Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BARCO, N.V. and ) BARCO, INC., ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE NO.: ) 1:11-cv-02964-TCB EIZO NANAO CORPORATION, ) and EIZO NANAO TECHNOLOGIES, ) INC. ) JURY TRIAL DEMANDED ) Defendants. ) ) SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT Plaintiffs Barco N.V. ( BNV ) and Barco, Inc. ( Barco USA ) (collectively, Plaintiffs or Barco ), for their Second Amended Complaint against Defendants Eizo Corporation (f/k/a Eizo Nanao Corporation) ( Eizo Japan ) and Eizo, Inc. (f/k/a Eizo Nanao Technologies, Inc.) ( Eizo USA) (collectively, Defendants or Eizo ), hereby allege as follows: THE PARTIES 1. BNV is a publicly listed limited liability corporation organized and existing under the laws of Belgium, with a principal place of business at Beneluxpark 21, 8500 Kortrijk, Belgium.
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 2 of 18 2. Barco USA is a corporation organized and existing under the laws of the State of Delaware, with a principal place of business in this judicial district at 3059 Premiere Parkway, Duluth, Georgia 30097. Barco USA is a wholly-owned subsidiary of BNV. 3. Upon information and belief, Eizo Japan is a corporation organized and existing under the laws of Japan, having a principal place of business at 153 Shimokashiwano, Hakusan, Ishikawa, 924-8566, Japan. 4. Upon information and belief, Eizo USA is a corporation organized and existing under the laws of the State of California, having a principal place of business at 5710 Warland Drive, Cypress, California, 90630. JURISDICTION AND VENUE 5. This is an action for patent infringement arising under the patent laws of the United States, Title 35 of the United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338(a). 6. This Court has personal jurisdiction over each of the Defendants in that each has, directly or through intermediaries, committed acts within this judicial district giving rise to this action and/or each has established minimum contacts with Georgia such that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. 2
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 3 of 18 7. Venue is proper in this district under 28 U.S.C. 1391(b), (c) and/or (d) and 28 U.S.C. 1400(b). THE 849 PATENT AND THE 707 REISSUE PATENT 8. On December 29, 2009, United States Patent No. 7,639,849 ( the 849 Patent ), entitled Methods, Apparatus, and Devices for Noise Reduction, was duly and legally issued. A true and correct copy of the 849 Patent is attached hereto as Exhibit A. 9. On October 2, 2012, United States Reissue Patent No. RE43,707 ( the 707 Reissue Patent ), entitled Methods, Apparatus, and Devices for Noise Reduction, was duly and legally issued. A true and correct copy of the 707 Reissue Patent is attached hereto as Exhibit B. 10. After commencement of this action, Eizo petitioned the United States Patent and Trademark Office ( USPTO ) to reexamine and/or review various claims in both the 849 Patent and the 707 Reissue Patent. On July 14, 2015, the last such reexamination / review proceeding concluded in the USPTO. 11. At all times relevant to this action, BNV was the owner by assignment of the 849 Patent and is the owner by assignment of the 707 Reissue Patent. At all times relevant to this action, Barco USA was the exclusive licensee to the 849 Patent and is the exclusive licensee to the 707 Reissue Patent in the United States. 3
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 4 of 18 FACTUAL ALLEGATIONS 12. Many video monitors and displays are matrix-based systems, composed of individual image forming elements called pixels. To form an image, each pixel in the display emits a varying amount of light in response to a varying level of an electrical drive signal. Conventional matrix-based monitors and displays have a known image quality deficiency that results from the unequal lightoutput of pixels in response to electrical drive signals at identical levels. Identical electrical drive signals applied to various pixels may nonetheless lead to different, i.e. non-uniform, light-output responses of these pixels. 13. These differences in pixel behavior are caused by various factors, including by production processes involved in the manufacturing of the displays and/or by the physical construction of the displays themselves. 14. In LCD screens, issues with undesired non-uniform pixel responses can be caused by the radiance and position of the backlight lamps which allow the images to be seen. In addition, any unevenness in the thickness of the materials in the LCD panel or imperfections in the lamp reflectors, light guide plates, the liquid crystal cells, the diffuser/prism sheet or color filters further lead to undesired nonuniform pixel responses, which have unwanted effects on the evenness and visibility of the images that can be viewed on the monitor or display. 4
