finisar v. nistica

7/28/2019 Finisar v. Nistica

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CHRISTOPHER J. COX (BAR NO. 151650)Email: chris.coxweil.comWEIL, GOTSHAL & M ANGES LLP201 Redwood Shores ParkwayRedwood Shores, CA 94065Telephone: (650) 802-3029Facsimile: (650) 802-3100

DAVID C. RADULESCU*Em ail: david@ radulescullp.comTIGRAN VARDANIAN* , / `

Email: tigran~radulesculIp.com , (~GREGORY S. MASKEL*Email: gregradulescullp.com qRADULESCU LLP .136 Madison Avenue, 6th FloorNew York, NY 10016Telephone: (646) 502-5950

Facsimile: (646) 502-5959

*to be admittedpro hoc vice

Attorneys for Plaintiff O PYINISAR CORPORATION

UNITED STATES DISTRICT COURTNORTHERN D ISTRICT OF CALIFORN IA

SAN JOSE DIVISION

FINISAR CORPOR ATION, a Delawarecorporation,

No.Plaintiff,

COMPLAINT FOR PATENTV . NFRINGEMENT

NISTICA, INC., a Delaware corporation,JURY TRIAL DEMANDED

Defendant.

Plaintiff Finisar Corporation ("Finisar") files this Complaint for Patent Infringement("Com plaint") against Defendant N istica, Inc. ("Nistica"), wherein, pursuant to 35 U .S.C. 27

and 281, Finisar seeks a judgment of infringement b y Nistica of U.S. Patent Nos. 6,956,687 (th

"'687 Patent"), 7,123,833 (the "'833 Patent"), 7,126,740 (the "'740 Patent"), 6,430,328 (the

"'328 Patent"), 7,092,599 (the "'599 Patent"), 7,397,980 (the "'980 Patent") and damages

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PLAINTIFF FINISAR CORP.'S COMPLAINT FOR PATENT INFRINGEM ENT


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resulting therefrom pursuant to 35 U .S.C. 284, as w ell as preliminary and perm anent injunction

of the infringing activity pursuant to 35 U .S.G. 283, and such other relief as the Court deem s

just and proper, and in supp ort thereof alleges as follows:

PARTIES

1. Finisar is a Delaware corporation w ith a principal place of business at 1308

M offett Park D rive, Sunnyvale, California 94089.

2. Upo n information and b elief, Nistica is a Delaware co rporation w ith its principal

8 place of business at 745 Route 202-206, Bridgewater, New Jersey 08807.

9 URISDICTION AND VE NUE

10I . his Court has subject m atter jurisdiction over this action pursuant to 28 U .S.C.

1 1 f 1331 and 1338 (a) because the action concerns infringement of a U nited States patent.

12 . his Cou rt has personal jurisdiction over N istica at least by v irtue of Nistica

13 having conducted business in this District and having committed one or more acts of

14 I infringement in this District.

1 5 . enue is proper under 28 U.S.C. 1391 and 1400.

1 6 NTRADISTRICT ASSIGNMENT

17 . ssignment of this matter to the San Jose Division is appropriate because both

18 Finisar Corporation and Nistica, Inc. do business in this District, Finisar Corporation maintains

19 its principal place o f business in this D istrict, and both a re subject to jurisdiction in this District.

20 HE PATENTS-IN-SUIT

2 1 . inisar is the own er of the '687 Patent entitled "Optical Blocking Filter Having an

22 A rray of M icro-M irrors," which the United States Patent & Trademark O ffice lawfully and duly

23 issued on October 18, 2005. A true and correct copy of the '687 Patent is attached hereto as

24 I Exhibit A.25 . inisar is the owne r of the '833 P atent entitled "Dyn amically Reco nfigurable

26 Optical Smart Node," which the United States Patent & Trademark Office lawfully and duly

27 issued on October 17, 2006. A true and correct copy of the '833 Patent is attached hereto as

28 I Exhibit B.

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9. Finisar is the ow ner of the '7 40 Patent entitled "Multifunction Optical Device

Having a Sp atial Light M odulator with an Array of Micro-M irrors," which the United States

Patent & Tradem ark Office lawfully and duly issued on October 24, 2006 . A true and correct

copy of the '7 40 Patent is attached hereto as E xhibit C.

