Novatel MiFi Suit

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COMPLAINT

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MICHAEL J. BETTINGER(SBN122196)TIMOTHY PAAR WALKER (SBN105001)HOLLY HOGAN (SBN 238714)K&L GATES LLP4 Embarcadero Center, Suite 1200San Francisco, California 94111-5994

Telephone: 415.882.8200Facsimile: [email protected]@[email protected]

Attorneys for PlaintiffsNOVATEL WIRELESS, INC. andNOVATEL WIRELESS SOLUTIONS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

NOVATEL WIRELESS, INC., a Delawarecorporation, and NOVATEL WIRELESSSOLUTIONS, INC., a Delawarecorporation,

Plaintiffs,

v.

FRANKLIN WIRELESS CORP., a Nevadacorporation, ZTE CORP., a Chinacorporation, and ZTE (USA), Inc., a NewJersey corporation,

Defendants.

Case No.

COMPLAINT FOR PATENTINFRINGEMENT

Jury Trial Demanded

Plaintiffs Novatel Wireless, Inc. and Novatel Wireless Solutions, Inc. hereby complain of

Defendants Franklin Wireless Corp., ZTE Corp. and ZTE (USA), Inc. (collectively, Defendants ),

and by this complaint alleges as follows:

THE PARTIES

1. Novatel Wireless, Inc. is a Delaware corporation with its headquarters and principalplace of business at 9645 Scranton Road, Suite 205, San Diego, California 92121. Novatel Wireless


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Solutions, Inc. is a Delaware corporation with its principal place of business at 9645 Scranton Road,

Suite 205, San Diego, California 92121, and is a wholly owned subsidiary of Novatel Wireless, Inc.

Novatel Wireless, Inc. and Novatel Wireless Solutions, Inc. are collectively referred to herein as

Novatel Wireless.

2. Novatel Wireless is a leading provider of wireless broadband access for the worldwide mobile communications market. Novatel Wireless pioneered, and recently introduced, the

industry s first Intelligent Mobile Data Hotspot, the Novatel Wireless MiFi, which creates a

personal cloud of high-speed internet connectivity that can be easily shared among multiple users.

3. Franklin Wireless Corp. ( Franklin Wireless ) is a Nevada corporation with itsheadquarters and principal place of business at 5440 Morehouse Drive, Suite 1000, San Diego, CA

92121. Franklin Wireless is engaged in the design, manufacture and sale of wireless data products.

4. ZTE Corp. ( ZTE ) is a China corporation with its principal place of business atZTE Plaza, Keji Road South, Hi-tech Industrial Park, Nanshan District, Shenzhen, Guangdong,

China 51807. ZTE is a provider of telecommunications equipment and network solutions.

5. ZTE conducts business in the United States through its wholly-owned U.S. entityZTE (USA), Inc. ( ZTE USA ).

6. Upon information and belief, ZTE USA conducts research and developmentactivities, with respect to the infringing products, at its facilities in the Southern District of

California at 10105 Pacific Heights Boulevard, Suite 250, San Diego, CA 92121.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338.8. Venue is proper in this District pursuant to 28 U.S.C. 1391(b)-(d) and 1400(b).

Defendants Franklin Wireless and ZTE USA reside in this District. Defendant ZTE is an alien

that conducts business in this District through its wholly-owned subsidiary ZTE USA. A

substantial part of the infringing conduct giving rise to this Complaint has occurred in this

District. The patents at issue in this Complaint are owned by, and assigned to, Novatel Wireless,

which is headquartered in this District.


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First Claim for Relief

(Patent Infringement - U.S. Patent No. 5,129,098)

8. Novatel Wireless is the owner by assignment of U.S. Patent No. 5,129,098 ( the 098

patent ), entitled Radio Telephone Using Received Signal Strength In Controlling Transmission

Power a true copy of which is attached hereto as Exhibit 1. The 098 patent was duly and legally

issued on July 7, 1992.