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 5 of 18 15. The 707 Reissue Patent (and the predecessor 849 Patent) addresses and solves these problems by teaching methods for image processing and image processing apparatuses. For example, one method of image processing taught by the 707 Reissue Patent (and the predecessor 849 Patent) comprises obtaining a measure of a light-output response of at least a portion of a pixel at each of a plurality of driving levels in a display, modifying a map that is based on the obtained measures, and obtaining a display signal based on the modified map and an image signal. 16. Further, one example of an image processing apparatus taught by the 707 Reissue Patent comprises an array of logic elements configured to generate a display signal based on a map, wherein the display signal is configured to cause a display to depict a display image, and wherein the map comprises correction data configured to produce a desired non-uniform light output response that comprises a lower degree of non-uniformity for pixels substantially at the center of the display than for pixels substantially at the edges of the display. 17. By practicing the methods or the apparatuses taught and claimed by the 707 Reissue Patent (and the predecessor 849 Patent), uniformity, desired nonuniformity, and/or visibility of a displayed image can be increased. 5
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 6 of 18 18. Having clear, uniform, desired non-uniform, and/or visible images is important in many fields, including, by way of example, in the field of medical diagnostics. Several scientific studies have indicated that even a slight increase of undesired non-uniformity in medical images can have a significant negative impact on the accuracy and quality of medical diagnoses. 19. Barco is a global technology company that designs and develops visualization solutions for a variety of selected professional markets, including, but not limited to, medical imaging and diagnostics, media and entertainment, infrastructure & utilities, traffic & transportation, education & training and corporate AV. 20. For example, Barco designs, manufactures, sells, offers for sale, and imports into the United States monitors and displays for use in the medical diagnostic field, including without limitation the Coronis Series of products, together with related products and services. 21. Barco has also designed, manufactured, sold, offered for sale, and imported into the United States monitors and displays for use in the broadcast, film, and post-production fields, including without limitation the RHDM Series of products, together with related products and services. 6
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 7 of 18 22. Defendants design, manufacture, use, sell, offer for sale, and import into the United States a variety of monitors and displays, including LCD monitors and displays, in a variety of fields, including for use in the medical imaging and diagnostics field, the media and entertainment field, and the air traffic control field. 23. Defendants use a technology they call the Digital Uniformity Equalizer ( DUE ) system. According to Defendants, the DUE system provides perfect picture quality throughout the entire LCD panel. According to the Defendants, the DUE system enables fine textures and shades of color to be drawn neatly and differentiated, making it possible to view digital pictures on the monitor in their full color dynamic extent. According to the Defendants, the DUE system corrects luminance uniformity errors for every grayscale tone to ensure even uniformity and visibility in displayed monochromatic images across the screen and from monitor to monitor. According to the Defendants, the DUE system also corrects chromaticity uniformity errors enabling Defendants color monitors to display accurate polychromatic images on the display screen. According to the Defendants, the DUE system manages the color and brightness of pixels to ensure both are uniformly distributed throughout the display screen. Brightness and color are constantly adjusted throughout the entire display area so that unwanted nonuniformities are corrected (and desired non-uniformities are created and/or 7
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 8 of 18 preserved) in real-time, with the result that the same color tone appears the same throughout the entire display. 24. Defendants make, have made, use, have used, sell, have sold, offer for sale, have offered for sale, and/or import and have imported into the United States various products that employ the DUE system, including, but not limited to, the RadiForce Series of products (including without limitation the GS310, GS320, GS510, GS510-G, GS520, GX540, RX211, RX320, and the LS560W), the ColorEdge Series of products (including without limitation the CG19, CG210-N, CG211, CG221, CG246, CG247, CG248-4k, CG276, CG277, CG318-4k, CS230, CS240, CS270, CX240, CX241, CX270, and the CX271), the FlexScan Series of products (including without limitation the SX2762W and SX2462W), and the DuraVision Series of products (including without limitation the FDH3601). 25. Barco and Defendants are direct competitors in the monitor and display market. For example, Barco s products identified herein compete with Defendants products identified herein for sales in the United States. 26. By letter dated July 17, 2010, Barco, through its counsel, put Defendants on actual notice of Barco s patent rights and Defendants infringement of the 849 Patent, identifying specific products of the Defendants including a 8
