accelereyes answer and counterclaims against mathworks

EAST\46800642.1

1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

THE MATHWORKS, INC.,

Plaintiff,

v.

ACCELEREYES LLC, AMAX INFORMATION TECHNOLOGIES, INC., AMAX ENGINEERING CORPORATION, FEDERAL EDGE, INC., AND PADOVA TECHNOLOGIES, INC.

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Civil Case No. 6:11-cv-00354-MHS

DEFENDANT ACCELEREYES’ FIRST AMENDED ANSWER TO MATHWORKS’

COMPLAINT, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

Defendant and Counterclaimant AccelerEyes LLC (“AccelerEyes”), by its attorneys,

DLA Piper, LLP (US) hereby submits an Answer and Counterclaims to Plaintiff and Counter

defendant The Mathworks, Inc.’s (“Mathworks”) Complaint for Copyright Infringement (the

“Complaint”) as follows:

THE PARTIES

1. Plaintiff MathWorks is a Delaware corporation with its principal place of business

at 3 Apple Hill Drive, Natick, Massachusetts 01760-2098.

ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the

allegations in Paragraph 1 of the Complaint and, therefore, denies those allegations.

2. On information and belief, Defendant AccelerEyes is a corporation organized

under the laws of the State of Georgia. On information and belief, AccelerEyes’ principal place

Case 6:11-cv-00354-MHS Document 26 Filed 09/22/11 of 27 PageID #: 110

EAST\46800642.1

2

of business is located at 75 5th Street N.W., Suite 204, Atlanta, Georgia 30308. On information

and belief, AccelerEyes develops and manufactures software products, including Jacket,

libJacket, Jacket Mobile NDK, various add-on libraries, and various add-on products. These

add-on libraries include Jacket Sparse Linear Algebra (“SLA”), Jacket Double Precision Linear

Algebra (“DLA”), Image Processing library, Signal Processing library, Statistics library, and

Graphics library (collectively, “Add-On Libraries”). These add-on products include Jacket

MGL, Jacket HPC, Jacket JMC, and Jacket SDK (collectively, “Add-On Products”). On

information and belief, AccelerEyes offers for sale, sells, copies, distributes and otherwise

markets, in this district and elsewhere in the United States, software products, including Jacket,

libJacket, Jacket Mobile NDK, the Add-On Products, and the Add-On Libraries.

ANSWER: AccelerEyes admits that it develops and manufactures products referred to

as Jacket, Jacket Sparse Linear Algebra (“SLA”), Jacket Double Precision Linear

Algebra (“DLA”), Jacket MGL, Jacket HPC, Jacket JMC, and Jacket SDK. AccelerEyes

admits that it has sold products in this Judicial District and elsewhere in the United

States. AccelerEyes denies the remaining allegations contained in Paragraph 2 of the

Complaint.

3. On information and belief, Defendant AMAX Engineering is a corporation

organized under the laws of the State of California. On information and belief, AMAX

Engineering’s principal place of business is located at 1565 Reliance Way, Fremont, California

94539. On information and belief, AMAX Engineering also has offices at 850 North Dorothy,

Suite 516, Richardson, Texas 75081.


EAST\46800642.1

3



4. On information and belief, Defendant AMAX Information Technologies, Inc.

(“AMAX Information”) is a corporation organized under the laws of the State of California. On

information and belief, AMAX Information’s principal place of business is located at 1565

Reliance Way, Fremont, California 94539.


allegations in Paragraph 4 of the Complaint and, therefore, denies those allegations

5. On information and belief, AMAX Engineering and AMAX Information (jointly

“AMAX”) offer for sale, sell, copy, distribute and otherwise market, in this district and

elsewhere in the United States, software products developed and manufactured by AccelerEyes,

including Jacket, libJacket, various add-on products such as Jacket SDK, and various add-on

libraries such as Jacket DLA.



6. On information and belief, Defendant FedEdge is a corporation organized under

the laws of the State of California. On information and belief, FedEdge’s principal place of

business is located at 14427 Meridian Parkway, Riverside, California 92518.


EAST\46800642.1

4



7. On information and belief, FedEdge offers for sale, sells, copies, distributes and

otherwise markets, in this district and elsewhere in the United States, software products

developed and manufactured by AccelerEyes, including Jacket, various add-on products such as

Jacket MGL, and various add-on libraries such as Graphics library.