9. Defendant Franklin Wireless has infringed the 098 patent, by using, selling and/or

offering to sell, within the United States, and/or by importing into the United States, products,

including, but not limited to, mobile data hot spots and data modems, which embody and/or practice

the claims of the 098 patent in violation of 35 U.S.C. 271.

10. Defendants ZTE and ZTE USA have infringed the 098 patent, by using, selling

and/or offering to sell, within the United States, and/or by importing into the United States, products,

including, but not limited to, mobile data hot spots and data modems, which embody and/or practice

the claims of the 098 patent in violation of 35 U.S.C. 271.

11. Defendants have induced others to infringe the 098 patent in violation of 35 U.S.C

271, by taking active steps to encourage and facilitate others direct infringement of the claims of the

098 patent with knowledge of that infringement, such as, upon information and belief, by

contracting for the distribution of the infringing products for infringing sale such as by retail sales

outlets, by marketing the infringing products, by creating and/or distributing user manuals for the

infringing products, and by supplying warranty coverage for the infringing products sold in this State

and in this District.

12. Defendants have contributorily infringed the 098 patent in violation of 35 U.S.C.

271, by selling within the United States, offering for sale within the United States, and/or importing

components that embody a material part of the inventions described in the claims of the 098 patent,

are known by Defendants to be especially made or specially adapted for use in infringement of the

claims of the 098 patent, and are not staple articles or commodities suitable for substantial, non-

infringing use, including certain modems and non-staple constituent parts of those modems.


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13. Novatel Wireless has put Defendants on notice of the 098 patent and Defendants

infringement thereof, and, upon information and belief, Defendants had actual knowledge of the

098 patent.

14. As a result of Defendants infringement, Novatel Wireless has suffered substantial

damages.

Second Claim for Relief



patent ), entitled Object Oriented Software Architecture For Software Reconfigurable Wireless

Modem a true copy of which is attached hereto as Exhibit 2. The 225 patent was duly and legally

issued on January 8, 2008.

16. Franklin Wireless has infringed and continues to infringe the 225 patent, by using,

selling and/or offering to sell, within the United States, and/or by importing into the United States,

products, including, but not limited to, mobile data hot spots and data modems, which embody

and/or practice the claims of the 225 patent in violation of 35 U.S.C. 271.

17. ZTE and ZTE USA have infringed and continue to infringe the 225 patent, by using,




18. Defendants have induced, and continue to induce, others to infringe the 225 patent in

violation of 35 U.S.C 271, by taking active steps to encourage and facilitate others direct

infringement of the claims of the 225 patent with knowledge of that infringement, such as, upon

information and belief, by contracting for the distribution of the infringing products for infringing

sale such as by retail sales outlets, by marketing the infringing products, by creating and/or

distributing user manuals for the infringing products, and by supplying warranty coverage for the

infringing products sold in this State and in this District.




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225 patent.

21. As a result of Defendants infringement, Novatel Wireless has suffered, and will

continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm unless

Defendants infringement is enjoined by this Court.

Third Claim for Relief



patent ), entitled Systems And Methods For Secure Communication Over A Wireless Network

a true copy of which is attached hereto as Exhibit 3. The 737 patent was duly and legally issued on

August 11, 2009.









25. Defendants have induced, and continue to induce, others to infringe the 737 patent in

violation of 35 U.S.C 271, by taking active steps to encourage and facilitate others direct




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737 patent.

28. As a result of Defendants infringement, Novatel Wireless has suffered, and will

continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm unless

Defendants infringement is enjoined by this Court.

Fourth Claim for Relief



patent ), entitled Systems and Methods For A Multi-Mode Wireless Modem a true copy of

which is attached hereto as Exhibit 4. The 715 patent was duly and legally issued on January 15,

2008.



products, including, but not limited to, data modems, which embody and/or practice the claim s of the

715 patent in violation of 35 U.S.C. 271.

