Free Amended Complaint - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NETCRAFT CORPORATION, Plaintiff, v. AT&T MOBILITY LLC, BOOST MOBILE, LLC, CELLCO PARTNERSHIP, SPRINT NEXTEL CORPORATION, and T-MOBILE USA, INC., Defendants. C.A. No. 07-651 (LPS) JURY TRIAL DEMANDED

AMENDED 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 Mobility LLC ("AT&T Mobility")

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. 3. 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.

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4.

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. 5. 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. 6. 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 7. 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). 8. The Court has personal jurisdiction over AT&T Mobility because it is organized

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 of the privileges of conducting business in this judicial district; and/or because it has committed acts of patent infringement in this judicial district. 9. 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

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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. 10. 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. 11. 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. 12. 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. 13. Venue is proper in this District under 28 U.S.C. §§ 1391(b) and (c) and 1400(b).

COUNT I (PATENT INFRINGEMENT) 14. Netcraft restates and realleges the preceding paragraphs of this Complaint.

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15.

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. 16. 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. 17. AT&T Mobility 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. 18. AT&T Mobility was given notice of the '221 patent by Netcraft at least as early

as September 1999. 19. AT&T Mobility has been and is infringing '221 and/or '940 patents with

knowledge of one or more of the patents, and thus AT&T Mobility's infringement is willful. 20. 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. 21. 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

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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. 22. T-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. 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. 24. Upon information and belief, Defendants will continue to infringe the ' 221 and

' 940 patents unless and until they are enjoined by this Court. 25. 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) (2) Enter judgment that Defendants have infringed the ' 221 and ' 940 patents; 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;

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

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Dated: December 28, 2007

FISH & RICHARDSON P.C.

By: /s/ Kyle Wagner Compton Timothy Devlin (#4241) Kyle Wagner Compton (#4693) 919 N. Market St., Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 [email protected] [email protected] 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

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Exhibit A

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Exhibit B

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