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Nathaniel L. Dilger (Bar No. 196203) Email: ndilger@onellp.com Peter R. Afrasiabi (Bar No. 193336) email: pafrasiabi@onellp.com ONE LLP 4000 MacArthur Boulevard West Tower, Suite 1100 Newport Beach, California 92660 Telephone: (949) 502-2870 Facsimile: (949) 258-5081 Attorneys for Plaintiff Calibrait, LLC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CALIBRAIT, LLC, a California limited liability corporation, Plaintiff, v. DEMAND FOR JURY TRIAL APPLE, INC., a California corporation, Defendant. For its Complaint against Apple, Inc. (Apple), Plaintiff Calibrait, LLC (Calibrait) alleges as follows: THE PARTIES 1. Plaintiff Calibrait, LLC (Calbrait) is a limited liability corporation duly Case No. '11CV1759 DMS RBB COMPLAINT FOR PATENT INFRINGEMENT, PERMANENT INJUNCTION AND DAMAGES

organized and existing under the laws of California with its principal place of business at Golden Eagle Business Center, 525 B Street, Suite 1500, San Diego, CA 92101. As alleged below, Calibrait is the owner of all right, title, and interest in U.S. Patent No. 7,447,565.
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1
COMPLAINT

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2.

Defendant Apple, Inc. is a corporation duly organized and existing under the

laws of California, with its principal place of business at 1 Infinite Loop, Cupertino, CA 95014. Apple is in the business of using, making, selling, offering for sale, importing, and distributing mobile devices that incorporate accelerometers, among other components, to persons in the U.S. through physical and electronic channels, including the Internet. JURISDICTION AND VENUE 3. This is a civil action for patent infringement arising under the Patent Act of

the United States, 35 U.S.C. 1 et seq. This court has subject matter jurisdiction of such federal question claims pursuant to 28 U.S.C. 1331 and 1338(a). 4. Venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400(b) in that the

acts and transactions complained of herein were conceived, carried out, made effective, and had effect within the State of California and within this district, among other places. Apple resides in this judicial district by virtue of its state of incorporation and business activities in this district and has committed acts of infringement in this judicial district. U.S. PATENT NO. 7,447,565 5. On November 4, 2008, the United States Patent & Trademark Office duly and

legally issued United States Letters Patent No. 7,447,565 (the 565 Patent), entitled Electronic Alignment System. 6. The 565 patent claims, among other things, an electronic alignment device,

comprising mutually perpendicular accelerometers, that enables a user to field calibrate the accelerometers by providing instructions to a user to position the electronic device to capture a first set of positional data, providing instructions to the user to turn the electronic alignment device 180 degrees to enable the electronic alignment device to capture a second set of positional data, and averaging the first and second sets of captured data. /// /// /// ///
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COMPLAINT

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FIRST CLAIM FOR RELIEF AGAINST DEFENDANT APPLE, INC. FOR DIRECT, CONTRIBUTORY AND INDUCING INFRINGEMENT OF U.S. PATENT NO. 7,447,565 Plaintiff incorporates herein by reference the allegations set forth in

paragraphs 1-7 of the Complaint as though fully set forth herein. 8. A true and correct copy of the 565 Patent is attached as Exhibit A and

incorporated herein by reference. Defendant Apple has, and continues to, make, use, sell, offer for sale, import and/or distribute mobile devices having accelerometers integrated therein, including, but not limited to, iPad, iPad2, iPhone 2G, iPhone 3G/3GS, iPhone 4, and iPod Touch models (collectively, the Apple Products). 9. Apple further has, and continues to, make, use, sell, offer for sale, or otherwise

distribute software programs that enable users to field calibrate the accelerometers in the Apple Products, including, but not limited to, software called Bubble Level (Calibration Software). 10. By making, using, selling, and offering for sale the Apple Products and

Calibration Software, Apple has directly infringed and continues to directly infringe the 565 Patent, including infringement under 35 U.S.C. 271(a) and (f). 11. On information and belief, Apple has also indirectly infringed and continues to

indirectly infringe the 565 Patent by actively inducing direct infringement by other persons who operate methods and systems that embody or otherwise practice one or more of the claims of the 565 Patent when Apple had knowledge of the 565 Patent and knew or should have known that their actions would induce direct infringement by others and intended that their actions would induce direct infringement by others. 12. On information and belief, Apple has also indirectly infringed and continues to

indirectly infringe the 565 Patent by contributory infringement by providing non-staple articles of commerce to others for use in an infringing system or method with knowledge of the 565 Patent and knowledge that these non-staple articles of commerce are used as a material part of the claimed invention of the 565 Patent. 19373.1 3
COMPLAINT

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13.

