Bytemark v. Globe Sherpa

8/22/2019 Bytemark v. Globe Sherpa

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FILEDUNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OFVIRGINIAAlexandria Division 2013 CEC I8 P 2= 33

Bytemark, Inc.,Plaintiff,

v.

Globe Sherpa, Inc.,Defendant.

CI IPK US DISTRICT COURTALEXANDRIA. VIRGINIA

, ^U/3V ase NoJURY TRIAL DEMANDED fo p/J^el_

C O M P L A I N T

Plaintiff, Bytemark, Inc. ( Bytemark ), by counsel, for its Complaint againstDefendant, Globe Sherpa, Inc. ( Defendant orGlobe Sherpa ), seeks damages,injunctive relief, and other relief for patent infringement, alleges as follows:

1. This isan action for patent infringement under 35U.S.C. 1etseqP A R T I E S

2. Bytemark is a corporation organized and existing under the laws ofthe State ofDelaware. Bytemark has its principal place ofbusiness at 275 7th Avenue, Suite 1501,New York, New York 10001.

3. On information andbelief, DefendantGlobe Sherpais a corporation organizedand existing under the laws ofthe State ofOregon.

4. On information andbelief, Defendant hasitsprincipal placeof business at 2025NW Overton Street, Portland, Oregon 97209.

B Y T E M A R K S PATENT R I G H T S5. Bytemark owns all title, right, and interest in and to United States PatentNo.

8,494,967 ( the '967 patent ) entitled Method and System for Distributing Electronic


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Tickets With Visual Display, which wa s duly and legally issued by theUnited StatesPatent and Trademark Office on July 23,2013, acopy ofwhich is attached hereto asExhibit A. Th e '967 patent describes and claims methods and systems for obtainingvisual validation ofapurchased electronic ticket on auser's computer device forpresentation to a ticket taker.

DEFENDANT'S INFRINGING ACTIVITIES IN THIS DISTRICT6. Defendant committed acts of infringement in this District byoffering its

infringing mobile ticketing technology and/or services for sale to Virginia RailwayExpress ( VRE ) located at 1500 King Street, Suite 202, Alexandria, VA 22314-2730.

7. Defendant's ChiefExecutive Officer, NatParker, attended ameeting of theBoard ofDirectors ofVRE inPrince William County, Virginia onSeptember 20,2013,where the adoption ofDefendant's mobile ticketing technology and/or services was underconsideration (the Board Meeting ).

8. Defendant's ChiefExecutive Officer was introduced to the Board ofDirectors ofVRE at the Board Meeting and answered questions about Defendant's mobile ticketingtechnology and services.

9. Defendant maintained itsoffer to sell itsmobile ticketing technology and/orservices toVREat the BoardMeetingon September 20, 2013.

10. On information and belief, Defendant transmitted to VRE a draft contract to selland deliver itsmobile ticketing technology and/or services toVRE.

11. On information andbelief, Defendant entered intoa contract withVREto sellanddeliver itsmobile ticketing technology and/or services toVRE.


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C O UN T IIInducement ofPatent Infringement - 35U.S.C. 27119. Bytemark incorporates by reference paragraph nos. 1through 18 as if fully set

forth herein.

20. Bytemark provided Defendant with pre-suit notice by means ofa letter sent toDefendant on August 15, 2013, alerting Defendant to its infringement ofthe 967 patentand demanding that Defendant immediately cease and desist its infringement of the '967patent.

21. Defendant s infringing mobile ticketing technology and/or services are used bythe Tri-County Metropolitan Transportation District ofOregon generally known andreferred to herein as TriMet ) and at least one ofitscustomers.

22. Defendant, after becoming aware ofthe '967 Patent, continued its activities in thisDistrict and throughout the United States in order to encourage others, including TriMetand its customers, to use Defendant's infringing mobile ticketing technology and/orservices.

23. On information and belief, Defendant provides technical support and otherservices in order to aid and abet TriMet and TriMet's customers in their use ofDefendant's infringing mobile ticketing technology and/or services.

