Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 1 of 18 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Transcription

1 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 1 of 18 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ALTOVA GMBH and ALTOVA INC., Civil Action No. 1:17-cv PBS Plaintiffs, v. SYNCRO SOFT SRL, JURY TRIAL DEMANDED Defendant. FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Plaintiffs, Altova GmbH and Altova, Inc. (together Altova ), as and for their complaint against defendant, Syncro Soft Srl, ( Syncro Soft ), allege as follows: THE PARTIES 1. Altova GmbH is an Austrian company having a primary place of business at Rudolfsplatz, 13A/9, A-1010 Wien, Austria. 2. Altova, Inc. is a Delaware corporation having a principal place of business at 900 Cummings Center, Beverly, Massachusetts Upon information and belief, Syncro Soft SRL ( Syncro Soft ) is a limited partnership organized under the laws of Romania having a principal place of business at Remus 5A, Craiova , Romania.

2 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 2 of 18 JURISDICTION AND VENUE 4. Altova GmbH and Altova, Inc. (collectively Altova ) bring this action for patent infringement under the patent laws of the United States, 35 U.S.C. 271 et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, 1338(a) and Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(c)(3). Upon information and belief, Syncro Soft is not resident in the United States and therefore may be sued in any judicial district This Court has personal jurisdiction over Syncro Soft pursuant to due process and/or the Massachusetts Long Arm Statute due at least to its substantial business in this State and judicial district, including: (A) at least part of its past infringing activities, and (B) regularly doing or soliciting business through distributors/partners in this district and (C) engaging in persistent conduct and/or deriving substantial revenue from goods and services provided to customers in Massachusetts. COUNT I (INFRINGEMENT OF U.S. PATENT NO. 9,501,456) 7. Altova incorporates paragraphs 1-6 above by reference. 8. Altova GmbH is the owner of U.S. Patent No. 9,501,456 ( the 456 Patent ), entitled AUTOMATIC FIX FOR EXTENSIBLE MARKUP LANGUAGE ERRORS that issued on November 22, A true and correct copy of the 456 Patent is attached as Exhibit A hereto. The Abstract of the 456 Patent states that the patent is generally directed to [m]ethods for an automatic fix for extensible markup language (XML) errors. 1 See TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1520 (2017); Brunett Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706 (1972). 2

3 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 3 of 18 GmbH. 9. Altova Inc. is a licensee of the 456 Patent and the United States subsidiary of Altova 10. Syncro Soft has sold, offered to sell, or imported at least OXYGEN XML Editor version 19.0 (the Accused Products ) to customers in the U.S. and in this judicial district. 11. On information and belief, Syncro Soft s customers who purchase the Accused Products operate them in accordance with Syncro Soft s instructions and by doing so carry out each and every step of at least Claim 1 of the 456 Patent and thereby directly infringe at least Claim 1 of the 456 Patent in violation of 35 U.S.C 271(a). 12. Syncro Soft has indirectly infringed and continues to indirectly infringe at least Claim 1 of the 456 Patent in this judicial district and elsewhere in the United States by, among other things, actively inducing the using, offering for sale, selling, or importing of the Accused Products in violation of 35 U.S.C. 271(b). Syncro Soft has aided, instructed, or otherwise taken action, including providing instructions to Syncro Soft s customers, intending to cause the acts that carry out each and every step of at least claim 1 of the 456 Patent by users of its Accused Products software and thereby its customers directly infringe at least claim 1 of the 456 Patent. Syncro Soft knew of the 456 Patent and also knew of the infringement of the 456 Patent or believed there was a high likelihood of infringement and nonetheless took deliberate steps to look the other way to avoid learning of it. 13. Claim 1 of the 456 Patent recites: A method comprising: [a] in a computing system having at least a processor, a memory and a display unit, [b] detecting a location causing an error in a markup language document; [c] displaying the location and the error in the markup language document on the display unit; 3

4 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 4 of 18 [d] analyzing the error in the markup language document and underlying causes of the error in the markup language document; [e] computing a set of possible actions to remedy the error in the markup language document; [f] displaying information about the error in the markup language document and its underlying causes on the display unit; [g] displaying the set of possible actions to remedy the error in the markup language document on the display unit; [h] receiving a user input selecting one of the possible actions to remedy the error in the markup language document; and [i] replacing the location causing the error in the markup language document with the selected one of the possible actions to remedy the error in the markup language document, [j] wherein the information about the error in the markup language document and its underlying causes comprises: [k] a link to the error in the working XML file; [l] a link to the corresponding definition(s) in an associated schema file; and [m] links to relevant information in an applicable W3C specification. 14. On information and belief, Syncro Soft s OXYGEN XML Editor version 19.0 employs methods for automatically fixing extensible markup language (XML) errors. 15. On information and belief, the following excerpt from the User Guide for OXYGEN XML Editor version 19.0 (the User Guide ) describes, at least in part, the functionality of Syncro Soft OXYGEN XML Editor version 19.0: 4

