10CV2530LABJMA - 科技產業資訊室iknow.stpi.narl.org.tw/Post/Files/Complaint/Complaint_pclass_10_A... · ZTE Corp. (ZTE) is a China corporation with its principal place of business

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COMPLAINT

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MICHAEL J. BETTINGER (SBN 122196) TIMOTHY PAAR WALKER (SBN 105001) HOLLY HOGAN (SBN 238714) K&L GATES LLP 4 Embarcadero Center, Suite 1200 San Francisco, California 94111-5994 Telephone: 415.882.8200 Facsimile: 415.882.8220 [email protected]

[email protected]

[email protected]

Attorneys for Plaintiffs NOVATEL WIRELESS, INC. and NOVATEL WIRELESS SOLUTIONS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

NOVATEL WIRELESS, INC., a Delaware corporation, and NOVATEL WIRELESS SOLUTIONS, INC., a Delaware corporation,

Plaintiffs,

v.

FRANKLIN WIRELESS CORP., a Nevada corporation, ZTE CORP., a China corporation, and ZTE (USA), Inc., a New Jersey corporation,

Defendants.

Case No.

COMPLAINT FOR PATENT INFRINGEMENT

Jury Trial Demanded

Plaintiffs Novatel Wireless, Inc. and Novatel Wireless Solutions, Inc. hereby complain of

Defendants Franklin Wireless Corp., ZTE Corp. and ZTE (USA), Inc. (collectively, Defendants ),

and by this complaint alleges as follows:

THE PARTIES

1. Novatel Wireless, Inc. is a Delaware corporation with its headquarters and principal

place of business at 9645 Scranton Road, Suite 205, San Diego, California 92121. Novatel Wireless

'10CV2530 JMALAB

Case 3:10-cv-02530-LAB -JMA Document 1 Filed 12/09/10 Page 1 of 100


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Solutions, Inc. is a Delaware corporation with its principal place of business at 9645 Scranton Road,

Suite 205, San Diego, California 92121, and is a wholly owned subsidiary of Novatel Wireless, Inc.

Novatel Wireless, Inc. and Novatel Wireless Solutions, Inc. are collectively referred to herein as

Novatel Wireless.

2. Novatel Wireless is a leading provider of wireless broadband access for the world

wide mobile communications market. Novatel Wireless pioneered, and recently introduced, the

industry s first Intelligent Mobile Data Hotspot, the Novatel Wireless MiFi®, which creates a

personal cloud of high-speed internet connectivity that can be easily shared among multiple users.

3. Franklin Wireless Corp. ( Franklin Wireless ) is a Nevada corporation with its

headquarters and principal place of business at 5440 Morehouse Drive, Suite 1000, San Diego, CA

92121. Franklin Wireless is engaged in the design, manufacture and sale of wireless data products.

4. ZTE Corp. ( ZTE ) is a China corporation with its principal place of business at

ZTE Plaza, Keji Road South, Hi-tech Industrial Park, Nanshan District, Shenzhen, Guangdong,

China 51807. ZTE is a provider of telecommunications equipment and network solutions.

5. ZTE conducts business in the United States through its wholly-owned U.S. entity

ZTE (USA), Inc. ( ZTE USA ).

6. Upon information and belief, ZTE USA conducts research and development

activities, with respect to the infringing products, at its facilities in the Southern District of

California at 10105 Pacific Heights Boulevard, Suite 250, San Diego, CA 92121.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.

8. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)-(d) and 1400(b).

Defendants Franklin Wireless and ZTE USA reside in this District. Defendant ZTE is an alien

that conducts business in this District through its wholly-owned subsidiary ZTE USA. A

substantial part of the infringing conduct giving rise to this Complaint has occurred in this

District. The patents at issue in this Complaint are owned by, and assigned to, Novatel Wireless,

which is headquartered in this District.



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First Claim for Relief

(Patent Infringement - U.S. Patent No. 5,129,098)

8. Novatel Wireless is the owner by assignment of U.S. Patent No. 5,129,098 ( the 098

patent ), entitled Radio Telephone Using Received Signal Strength In Controlling Transmission

Power

a true copy of which is attached hereto as Exhibit 1. The 098 patent was duly and legally

issued on July 7, 1992.

9. Defendant Franklin Wireless has infringed the 098 patent, by using, selling and/or

offering to sell, within the United States, and/or by importing into the United States, products,

including, but not limited to, mobile data hot spots and data modems, which embody and/or practice

the claims of the 098 patent in violation of 35 U.S.C. § 271.

10. Defendants ZTE and ZTE USA have infringed the 098 patent, by using, selling

and/or offering to sell, within the United States, and/or by importing into the United States, products,

including, but not limited to, mobile data hot spots and data modems, which embody and/or practice

the claims of the 098 patent in violation of 35 U.S.C. § 271.