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 9 of 18 number of the Defendants products identified herein that infringe one or more claims of the 849 Patent. 27. On September 2, 2011, Barco filed its original Complaint for Patent Infringement, alleging that Eizo infringed the 849 Patent. 28. On December 28, 2011, realizing that it had failed to claim as much as it was entitled to claim, Barco filed an application to broaden and reissue the 849 Patent. 29. On October 2, 2012, the United States Patent and Trademark Office ( USPTO ) granted Barco s reissue application by issuing the 707 Reissue Patent, reaffirming the patentability of the 849 Patent s original claims 1-37, and granting additional new claims 38 115. 30. By letter dated October 2, 2012, Barco, through its counsel, put Defendants on actual notice of Barco s patent rights and Defendants infringement of the 707 Reissue Patent, identifying specific products of the Defendants including a number of the Defendants products identified herein that infringe one or more claims of the 707 Reissue Patent. 31. To date, Defendants have not ceased or desisted from their infringing conduct. 9
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 10 of 18 COUNT I INFRINGEMENT OF THE 707 REISSUE PATENT AND THE PREDECESSOR 849 PATENT 32. Barco incorporates by reference each and every allegation of paragraphs 1 through 31 of this Second Amended Complaint, as if fully set forth herein. 33. BNV is the owner of the 707 Reissue Patent (and was the owner of the predecessor 849 Patent), including the right to sue and recover for infringement thereof. 34. Barco USA is the exclusive licensee to the 707 Reissue Patent (and was the exclusive licensee to the predecessor 849 Patent) in the United States, including the right to sue and recover for infringement thereof. 35. Eizo Japan has been and is now directly infringing the 707 Reissue Patent (and was infringing the predecessor 849 Patent) by making, using, importing, selling and/or offering to sell monitors and displays that incorporate and/or use Eizo s DUE system of image processing, including, but not limited to, the RadiForce Series of products (including without limitation the GS310, GS320, GS510, GS510-G, GS520, GX540, RX211, RX320, and the LS560W), the ColorEdge Series of products (including without limitation the CG19, CG210-N, CG211, CG221, CG246, CG247, CG248-4k, CG276, CG277, CG318-4k, CS230, 10
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 11 of 18 CS240, CS270, CX240, CX241, CX270, and the CX271), the FlexScan Series of products (including without limitation the SX2762W and SX2462W), and the DuraVision Series of products (including without limitation the FDH3601). These monitors and displays are covered by one or more of the 707 Reissue Patent s (and/or the predecessor 849 Patent s) claims, including without limitation claims 36, 46, 54, 64-66, 68-71, 72-76, 80, 91, 98-99, 117, 120, 122, and 128-129. Eizo Japan is thus liable for infringement of the 707 Reissue Patent pursuant to 35 U.S.C. 271(a). 36. Eizo Japan has been and is now indirectly infringing the 707 Reissue Patent (and was infringing the predecessor 849 Patent) under 35 U.S.C. 271(b) and (c) by making, using, selling, offering to sell and/or promoting monitors and displays for use and operation that infringe the 707 Reissue Patent (and the predecessor 849 Patent), including without limitation claims 36, 46, 54, 64-66, 68-71, 72-76, 80, 91, 98-99, 117, 120, 122, and 128-129. The accused Eizo Japan monitors and displays, as equipped, configured, and promoted by Eizo Japan, form at least a component of, and material part of the invention claimed in the 707 Reissue Patent (and/or the predecessor 849 Patent) and are not staple articles of commerce suitable for substantial non-infringing use. At least as early as July 17, 2010, Eizo Japan has had knowledge of the 849 Patent; at least as early as October 11
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 12 of 18 2, 2012, Eizo Japan has had knowledge of the 707 Reissue Patent, and that the accused Eizo products are especially adapted for infringement thereof, and through its extensive efforts at promotion, distribution and sales, intends to induce and has contributed to, and induced distributors, sellers and end users to directly infringe at least the foregoing claims. 37. Eizo USA has been and is now directly infringing the 707 Reissue Patent (and was infringing the predecessor 849 Patent) by making, using, importing, selling and/or offering to sell monitors and displays that incorporate and/or use Eizo s DUE system of image processing, including without limitation the RadiForce Series of products (including without limitation the GS310, GS320, GS510, GS510-G, GS520, GX540, RX211, RX320, and the LS560W), the ColorEdge Series of products (including without limitation the CG19, CG210-N, CG211, CG221, CG246, CG247, CG248-4k, CG276, CG277, CG318-4k, CS230, CS240, CS270, CX240, CX241, CX270, and the CX271), the FlexScan Series of products (including without limitation the SX2762W and SX2462W), and the DuraVision Series of products (including without limitation the FDH3601). These monitors and displays are covered by one or more of the 707 Reissue Patent s (and/or the predecessor 849 Patent s) claims, including without limitation claims 36, 46, 54, 64-66, 68-71, 72-76, 80, 91, 98-99, 117, 120, 122, and 128-129. Eizo 12