8. On information and belief, Defendant Padova is a corporation organized under the

laws of the State of Maryland. On information and belief, Padova’s principal place of business is

located at 1797H Cromwell Park Drive, Glen Burnie Maryland 21061. On information and

belief, Padova also has offices in Dallas, Texas.



9. On information and belief, Padova sells, offers for sale, copies, distributes and

otherwise markets, in this district and elsewhere in the United States, software products

developed and manufactured by AccelerEyes, Jacket, various add-on products such as Jacket

MG, Jacket SDK and Jacket JMC, and various add-on libraries such as Jacket SLA and Jacket

DLA.


EAST\46800642.1

5



10. On information and belief, AMAX, FedEdge, and Padova (jointly, “Reseller

Defendants”), resell, offer for sale, copy and distribute software products developed and

manufactured by AccelerEyes, including Jacket, add-on products, and add-on libraries,

throughout the United States.


allegations in Paragraph 10 of the Complaint and, therefore, denies those allegation.

JURISDICTION AND VENUE

11. This is a civil action for copyright infringement arising under the copyright laws

of the United States, Title XVII of the United States Code. Accordingly, this Court has subject

matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.

ANSWER: Paragraph 11 contains legal assertions to which no response is required. To

the extent that the allegations contained in Paragraph 11 require a response, AccelerEyes

denies those allegations.

12. Personal jurisdiction exists generally over Defendant AccelerEyes and Reseller

Defendants because AccelerEyes and Reseller Defendants have purposely established minimum

contacts with this forum as a result of business conducted within the State of Texas and within

this district and specifically as a result of, at least, the Defendants’ distribution networks wherein

Defendants offer for sale, sell, market, distribute and place products that infringe MathWorks’


EAST\46800642.1

6

copyrights within the stream of commerce, which stream is directed at Texas and this district,

and by committing the tort of copyright infringement within Texas and this district. Further,

Defendants have purposefully directed activities toward the State of Texas, including the offer

for sale, sale, distribution and marketing of products that infringe MathWorks’ copyrights within

the State of Texas and this district.




13. Venue is proper in this district under 28 U.S.C. §§ 1391 and 1400.




FACTUAL BACKGROUND

14. MathWorks is a leading developer of mathematical computing software that is

used by engineers and scientists worldwide to accelerate the pace of discovery, innovation, and

development. Founded in 1984, MathWorks creates software for technical computing and

model-based design for engineers, scientists, mathematicians, and researchers. MathWorks’ core

products include its MATLAB® computer software.




EAST\46800642.1

7

15. MATLAB® is a computer program that provides an environment for algorithm

development, data analysis, visualization, and numeric computation. MathWorks develops and

markets MATLAB® as “the language of technical computing,” a proprietary, high-level

computer programming language and interactive environment that enables a user to perform

computationally intensive tasks faster than through the use of traditional programming languages

such as C, C++, and Fortran.

ANSWER: AccelerEyes admits that Mathworks develops and markets MATLAB®.

AccelerEyes lacks knowledge or information sufficient to admit or deny the other


16. MATLAB® is a popular software tool for engineering and scientific work used

by over a million of the world’s leading technical people, in over 100 countries, who work at the

world’s most innovative technology companies, government research labs, financial institutions,

and at more than 3,500 universities. MathWorks also offers add-on toolboxes (collections of

special-purpose MATLAB® functions) to extend the MATLAB® environment to solve

particular classes of problems in different application areas. The toolboxes provide application-

specific numerical, analysis, and graphical functions. MathWorks’ Toolboxes include, among

others, the Image Processing Toolbox, the Statistics Toolbox, and the Signal Processing

Toolbox.




EAST\46800642.1

8

17. MATLAB® and MathWorks’ Toolboxes provide engineers, scientists,

mathematicians, and educators with a powerful set of tools. These products serve a broad range

of tasks across a variety of industries from biotech and pharmaceutical to communications,

energy production, financial services and industrial automation. For example, MathWorks’

customers have used MATLAB® to develop a tool that enables doctors to assess the depth and

severity of burn injuries, allowing them to treat threatened tissue while there is still time to save

it; to predict losses from potential natural disasters; to enhance performance, reduce costs, and

improve manufacturing of fuel cells; to predict a breast cancer patient’s clinical outcome based

on the gene expression profile of the primary tumor; and to improve the safety of oil exploration

by improving the ability to monitor explosions that perforate the well bore.



