Adrain v. Amazon.com et. al.

8/13/2019 Adrain v. Amazon.com et. al.

1/8

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

JOHN B. ADRAIN, laintiff

AMAZON.COM, INC., BEST BUY CO., INC.,GAMESTOP CORP., MICROSOFT CORPORATION, TARGET CORPORATION, TOYS R US, INC.; and WAL-MART STORES, INC.

efendants

Case No. JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff John B. Adrain Adrain ) brings this action against defendants Amazon.com, Inc. Amazon ), Best Buy Co., Inc. Best Buy ), Gamestop Corp. Gamestop ), MicrosoftCorporation Microsoft ) , Target Corporation Target ), Toys R Us, Inc. TRU ), and Wal-Mart Stores, Inc. Wal-Mart ) collectively Defendants ), and alleges:

THE PARTIES

Adrain is the inventor of and owns the entire right, title, and interest in the patent atissue in this case.

2. On information and belief, Amazon is a corporation organized and existing under thelaws of the State of Delaware, having a principal place of business at 410 Terry Ave North, Seattle,Washington 98109-5210, has designated its registered agent for purposes of service of process as


2/8

Corporation Service Company 300 Deschutes Way SW Suite 304 Tumwater Washington 985017719 and is doing business in this judicial district and elsewhere in the United States.

On information and belief Best Buy is a corporation organized and existing under thelaws of the State of Minnesota having a principal place of business at 7601 Penn Avenue SouthMinneapolis Minnesota 55423 3645 has designated its registered agent for purposes of service ofprocess as CT Corporation System 350 North Saint Paul Street Suite 2900 Dallas Texas 752014234 and is doing business in this judicial district and elsewhere in the United States.

4 On information and belief Gamestop is a corporation organized and existingunder thelaws of the State of Delaware having a principal place of business at 625 Westport ParkwayGrapevine Texas 76051 has designated its registered agent for purposes of service of process as CTCorporation System 350 North Saint Paul Street Suite 2900 Dallas Texas 75201 4234 and isdoing business in this judicial district and elsewhere in the United States.

5 On information and belief Microsoft is a corporation organized and existingunder thelaws of Delaware having a principal place of business located at One Microsoft Way RedmondWashington 98052 7329 has designated its registered agent for purposes of service of process asCorporation Service Company 211 East 7th Street Suite 620 Austin Texas 78701 3218 and isdoing business in this judicial district and elsewhere in the United States.

6 On information and belief Target is a corporation organized and existing under thelaws of the State of Minnesota having a principal place of business at 1000 Nicollet MallMinneapolis Minnesota 55403 has designated its registered agent for purposes of service of processas CT Corporation System 350 North Saint Paul Street Suite 2900 Dallas Texas 75201 4234 andis doing business in this judicial district and elsewhere in the United States.

COMPLAINT FOR PATENT INFRINGEMENT Page 2


3/8

7. On information and belief, TRU is a corporation organized and existingunder the lawsof the State of Delaware, having a principal place of business at One Geoffrey Way, Wayne, NewJersey, 07470-2030, has designated its registered agent for purposes of service of process asCorporation Service Company DBA CSC - Lawyers Incorporating Service Company, 211 East 7thStreet, Suite 620, Austin, Texas 78701-3218, and is doing business in this judicial district andelsewhere in the United States.

8. On information and belief, Wal-Mart is a corporation organized and existingunder thelaws of the State of Delaware, having a principal place of business at 702 SW 8th Street, Dept. 8687,Bentonville, Arkansas, 72716-0555, has designated its registered agent for purposes of service ofprocess as CT Corporation System, 350 North Saint Paul Street, Suite 2900, Dallas, Texas 75201-4234, and is doing business in this judicial district and elsewhere in the United States.

JURISDICTION AND VENUE

9. This is an action for patent infringement arising under the provisions of the PatentLaws of the United States of America, Title 35, United States Code.

10 Subject-matter jurisdiction over Adrain s claims is conferred upon this Court by 28U.S.C. 1331 and 1338(a).

11 On information and belief, Defendants have operated, conducted, engaged in, and/orcarried on business in the state of Texas and this district.

12 Venue is proper in this judicial district under 28 U.S.C. 1391(b), (c) and (d), and/or1400(b).

PATENT INFRINGEMENT

13 On November 3, 1998, U.S. Patent No. 5,831,669, entitled Facility MonitoringSystem with Image Memory and Correlation was duly and legally issued to the inventor, John B.



4/8

Adrain. A Reexamination Certificate for US. Patent 5,831,669 issued on August 21,2012. A trueand correct copy of US. Patent 5,831,669 with the Reexamination Certificate is attached hereto asExhibit A. (US. Patent 5,831,669 and the Reexamination Certificate are collectively referred to asthe 669 patent. ) Adrain owns all right, title and interest in the 669 patent, including the right tosue for and recover all past, present and future damages for infringement of the 669 patent.

4 The 669 patent is presumed valid.XBox 6 KIN T

5 Upon information and belief, Defendants, either alone or in conjunction with others,have in the past and continue to infringe and/or induce infringement of the 669 patent by making,using, selling, offering to sell, and/or importing, and/or causing others to make, use, sell, offer to sell,and/or import, in this judicial district and/or elsewhere in the United States, the Microsoft Xbox 360Kinect that alone or in use is covered by one or more of the claims of the 669 patent. The Xbox 360Kinect is referred to hereafter as the System.