10. Finisar is the ow ner of the '328 P atent entitled "Optical Switch," which the U nited

States Patent & Tradem ark Office lawfully and duly issued on Aug ust 6, 2002. A true and correc

copy of the '328 Patent is attached hereto as Exhibit D.

11. Finisar is the ow ner of the '599 P atent entitled "W avelength M anipulation Sy stem

and M ethod," which the United States Patent & Trademark Office lawfully and duly issued on

Aug ust 15, 2006 . A true and correct copy of the '599 Pa tent is attached hereto as Exhibit E.

12. Finisar is the ow ner of the '980 P atent entitled "Du al-Source Optical Wav elength

Processor," which the U nited States Patent & T rademark O ffice lawfully and duly issued on July

8, 2008. A true and correct copy of the '980 Patent is attached hereto as Exhibit F.

FACTUAL BACKGROUND

13. Founded in 198 7 in Santa Clara County, California, Finisar Corporation produces

I optical communications compo nents and subsystems. These products enable high-speed voice,

I video and data com munications for networking, storage, wireless, and cable TV applications.

Finisar has provided critical breakthroughs in optics technologies and has supplied system

manu facturers with the production volumes needed to meet the exploding dem and for network

bandw idth. Finisar's industry-leading optical products include transceivers/transponders, active

cables, wavelength selective switches ("WS S"), reconfigurable optical add-drop multiplexer

("ROA DM ") linecards, optical instrumen ts, RF-over-Fiber, amplifiers, and active and passive

I components.

14. W SS produc ts need a controlled element that switches light beams of differentwav elengths in different directions. Two w ays to perform an optical switching function include

I using: (1) an array of micro electronic mechanical system ("M EM S") mirrors and (2) liquid

I crystal on silicon ("LC OS") technology.

15. Upon information and belief, Nistica was founded in 20 05 and is now a subsidiary

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II of Fujikura, Ltd. Nistica designs, develop s, markets, sells, and offers to sell WS S produ cts for

2 ROADM devices that compete with the products sold by Finisar. Nistica sells certain products,

3 such as under the trade names FLEDGE and FULL FLEDG E, which are WSS d evices. In

4 addition, upon information and belief, Nistica has also offered to sell certain WSS products that

5 include LCOS technology for optical switching.

6 6 . istica's products are sold and /or offered for sale to customers w ho incorporate

7 INistica's WS S and RO AD M devices into products that are then sold to end users such as wireline

8 and wireless telecommunication service providers and cable TV operators.

9 IRST CLAIM FOR RELIEF

10 Infringement of the 6,956,687 Patent)

1 1 7 . inisar incorporates by reference paragraph s I through 1 6 of the Com plaint as if

12 I set forth h ere in full.

1 3 8. pon information an d belief, Nistica has been and is currently directly infringing

14 one or mo re claims o f the '687 Patent by m aking, using, offering to sell, and/or selling within th

15 United States, and/or importing into the U nited States, without authority, W SS d evices,

16 including, but not limited to, Nistica's FLEDGE and FULL FLEDG E' series of products that

17 include an array of MEMS mirrors for optical switching (the "'687 Infringing Products").

18 9. pon information and belief, upon knowledge of the '687 Patent, Nistica is

19 contributing to the infringement of, and/or inducing infringement of the '687 Patent by, among

20 o ther things, knowingly and with intent, actively encouraging its customers and suppliers to

21 make, use, sell and/or offer for sale Nistica's '687 Infringing Products in a manner that

22 constitutes infringem ent of one or m ore claims of the '687 Patent. There are no substantial uses

23 of the '687 Infringing Products made, used, sold, or offered for sale by Nistica that do not

24 infringe one or more claims of the '687 Patent.

25 0. s a result of Nistica's unlawful infringement of the '687 Patent, Finisar has

26 I suffered and w ill continue to suffer damage. F inisar is entitled to recover from Nistica the

27 I damage s adequate to compensate for such infringement, which have y et to be determined.

28 1. pon information an d belief, any m anufacturing, sales, offers for sale, uses, or

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1 impo rtation by Nistica of the '687 Infringing Produ cts reflect a deliberate and conscious decision

2 to infringe the '687 Patent or, at the very least, a reckless disregard of Finisar's patent rights.

