Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00651-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NETCRAFT CORPORATION, Plaintiff, V. AT&T INC., AT&T MOBILITY LLC, BOOST MOBILE, LLC, CELLCO PARTNERSHIP, SPRINT NEXTEL CORPORATION, and T-MOBILE USA, INC., C.A. No. JURY TRIAL DEMANDED

Defendants.

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Netcraft Corporation files this Complaint and demand for jury trial seeking relief for patent infringement by the Defendants. Netcraft Corporation states and alleges the following: THE PARTIES 1. Plaintiff Netcraft Corporation ("Netcraft") is a corporation organized and existing

under the laws of the State of Delaware. 2. On information and belief, Defendant AT&T Inc. is a corporation organized and

existing under the laws of the State of Delaware, with its principal place of business located at 175 East Houston Street, San Antonio, Texas 78205. 3. On information and belief, Defendant AT&T Mobility LLC is a limited liability

company organized and existing under the laws of the State of Delaware, with its principal place of business located at 5565 Glenridge Connector, Atlanta, Georgia 30342. AT&T Mobility LLC is a subsidiary of AT&T, Inc. and was formerly known as Cingular Wireless, LLC. AT&T, Inc. and AT&T Mobility LLC are collectively referred to as the "AT&T Defendants."

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4.

On information and belief, Defendant Sprint Nextel Corporation ("Sprint") is a

corporation organized and existing under the laws of the state of Kansas, with its principal place of business located at 2001 Edmund Halley Drive, Reston, Virginia 20191. 5. On information and belief, Defendant Boost Mobile, LLC ("Boost Mobile") is a

limited liability company organized and existing under the laws of the State of California, with its principal place of business located at 8845 Irvine Center Drive, Suite 200, Irvine, California 92618. Boost Mobile is a subsidiary of Sprint. 6. On information and belief, Defendant T-Mobile USA, Inc. ("T-Mobile") is a

corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 12920 Southeast 38th Street, Bellevue, Washington 98006. 7. On information and belief, Defendant Cellco Partnership is a partnership

organized and existing under the laws of the State of Delaware, with its principal place of business located at 1 Verizon Way, Basking Ridge, New Jersey 07920. Cellco Partnership does business as Verizon Wireless, and is a joint venture between Verizon Communications Inc. and Vodaphone Group PLC. JURISDICTION AND VENUE 8. This is an action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. §§ 1 et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). 9. The Court has personal jurisdiction over the AT&T Defendants because they are

both incorporated in the State of Delaware; because they both regularly conduct business in the State of Delaware and therefore have substantial and continuous contacts within this judicial district; because they have purposefully availed themselves to the privileges of conducting

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business in this judicial district; and/or because they have each committed acts of patent infringement in this judicial district. 10. The Court has personal jurisdiction over Sprint because it regularly conducts

business in the State of Delaware and therefore has substantial and continuous contacts within this judicial district; because it has purposefully availed itself to the privileges of conducting business in this judicial district; and/or because it has committed acts of patent infringement in this judicial district. 11. The Court.has personal jurisdiction over Boost Mobile because it regularly

conducts business in the State of Delaware and therefore has substantial and continuous contacts within this judicial district; because it has purposefully availed itself to the privileges of conducting business in this judicial district; and/or because it has committed acts of patent infringement in this judicial district. 12. The Court has personal jurisdiction over T-Mobile because it is incorporated in

the State of Delaware; because it regularly conducts business in the State of Delaware and therefore has substantial and continuous contacts within this judicial district; because it has purposefully availed itself to the privileges of conducting business in this judicial district; and/or because it has committed acts of patent infringement in this judicial district. 13. The Court has personal jurisdiction over Cellco Partnership because it was

organized and is existing under the laws of the State of Delaware; because it regularly conducts business in the State of Delaware and therefore has substantial and continuous contacts within this judicial district; because it has purposefully availed itself to the privileges of conducting business in this judicial district; and/or because it has committed acts of patent infringement in this judicial district.

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14.

Venue is proper in this District under 28 U.S.C. §§ 1391(b) and (c) and 1400(b). COUNT I (PATENT INFRINGEMENT)

15. 16.

