judgment actions against Lodsys dealing with one or more of the
Asserted Patents. In almost all, if not all, of these actions, in California,
Wisconsin, Illinois, Arizona, and Texas, Lodsys has been represented by a
Seattle firm, with offices only in the State of Washington, named Kelley,
Donion, Gill, Huck & Goldfarb PLLC (www.kdg-Iaw.com.
PARTIES
12. Plaintiff, Ryonet Corporation (RYONET), is incorporated in
Washington and has a principal place of business in Clark County,
Washington. RYONET is an internet retailer of silk screen printing equipment
and supplies.
13. Plaintiff is informed and believes and on that basis alleges that
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4COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
Defendant, Lodsys, LLC is a Texas limited liability company and claims to have
a principal place of business at 505 East Travis Street, Suite 207, Marshall,
Texas, 75670.
14. Plaintiff is informed and believes and on that basis alleges that
Defendant Lodsys Group, LLC is a Texas limited liability company and claims
to have a principal place of business at 505 East Travis Street, Suite 207,
Marshall, Texas, 75670.
15. Plaintiff is informed and believes and on that basis alleges that
Lodsys LLC and Lodsys Group LLC are alter egos of each other and/or that
Lodsys Group is a mere continuation of Lodsys LLC, and that Lodsys Group
LLC is otherwise liable fully for, and liable as if it was the same as, Lodsys,
LLC. Hereinafter, Lodsys LLC and Lodsys Group LLC will be referred to
simply as Lodsys.
16. Plaintiff is informed and believes and on that basis alleges that
Mark Small is the Chief Executive Officer of Lodsys, LLC and Lodsys Group
LLC; and that Mr. Small conducts Lodsys' business from an office located in
Wisconsin.
17. Plaintiff is informed and believes and on that basis alleges that
Lodsys owns the Asserted Patents.
18. Plaintiff is informed and believes and on that basis alleges that,
Lodsys agents and/or employees executives have made numerous trips to the
State of Washington related to the Asserted Patents, and for licensing
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5COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
negotiations with Washington based companies including Microsoft
Corporation, Smilebox, Inc. and Photobucket Corporation (formally
Photobucket, Inc.) among others, and potentially Intellectual Ventures.
19. Plaintiff is informed and believes and on that basis alleges that
Lodsys has engaged in, and continues to engage in, substantial licensing and
other relationship, contracts, and financing in the State of Washington and
with residents of the State of Washington.
20. Plaintiff is informed and believes and on that basis alleges that
Lodsys conducts business and engages in contracts and other substantive
contact in the State of Washington, and by such extensive conduct, resides in
the State of Washington.
THE PRESENCE OF AN ACTUAL CONTROVERSY
21. Plaintiff pays to third party vendor Provide Support $250 per
month to use the Provide Support customer chat service.
22. On January 3, 2012, Mr. Small of Lodsys sent a letter by Federal
Express to Ryan Moor, President of RYONET. A copy of this letter is attached
hereto as Exhibit E.
23. The January 3, 2012 letter stated that it regarded RYONETs use
of Provide Supports customer chat service as Infringement of U.S. Patent Nos.
5,999,908, 7,133,834, 7,222,078, and 7,620,565 (Abelow)
24. The January 3, 2012 letter also stated:
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6COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
We have reviewed your use of the Lodsys Patents and have
prepared the enclosed claim chart demonstrating at least
one instance of how you utilize the inventions embodied in
the Lodsys Patents. The images used in the charts are
representative only and in addition to the charted claim of
the referenced patent, you should consider the remainingclaims of that patent and the other Lodsys Patents both
with respect to the charted utilization and to other products
and services offered by you.
25. The January 3, 2012 letter also stated that Lodsys has, among
others, ''retained the firm[] of Kelley, Donion, Gill, Huck & Goldfarb PLLC
(www.kdg-Iaw.com) based in Seattle, Washington, to assist the company in
licensing of the Lodsys Patents."
26. The January 3, 2012letter also stated:
Notice
Lodsys LLC reserves all rights with regard to the '908, '834,
'078, and '565 patents, including: (1) the fight to seek
damages anytime within the last six years that your
company started to make use of Lodsys' patented
technology; (2) the right to change its royalty rates at any
time; (3) the right to change this licensing program at anytime without notice, including variance to conform to
applicable laws. You should not rely on any communication
or lack of communication from Lodsys, Kelley, Donion, Gill,
Huck & Goldfarb PLLC, or The Davis Firm Group as a
relinquishment of any of Lodsys' rights.
27. The January 3, 2012 letter also included an "Infringement Claim
Chart," setting forth how RYONETs use of Provide Supports Live Chat on
through RYONETs online store allegedly infringes claim 1 of the '078 patent.
28. Upon information and belief, Lodsys is solely a licensing entity,
does not practice the inventions described in the Asserted Patents, and without
enforcement it receives no benefits from the Asserted Patents.