3 Nistica's infringemen t after that date has been w illful and Finisar is entitled to treble dam ages

4 and attorneys' fees and costs incurred in this action, along with prejudgment interest under 35

5 U.S.C. 284, 285.

6 2. istica w ill continue to infringe the '68 7 Patent unless and until it is preliminarily

7 and permanently enjoined by this Court.

8 3. istica's acts of infringem ent have caused and will continue to cause irreparable

9 harm to Finisar unless and until Nistica is enjoined by this Court.

10 ECOND CLAIM FOR RELIEF

1 1 Infringement of the 7,123,833 Patent

12 4. inisar incorporates by reference paragraphs 1 through 23 of the C omp laint as if

13 I set forth here in full.

14 5. pon information an d belief, Nistica has been and is currently directly infringing

15 o ne or m ore claims of the '833 Patent by m aking, using, offering to sell, and/or selling within the

16 United States, and/or impo rting into the U nited States, without authority W SS dev ices, including

17 but not limited to, Nistica's FLEDGE and FULL FLEDGE series of products that include an

18 array of M EM S m irrors, and/or devices that include LCO S technology, for optical switching (th

19 "833 Infringing Products").

20 6. pon inform ation and belief, upon k now ledge of the '833 Pa tent, Nistica is


22 o ther things, knowingly and with intent, actively encouraging its customers and suppliers to

23 make, use, sell and/or offer for sale Nistica's '833 Infringing Products in a manner that

24 constitutes infringement of one or more claims of the '833 Patent. There are no substantial uses25 of the '833 Infringing Products made, used, sold, or offered for sale by Nistica that do not


27 7 . s a result of Nistica's unlawful infringement of the '833 P atent, Finisar has

28 11suffered and w ill continue to suffer dam age. Finisar is entitled to recover from Nistica the

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Idamages adeq uate to compensate for such infringement, which have y et to be determined.

28. Upon information and belief, any man ufacturing, sales, offers for sale, uses, or

importation by N istica of the '833 Infringing Products reflect a deliberate and conscious decision

to infringe the '833 Patent or, at the very least, a reckless disregard of Finisar's patent rights.

Nistica's infringement after that date has been willful and Finisar is entitled to treble damag es

and attorneys' fees and costs incurred in this action, along w ith prejudgment interest under 35

U.S.C. 284, 285.

29. Nistica will continue to infringe the '833 Patent unless and until it is preliminarily

I and permanently enjoined by this Court.

30. Nistica's acts of infringement hav e caused and w ill continue to cause irreparable

harm to F inisar unless and until Nistica is enjoined by this Co urt.

THIRD CLAIM FOR RELIEF

(Infringement of the 7 ,126, 740 Patent)

31. Finisar incorporates by reference paragraphs 1 through 30 of the Com plaint as if

I set forth here in full.

32. Upon information and be lief, Nistica has been and is currently directly infringing

one or m ore claims of the '7 40 Patent by making, using, offering to sell, and/or selling within th

United States, and/or importing into the United States, without authority, WSS devices,

including, but not limited to, Nistica's FLED GE and FULL FLEDGE series of products that

include an array of ME M S mirrors for optical switching (the "'7 40 Infringing Products").

33. Upo n information and belief, upon know ledge of the '7 40 Patent, Nistica is

contributing to the infringement of, and/or inducing infringement of the '7 40 Patent by, am ong

other things, knowingly and with intent, actively encouraging its customers and suppliers to

mak e, use, sell and/or offer for sale Nistica's '7 40 Infringing Produ cts in a manner thatconstitutes infringement of one o r more claims o f the '7 40 Patent. There are n o substantial uses

of the '740 Infringing Products m ade, used, sold, or offered for sale by N istica that do not

infringe one or m ore claims of the '740 Patent.

34. As a result of Nistica's unlawful infringemen t of the '7 40 Patent, Finisar has

PLAINTIFF FINISAR CORP.'S COMPLAINT FOR PATENT INFRINGEMENT ~


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1 suffered and will continue to suffer damage. Finisar is entitled to recover from Nistica the

2 dam ages adequate to compen sate for such infringemen t, which have yet to be determined.