24. Defendant's ongoing sales and provision of its infringing mobile ticketingtechnology and/or services in the United States, including support services constitutesinducement ofpatent infringement in violation of35 U.S.C. 271.


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C O U N T H I(Contributory Patent Infringement - 35U.S.C. 27125. Bytemark incorporates by reference paragraph nos. 1 through 24asif fully set

fo r th herein .

26. The infringingmobile ticketing technology and/or services have no noninfringing uses because thesolepurpose and function of the infringing technology and/orservices is to provide a way for the customers of transit agencies like TriMet to obtainvisual validation ofa purchased electronic ticket on a user's computer device forpresentation to a ticket taker.

27. The provision of the infringingmobile ticketing technology and/or services toDefendant's customers, for example, TriMet and TriMet s customers in the United Statesfor use on their computers, constitutes contributory patent infringement in violation of 35U.S.C. 271.

C O U N T I VWillful Patent Infringement - 35 U.S.C. 271)

28. Bytemark incorporates by reference paragraph nos. 1 through 27 as if fully setforth herein.

29. On information and belief, Defendant analyzed Bytemark's business and/ortechnology prior to completing the development ofDefendant's mobile ticketingtechnology and/or services.

30. On information and belief, Defendant copiedBytemark's technology in order toenter the business ofmobile ticketing technology and/or services.

31. On information and belief, Defendant has been aware that Defendant s mobileticketing technology and/or services most likely infringes at least one claim in the '967


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Patent yet the Defendant has continued to sell and operate its infringing mobile ticketingtechnology and/or services in the United States.

32. On information and belief, Defendant should have been aware that its mobileticketing technology and/or services most likely infringes at least one claim of the 967Patent because it was aware of the patent no later than August 15, 2013 and prior to that,was fully aware ofBytemark's competing business and technology.

33. Defendant's infringement of the 967 Patent has been intentional, willful, andwith a reckless disregard for the patent rights owned by Bytemark in violation of 35

U.S.C. 271.34. Defendant's infringement will continue unless enjoined by this Court.35. Defendant's infringement has caused and will continue to cause Bytemark

substantial and irreparable injury for which Bytemark is entitled to receive injunctiverelief and damages adequate to compensate it for such infringement.

D E M A ND F O R R E L I E F

WHEREFORE, Bytemark respectfully requests this Court to enter judgment in itsfavor and against Defendant, awarding it the following relief:

A. A judgment that Defendant has infringed the '967 patent;B. Permanently enjoining Defendant, its subsidiaries, affiliates, parents, successors,

assignees, officers, agents, servants, employees, and all persons acting in concert or in

participation with them from infringing, contributing to, or inducing the infringement ofthe 967 patent;


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C. Awarding Bytemark damages resulting from Defendant's acts of infringementand ordering Defendant to account for and pay to Bytemark damages adequate tocompensate Bytemark for the infringement of its patent rights;

D. Awarding pre-judgment interest on any damages award;E. Adjudging that Defendant's infringementof the '967 patent is willful, and

increasingDefendant's liability for damages up to three times the amount found orassessed;

F. Declaring that this is an exceptional case under 35 U.S.C. 285, and for an award

of increased damages, attorneys' fees, and costs; andG. Granting Bytemark such other reliefas the Court deems just and proper.

D E M A N D F O R J U R Y T R I A L

Bytemarkhereby demands trial byjury as to all issues in this action triable ofright by a jury.

Dated: December 18,2013 Respectfully submitted,Bytemark, Inc.By CounselBIRCH, STEWART, KOLASCH & BIRCH, LLP

QueStin R.Corrie (VSB 14140)qrc bskb comMichael B. Marion (VSB 77025)mbm bskb com8110 Gatehouse Road, Sui te 100 EastFalls Church, Virginia 22042Phone: (703) 205-8000Fax: (703) 205-8050mailroom bskb om

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Bytemark v. Globe Sherpa