On information and belief, Apple will continue to infringe the 565 Patent

unless enjoined by this Court. 14. On information and belief, Apples infringement of the 565 Patent is, has

been, and continues to be willful and deliberate. 15. As a direct and proximate result of Apples infringement of the 565 Patent,

Calibrait has been and continues to be damaged in an amount yet to be determined. 16. Unless a preliminary and permanent injunction are issued enjoining Apple

and its officers, agents, servants and employees, and all others acting on their behalf or in concert with Apple, from infringing the 565 Patent, Calibrait will be greatly and irreparably harmed. PRAYER FOR RELIEF WHEREFORE, Plaintiff Calibrait prays for judgment against Defendant Apple as follows: (1) For a judicial determination and declaration that Defendant Apple has directly

infringed, and continues to directly infringe, United States Letters Patent No. 7,447,565; (2) For a judicial determination and declaration that Defendant Apple has induced,

and continues to induce, the infringement of United States Letters Patent No. 7,447,565; (3) For a judicial determination and declaration that Defendant Apple has

contributorily infringed, and continues to contributorily infringe, United States Letters Patent No. 7,447,565; (4) For a judicial determination and decree that Defendant Apples infringement

of United States Letters Patent No. 7,447,565 has been, and continues to be, willful and deliberate; (5) For a judicial determination and decree that Defendant Apple, its respective

subsidiaries, officers, agents, servants, employees, licensees, and all other persons or entities acting or attempting to act in active concert or participation with it or acting on its behalf, be preliminarily and permanently enjoined from further infringement of the 565 Patent;
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COMPLAINT

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(6)

For a declaration that Apple notifies all of its customers and users of the

infringing system and customers participation in the infringement with Apples encouragement, and that Apple encourages customers to cease all such infringing actions; (7) For a judicial decree that orders Defendant Apple to account for and pay to

Calibrait all damages caused to Calibrait by reason of Defendant Apples infringement pursuant to 35 U.S.C. Section 284, including enhanced damages under 35 U.S.C. Section 285; (8) (9) For an award of damages according to proof at trial; For a judicial declaration that this case is exceptional under 35 U.S.C. Section

285 and Defendant Apple be ordered to pay Calibraits costs, expenses, and reasonable attorneys fees pursuant to 35 U.S.C. Sections 284 and 285; (10) For a judicial order awarding to Calibraits pre-judgment and post-judgment interest on the damages caused to it by Defendant Apples infringement; and (11) For any such other and further relief as the Court may deem just and proper under the circumstances.

August 5, 2011

ONE LLP By: /s/ Peter R. Afrasiabi Peter R. Afrasiabi Attorneys for Plaintiff Calibrait, LLC

5
COMPLAINT

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DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial pursuant to Rule 38 of the Federal Rules of Civil Procedure as to all issues in this lawsuit.

August 5, 2011

ONE LLP By: /s/ Peter R. Afrasiabi Peter R. Afrasiabi Attorneys for Plaintiff Calibrait, LLC

6
COMPLAINT

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EXHIBIT A

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2JS 44 (Rev. 12/07)

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CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by 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 the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS CALIBRAIT, LLC, a California limited liability corporation (b) County of Residence of First Listed Plaintiff

DEFENDANTS

APPLE, INC., a California corporation

County of Residence of First Listed Defendant

San Diego

Santa Clara

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Nathaniel L. Dilger, ONE LLP, 4000 MacArthur Blvd., W. Twr., Ste. 1100, Newport Beach, CA 92660 Tel: 949-502-2870 II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff
u 1
U.S. Government Plaintiff

'11CV1759 DMS RBB

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity

(Indicate Citizenship of Parties in Item III)

(For Diversity Cases Only) PTF u 1 Citizen of This State Citizen of Another State

DEF u 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

u 2

U.S. Government Defendant

u 2 u 3

u u

u 5 u 6

u 5 u 6

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT

CONTRACT

(Place an X in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY u 362 Personal Injury Med. Malpractice u 365 Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u u u u u u u u u u u u u u u u u u

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u u u u u u u u u u

u 610 Agriculture u 620 Other Food & Drug u 625 Drug Related Seizure of Property 21 USC 881 u 630 Liquor Laws u 640 R.R. & Truck u 650 Airline Regs. u 660 Occupational Safety/Health u 690 Other LABOR u 710 Fair Labor Standards Act u 720 Labor/Mgmt. Relations u 730 Labor/Mgmt.Reporting & Disclosure Act u 740 Railway Labor Act u 790 Other Labor Litigation u 791 Empl. Ret. Inc. Security Act
IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee u 465 Other Immigration Actions

u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157

PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

u u u u u u u u u u u u u u u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRSThird Party 26 USC 7609

u u u u u

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN

u 1 Original Proceeding

u 2 Removed from
State Court

(Place an X in One Box Only)

Appeal to District Appellate Court

u 3 Remanded from

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict another district Reopened Litigation (specify)

u 7 Judge from Magistrate

Judgment

35 U.S.C. 1, et seq. VI. CAUSE OF ACTION Brief description of cause: Patent Infringement DEMAND $ u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 10,000,000.00 COMPLAINT:
VIII. RELATED CASE(S) IF ANY
DATE (See instructions):

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

CHECK YES only if demanded in complaint: Yes u u No JURY DEMAND: DOCKET NUMBER

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

08/05/2011
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/Peter R. Afrasiabi

APPLYING IFP

JUDGE

MAG. JUDGE