Netcraft restates and realleges the preceding paragraphs of this Complaint. On August 11, 1998 , United States Patent No. 5,794,221 ("the '221 patent")

entitled " Internet billing method " was duly and legally issued by the United States Patent and Trademark Office. Netcraft owns the '221 patent by assignment . A true and correct copy of the ' 221 patent is attached as Exhibit A. 17. On June 25, 2002, United States Patent No . 6,411,940 ("the '940 patent") entitled

"Internet billing method" was duly and legally issued by the United States Patent and Trademark Office. Netcraft owns the '940 patent by assignment. A true and correct copy of the '940 patent is attached as Exhibit B. 18. AT&T Defendants have been and are infringing , actively inducing others to

infringe, and/or contributing to the infringement of the '221 and '940 patents , by providing a service that allows third party vendors to sell content, such as ringtones, to customers for use on their cellular telephones , and then allows the sale to be charged to the customer ' s telephone bill. 19. AT&T Defendants were given notice of the '221 patent by Netcraft at least as

early as September 1999. 20. AT&T Defendants have been and are infringing '221 and/or ' 940 patents with

knowledge of one or more of the patents , and thus AT&T Defendants' infringement is willful. 21. Sprint has been and is infringing , actively inducing others to infringe, and/or

contributing to the infringement of the '221 and '940 patents, by providing a service that allows third party vendors to sell content, such as ringtones, to customers for use on their cellular telephones, and then allows the sale to be charged to the customer's telephone bill.

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22.

Boost Mobile has been and is infringing, actively inducing others to infringe,

and/or contributing to the infringement of the '221 and '940 patents, by providing a service that allows third party vendors to sell content, such as ringtones, to their customers for use on their cellular telephones, and then allows the sale to be charged to the customer's telephone bill. 23. Sprint has been and is infringing, actively inducing others to infringe, and/or

contributing to the infringement of the '221 and '940 patents, by providing a service that allows third party vendors to sell content, such as ringtones, to their customers for use on their cellular telephones, and then allows the sale to be charged to the customer's telephone bill. 24. Cellco Partnership has been and is infringing, actively inducing others to infringe,

and/or contributing to the infringement of the '221 and '940 patents, by providing a service that allows third party vendors to sell content, such as ringtones, to their customers for use on their cellular telephones, and then allows the sale to be charged to the customer's telephone bill. 25. Upon information and belief, Defendants will continue to infringe the '221 and

'940 patents unless and until they are enjoined by this Court. 26. The Defendants have caused and will continue to cause Netcraft irreparable injury

and damage by infringing the '221 and '940 patents. Netcraft will suffer further irreparable injury, for which it has no adequate remedy at law, unless and until the Defendants are enjoined from infringing these patents. PRAYER FOR RELIEF WHEREFORE, Netcraft respectfully requests that this Court: (1) Enter judgment that Defendants have infringed the '221 and '940 patents;

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(2)

Enter an order permanently enjoining Defendants and their officers, agents,

employees, attorneys, and all persons in active concert or participation with any of them, from infringing the '221 and '940 patents; (3) Award Netcraft damages in an amount sufficient to compensate it for Defendants'

infringement of the '221 and '940 patents, together with prejudgment and post judgment interest and costs under 35 U.S.C. § 284; (4) Award Netcraft an accounting for acts of infringement not presented at trial and

an award by the Court of additional damage for any such acts of infringement; (5) Treble the damages awarded to Netcraft under 35 U.S.C. § 284 by reason of

Defendants' willful infringement of the '221 and '940 patents; (6) Declare this case to be "exceptional" under 35 U.S.C. § 285 and award Netcraft

its attorney fees, expenses, and costs incurred in this action; and (7) Award Netcraft such other and further relief as this Court deems just and proper.

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JURY TRIAL DEMAND Netcraft demands a trial by jury on all issues so triable.

Dated: October 17, 2007

FISH & RICHARDSON P.C.