5 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 5 of 18 5

6 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 6 of The Accused Products practice a method [a] in a computing system having at least a processor, a memory and a display unit. For example, in the User Guide, Syncro Soft instructs users that to install OXYGEN XML Editor on Windows, the user needs to run the software on a computer with at least an Intel Pentium III or AMD Athlon class processor, 2 GB of RAM, and 400 MB of free disk space. Such computing systems include a monitor or monitors that can serve as the display unit, which the User Guide suggests can be side-by-side dual monitors. 6

7 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 7 of The Accused Products [b] detect a location causing an error in a markup language document. For example, in the User Guide, Syncro Soft states that Oxygen XML Editor provides validation functions that allow you to easily identify errors and their location for XML [Extensible Markup Language] documents. 18. The Accused Products [c] display the location and the error in the markup language document on the display unit. For example, in the User Guide, Syncro Soft states that Oxygen XML Editor shows [the user] if the [XML] document is invalid and where errors are found with, for example, a red flag that allows a user to jump to that error by clicking on the red flag. Below is an example of how the Accused Products display the location and the error in the markup language document on the display unit: 7

8 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 8 of The Accused Products [d] analyze the error in the markup language document and underlying causes of the error in the markup language document. For example, in the User Guide, Syncro Soft states that the automatic validation process pars[es] the [XML] document and mark[s] the errors Hovering over a validation error presents a tooltip message with more details about the error. Similarly, double-clicking the error icon or on the error line displays an information dialog box with the full error message. 8

9 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 9 of 18 Below is an example of how the Accused Products analyze the error in the markup language document and underlying causes of error in the markup document: Similarly, below is an example of an information dialog box with the full error message: 20. The Accused Products [e] compute a set of possible actions to remedy the error in the markup language document. For example, in the User Guide, Syncro Soft states that Oxygen XML Editor Quick Fix support helps you resolve errors that appear in an XML document by offering Quick Fixes to problems such as missing required attributes or invalid elements. Also, the User Guide states that whenever a user makes a modification in the XML document or applies a fix, the list of Quick Fixes is recomputed. 9

10 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 10 of The Accused Products [f] display the information about the error in the markup language document and its underlying causes on the display unit. For example, in the User Guide, Syncro Soft states that a user can hover over or place the cursor in the highlighted area of text where a validation error or warning occurs. Below is an example of how the Accused Products display information about the error in the markup language document and its underlying causes of error on the display unit: Similarly, below is an example of an information dialog box displaying information about the error and its underlying causes: 10

11 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 11 of The Accused Products [g] display the set of possible actions to remedy the error in the markup language document on the display unit. For example, in the portion of the User Guide discussing Figure 235, Syncro Soft states that if the user place[s] the cursor in the highlighted area where a validation error or warning occurs, a Quick Fix icon is displayed in the stripe on the left side of the editor and if the user click[s] this icon, Oxygen XML Editor displays the list of available fixes. 23. The Accused Products [h] receive a user input selecting one of the possible actions to remedy the error in the markup language document. For example, in the User Guide, Syncro Soft states that Oxygen XML Editor Quick Fix support helps [users] resolve errors that appear in an XML document by offering Quick Fixes to problems, which the user can activate by selecting from Quick Fix proposals using various methods, including clicking on a link that can be used to perform the fix. 24. The Accused Products [i] replace the location causing the error in the markup language document with the selected one of the possible actions to remedy the error in the markup 11

12 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 12 of 18 language document. For example, in the User Guide, Syncro Soft states a user-selected link can perform the fix. 25. According to the User Guide, the validation process for detecting errors using Oxygen XML Editor is the process of making sure that an XML document abides by the rules of its schema. Thus, Oxygen XML Editor relies on schemas to validate XML documents and to compute valid proposals Oxygen XML Editor can find most schemas automatically, but in some cases the user may need to direct the software to the schema. 26. The User Guide also indicates that there is a W3C specification for each XML Schema. 27. In the Accused Products, the [j] information about the error in the markup language document and its underlying causes comprises: [k] a link to the error in the working XML file; [l] a link to the corresponding definition(s) in an associated schema file; and [m] links to relevant 12

13 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 13 of 18 information in an applicable W3C specification. For example, in the User Guide, Syncro Soft states that the user can click on the error icon to display the full error message: Similarly, such an error message provides [k] a link to the error in the working XML file, [l] a link to the corresponding definition(s) in an associated schema file, and [m] links to relevant information in an applicable W3C specification. Below is an example of how the Accused Products can display a link to the location of the error in the markup language document: Below is an example of an error message providing links to schema files and W3C specifications: In the above example, the link described as Schema is a link to the corresponding definition(s) in an associated schema file, and the link described as Additional info is a link to an applicable W3C specification. Below is another example of how the Accused Products can provide a link to the W3C specification: 13

14 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 14 of 18 Similarly, the User Guide states that the message of an error includes a reference to the W3C specification 28. Syncro Soft instructs its customers through live and web demonstrations, training videos, brochures and installation and user guides, such as those located at the following (last visited February 12, 2018): Syncro Soft is thereby liable for infringement of the 456 Patent pursuant to 35 U.S.C 271(b). 29. Syncro Soft has indirectly infringed and continues to indirectly infringe at least Claim 1 of the 456 Patent, by among other things, contributing to the direct infringement of others, 14