18. Over the years, MathWorks’ products have received substantial recognition in the

form of industry awards and accolades. For example, EDN, a magazine published for engineers

and focused on electronic design technologies, has recognized MathWorks’ products as “Top

Software” products, “Hot Products,” and top “Innovative” products on separate occasions.

Scientific Computing Magazine has also recognized MathWorks’ products with variety of

awards over the years. Automotive Engineering International has also recognized MathWorks’

products as a “Top Product.” MATLAB® has also received choice awards from the readers of

NASA Tech Briefs and Scientific Computing & Automation, and the editors of Microwaves &

RF.


EAST\46800642.1

9



19. According to AccelerEyes’ website, www.accelereyes.com, AccelerEyes provides

“MATLAB GPU Computing.” On wiki.accelereyes.com, AccelerEyes advertises that:

Jacket enables developers to write and run code on the GPU in the native M language used in MATLAB. Jacket accomplishes this by automatically wrapping the M language into a GPU compatible form. By simply casting input data to Jacket’s GPU data structure, MATLAB functions are transformed into GPU functions. Jacket also preserves the interpretive nature of the M language by providing realtime, transparent access to the GPU compiler.

ANSWER: AccelerEyes denies the allegations contained in Paragraph 19 of the

Complaint.

20. AccelerEyes advertises that “JACKET is a MATLAB® library for GPU

computing.” (http://wiki.accelereyes.com/wiki/index.php/Category:JACKET). In presentations,

AccelerEyes has touted that “Jacket combines the speed of CUDA and the graphics of the GPU

with the user friendliness of MATLAB.” AccelerEyes states that:

Jacket was initially launched in 2007 as a MATLAB accelerator and has become the fastest, broadest GPU computing platform adopted widely by MATLAB programmers. In conjunction with the Jacket 1.5 release in Sep 2010, AccelerEyes began releasing LIBJACKET to enable C/C++ applications to benefit from the core technology that has heretofore been available only to MATLAB programmers.

http://wiki.accelereyes.com/wiki/index.php?title=LIBJACKET&oldid=10710.


EAST\46800642.1

10

ANSWER: AccelerEyes admits that it has hosted web content and made presentations

that provide descriptions of Jacket as it relates to MATLAB. AccelerEyes denies the

other allegations contained in Paragraph 20 of the Complaint.

21. Upon information and belief, AccelerEyes developed Jacket, libJacket, Jacket

Mobile NDK and Add-On Libraries by copying MathWorks’ MATLAB® product and

associated MATLAB® Toolboxes. Upon information and belief, AccelerEyes based decisions

about which MATLAB® and associated MATLAB® Toolbox functions to include in its

products after surveying users about which MATLAB® functions they used or relied upon.


Complaint.

22. Upon information and belief, AMAX markets, distributes and sells AccelerEyes’

software throughout the United States, including in this judicial district, including Jacket,

libJacket, and various add-on libraries such as Jacket DLA. On its website, www.amax.com,

AMAX markets AccelerEyes’ Jacket product as “a popular method for accelerating MATLAB

code on the GPU.” AMAX also markets AccelerEyes’ libJacket software, claiming that: “ After

achieving success with the fast MATLAB prototypes, Jacket programmers can also use

LIBJACKET to achieve high-level acceleration directly in C/C++.”




EAST\46800642.1

11

23. Upon information and belief, FedEdge markets, distributes and sells AccelerEyes’

software throughout the United States, including in this judicial district, including Jacket and

various add-on libraries such as Graphics library. On their website, www.federaledge.com,

FedEdge markets AccelerEyes’ Jacket software as a “combination of rapid application

development with very high level languages, such as the M language of MATLAB® ... changes

the landscape for technical and analytical computing.”



24. Upon information and belief, Padova markets, distributes and sells AccelerEyes’

software throughout the United States, including in this judicial district, including Jacket and

various add-on libraries such as Jacket SLA and Jacket DLA. On its website,

www.padovatech.com, Padova markets that “MATLAB Acceleration [is] Made Easy with

Jacket” and states that Padova “offer[s] the unmatched Jacket, a GPU engine for MATLAB

enabling standard MATLAB code to run on the GPU - connecting the user-friendliness of

MATLAB directly to the speed and visual computing of the GPU.”



