William J. Robinson (State Bar No. 083729)
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
Plaintiff, NetZero, Inc. ("NetZero"), a Delaware corporation, by and through its attorneys, alleges as follows:
JURISDICTION AND VENUE
1. This is a civil action for patent infringement, injunctive relief, and damages arising under the United States Patent Act, 35 U.S.C. §§ 1, et seq. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. §§ 1331, and 1338(a). Upon information and belief, defendant is a Delaware corporation doing business in this Judicial District as discussed in more detail herein. Requiring defendant to respond to this action will not violate due process. Defendant is subject to the personal jurisdiction of this Court and is amenable to service of process pursuant to the California long-arm statute, Cal. Civ. Proc. Code section 413.10 and Fed.R.Civ.P.4(e).
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2. Venue lies in this district pursuant to 28 U.S.C. §§ 1391(b) and (c), and 1400(b).
3. NetZero is a corporation incorporated and existing under the laws of Delaware, with a principal place of business located at 255 Townsgate Road, Westlake Village, California.
4. NetZero is informed and believes, and on that basis alleges, that Juno Online Services, Inc. ("Juno") is a corporation incorporated under the laws of Delaware, with a principal place of business at 1540 Broadway, 27th Floor, New York, NY 10036.
5. NetZero is an Internet Service Provider ("ISP"). NetZero is the exclusive licensee of all right, title, and interest in United States Patent No. 6,157,946 ("946" Patent" or "patent-in-suit") entitled "Information Providing System For Providing Images Suitable For User, And Terminal Of Information Providing System" issued on December 5, 2000, and which is valid and subsisting. A true and correct copy of the '946 Patent is attached hereto as Exhibit 1.
6. The '946 Patent relates to providing information from a communications network, such as the Internet.
7. NetZero has developed, manufactured, and distributed software embodying the inventions of the patent-in-suit. NetZero also provides services embodying the inventions of the patent-in-suit. NetZero has spent considerable time, effort, and resources developing and promoting its products and services embodying the inventions of the patent-in-suit.
8. Upon information and belief, defendant has engaged in the manufacture, use, distribution, and offer for sale of software and services embodying the inventions of the patent-in-suit in this judicial district and throughout the United States.
9. Upon information and belief, defendant has ongoing and systematic contacts with this Judicial District and the United States. Defendant has placed software infringing the patent-in-suit in the stream of commerce, knowing and expecting that such products would end up in this Judicial District. Defendant has also provided services covered by the claims of the patent-in-suit to consumers in this Judicial District.
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CLAIM FOR PATENT INFRINGEMENT
10. Plaintiff hereby incorporates paragraphs 1 through 9 inclusive herein by reference.
11. By virtue of its exclusive license to the patent-in-issue, NetZero has acquired and continues to maintain the right to sue thereon and the right to recover for infringement thereof.
12. Upon information and belief, defendant Juno has infringed, induced infringement of, and contributorily infringed the patent-in-suit, and is still doing so by making, selling, offering for sale, and using software and processes embodying the patented inventions of the patent-in-suit, and will continue to do so unless enjoined by this Court.
13. Upon information and belief, defendant's infringement is willful and deliberate.
14. NetZero has placed the required statutory notice on all of its products manufactured and sold by NetZero under the patent-in-suit.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Juno as follows and for the following relief:
1. That Defendant Juno be held to have infringed the '946 Patent.
2. That Juno, its subsidiaries, affiliates, parents, successors, assigns, officers, agents, servants, employees, attorneys, and all persons acting in concert or in participation with them, or any of them, be temporarily and preliminarily enjoined during the pendency of this action, and permanently enjoined thereafter from infringing, contributing to the infringement of, and inducing infringement of the patent-in-suit, and specifically from directly or indirectly making, using, selling, or offering for sale, any products or services embodying the inventions of the patent-in-suit during the life of the claims of the patents-in-suit, without the express written authority of Plaintiff.
3. That Juno be directed to fully compensate plaintiffs for all damages attributable to Juno's infringement of the patent-in-suit in an amount according to proof at trial.
4. That this case be deemed exceptional.
5. That all damages awarded be trebled.
6. That Juno be ordered to deliver to Plaintiff, for destruction at Plaintiff's option, all products that infringe the patent-in-suit.
7. That defendants be required to account for all gains, profits, advantages, and unjust [begin page 3] enrichment derived from its violations of law.
8. That Plaintiff be awarded reasonable attorney's fees.
9. That Plaintiff be awarded the costs of suit, and an assessment of interest.
10. That Plaintiff have such other, further, and different relief as the court deems proper under the circumstances.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury of all issues triable by a jury.