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7COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
29. On February 11, 2011, Lodsys filed a lawsuit in the Eastern
District of Texas against twelve companies alleging infringement of one or
more of the Asserted Patents. That case is styled Lodsys, LLC v. Brother
InternationalCorporation, et al., Case No. 2:11-cv-00090.
30. On May 31, 2011, Lodsys filed another lawsuit in the Eastern
District of Texas against seven additional companies, all developers of Apple
iPhone applications, alleging infringement of the Asserted Patents. The case is
styled Lodsys, LLCv. Combay, Inc., et al., C.A. No. 2:ll-cv-000272.
31. On June 10, 2011, Lodsys filed another lawsuit in the Eastern
District of Texas against ten additional companies, alleging infringement of the
Asserted Patents. The case is styled Lodsys, LLC v. Adidas America, Inc., et al.,
C.A. No. 2:ll-cv-00283.
32. On July 5, 2011, Lodsys filed another lawsuit in the Eastern
District of Texas against six additional companies, alleging infringement of the
Asserted Patents. The case is styled Lodsys, LLC v. DriveTimeAutomotive
Group, Inc. et al., C.A. No. 2:11-cv-309.
33. In all four Texas cases, counsel of record to Lodsys are Kelley,
Donion, Gill, Huck & Goldfarb, PLLC, based in Seattle, WA, and The Davis
Finn, P.C., based in Longview, Texas.
34. Plaintiff is informed and believes and on that basis alleges that
Kelley, Donion, Gill, Huck & Goldfarb, PLLC, based in Seattle, WA has and
continues to represent Lodsys in all cases relating to the Asserted Patents.
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8COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
35. By Lodsys' actions, RYONET is in reasonable apprehension of an
imminent patent infringement suit relating to the Asserted Patents.
36. RYONET denies that it infringes any valid claim of the Asserted
Patents. RYONET now seeks a declaratory judgment that it does not infringe
any valid claim of the Asserted Patents.
37. Plaintiff is informed and believes and on that basis alleges that
that Defendant has a relationship to or with and/or has transactions related to
or with a Seattle based company known as Intellectual Ventures, LLC.
COUNT ONE--DECLARATORY JUDGMENT
OF NON-INFRINGEMENT OF THE '908 PATENT
38. Plaintiff re-alleges every paragraph in this Complaint.
39. RYONETs website does not infringe any valid claim of the '908
Patent threatened by Lodsys.
40. An actual controversy exists between RYONET and the
Defendants as to whether or not RYONET has infringed, or is infringing, the
'908 Patent; has contributed, or is contributing, to infringement of the '908
Patent; or has induced, or is inducing, infringement of the '908 Patent.
41. The controversy is such that, pursuant to Federal Ru1e of Civil
Procedure 57 and 28 U.S.C. 2201 et seq., RYONET is entitled to a declaration,
in the form of a judgment, that by its activities RYONET has not infringed and
is not infringing any valid and enforceable claim of the '908 Patent threatened
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9COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
by Lodsys; has not contributed to infringement and is not contributing to
infringement of the '908 Patent; and/or has not induced infringement and is not
inducing infringement of the '908 Patent. Such a determination and declaration
is necessary and appropriate at this time.
COUNT TWO--DECLARATORY JUDGMENT
OF NON-INFRINGEMENT OF THE '834 PATENT
42. Plaintiff re-alleges every paragraph in this Complaint.
43. RYONETs website does not infringe any valid claim of the '834
Patent threatened by Lodsys.
44. An actual controversy exists between RYONET and the
Defendants as to whether or not RYONET has infringed, or is infringing, the
'834 Patent; has contributed, or is contributing, to infringement of the '834
Patent; or has induced, or is inducing, infringement of the '834 Patent.
45. The controversy is such that, pursuant to Federal Ru1e of Civil
Procedure 57 and 28 U.S.C. 2201 et seq., RYONET is entitled to a declaration,
in the form of a judgment, that by its activities RYONET has not infringed and
is not infringing any valid and enforceable claim of the '834 Patent; has not
contributed to infringement and is not contributing to infringement of the '834
Patent; and/or has not induced infringement and is not inducing infringement
of the '834 Patent. Such a determination and declaration is necessary and
appropriate at this time.
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10COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
COUNT THREE--DECLARATORY JUDGMENT
OF NON-INFRINGEMENT OF THE '078 PATENT
46. Plaintiff re-alleges every paragraph in this Complaint.
47. RYONETs website does not infringe any valid claim of the '078
Patent threatened by Lodsys.
48. An actual controversy exists between RYONET and the
Defendants as to whether or not RYONET has infringed, or is infringing, the
'078 Patent; has contributed, or is contributing, to infringement of the '078
Patent; or has induced, or is inducing, infringement of the '078 Patent.