COUNT I COPYRIGHT INFRINGEMENT – 17 U.S.C. § 106

25. Plaintiff incorporates by reference each of the allegations contained in the

foregoing paragraphs 1-24.


EAST\46800642.1

12

ANSWER: AccelerEyes repeats and incorporates by reference its answers to each of

the preceding Paragraphs 1-24 as though fully set forth herein.

26. MathWorks has registered MATLAB® in compliance with the Federal Copyright

Laws. MathWorks has also registered various MATLAB® Toolboxes in compliance with the

Federal Copyright Laws, including the Image Processing Toolbox, Statistics Toolbox, and the

Signal Processing Toolbox. MathWorks is the owner of all right, title and interest to the

copyright registrations for MATLAB®, Image Processing Toolbox, Statistics Toolbox, and the

Signal Processing Toolbox (collectively, “the Copyrighted Software”). The relevant copyright

registration numbers include but are not limited to TX 1-625-488; TX 5-619-564; TX 6-290-220;

TX 7-347-461; TX 7-347-459; TX 7-347-456; TX 7-347-457; and TX 7-364-764. Copies of

these registrations are attached as Exhibits A-H hereto.

ANSWER: AccelerEyes admits that Exhibits A - H purport to be copyright registrations

issued to The MathWorks, Inc. AccelerEyes denies the allegation that any of the

copyright registrations alleged in Paragraph 26 were duly and lawfully issued.

AccelerEyes is without knowledge or information sufficient to form a belief as to the

truth of the remaining allegations contained in Paragraph 26, and, therefore, denies such

allegations.

27. In compliance with Copyright Regulations, MathWorks filed with the Copyright

Office a copyright application, the registration fee, and a deposit of the works being registered.

The effective date of a copyright registration is the day on which an application, deposit, and fee

have all been received in the Copyright Office. 17 U.S.C. § 410(d).


EAST\46800642.1

13

ANSWER: AccelerEyes admits that 17 U.S.C. §410(d) states that the effective date of a

copyright registration is the day on which an application, deposit, and fee have all been

received in the Copyright Office. AccelerEyes is without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations contained in

Paragraph 27, and, therefore, denies such allegations.

28. The Copyrighted Software are original works of authorship and comprise

copyrightable subject matter under the copyright laws of the United States, 17 U.S.C. §§ 101 et.

seq. MathWorks has complied in all respects with the laws governing copyright including, for

example, marking and has secured the exclusive rights and privileges in, to, and under the

copyrights in the Copyrighted Software.

ANSWER: AccelerEyes denies that The Copyrighted Software referenced in Paragraph

28, including at least MATLAB®, Image Processing Toolbox, Statistics Toolbox, and the

Signal Processing Toolbox, are original works of authorship and comprise copyrightable

subject matter material. AccelerEyes is without knowledge or information sufficient to

form a belief as to the truth of the remaining allegations contained in Paragraph 28, and,

therefore, denies such allegations.

29. As the owner of the Copyrighted Software, MathWorks enjoys the exclusive right

to, among other things, reproduce the Copyrighted Software, prepare derivative works based

upon the Copyrighted Software, and distribute copies of the Copyrighted Software. 17 U.S.C.

§§ 101, 106.


EAST\46800642.1

14


Complaint.

30. The AccelerEyes software, including Jacket, libJacket, Jacket Mobile NDK, and

Add-On Libraries, being offered for sale, sold, copied and distributed by AccelerEyes and the

Reseller Defendants (“the Accused Software”) infringe MathWorks’ copyrights in the

Copyrighted Software.


Complaint.

31. At all times relevant hereto, AccelerEyes has been aware or should have been

aware of the existence of MathWorks’ copyrights in the Copyrighted Software and, therefore,

AccelerEyes is a willful infringer of MathWorks’ copyrights.


Complaint.

32. The infringement of MathWorks’ copyrights by AccelerEyes and Reseller

Defendants will cause imminent harm to MathWorks’ reputation and goodwill unless restrained

by this Court. AccelerEyes’ and Reseller Defendants’ infringement will irreparably harm

MathWorks’ business and deprive it of a competitive advantage. MathWorks has no adequate

remedy at law for AccelerEyes’ and Reseller Defendants’ infringement. MathWorks has a

substantial likelihood of success on the merits with respect to copyright infringement and the

injury faced by MathWorks substantially outweighs the injury that would be sustained by


EAST\46800642.1

15

AccelerEyes and/or Reseller Defendants as a result of granting injunctive relief. Furthermore,

granting injunctive relief on the basis of AccelerEyes’s and Reseller Defendants’ copyright

infringement would not adversely affect public policy or public interest.