3 5. pon information an d belief, any m anufacturing, sales, offers for sale, uses, or

4 importation by Nistica of the '740 Infringing Products reflect a deliberate and conscious decision


6 Nistica's infringement after that date has been willful and Finisar is entitled to treble damages

7 and attorneys' fees and costs incurred in this action, along with prejudgmen t interest under 35

8 U.S.C. 284, 285.

9 6. istica will continue to infringe the '7 40 P atent unless and un til it is preliminarily

1 0 I and perm anently enjoined by this Court.

1 1 7 . istica's acts of infringement have caused and will continue to cause irreparable

12 I harm to F inisar unless and until Nistica is enjoined by this Co urt.

13 OURTH CLAIM FOR RELIEF

14 I n f r i n g e m e n t o f t h e 6 , 4 3 0 , 3 2 8 P a t e n t )

15 8. inisar incorporates by reference paragraphs 1 through 37 of the Com plaint as if

16 I set forth here in full.

17 9. pon information an d belief, Nistica has been and is currently directly infringing

18 one or more claims of the '328 Patent by making, using, offering to sell, and/or selling within the

19 United States, and/or importing into the U nited States, without authority, WSS devices,

20 including, but not limited to, devices that include LCOS technology for optical switching (the

21 "'328 Infringing Products").

22 0. pon inform ation and belief, upon kn owledg e of the '328 Patent, Nistica is


24 other things, knowingly and with intent, actively encouraging its customers and suppliers to25 make, use, sell and/or offer for sale Nistica's '328 Infringing Products in a manner that

26 constitutes infringement of one or more claims of the '328 Patent. There are no substantial uses

27 of the '328 Infringing Products made, used, sold, or offered for sale by Nistica that do not


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1 1. s a result of Nistica's unlawful infringement of the '328 Patent, Finisar has

2 suffered and will continue to suffer damage. Finisar is entitled to recover from Nistica the

3 I damages adequate to compensate for such infringement, which have yet to be determined.

4 2. pon information and belief, any manufacturing, sales, offers for sale, uses, or

5 importation by Nistica of the '328 Infringing Products reflect a deliberate and conscious decision


7 Nistica's infringement after that date has been willful and Finisar is entitled to treble damages

8 and attorneys' fees and costs incurred in this action, along with prejudgment interest under 35

9 ~ U .S.C. 284, 285 .

l 0 3, istica w ill continue to infringe the '328 P atent unless and until it is preliminarily

1 1 and perman ently enjoined by this Court.

1 2 4. istica's acts of infringem ent have caused and will continue to cause irreparable

1 3 harm to F inisar unless and until Nistica is enjoined by this Co urt.

1 4 IFTH CLAIM FOR RELIEF

1 5 Infringement of the 7 ,092,599 Patent)

1 6 5. inisar incorporates by reference paragraphs 1 through 44 o f the Com plaint as if

1 7 I set forth here in full.

1 8 6. pon information an d belief, Nistica has been and is currently directly infringing

1 9 one or m ore claims of the '599 P atent by mak ing, using, offering to sell, and/or selling w ithin the

2 0 United States, and/or importing into the United States, without authority, WSS devices,

2 1 including, but not limited to, Nistica's FLEDGE and FULL FLEDGE series of products that

2 2 include an array of ME M S mirrors, and/or devices that include LC OS technology, for optical

2 3 switching (the "'328 Infringing Products").

2 4 7 . pon inform ation and belief, upon kn owledg e of the '599 Patent, Nistica is2 5 contributing to the infringement of, and/or inducing infringemen t of the '599 Patent by, am ong

2 6 other things, knowingly and with intent, actively encouraging its customers and suppliers to

2 7 mak e, use, sell and/or offer for sale Nistica's '599 Infringing P roducts in a m anner that

2 8 constitutes infringement of one o r more claims o f the '599 Patent. There are no substantial uses

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of the '599 Infringing Products m ade, used, sold, or offered for sale by N istica that do not

infringe one or mo re claims of the '599 Patent.

48. As a result of N istica's unlawful infringemen t of the '599 Patent, Finisar has

suffered and w ill continue to suffer damage. F inisar is entitled to recover from Nistica the

damag es adequate to compensate for such infringement, which hav e yet to be determined.