6 The System utilizes a camera, monitors a space, and is capable of facial recognition. 7 Consumers purchase and use the System and are instructed to use methods that

infringe one or more claims of the 669 patent. 8 By way of example, consumers are instructed, such as at least through Microsoft s

website http://support.xbox.comlen-US/xbox-360/kinect/auto-sign-in, how to operate the System tostore images of the consumers faces. Thereafter the System is able to recognize the face of such aconsumer.

9 Consumers are further instructed, at least through a Quick Setup Guide packaged inthe retail box containing the System, that If the sensor can t recognize you: Make sure there isadequate lighting and you are not wearing clothing that obscures your shape or hides your face.

COMPLAINT FOR PATENT INFRINGEMENT Page -4-


5/8

2 Consumers are further instructed, at least through the Quick Setup Guide packaged inthe retail box containing the System, that the website xbox.com/support may provide FurtherAssistance with the System, which includes assistance on how to operate the System to store imagesof a consumer s face for use in facial recognition.

21 The website xbox.com/support directs consumers to additional links that instructconsumers how to operate the System to store images of their faces for use in facial recognition.

22 Defendants have been and/or are now indirectly infringing one or more claims of the669 patent in violation of35 U.S.C. 271(b) by inducing consumers of the System to directly infringe

one or more claims of the 669 patent through their use of the System, such as through use of facialrecognition in a monitored space.

23 For example, Defendants induce direct infringement of the 669 patent by providing atleast a Quick Setup Guide with the System that includes Helpful Hints for recognition of aconsumer, and that directs consumers to a website that shows how to register their faces with theSystem and encouraging such actions, such as for example, setting up a Kinect ID for use withautomatic sign-in. Defendants engage in such inducement knowingly and, at least from the time ofreceipt of the present Complaint, have done so with knowledge that such activity encouragesconsumers of the System to directly infringe the 669 patent.

24 On information and belief, Defendants further induce direct infringement of the 669patent by specifically advertising and/or promoting the recognition features ofthe System, specificallyintending such consumers will operate these devices in such a manner, and knowing of such actions,which constitute infringement of one or more claims of the 669 patent.

25 Defendants are liable for infringement of the 669 patent pursuant to 35 U.S.c. 271.

COMPLAINT FOR PATENT INFRINGEMENT Page -5-


6/8

26. Defendants acts of infringement have caused damage to Adrain, and Adrain is entitledto recover from Defendants the damages sustained by Adrain as a result of Defendants wrongful actsin an amount subject to proof at trial.

27. As a consequence of the infringement complained of herein, Adrain has beenirreparably damaged to an extent not yet determined and will continue to be irreparably damaged bysuch acts in the future unless Defendants are enjoined by this Court from committing further acts ofinfringement.

X OXON

28. On information and belief, in the future, a device referred to as the Xbox One thatincludes a Kinect sensor will be released for sale to consumers.

29. On information and belief, it is believed that the Xbox One with Kinect sensor willincorporate at least the above-discussed features and components present in the Xbox 360 Kinect,including its facial recognition features, and that the Defendants will infringe the 669 patent for thesame reasons as stated above insofar as their activities with respect to the Xbox One are the same asfor the Xbox 360 with Kinect.

PRAYER FOR RELIEF

WHEREFORE Adrain prays for entry of judgment that:A. Defendants have directly infringed and/or induced infringement of the 669 patent;B. Defendants account for and pay to Adrain all damages caused by their infringement of

the 669 patent;C. Adrain be granted permanent injunctive relief pursuant to 35 U.S.C. 283 enjoining

Defendants and their officers, agents, servants, employees and those persons in active concert orparticipation with it from further acts of patent infringement;



7/8

D Adrain be granted pre-judgment and post-judgment interest on the damages caused tohim by reason of Defendants patent infringement;

E Adrain be granted his reasonable attorneys fees in accordance with 35 U.S.C. 285;F Costs be awarded to Adrain; and,G Adrain be granted such other and further relief as the Court may deem just and proper

under the circumstances.DEM ND FOR JURY TRI L

Adrain demands trial by jury on all claims and issues so triable.

Dated: November 20,2013


Respectfully submitted,By: s Elizabeth L. DeRieux

John T. PolasekTexas Bar. No. [email protected]. Dale QuisenberryTexas Bar No. [email protected] S. DavidTexas Bar No. [email protected], QUISENBERRY ERRINGTON, L.L.P.6750 West Loop South, Suite 920Bellaire, Texas 77401Telephone: 832) 778-6000Facsimile: 832) 778-6010Otis W. CarrollState Bar No. [email protected] RaceState Bar No. [email protected], CARROLL KELLEY, P. C6101 S. Broadway, Suite 500P.O. Box 7879Tyler, Texas 75711Telephone: 903) 561-1600Facsimile: 903) 581-1071

Page 7


8/8


S. Calvin CapshawState Bar No. [email protected] L. DeRieuxState Bar No. [email protected]. Jeffrey RambinState Bar No. [email protected],LLP114 East Commerce AvenueGladewater, Texas 75647Telephone: 903 236-9800Facsimile: 903 236-8787Russell R. SmithState Bar No. [email protected], Price, Haley, Smith, L.L.P.1801 North StreetNacogdoches, Texas 75963-1668Telephone: 936 569-2327Facsimile: 936 569-7932ttorneys for laintiff

Page

Adrain v. Amazon.com et. al.

Documents

Transcript of Adrain v. Amazon.com et. al.