ANSWER: To the extent this Paragraph is directed to Defendant AccelerEyes,

AccelerEyes denies the allegations contained in Paragraph 32 of the Complaint.

JURY DEMAND

33. MathWorks requests a trial by jury on all issues so triable.

ANSWER: Paragraph 33 is a request of the Court to which no answer is required.

ACCELEREYES’ AFFIRMATIVE DEFENSES

In addition to the defenses described below, AccelerEyes specifically reserves the right to

assert additional defenses as they become known over the course of discovery. The assertion of

additional defenses is not a concession that AccelerEyes has the burden of proving the matter

asserted.

FIRST AFFIRMATIVE DEFENSE

The Complaint fails to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

MathWorks is not entitled to maintain this suit or to assert infringement by AccelerEyes

by reason of estoppel by laches. AccelerEyes has relied to its detriment upon MathWorks’

acquiescence and delay.

THIRD AFFIRMATIVE DEFENSE

MathWorks is not entitled to maintain this suit or to assert infringement by AccelerEyes


EAST\46800642.1

16

by reason of estoppel by acquiescence. AccelerEyes has relied to its detriment upon

MathWorks’ acquiescence and delay.

FOURTH AFFIRMATIVE DEFENSE

MathWorks’ claims are barred by unclean hands and/or copyright misuse.

FIFTH AFFIRMATIVE DEFENSE

Any allegedly infringing reproduction, dissemination, display, sale or other use of the

material alleged herein was made pursuant to permission and/or an implied license granted by

MathWorks to AccelerEyes and is therefore not an infringement of any rights that MathWorks

may claim in those materials.

SIXTH AFFIRMATIVE DEFENSE

To the extent that MathWorks seeks to recover for alleged acts or incidents occurring

prior to the applicable limitations period under 17 U.S.C. Section 507(b), its claim and all relief

sought is barred.

SEVENTH AFFIRMATIVE DEFENSE

MathWorks has abandoned any copyrights asserted herein and relinquished copyright

protection in alleged material by encouraging Defendants and others to freely use the material

alleged herein.

EIGHTH AFFIRMATIVE DEFENSE

MathWorks’ claims are barred, precluded and/or limited because of the doctrine of

merger.

ACCELEREYES’ COUNTERCLAIMS

With respect to AccelerEyes’ Counterclaims, AccelerEyes alleges as follows:

THE PARTIES

1. Defendant and Counterclaimant AccelerEyes is a corporation organized under the


EAST\46800642.1

17

laws of the State of Georgia with its principal place of business in Atlanta, Georgia.

2. Upon information and belief, and upon MathWorks’ complaint, Plaintiff and

Counter Defendant MathWorks is a Delaware corporation with its principal place of business in

Natick, Massachusetts.

JURISDICTION AND VENUE

3. On July 9, 2011, MathWorks filed a Complaint against AccelerEyes seeking, inter

alia, a judgment that AccelerEyes has infringed MathWorks’ copyrights, and AccelerEyes has

denied those allegations. An active, ripe, and justiciable controversy exists between MathWorks

and AccelerEyes regarding the alleged infringement of these copyrights, and other ancillary

matters related thereto.

4. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1332.

5. This Court has personal jurisdiction over MathWorks because MathWorks is the

Plaintiff in this action, and has voluntarily submitted to this Court’s jurisdiction.

6. This Court is a proper venue for this action because MathWorks has voluntarily

submitted to this Court’s jurisdiction, resides in this district, and pursuant to 28 U.S.C. § 1391.

AccelerEyes reserves the right to move to transfer this case to a more convenient venue pursuant

to 28 U.S.C. § 1404.

FACTUAL BACKGROUND

7. AccelerEyes is an innovative startup company specializing in the development of

programming tools for parallel programming and visual computing on complicated graphics

processing unit (GPU) chipsets. Founded in 2007, AccelerEyes has created software to improve

the efficiency of technical computing and model-based designs. AccelerEyes’ core products

include its Jacket® computer software (“Jacket”).