49. The controversy is such that, pursuant to Federal Ru1e of Civil
Procedure 57 and 28 U.S.C. 2201 et seq., RYONET is entitled to a declaration,
in the form of a judgment, that by its activities RYONET has not infringed and
is not infringing any valid and enforceable claim of the '078 Patent threatened
by Lodsys; has not contributed to infringement and is not contributing to
infringement of the '078 Patent; and/or has not induced infringement and is not
inducing infringement of the '078 Patent. Such a determination and declaration
is necessary and appropriate at this time.
COUNT FOUR--DECLARATORY JUDGMENT
OF INVALIDITY OF THE '078 PATENT
50. Plaintiff re-alleges every paragraph in this Complaint.
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11COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
51. Based on the above-stated conduct, RYONET is informed and
believes that the Defendants contend that RYONET infringes one or more
claims of the '078 Patent.
52. RYONET denies that it infringes any valid and enforceable claim
of the '078 Patent threatened by Lodsys, and avers that the assertions of
infringement cannot be maintained consistently with statutory conditions of
patentability and the statutory requirements for disclosure and claiming that
must be satisfied for patent validity under at least one of 35 U.S.C. 101, 102,
103, and 112.
53. Accordingly, an actual controversy exists between RYONET and
the Defendants as to the validity of the '078 Patent. The controversy is such
that, pursuant to Federal Rules of Civil Procedure 57 and 28 U.S.C. 2201 et
seq., RYONET is entitled to a declaration, in the form of a judgment, that the
'908 Patent is invalid. Such a determination and declaration is necessary and
appropriate at this time.
COUNT FIVE--DECLARATORY JUDGMENT
OF NON-INFRINGEMENT OF THE '565 PATENT
54. Plaintiff re-alleges every paragraph in this Complaint.
55. RYONETs website does not infringe any valid claim of the '565
Patent threatened by Lodsys.
56. An actual controversy exists between RYONET and Defendants as
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12COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
to whether or not RYONET has infringed, or is infringing, the '565 Patent; has
contributed, or is contributing, to infringement of the '565 Patent; or has
induced, or is inducing, infringement of the '565 Patent.
57. The controversy is such that, pursuant to Federal Ru1e of Civil
Procedure 57 and 28 U.S.C. 2201 et seq., RYONET is entitled to a declaration,
in the form of a judgment, that by its activities RYONET has not infringed and
is not infringing any valid and enforceable claim of the '565 Patent; has not
contributed to infringement and is not contributing to infringement of the '565
Patent; and/or has not induced infringement and is not inducing infringement
of the '565 Patent. Such a determination and declaration is necessary and
appropriate at this time.
COUNT SIX--DECLARATORY JUDGMENT
OF INVALIDITY OF THE '565 PATENT
58. Plaintiff re-alleges every paragraph in this Complaint.
59. Based on the above-stated conduct, RYONET is informed and
believes that the Defendants contend that RYONET infringes one or more
claims of the '565 Patent.
60. RYONET denies that it infringes any valid and enforceable claim
of the '565 Patent threatened by Lodsys, and avers that the assertions of
infringement cannot be maintained consistently with statutory conditions of
patentability and the statutory requirements for disclosure and claiming that
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13COMPLAINT FOR DECLARATORY JUDGMENT3/8/2012 6:16:07 PM RYOC.016
must be satisfied for patent validity under at least one of 35 U.S.C. 101, 102,
103, and 112.
61. Accordingly, an actual controversy exists between RYONET and
the Defendant as to the validity of the '565 Patent. The controversy is such
that, pursuant to Federal Rules of Civil Procedure 57 and 28 U.S.C. 2201 et
seq., RYONET is entitled to a declaration, in the form of a judgment, that the
'565 Patent is invalid. Such a determination and declaration is necessary and
appropriate at this time.
PRAYER FOR RELIEF
WHEREFORE Plaintiff prays for judgment in its favor as follows:
A. For judgment in favor of Plaintiff against Defendants on all
claims;
B. Declaring that Plaintiffs website does not infringe any valid claim
of the Asserted Patents;
C. Declaring that the one or more claims of the Asserted Patents are
invalid under one or more of 35 U.S.C. 101, 102, 103, and 112;
D. Awarding Plaintiffs its reasonable attorneys fees and costs,
including costs for experts, pursuant to State and Federal law,
including 35 U.S.C. 285
E. Awarding RYONET such other and further relief as this Court
deems is just and proper.
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14COMPLAINT FOR DECLARATORY JUDGMENT
DEMAND FOR A JURY TRIAL
RYONET hereby demands a trial by jury on all counts so triable.
DATED This March 8, 2012 /s/ Kurt M.Rylander_________________
KURT M. RYLANDER, WSBA 27819
/s/ Mark E. Beatty__________________
MARK E. BEATTY, WSBA 37076
RYLANDER & ASSOCIATES PC
406 West 12th Street
Vancouver, WA 98660Tel: (360) 750-9931
Fax: (360) 397-0473
E-mail: rylander@rylanderlaw.com
Of Attorneys for Plaintiff
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