31. Franklin Wireless has induced, and continues to induce, others to infringe the 715

patent in violation of 35 U.S.C 271, by taking active steps to encourage and facilitate others direct



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32. Franklin Wireless has contributorily infringed the 715 patent in violation of 35

U.S.C. 271, by selling within the United States, offering for sale within the United States, and/or

importing components that embody a material part of the inventions described in the claims of the

715 patent, are known by Franklin Wireless to be especially made or specially adapted for use in

infringement of the claims of the 715 patent, and are not staple articles or commodities suitable for

substantial, non-infringing use, including certain modems and non-staple constituent parts of those

modems.

33. Novatel Wireless has put Franklin Wireless on notice of the 715 patent and Franklin

Wireless s infringement thereof, and, upon information and belief, Franklin Wireless had actual

knowledge of the 715 patent.

34. As a result of Franklin Wireless s infringement, Novatel Wireless has suffered, and

will continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm

unless Franklin Wireless s infringement is enjoined by this Court.

Fifth Claim for Relief



patent ), entitled Method and Apparatus for a Software Configurable Wireless Modem

Adaptable for Multiple Modes of Operation a true copy of which is attached hereto as Exhibit 5.

The 556 patent was duly and legally issued on August 31, 2004.



products, including, but not limited to, data modems, which embody and/or practice the claims of the

556 patent in violation of 35 U.S.C. 271.


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37. ZTE and ZTE USA have induced, and continue to induce, others to infringe the 556

patent in violation of 35 U.S.C 271, by taking active steps to encourage and facilitate others direct




distributing user manuals for the infringing products, and by supplying warran ty coverage for the


38. ZTE and ZTE USA have contributorily infringed the 556 patent in violation of 35

U.S.C. 271, by selling within the United States, offering for sale within the United States, and/or

importing components that embody a material part of the inventions described in the claims of the

556 patent, are known by ZTE and ZTE USA to be especially made or specially adapted for use in

infringement of the claims of the 556 patent, and are not staple articles or commodities suitable for

substantial, non-infringing use, including certain modems and non-staple constituent parts of those

modems.

39. Novatel Wireless has put ZTE and ZTE USA on notice of the 556 patent and ZTE s

and ZTE USA s infringement thereof, and, upon information and belief, ZTE and ZTE USA had

actual knowledge of the 556 patent.

40. As a result of ZTE s and ZTE USA s infringement, Novatel Wireless has suffered,

and will continue to suffer, substantial damages. Novatel Wireless will also suffer irreparable harm

unless ZTE and ZTE USA s infringement is enjoined by this Court.

WHEREFORE, Novatel Wireless requests that the Court:

1. Adjudge that Franklin Wireless has infringed the 098 patent and has infringed and

continues to infringe the 715, 225, and 737 patents;

2. Adjudge that ZTE and ZTE USA have infringed the 098 patent and has infringed and

continue to infringe the 225, 737, and 556 patents;

3. Preliminarily and permanently enjoin Franklin Wireless from further infringement of

the 715, 225, and 737 patents;

4. Preliminarily and permanently enjoin ZTE and ZTE USA from further infringement


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of the 225, 737, and 556 patents;

5. Award Novatel Wireless compensatory damages;

6. Award Novatel Wireless enhanced damages of treble its actual damages for willful

infringement;

7. Award Novatel Wireless its costs and reasonable experts fees and attorneys fees;

and

8. Award Novatel Wireless such other relief as the Court deems just and proper.

Dated: December 9, 2010 K&L GATES LLP

By: /s/ Michael J. Bettinger

Michael J. Bettinger

Attorneys for Plaintiffs Novatel Wireless, Inc.and Novatel Wireless Solutions, Inc.


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REQUEST FOR TRIAL BY JURY

Plaintiff claims trial by jury on all issues so triable.

Dated: December 9, 2010 K&L GATES LLP

By: /s/ Michael J. Bettinger

Michael J. Bettinger

Attorneys for Plaintiff Novatel Wireless, Incand Novatel Wireless Solutions, Inc.


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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for tf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comiled. The attorney filing a case should complete the form as follows:

. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official,

oth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thf filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnationhe county of residence of the defendant is the location of the tract of land involved.)

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Novatel MiFi Suit