EAST\46800642.1

18

8. Jacket is a computer program which interoperates with MathWorks’ MATLAB

language and enables users to perform computationally intensive tasks in MATLAB faster and

more efficiently through the use of the available GPU chipset.

9. MathWorks and AccelerEyes first had contact in May of 2008. At or around this

time, AccelerEyes apprised MathWorks of its Jacket project, and MathWorks encouraged

AccelerEyes to join its Connections Program. The MathWorks Connections Program includes

more than 400 commercially-available third-party products and services based on MATLAB and

Simulink that address technical needs across a wide range of applications and industries.

10. AccelerEyes submitted an application to join the partner program in May 2008,

and was accepted. From September 2008 to September 2010, AccelerEyes was a member of the

MathWorks Connections Program.

11. During the two years AccelerEyes participated in the Connections Program,

MathWorks licensed Jacket software from AccelerEyes and encouraged AccelerEyes’ progress

and development. MathWorks encouraged distribution of AccelerEyes’ Jacket software because

it assisted MathWorks in selling and making its MATLAB®, Parallel Computing ToolboxTM,

Distributed Computing ServerTM, Signal Processing ToolboxTM, Image Processing ToolboxTM,

Statistics ToolboxTM, and other products more marketable and profitable.

12. Representatives of AccelerEyes and MathWorks first met face-to-face on or about

February 10, 2009, at MathWorks’ headquarters in Natick, Massachusetts, and the parties

engaged in discussions to better understand each other’s product offerings and cultivate future

business opportunities. It was agreed and understood by the parties at the beginning of the

meeting that the discussions and information conveyed therein would be maintained as

confidential and not used, and AccelerEyes relied on this agreement and understanding. Based


EAST\46800642.1

19

on this agreement and understanding from MathWorks, AccelerEyes conveyed significantly

more information regarding Jacket structure and function than it had made available publically,

including Jacket architecture and business slides with a confidentiality designations, and

descriptions of GFOR technology, how Jacket uses caching to improve GPU performance, and

techniques for integrating NVIDIA toolchains with the MATLAB environment.

13. With this information in hand and having observed the growing appeal of

AccelerEyes’ Jacket solution in the technical computing marketplace, MathWorks became

interested in a potential acquisition of AccelerEyes. After preliminary acquisition discussions in

September and early October, 2009, the parties convened again in Natick, Massachusetts on or

about October 15, 2009 to discuss the potential acquisition and additional technical details of

Jacket. It was agreed and understood at that meeting that the discussions and information

conveyed therein would be maintained as confidential and not used, and AccelerEyes relied on

this agreement and understanding. Based on this agreement and understanding from

MathWorks, AccelerEyes conveyed additional confidential information regarding Jacket

structure and function, including how Jacket uses PTX files to optimize performance, how Jacket

uses caching to improve GPU performance, GFOR descriptions, techniques for optimizing

CUDA kernels, and techniques for integrating NVIDIA toolchains with the MATLAB

environment.

14. AccelerEyes’ confidential and proprietary information conveyed at these meetings

was not generally known to the public or readily ascertainable and had independent economic

value, and provided AccelerEyes with a significant commercial advantage over would-be

competitors. AccelerEyes spent significant time and effort developing the trade secrets and

confidential business information enumerated above since its founding.


EAST\46800642.1

20

15. AccelerEyes has taken and continues to take steps to maintain and protect its

confidential information and trade secrets, including those contained in the Jacket product. Its

efforts include, without limitation, requiring employees (including its founders) to sign

confidentiality and non-solicitation agreements, limiting physical access to AccelerEyes facilities

through extensive security devices, limiting electronic access to the AccelerEyes computer code,

limiting access to the trade secrets and confidential business information through the use of

confidentiality agreements, and securely storing and archiving AccelerEyes computer code and

documentation. The trade secrets and confidential business information identified above have

been in continued use by AccelerEyes.

16. MathWorks abruptly terminated acquisition discussions following the October,

2009 meeting. AccelerEyes subsequently learned that MathWorks developed its own competing

MATLAB add-on computer program purporting to enable users to improve the efficiency of

MATLAB through the use of the available GPU chipset, and integrated that offering into its

Parallel Computing Toolbox. On information and belief, MathWorks integrated, relied upon

and/or utilized the confidential information and trade secrets conveyed by AccelerEyes in these

2009 meetings in its competing offering, which was released in or about September 2010. At or

about that time, AccelerEyes was terminated from the MathWorks’ Connections Program.

