calibrait vs. apple

8/6/2019 Calibrait vs. Apple

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19373.1 1

COMPLAINT

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Nathaniel L. Dilger (Bar No. 196203)

Email: [email protected]

Peter R. Afrasiabi (Bar No. 193336)

email: [email protected]

ONE LLP

4000 MacArthur BoulevardWest Tower, Suite 1100

Newport Beach, California 92660

Telephone: (949) 502-2870

Facsimile: (949) 258-5081

Attorneys for Plaintiff Calibrait, LLC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CALIBRAIT, LLC, a California limited

liability corporation,

Plaintiff,

v.

APPLE, INC., a California corporation,

Defendant.

Case No.

COMPLAINT FOR PATENT

INFRINGEMENT, PERMANENT

INJUNCTION AND DAMAGES

DEMAND FOR JURY TRIAL

For its Complaint against Apple, Inc. (Apple), Plaintiff Calibrait, LLC

(Calibrait) alleges as follows:

THE PARTIES

1.

Plaintiff Calibrait, LLC (Calbrait) is a limited liability corporation dulyorganized and existing under the laws of California with its principal place of business at

Golden Eagle Business Center, 525 B Street, Suite 1500, San Diego, CA 92101. As

alleged below, Calibrait is the owner of all right, title, and interest in U.S. Patent No.

7,447,565.

'11CV1759 RBBDMS

Case 3:11-cv-01759-DMS -RBB Document 1 Filed 08/05/11 Page 1 of 33


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COMPLAINT

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2. Defendant Apple, Inc. is a corporation duly organized and existing under thlaws of California, with its principal place of business at 1 Infinite Loop, Cupertino, CA

95014. Apple is in the business of using, making, selling, offering for sale, importing, an

distributing mobile devices that incorporate accelerometers, among other components, to

persons in the U.S. through physical and electronic channels, including the Internet.

JURISDICTION AND VENUE

3. This is a civil action for patent infringement arising under the Patent Act ofthe United States, 35 U.S.C. 1 et seq. This court has subject matter jurisdiction of such

federal question claims pursuant to 28 U.S.C. 1331 and 1338(a).

4. Venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400(b) in that thacts and transactions complained of herein were conceived, carried out, made effective, an

had effect within the State of California and within this district, among other places. App

resides in this judicial district by virtue of its state of incorporation and business activities

in this district and has committed acts of infringement in this judicial district.

U.S. PATENT NO. 7,447,565

5. On November 4, 2008, the United States Patent & Trademark Office duly anlegally issued United States Letters Patent No. 7,447,565 (the 565 Patent), entitled

Electronic Alignment System.

6. The 565 patent claims, among other things, an electronic alignment device,comprising mutually perpendicular accelerometers, that enables a user to field calibrate th

accelerometers by providing instructions to a user to position the electronic device to

capture a first set of positional data, providing instructions to the user to turn the electroni

alignment device 180 degrees to enable the electronic alignment device to capture a secon

set of positional data, and averaging the first and second sets of captured data.

/ / /

/ / /

/ / /

/ / /



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COMPLAINT

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FIRST CLAIM FOR RELIEF

AGAINST DEFENDANT APPLE, INC. FOR DIRECT, CONTRIBUTORY AND

INDUCING INFRINGEMENT OF U.S. PATENT NO. 7,447,565

7. Plaintiff incorporates herein by reference the allegations set forth inparagraphs 1-7 of the Complaint as though fully set forth herein.

8. A true and correct copy of the 565 Patent is attached as Exhibit A andincorporated herein by reference. Defendant Apple has, and continues to, make, use, sell,

offer for sale, import and/or distribute mobile devices having accelerometers integrated

therein, including, but not limited to, iPad, iPad2, iPhone 2G, iPhone 3G/3GS, iPhone 4,

and iPod Touch models (collectively, the Apple Products).

9. Apple further has, and continues to, make, use, sell, offer for sale, or otherwidistribute software programs that enable users to field calibrate the accelerometers in the

Apple Products, including, but not limited to, software called Bubble Level (Calibratio

Software).

10. By making, using, selling, and offering for sale the Apple Products andCalibration Software, Apple has directly infringed and continues to directly infringe the

565 Patent, including infringement under 35 U.S.C. 271(a) and (f).

11. On information and belief, Apple has also indirectly infringed and continues indirectly infringe the 565 Patent by actively inducing direct infringement by other perso

who operate methods and systems that embody or otherwise practice one or more of the

claims of the 565 Patent when Apple had knowledge of the 565 Patent and knew or

should have known that their actions would induce direct infringement by others and

intended that their actions would induce direct infringement by others.

12. On information and belief, Apple has also indirectly infringed and continues indirectly infringe the 565 Patent by contributory infringement by providing non-staple

articles of commerce to others for use in an infringing system or method with knowledge

the 565 Patent and knowledge that these non-staple articles of commerce are used as a

material part of the claimed invention of the 565 Patent.



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13. On information and belief, Apple will continue to infringe the 565 Patentunless enjoined by this Court.

14. On information and belief, Apples infringement of the 565 Patent is, hasbeen, and continues to be willful and deliberate.