15 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 15 of 18 including without limitation, customers of its OXYGEN XML Editor software, by making, offering to sell, or selling, in the United States, or importing a component of a patented machine, manufacture, or combination, or an apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in infringement of the 456 Patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use. 30. For example, the Syncro Soft Accused Products allow Syncro Soft s customers to automatically detect, display, analyze, and correct extensible markup language (XML) errors. The Accused Products are either a component of a patented machine, manufacture, or combination or an apparatus for use in practicing a patented process. Furthermore, such Accused Products allowing for the automatic detection, display, analysis, and correction of XML errors embody at least a material part of the invention. Upon information and belief, the Accused Products are not a staple article or commodity of commerce suitable for substantial noninfringing use. For example, on information and belief, Syncro Soft s customers use the Accused Products to infringe the 456 Patent by automatically detecting, displaying, analyzing, and correcting XML errors and Syncro Soft s customers do not use the Accused Products for substantial non-infringing uses. Thus, Syncro Soft is liable for infringement pursuant to 35 U.S.C 271(c). 31. Syncro Soft has been on notice of the 456 Patent since September 5, 2017 at the latest. Altova filed its original complaint for patent infringement on August 31, On the same day, counsel for Altova sent Syncro Soft a courtesy copy of the original complaint with a cover letter informing Syncro Soft that at least one of its software products, OXYGEN XML Editor (with Quick Fix capabilities), infringed each and every element of at least claim 1 of the 456 Patent. 15

16 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 16 of 18 The letter and courtesy copy of the original complaint was delivered to Syncro Soft in Romania on September 5, On January 12, 2018, Altova served Syncro Soft in Romania with a copy of the original complaint and summons under the Hague Convention for service. 33. On information and belief, after Syncro Soft knew it was infringing the 456 Patent and despite knowledge gleaned from the original complaint, Syncro Soft continued to actively induce the using, offering for sale, selling, or importation of Accused Products by Syncro Soft s customers who purchased Accused Products, operated such software in accordance with Syncro Soft s instructions, and therefore directly infringed one or more claims of the 456 Patent in violation of 35 U.S.C On information and belief, after Syncro Soft knew it was infringing the 456 Patent and despite knowledge gleaned from the original complaint, Syncro Soft continued to instruct its customers to infringe the 456 Patent through live and web demonstrations, training videos, brochures and installation and user guides. 35. Syncro Soft may have infringed the 456 Patent through other software utilizing the same or reasonably similar functionality, including other versions of its OXYGEN XML Editor. Altova reserves the right to discover and pursue all such additional infringing software. For the avoidance of doubt, the OXYGEN XML Editor software is identified for exemplary purposes and in no way limits the discovery and infringement allegations against Syncro Soft concerning other software that incorporates the same or reasonably similar Quick Fix functionality. 36. Altova has been damaged, reparably and irreparably, by Syncro Soft s infringement of the 456 Patent and such damage will continue unless and until Syncro Soft is enjoined. 16

17 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 17 of 18 PRAYER FOR RELIEF Altova requests that the Court enter judgment against Syncro Soft as follows: (A) (B) that Syncro Soft has infringed the 456 Patent; awarding Altova its damages suffered as a result of Syncro Soft s infringement of the 456 Patent pursuant to 35 U.S.C. 284; (C) enjoining Syncro Soft, its officers, directors, agents, servants, affiliates, employees, divisions, branches, subsidiaries and parents, and all others acting in concert or privity with it from infringing the 456 Patent pursuant to 35 U.S.C. 283; (D) (E) awarding Altova its costs, attorneys fees, expenses and interest; and granting Altova such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL Altova hereby demands trial by jury on all issues so triable pursuant to Fed. R. Civ. P

18 Case 1:17-cv PBS Document 12 Filed 02/14/18 Page 18 of 18 Dated: February 14, 2018 Respectfully submitted, /s/ Kerry L. Timbers Kerry L. Timbers (BBO # ) Brandon T. Scruggs (BBO # ) ktimbers@sunsteinlaw.com bscruggs@sunsteinlaw.com SUNSTEIN KANN MURPHY & TIMBERS LLP 125 Summer Street - 11th floor Boston, Massachusetts Fax Counsel for Altova, GmbH and Altova, Inc. CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018 the above document filed through the CM/ECF system will be sent electronically to all counsel of record that are registered participants as identified on the Notice of Electronic Filing (NEF), who are deemed to have consented to electronic service via the Court s CM/ECF system as provided by Fed. R. Civ. P. 5(b)(2)(E)&(d)(3), Local Rule 5.2, and this Court s CM/ECF Administrative Procedures (E)(6)&(H)(3). I also hereby certify that paper copies will be sent to those indicated as nonregistered participants on the same date. /s/ Kerry L. Timbers Kerry L. Timbers 18