1 Derek A. Newman, State Bar No. 190467 derek@newmanlaw.

com 2 N EWMAN D U W ORS LLP 3 100 Wilshire Boulevard, Suite 940 Santa Monica, CA 90401 4 Telephone: (310) 359-8200 Facsimile: (310) 359-8190 5 John Du Wors, State Bar No. 233913 6 [email protected] 7 N EWMAN D U W ORS LLP 1201 Third Avenue, Suite 1600 8 Seattle, WA 98101 Telephone: (206) 274-2800 9 Facsimile: (206) 274-2801 10 Attorneys for Plaintiff 11 Essociate, Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
i COMPLAINT FOR PATENT INFRINGEMENT

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ESSOCIATE, INC., a Delaware corporation, Plaintiff, v. 4355768 CANADA INC., a Canada corporation, dba CrakMedia, Defendant. No.: 8:14-cv-00679 COMPLAINT FOR PATENT INFRINGEMENT DEMAND FOR JURY TRIAL

Plaintiff ESSOCIATE, INC., a Delaware corporation, hereby alleges for its

2 complaint against Defendant 4355768 CANADA INC., a Canada corporation, dba 3 CrakMedia on personal knowledge as to Essociates activities, and on information 4 and belief as to the activities of others, as follows: 5 6 8 9 11 13 14 4. 2. 3. 1. I. NATURE OF THE CASE This is a claim for patent infringement arising under the patent laws of II. JURISDICTION AND VENUE

7 the United States, Title 35 of the United States Code. This Court has exclusive subject matter jurisdiction over this action Personal jurisdiction over Defendant is proper in this court. Venue is III. PARTIES

10 pursuant to 28 U.S.C. 1331 and 1338(a). 12 proper in this judicial district pursuant to 28 U.S.C. 1391(b), (c) and/or 1400(b). Plaintiff Essociate, Inc. is a Delaware corporation with its principal

15 business address at 4630 Geary Boulevard, Suite 101, San Francisco, California 16 94118. 17 5. Essociate is the owner of U.S. Patent No. 6,804,660 (the 660 18 Patent), entitled System Method and Article of Manufacture for Internet Based 19 Affiliate Pooling, issued October 12, 2004 (copy attached as Exhibit A). 20 6. Essociate is the owner of the entire right, title, and interest in the 660 21 Patent and has standing to sue for all past, present, and future infringement of the 22 660 Patent. 23 7. Upon information and belief, Defendant 4355768 CANADA INC., is a 24 Canada corporation with its headquarters and principal business address at 633 St. 25 Joseph est, Bureau 204, Quebec, Quebec G1K 3C1, Canada. 26 8. Defendant transacts business and has provided to customers in this 27 judicial district and throughout the State of California products and/or services 28 that infringe and/or induce infringement of, and/or contribute to infringement of,
1 COMPLAINT FOR PATENT INFRINGEMENT

1 one or more claims of the 660 Patent. 2 9. Upon information and belief, Defendant manufactures, imports into the 3 United States, sells, offers for sale, and/or uses software products that infringe one 4 or more claims of the 660 Patent. Upon information and belief, such software 5 products are offered for sale to customers in this judicial district and throughout 6 the state of California. 7 IV. DEFENDANTS INFRINGEMENT OF THE 660 PATENT 8 10. Defendant has been and is directly infringing the 660 Patent under 35 9 U.S.C. 271(a) by making, using, modifying, upgrading, performing quality 10 control, and providing support for their affiliate software and/or other products 11 and/or services provided by means of that software and/or other products, 12 including without limitation Defendants affiliate marketing network available at 13 http://www.crakrevenue.com/ 14 11. Defendant has also been and is directly infringing the 660 Patent under 15 35 U.S.C. 271(a) by selling, offering for sale, and/or importing into the United 16 States affiliate software and/or other products and/or services that infringe one or 17 more claims of the 660 patent, including, by way of example and not limitation, 18 claim 1. 19 12. Defendants customers and other users of Defendants software and 20 other products and the services provided by means of that software and other 21 products, has been and is directly infringing one or more claims of the 660 Patent 22 under 35 U.S.C. 271(a). 23 13. Defendant has been and is actively inducing infringement of one or more 24 claims of the 660 Patent under 35 U.S.C. 271(b) by providing to customers, 25 including customers in this judicial district, their affiliate software and other 26 products, as well as services provided by means of their affiliate software and other 27 products, along with instructions and directions that result in the use of the 28 methods, computer programs, and systems disclosed and claimed in the 660
2 COMPLAINT FOR PATENT INFRINGEMENT