15. As a direct and proximate result of Apples infringement of the 565 Patent,Calibrait has been and continues to be damaged in an amount yet to be determined.

16. Unless a preliminary and permanent injunction are issued enjoining Appleand its officers, agents, servants and employees, and all others acting on their behalf or in

concert with Apple, from infringing the 565 Patent, Calibrait will be greatly and

irreparably harmed.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Calibrait prays for judgment against Defendant Apple as

follows:

(1) For a judicial determination and declaration that Defendant Apple has directlinfringed, and continues to directly infringe, United States Letters Patent No. 7,447,565;

(2) For a judicial determination and declaration that Defendant Apple has induceand continues to induce, the infringement of United States Letters Patent No. 7,447,565;

(3) For a judicial determination and declaration that Defendant Apple hascontributorily infringed, and continues to contributorily infringe, United States Letters

Patent No. 7,447,565;

(4) For a judicial determination and decree that Defendant Apples infringementof United States Letters Patent No. 7,447,565 has been, and continues to be, willful and

deliberate;

(5) For a judicial determination and decree that Defendant Apple, its respectivesubsidiaries, officers, agents, servants, employees, licensees, and all other persons or

entities acting or attempting to act in active concert or participation with it or acting on its

behalf, be preliminarily and permanently enjoined from further infringement of the 565

Patent;



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(6) For a declaration that Apple notifies all of its customers and users of theinfringing system and customers participation in the infringement with Apples

encouragement, and that Apple encourages customers to cease all such infringing actions;

(7) For a judicial decree that orders Defendant Apple to account for and pay toCalibrait all damages caused to Calibrait by reason of Defendant Apples infringement

pursuant to 35 U.S.C. Section 284, including enhanced damages under 35 U.S.C. Section

285;

(8) For an award of damages according to proof at trial;(9) For a judicial declaration that this case is exceptional under 35 U.S.C. Sectio

285 and Defendant Apple be ordered to pay Calibraits costs, expenses, and reasonable

attorneys fees pursuant to 35 U.S.C. Sections 284 and 285;

(10) For a judicial order awarding to Calibraits pre-judgment and post-judgmentinterest on the damages caused to it by Defendant Apples infringement; and

(11) For any such other and further relief as the Court may deem just and proper

under the circumstances.

August 5, 2011 ONE LLP

By: /s/ Peter R. Afrasiabi

Peter R. Afrasiabi

Attorneys for Plaintiff

Calibrait, LLC



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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial pursuant to Rule 38 of the Federal Rules of

Civil Procedure as to all issues in this lawsuit.

August 5, 2011 ONE LLP

By: /s/ Peter R. Afrasiabi

Peter R. Afrasiabi

Attorneys for Plaintiff

Calibrait, LLC



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EXHIBIT A



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2JS 44 (Rev. 12/07) CIVIL COVER SHEETThe 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 pry 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 inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(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) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for P(For Diversity Cases Only) and One Box for Defendant

u 1 U.S. Government u 3 Federal Question PTF DEF PTF D

Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated orPrincipal Place u 4

of Business In This State

u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated andPrincipal Place u 5

Defendant(Indicate Citizenship of Parties in Item III)

of Business In Another State

Citizen or Subject of a u 3 u 3 Foreign Nation u 6

Foreign Country

V. NATURE OF SUIT (Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 610 Agriculture u 422 Appeal 28 USC 158 u 400 State Reapportionm

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 Influence

u 151 Medicare Act u 330 Federal Employers Injury Product u 650 Airline Regs. u 830 Patent Corrupt Organizatio

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 Liabil ity u 371 Truth in Lending LABOR SOCIAL SECURITY u 850 Securities/Commod

of Veterans 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 Acti

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 Stabilizat

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 Mat

u 220 Foreclosure u 442 Employment Sentence u 791 Empl. Ret. Inc. or Defendant) u 894 Energy Allocation A

u 230 Rent Lease & Ejectment u 443 Housing/ Habeas Corpus: Security Act u 871 IRSThird Party u 895 Freedom of Informa

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 IMMIGRATION u 900Appeal of Fee Determ

u 290 All Other Real Property u 445 Amer. w/Disabilities - u 540 Mandamus & Other u 462 Naturalization Application Under Equal Access

Employment u 550 Civil Rights u 463 Habeas Corpus - to Justice

u 446 Amer. w/Disabilities - u 555 Prison Condition Alien Detainee u 950 Constitutionality of

Other u 465 Other Immigration State Statutes

u 440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

(Place an X in One Box Only)

u 1 OriginalProceeding

u 2 Removed fromState Court

u 3 Remanded fromAppellate Court

u 4 Reinstated orReopened

u 5 u 6 MultidistrictLitigation

u 7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN

COMPLAINT:

u CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY(See instructions):

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

CALIBRAIT, LLC, a California limited liability corporation

San Diego

Nathaniel L. Dilger, ONE LLP, 4000 MacArthur Blvd., W. Twr.,Ste. 1100, Newport Beach, CA 92660 Tel: 949-502-2870

APPLE, INC., a California corporation

Santa Clara

. . . , et seq.

atent n r ngement

10,000,000.00

08/05/2011 /s/Peter R. Afrasiabi

'11CV1759 RDMS


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