By: Timtlly Devlib (#424 1) Kyl Wagner Compton (#4693) 919 N. Market St., Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 tdevlin(a)fr.com kcompton@a,fr.com Tel: (302) 652-5070 Fax: (302) 652-0607 Frank E. Scherkenbach Craig R. Smith FISH & RICHARDSON P.C. 225 Franklin Street Boston, MA 02110 Tel: (617) 542-5070 Fax: (617) 542-8906 Michael J. Kane William R. Woodford FISH & RICHARDSON P.C., P.A. 3300 Dain Rauscher Plaza 60 South Sixth Street . Minneapolis, MN 55402 Tel: (612) 335-5070 Fax: (612) 288-9696 Attorneys for Plaintiff NETCRAFT CORPORATION
60426549.dOc

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Exhibit A

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Exhibit B

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JS 44 (Rev 11/04)

Case 1:07-cv-00651-GMS

AMENDED CIVIL COVER SHEET

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The 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 provided by 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 initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

NETCRAFT CORPORATION

DEFENDANTS

(b) County of Residence of First Listed Plaintiff: New Castle
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant: Bexar
NOTE:

AT&T INC., AT&T MOBILITY LLC, et al.
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED

(c) Attorneys (Firm Name, Address, and Telephone Number) Kyle Wagner Compton Fish & Richardson P.C. 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
1. U.S. Government Plaintiff 2. U.S. Government Defendant 3. Federal Question (U.S. Government Not a Party) 4. Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box
(For Diversity Cases Only)

for Plaintiff and One Box for Defendant) PTF

Citizen of This State Citizen of Another State Citizen or Subject of a Foreign Country

PTF

1 2 3

DEF

1 2 3

Incorporated or Principal Place of Business In this State Incorporated and Principal Place of Business In Another State Foreign Nation

4

DEF

4 5

5 6

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IV. NATURE OF SUIT (Place an " X" in One Box Only)
CONTRACT TORTS
PERSONAL INJURY 362 Personal Injury- - Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal 330 Federal Employers' Injury Product Liability Liability 340 Marine PERSONAL PROPERTY 345 Marine Product 370 Other Fraud Liability 350 Motor Vehicle 355 Motor Vehicle
Product Liability

FORFEITURE/PENALTY 610 Agriculture 620 Other Food & Drug
625 Drug Related Seizure of Property 21 USC 881

BANKRUPTCY
422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

OTHER STATUTES
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/ Commodities/ Exchange 875 Customer Challenge 12 USC 3410 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes 890 Other Statutory Actions

110 Insurance PERSONAL INJURY 310 Airplane 120 Marine 315 Airplane Product 130 Miller Act Liability 140 Negotiable Instrument 320 Assault, Libel & 150 Recovery of Overpayment Slander
& Enforcement of Judgment

151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 160 Stockholders' Suits 190 Other Contract

153 Recovery of Overpayment of Veteran's Benefits

371 Truth In Lending 380 Other Personal Property Damage
385 Property Damage

Liquor Laws R.R. & Truck Airline Regs. Occupational Safety/Health 690 Other

630 640 650 660

PROPERTY RIGHTS
820 Copyrights 830 Patent 840 Trademark

LABOR
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt. Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

SOCIAL SECURITY
861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS ­ Third Party 26 USC 7609

195 Contract Product Liability 196 Franchise

360 Other Personal Injury

Product Liability

REAL PROPERTY
210 Land Condemnation 220 230 240 245 290 Foreclosure
Rent Lease & Ejectment

CIVIL RIGHTS
441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 440 Other Civil Rights

PRISONER PETITIONS

Torts to Land Tort Product Liability All Other Real Property

510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty
540 Mandamus & Other

550 Civil Rights 555 Prison Condition Transferred from 5 another district (specify)

V. ORIGIN
1 Original Proceeding

(PLACE " X" IN ONE BOX ONLY)
2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened

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Multidistrict Litigation

Appeal to District Judge from 7 Magistrate Judgment

VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE

(Cite the U.S. Civil Statute under which you are filing. (Do not cite jurisdictional statutes unless diversity.) Patent infringement action under 35 U.S. C. §§ 1 et seq

Brief description of cause: patent infringement

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23
(See Instructions) JUDGE s

Demand: $

CHECK YES only if demanded in Complaint Yes JURY DEMAND
DOCKET NUMBER TYPE NAME OF ATTORNEY

No

October 18, 2007
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ Kyle Wagner Compton

SIGNATURE OF ATTORNEY OF RECORD

Kyle Wagner Compton
MAG. JUDGE

APPLYING IFP

JUDGE