1 Patent. Defendant knew, or should have known, that its customers and other users 2 of its services would use Defendants affiliate software and other products to 3 infringe the 660 Patent and intended such infringement. 4 14. Defendant has been and is contributorily infringing one or more claims of 5 the 660 Patent under 35 U.S.C. 271(c) by making, selling, and/or offering for 6 sale to customers, including customers in this judicial district, their affiliate 7 software and other products, as well as services provided by means of their affiliate 8 software and other products. Defendants affiliate software and other products are 9 each a material part of the invention claimed in the 660 patent, are not staple 10 articles or commodities of commerce, and have no substantial non-infringing use. 11 Upon information and belief, Defendants knew, or should have known, that their 12 affiliate software and other products were especially made or adapted for an 13 infringing use. 14 15. Defendants infringement, contributory infringement, and inducement 15 to infringe the 660 Patent has been willful and has deliberately injured and will 16 continue to injure Essociate unless and until the Court enters a preliminary or 17 permanent injunction prohibiting further infringement and, specifically, enjoining 18 further manufacture, use, importation, sale, and/or offer for sale of products that 19 fall within the scope of the 660 Patent. 20 21 V. RELIEF REQUESTED WHEREFORE, Essociate asks this Court to enter judgment against

22 Defendant and against Defendants subsidiaries, affiliates, agents, servants, 23 employees and all persons in active concert or participation with them, granting the 24 following relief: 1. A judgment or order declaring that Defendant has infringed, induced 25 26 27 28 2. others to infringe, and/or contributorily infringed the 660 Patent; A judgment, order, or award of damages adequate to compensate Essociate for Defendants infringement of the 660 Patent, based on lost
3 COMPLAINT FOR PATENT INFRINGEMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. 5. 4. 3.

sales, lost profits, price erosion, loss of market share, or any other applicable theory, together with prejudgment interest from the date infringement of the 660 Patent began; A permanent injunction prohibiting further infringement, inducement, and contributory infringement of the 660 Patent; A finding that this case is exceptional and an award to Essociate of its attorneys fees and costs as provided by 35 U.S.C. 285; Increased damages as permitted by 35 U.S.C. 284, together with prejudgment interest; and Such other and further relief as this Court or a jury may deem proper and just. Dated this 30th day of April, 2014. Respectfully Submitted, NEWMAN DU WORS LLP By: s/ Derek A. Newman Derek A. Newman, State Bar No. 190467 [email protected] John Du Wors, State Bar No. 233913 [email protected] Attorneys for Plaintiff Essociate, Inc.

4 COMPLAINT FOR PATENT INFRINGEMENT

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VI.

JURY DEMAND

Under FED. R. CIV. P. 38(b), Plaintiff Essociate, Inc. demands a trial by jury of all issues presented in this complaint which are triable by jury. Dated this 30th day of April, 2014. Respectfully Submitted, NEWMAN DU WORS LLP By: s/ Derek A. Newman Derek A. Newman, State Bar No. 190467 [email protected] John Du Wors, State Bar No. 233913 [email protected] Attorneys for Plaintiff Essociate, Inc.

5 COMPLAINT FOR PATENT INFRINGEMENT