17. On information and belief, MathWorks leveraged the prospect of acquiring

AccelerEyes to induce AccelerEyes’ officers and employees to convey trade secrets and

confidential business information which MathWorks could deploy to its benefit.

18. As a result of MathWorks’ misappropriation and use of AccelerEyes’ trade

secrets and confidential business information, AccelerEyes has been damaged, and has suffered

irreparable harm not compensable by money damages.


EAST\46800642.1

21

19. AccelerEyes is entitled to preliminary and permanent injunctive relief prohibiting

MathWorks, its respective officers, agents, servants, and employees, and those people in active

concert or participation with them from using its confidential business information and trade

secrets in its product offerings.

COUNT I

MISAPPROPRIATION OF TRADE SECRETS (M.G.L. C. 93, § 42 AND COMMON LAW)

20. AccelerEyes realleges and incorporates by reference the allegations of the

paragraphs 1-19 of the counterclaims, inclusive, as if fully set forth herein.

21. This Count is an action for misappropriation of trade secrets under Massachusetts

Gen. Laws ch. 93 §§ 42 and 42A and common law.

22. MathWorks, through its employees, gained access to AccelerEyes’ confidential

business information and trade secrets through improper means, including at the meetings as set

forth above.

23. MathWorks owed to AccelerEyes a duty not to use AccelerEyes’ confidential

information and trade secrets for any purposes other than the cultivation of business

opportunities for the parties, collaboration and potential acquisition of AccelerEyes.

24. MathWorks breached this duty by using AccelerEyes’ confidential information

and trade secrets to develop at least the GPU computing capability of MathWorks’ Parallel

Computing Toolbox product.

25. MathWorks unlawfully took AccelerEyes’ confidential information and trade

secrets with the intent to use them to develop at least the GPU computing capability of its

Parallel Computing Toolbox product, thereby converting the confidential information and trade

secrets to their own use.

26. As a result of MathWorks’ misappropriation of confidential information and trade


EAST\46800642.1

22

secrets and release of a competing product offering, AccelerEyes and its Jacket product have

been damaged.

27. If MathWorks is permitted to continue to create and sell products incorporating

AccelerEyes’ trade secrets and confidential business information, including at least the Parallel

Computing Toolbox, AccelerEyes will be irreparably harmed, and is accordingly entitled to

preliminary and permanent injunctive relief against MathWorks, its respective officers, agents,

servants, and employees, and those people in active concert or participation with them.

COUNT II

UNFAIR AND DECEPTIVE ACTS AND PRACTICES (M.G.L. C. 93A)

28. AccelerEyes realleges and incorporates by reference the allegations of paragraphs

1-27 of the counterclaims, inclusive, as if fully set forth herein.

29. At all material times herein, both MathWorks and AccelerEyes have been

engaged in trade or commerce in the Commonwealth of Massachusetts.

30. The acts and transactions complained of herein occurred primarily and

substantially within the Commonwealth of Massachusetts.

31. The conduct of MathWorks as alleged herein constitutes unfair competition and

unfair or deceptive acts and practices within the Commonwealth of Massachusetts which has

damaged AccelerEyes, in violation of Sections 2 and 11 of Chapter 93A of the General Laws of

the Commonwealth of Massachusetts. MathWorks’ violations were knowing and willful,

entitling AccelerEyes to an award of treble damages.

32. As a result of MathWorks’ violations, AccelerEyes is also entitled to an award of

attorneys’ fees and costs under M.G.L. c. 93A, § 11, and preliminary and permanent injunctive

relief to prevent further irreparable harm.


EAST\46800642.1

23

COUNT III

BREACH OF CONTRACT



34. Under the agreement and understanding between MathWorks and AccelerEyes,

MathWorks was contractually obligated not to use AccelerEyes’ trade secrets and confidential

information for any purposes other than the cultivation of business opportunities for the parties,

collaboration and potential acquisition of AccelerEyes.

35. By using AccelerEyes’ confidential information and trade secrets to develop at

least the GPU computing capabilities of the Parallel Computing Toolbox, MathWorks breached

its contractual obligations.

36. As a result of the breach of contract, AccelerEyes and its Jacket product have

been damaged.




preliminary and permanent injunctive relief against MathWorks, its respective officers, agents,

servants, and employees, and those people in active concert or participation with them.