11. Defendants have induced others to infringe the 098 patent in violation of 35 U.S.C §

271, by taking active steps to encourage and facilitate others direct infringement of the claims of the

098 patent with knowledge of that infringement, such as, upon information and belief, by

contracting for the distribution of the infringing products for infringing sale such as by retail sales

outlets, by marketing the infringing products, by creating and/or distributing user manuals for the

infringing products, and by supplying warranty coverage for the infringing products sold in this State

and in this District.

12. Defendants have contributorily infringed the 098 patent in violation of 35 U.S.C. §

271, by selling within the United States, offering for sale within the United States, and/or importing

components that embody a material part of the inventions described in the claims of the 098 patent,

are known by Defendants to be especially made or specially adapted for use in infringement of the

claims of the 098 patent, and are not staple articles or commodities suitable for substantial, non-

infringing use, including certain modems and non-staple constituent parts of those modems.



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13. Novatel Wireless has put Defendants on notice of the 098 patent and Defendants

infringement thereof, and, upon information and belief, Defendants had actual knowledge of the

098 patent.

14. As a result of Defendants infringement, Novatel Wireless has suffered substantial

damages.

Second Claim for Relief



patent ), entitled Object Oriented Software Architecture For Software Reconfigurable Wireless

Modem

a true copy of which is attached hereto as Exhibit 2. The 225 patent was duly and legally

issued on January 8, 2008.

16. Franklin Wireless has infringed and continues to infringe the 225 patent, by using,

selling and/or offering to sell, within the United States, and/or by importing into the United States,

products, including, but not limited to, mobile data hot spots and data modems, which embody

and/or practice the claims of the 225 patent in violation of 35 U.S.C. § 271.

17. ZTE and ZTE USA have infringed and continue to infringe the 225 patent, by using,




18. Defendants have induced, and continue to induce, others to infringe the 225 patent in

violation of 35 U.S.C § 271, by taking active steps to encourage and facilitate others direct

infringement of the claims of the 225 patent with knowledge of that infringement, such as, upon

information and belief, by contracting for the distribution of the infringing products for infringing

sale such as by retail sales outlets, by marketing the infringing products, by creating and/or

distributing user manuals for the infringing products, and by supplying warranty coverage for the

infringing products sold in this State and in this District.





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225 patent.

21. As a result of Defendants infringement, Novatel Wireless has suffered, and will

continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm unless

Defendants infringement is enjoined by this Court.

Third Claim for Relief



patent ), entitled Systems And Methods For Secure Communication Over A Wireless Network

a true copy of which is attached hereto as Exhibit 3. The 737 patent was duly and legally issued on

August 11, 2009.









25. Defendants have induced, and continue to induce, others to infringe the 737 patent in

violation of 35 U.S.C § 271, by taking active steps to encourage and facilitate others direct





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737 patent.

28. As a result of Defendants infringement, Novatel Wireless has suffered, and will

continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm unless

Defendants infringement is enjoined by this Court.

Fourth Claim for Relief



patent ), entitled Systems and Methods For A Multi-Mode Wireless Modem a true copy of

which is attached hereto as Exhibit 4. The 715 patent was duly and legally issued on January 15,

2008.



products, including, but not limited to, data modems, which embody and/or practice the claims of the

715 patent in violation of 35 U.S.C. § 271.

31. Franklin Wireless has induced, and continues to induce, others to infringe the 715

patent in violation of 35 U.S.C § 271, by taking active steps to encourage and facilitate others direct




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32. Franklin Wireless has contributorily infringed the 715 patent in violation of 35

U.S.C. § 271, by selling within the United States, offering for sale within the United States, and/or

importing components that embody a material part of the inventions described in the claims of the

715 patent, are known by Franklin Wireless to be especially made or specially adapted for use in

infringement of the claims of the 715 patent, and are not staple articles or commodities suitable for

substantial, non-infringing use, including certain modems and non-staple constituent parts of those

modems.

33. Novatel Wireless has put Franklin Wireless on notice of the 715 patent and Franklin

Wireless s infringement thereof, and, upon information and belief, Franklin Wireless had actual

knowledge of the 715 patent.

34. As a result of Franklin Wireless s infringement, Novatel Wireless has suffered, and

will continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm

unless Franklin Wireless s infringement is enjoined by this Court.

Fifth Claim for Relief



patent ), entitled Method and Apparatus for a Software Configurable Wireless Modem

Adaptable for Multiple Modes of Operation a true copy of which is attached hereto as Exhibit 5.

The 556 patent was duly and legally issued on August 31, 2004.



products, including, but not limited to, data modems, which embody and/or practice the claims of the

556 patent in violation of 35 U.S.C. § 271.