49. Upo n information and b elief, any m anufacturing, sales, offers for sale, uses, or

importation by N istica of the '599 Infringing Products reflect a deliberate and con scious decisionp g


Nistica's infringement after that date has been willful and Finisar is entitled to treble dam ages

and attorneys' fees and costs incurred in this action, along w ith prejudgment interest under 35

U.S.C. 284, 285,

50. Nistica will continue to infringe the '599 Patent u nless and until it is preliminarily

and permanently enjoined by this Court.

51. Nistica's acts of infringement hav e caused and w ill continue to cause irreparable

harm to F inisar unless and until Nistica is enjoined by this Co urt.

SIXTH CLAIM FOR RELIEF

(Infringement of the 7,397,980 Patent)

52. Finisar incorporates by reference paragraphs 1 through 51 of the Com plaint as if

set forth here in full.

53. Upon information and belief, Nistica has been and is currently directly infringing

one or m ore claims of the '980 P atent by mak ing, using, offering to sell, and/or selling within the

United States, and/or importing into the United States, without authority, WSS devices,

including, but not limited to, devices that include L CO S technology for o ptical switching (the

"'980 Infringing Products").

54. Upon information and belief, upon knowledge of the '980 Patent, Nistica is

contributing to the infringement of, and/or inducing infringement of the '980 Patent by, amo ng

other things, knowingly and with intent, actively encouraging its customers and suppliers to

mak e, use, sell and/or offer for sale Nistica's '980 Infringing P roducts in a m anner that

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I constitutes infringement of one o r more claims o f the '980 Patent. There are no substantial uses

~ of the '980 Infringing Products made, used, sold, or offered for sale by Nistica that do not

I infringe one or more claims of the' 980 Patent.

55. As a result of N istica's unlawful infringemen t of the '980 Patent, Finisar has

I suffered and w ill continue to suffer damage. F inisar is entitled to recover from Nistica the

damages adeq uate to compensate for such infringement, which have y et to be determined.

56. Upon information and belief, any manufacturing, sales, offers for sale, uses, or

importation by Nistica of the' 980 Infringing Products reflect a deliberate and conscious decision


10 ~ Nistica's infringement after that date has been willful and Finisar is entitled to treble damages

1 1 and attorneys' fees and co sts incurred in this action, along with prejudgment interest under 35

1 2 U.S.C. 284, 285.

1 3 7 . istica w ill continue to infringe the '980 P atent unless and until it is preliminarily

1 4 and perman ently enjoined by this Court.

1 5 8. istica ' s acts of infringem ent have caused and w ill continue to cause irreparable

1 6 harm to F inisar unless and until Nistica is enjoined by this Cou rt.

1 7 RAYER FOR RELIEF

1 8 WHEREFORE, Finisar prays for a Judgme nt in favor of Finisar and against Nistica as follows:

1 9 a) That Nistica has directly infringed the '687, '833, '740, '328, '599 and '980 Patents;2 0

b) That N istica has indirectly infringed the' 687 , '833, ' 7 40, '328, ' 599 and '980 Patents;2 1

(c) That this case is "exceptional" within the meaning of 35 U.S.C . 285 against Nistica;2 2

2 3d) An order preliminarily and permanently enjoining N istica and its affiliates,

2 4ubsidiaries, officers, directors, employees, agents, representatives, licensees,

2 5 uccessors, assigns, and all those acting for them and on their behalf, or acting in

2 6 oncert w ith them directly or indirectly, from further acts of infringement of the '687 ,

2 7 833, '74 0, '328, '599 and '980 Patents;2 8

e) A full accounting for and an a ward of da mag es to Finisar for Nistica' s infringem ent of

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DEMAND FOR JURY TRIAL

Plaintiff hereby dem ands a jury trial on all issues so triable under the laws as provide by

Rule 38(b) of the Federal Rules of C ivil Procedure.

Dated: July 1 7 , 2 0 1 3 EIL, GOTSHAL & MAN GES LLP

By:

CHRISTOPHER J. COX

Attorneys for PlaintiffFINISAR CORPORATION

Of Counsel:DAV ID C. RAD ULE SCU (to be admittedpro hac vice)TIGRAN VARD ANIAN (to be admittedpro hac vice)GREG ORY S. MASK EL (to be admittedpro hac vice)RADULESCU LLP136 Madison Avenue, 6th FloorNew Y ork, NY 10016

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finisar v. nistica

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