COUNT IV

PROMISSORY ESTOPPEL



39. In order to obtain nonpublic information regarding the structure and function of

Jacket, MathWorks agreed to maintain it in confidence and acknowledged its confidential nature


EAST\46800642.1

24

so as to induce action or forbearance of a definite and substantial character on the part of

AccelerEyes.

40. AccelerEyes was in MathWorks’ Connections Program at the time and reasonably

relied on these actions and acknowledgements on the part of MathWorks to its detriment when it

conveyed to MathWorks the trade secrets and confidential business information set forth above.

41. As a result of the breach of contract, AccelerEyes and its Jacket product have

been damaged, and injustice can only be avoided by virtue of enforcing the aforementioned

promises.




preliminary and permanent injunctive relief against MathWorks, its officers, agents, servants,

and employees, and those people in active concert or participation with them.

COUNT V

UNJUST ENRICHMENT



44. MathWorks was unjustly enriched by its unlawful and unauthorized exploitation

of AccelerEyes’ confidential and trade secret information, which MathWorks used in its

development of at least the GPU computing capabilities of the Parallel Computing Toolbox.

45. MathWorks appreciated the benefit of the information being conveyed by

AccelerEyes and indeed sought it out.

46. Under the circumstances described herein, it would be inequitable and unfair to

permit MathWorks to retain the benefit of the proceeds derived from MathWorks’ exploitation of


EAST\46800642.1

25

AccelerEyes’ confidential and trade secret information without compensating AccelerEyes for

such benefit.

47. As a result of MathWorks’ unjust enrichment, AccelerEyes and its Jacket product

have been damaged.




preliminary and permanent injunctive relief against MathWorks, its officers, agents, servants,

and employees, and those people in active concert or participation with them.

WHEREFORE, counter claimant AccelerEyes, Inc., prays that this Court:

A. Dismiss MathWorks’ Complaint with prejudice and order that MathWorks is

entitled to no recovery on the Complaint;

B. Award AccelerEyes damages resulting from MathWorks’ misappropriation of

trade secrets, unfair competition and unfair and deceptive acts and practices, breach of

contract, and promissory estoppel;

C. Award AccelerEyes restitution for MathWorks’ unjust enrichment;

D. Increase the damages award for misappropriation of trade secrets by a factor of

two pursuant to Mass. Gen. Laws ch. 93 § 42;

E. Increase the damages award for unfair competition and unfair or deceptive acts or

trade practices by a factor of three pursuant to Mass. Gen. Laws ch. 93A § 11, and award

AccelerEyes its attorneys’ fees and costs;

F. Enjoin MathWorks, its officers, agents, servants, and employees, and those in


EAST\46800642.1

26

active concert and participation with them who receive actual notice of the Court’s order,

from any further manufacture, distribution, or sale of the Parallel Computing Toolbox

including the GPU computing capabilities;

G. Enjoin MathWorks, its officers, agents, servants, and employees, and those in

active concert and participation with them who receive actual notice of the Court’s order,

from any further use, disclosure, or copying of AccelerEyes’ confidential information and

trade secrets, and compel MathWorks to destroy any materials in its possession which

disclose, include, or reflect AccelerEyes’ confidential information, and trade secrets;

H. Award AccelerEyes pre- and post-judgment interest on any recovery; and

I. Award AccelerEyes such other and further relief to which it may be justly

entitled.

JURY DEMAND

AccelerEyes hereby demands a jury trial on all claims, defenses and counterclaims so

triable.

Dated: September 22, 2011 Respectfully submitted,

By: /s/ John M. Guaragna John M. Guaragna Henning Schmidt DLA PIPER LLP (US) 401 Congress Avenue, Suite 2500 Austin, Texas 78701-3799 T: (512) 457-7000 F: (512) 457-7001 [email protected] [email protected] Attorneys for ACCELEREYES LLC


EAST\46800642.1

27

CERTIFICATE OF SERVICE

The undersigned certifies that on this 22nd day of September 2011, all counsel of record

who are deemed to have consented to electronic service are being served with a copy of this

document through the Court’s CM/ECF system under Local Rule CV-5(a)(3). Any other counsel

of record will be served by a facsimile transmission and/or first class mail.

/s/ John M. Guaragna John M. Guaragna


accelereyes answer and counterclaims against mathworks

Documents