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 13 of 18 USA is thus liable for infringement of the 707 Reissue Patent pursuant to 35 U.S.C. 271(a). 38. Eizo USA has been and is now indirectly infringing the 707 Reissue Patent (and was infringing the predecessor 849 Patent) under 35 U.S.C. 271(b) and (c) by making, using, selling, offering to sell and/or promoting monitors and displays for use and operation that infringe the 707 Reissue Patent (and the predecessor 849 Patent), including without limitation claims 36, 46, 54, 64-66, 68-71, 72-76, 80, 91, 98-99, 117, 120, 122, and 128-129. The accused Eizo USA monitors and displays, as equipped, configured, and promoted by Eizo USA, form at least a component of, and material part of the invention claimed in the 707 Reissue Patent (and/or the predecessor 849 Patent), and are not staple articles of commerce suitable for substantial non-infringing use. At least as early as July 17, 2010, Eizo USA has had knowledge of the 849 Patent; at least as early as October 2, 2012, Eizo Japan has had knowledge of the 707 Reissue Patent, and that the accused Eizo products are especially adapted for infringement thereof, and through its extensive efforts at promotion, distribution and sales, intends to induce and has contributed to, and induced distributors, sellers and end users to directly infringe at least the foregoing claims. 13
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 14 of 18 39. Defendants have had actual knowledge of the 849 Patent since at least July 17, 2010, and actual knowledge of the 707 Reissue Patent since at least October 2, 2012, but nonetheless have continued their infringing activities, in objectively reckless disregard of Barco s patent rights, and thus the Defendants infringement has been willful, warranting a finding that this case is exceptional pursuant to 35 U.S.C. 285. 40. As a result of Defendants infringement of the 707 Reissue Patent (and the predecessor 849 Patent), Barco has been damaged in an amount to be proven at trial. 41. An award of money damages is inadequate to fully compensate Barco for the harm it has suffered as a result of Defendants conduct, and Barco has no adequate remedy at law. 42. As a result of Defendants conduct, Barco has suffered irreparable harm, and will continue to suffer irreparable harm unless Defendants infringement is enjoined by this Court. PRAYER FOR RELIEF WHEREFORE, Barco respectfully requests that this Court enter: 14
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 15 of 18 A. A judgment in favor of Barco that Defendants have infringed, directly and/or indirectly, by way of inducing and/or contributing to the infringement of the 707 Reissue Patent (and/or the predecessor 849 Patent) and; B. A preliminary and a permanent injunction enjoining Defendants and their officers, directors, agents, servants, affiliates, employees, divisions, branches, subsidiaries, parents, and all others acting in active concert with them from infringement, inducing the infringement of, or contributing to the infringement of the 707 Reissue Patent; C. A judgment and order requiring Defendants to pay Barco its damages, costs, expenses, and prejudgment and post-judgment interest for Defendants infringement of the 707 Reissue Patent (and/or the predecessor 849 Patent) and; D. An award to Barco of treble damages resulting from the knowing, deliberate, and willful nature of Defendants prohibited conduct, as provided under 35 U.S.C. 284; E. A judgment and order finding this is an exceptional case within the meaning of 35 U.S.C. 285 and awarding to Barco its reasonable attorneys fees; F. Any and all other relief to which Barco may show itself to be entitled. 15
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 16 of 18 DEMAND FOR JURY TRIAL Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Barco requests a trial by jury of all issues so triable. Respectfully submitted this 8 th day of February, 2016. 16 BARNES & THORNBURG LLP /s/ Jeffrey C. Morgan Jeffrey C. Morgan Georgia Bar No: 522667 Rishi Suthar Georgia Bar No: 901898 3475 Piedmont Rd., N.E. Suite 1700 Atlanta, Georgia 30305 Tel. (404) 264-4015 Fax. (404) 264-4033 Email: jeff.morgan@btlaw.com rishi.suthar@btlaw.com Jeffrey A. Michael (Pro Hac Vice) BARNES & THORNBURG LLP 171 Monroe Avenue, N.W. Suite 1000 Grand Rapids, Michigan 49503 Tel. (616) 742-3925 Fax. (616) 742-3999 Email: jeffrey.michael@btlaw.com ATTORNEYS FOR PLAINTIFFS BARCO, N.V. AND BARCO, INC.
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 17 of 18 FONT CERTIFICATION I hereby certify that this document is presented in Times New Roman 14. /s/ Jeffrey C. Morgan Jeffrey C. Morgan 17
Case 1:11-cv-02964-TCB Document 76 Filed 02/08/16 Page 18 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BARCO, N.V. and ) BARCO, INC., ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE NO.: ) 1:11-cv-02964-TCB EIZO NANAO CORPORATION, ) and EIZO NANAO TECHNOLOGIES, ) INC. ) JURY TRIAL DEMANDED ) Defendants. ) ) CERTIFICATE OF SERVICE I hereby certify that on this 8 th day of February, 2016, I have caused the foregoing Second Amended Complaint for Patent Infringement to be filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record: Holmes J. Hawkins, III Russell E. Blythe KING & SPALDING, LLP 1180 Peachtree Street, N.E. Suite 1700 Atlanta, GA 30309 Ryan S. Goldstein QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 S. Figueroa Street, 10 th Floor Los Angeles, CA 90017 /s/ Jeffrey C. Morgan Jeffrey C. Morgan Georgia Bar No. 522667 18