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37. ZTE and ZTE USA have induced, and continue to induce, others to infringe the 556

patent in violation of 35 U.S.C § 271, by taking active steps to encourage and facilitate others direct






38. ZTE and ZTE USA have contributorily infringed the 556 patent in violation of 35

U.S.C. § 271, by selling within the United States, offering for sale within the United States, and/or

importing components that embody a material part of the inventions described in the claims of the

556 patent, are known by ZTE and ZTE USA to be especially made or specially adapted for use in

infringement of the claims of the 556 patent, and are not staple articles or commodities suitable for

substantial, non-infringing use, including certain modems and non-staple constituent parts of those

modems.

39. Novatel Wireless has put ZTE and ZTE USA on notice of the 556 patent and ZTE s

and ZTE USA s infringement thereof, and, upon information and belief, ZTE and ZTE USA had

actual knowledge of the 556 patent.

40. As a result of ZTE s and ZTE USA s infringement, Novatel Wireless has suffered,

and will continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm

unless ZTE and ZTE USA s infringement is enjoined by this Court.

WHEREFORE, Novatel Wireless requests that the Court:

1. Adjudge that Franklin Wireless has infringed the 098 patent and has infringed and

continues to infringe the 715, 225, and 737 patents;

2. Adjudge that ZTE and ZTE USA have infringed the 098 patent and has infringed and

continue to infringe the 225, 737, and 556 patents;

3. Preliminarily and permanently enjoin Franklin Wireless from further infringement of

the 715, 225, and 737 patents;

4. Preliminarily and permanently enjoin ZTE and ZTE USA from further infringement



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of the 225, 737, and 556 patents;

5. Award Novatel Wireless compensatory damages;

6. Award Novatel Wireless enhanced damages of treble its actual damages for willful

infringement;

7. Award Novatel Wireless its costs and reasonable experts fees and attorneys fees;

and

8. Award Novatel Wireless such other relief as the Court deems just and proper.

Dated: December 9, 2010 K&L GATES LLP

By: /s/ Michael J. Bettinger Michael J. Bettinger

Attorneys for Plaintiffs Novatel Wireless, Inc. and Novatel Wireless Solutions, Inc.



COMPLAINT

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REQUEST FOR TRIAL BY JURY

Plaintiff claims trial by jury on all issues so triable.

Dated: December 9, 2010 K&L GATES LLP

By: /s/ Michael J. Bettinger Michael J. Bettinger

Attorneys for Plaintiff Novatel Wireless, Inc and Novatel Wireless Solutions, Inc.



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JS 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 providedby 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 initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (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) Attorney s (Firm Name, Address, and Telephone Number) Attorneys (If Known)

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

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2

2 Incorporated and Principal Place 5 5Defendant

(Indicate Citizenship of Parties in Item III)of Business In Another State

Citizen or Subject of a 3

3 Foreign Nation 6 6 Foreign Country

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

110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reapportionment120 Marine 310 Airplane 362 Personal Injury - 620 Other Food & Drug 423 Withdrawal 410 Antitrust130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC 881 450 Commerce150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation

& Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influenced and151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizations152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit

Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV (Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service

153 Recovery of Overpayment Liability 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodities/ of Veteran s Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange

160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC 3410195 Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Actions196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilization Act210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Matters220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation Act230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRS Third Party 895 Freedom of Information240 Torts to Land Accommodations 530 General 26 USC 7609 Act245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determination290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 462 Naturalization Application Under Equal Access

Employment 550 Civil Rights 463 Habeas Corpus - to Justice446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee 950 Constitutionality of

Other 465 Other Immigration State Statutes440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DistrictJudge fromMagistrateJudgment

(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 6 MultidistrictLitigation

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:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: Yes No

VIII. RELATED CASE(S) IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

NOVATEL WIRELESS, INC., a Delaware corporation, andNOVATEL WIRELESS SOLUTIONS, INC., a Delaware corporation

K&L Gates, LLP, 4 Embarcadero Center, #1200San Francisco, CA 94111 (415)882-8200

FRANKLIN WIRELESS CORP., a Nevada corporation, ZTECORP., a China corporation, and ZTE (USA), Inc., a New

'10CV2530 JMALAB


JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby 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 useof the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaintfiled. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the timeof filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases,the county of residence of the defendant is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section (see attachment) .

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in oneof the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to theConstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of thedifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sectionfor each principal party.

IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficientto enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, selectthe most definitive.

V. Origin. Place an X in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petitionfor removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrictlitigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this boxis checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge s decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbersand the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


Documents

10CV2530LABJMA - 科技產業資訊室iknow.stpi.narl.org.tw/Post/Files/Complaint/Complaint_pclass_10_A... · ZTE Corp. (ZTE) is a China corporation with its principal place of business