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MICHAEL A. LADRA, Bar. No. 64307 mike.ladra@lw.com RICHARD G. FRENKEL, Bar No. 204133 rick.frenkel@lw.com LISA K. NGUYEN, Bar No. 244280 lisa.nguyen@lw.com SHONEY A.H. BLAKE, Bar. No. 264981 shoney.blake@lw.com LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 Telephone: (650) 328-4600 Facsimile: (650) 463-2600 KYLE A. VIRGIEN, Bar No. 278747 kyle.virgien@lw.com LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 Facsimile: (415) 395-8095 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION WHATSAPP INC. Plaintiff, v. INTERCARRIER COMMUNICATIONS, LLC Defendants. DEMAND FOR JURY TRIAL COMPLAINT FOR DECLARATORY JUDGMENT CASE NO. 5:13-CV-4272

Plaintiff WhatsApp Inc. (WhatsApp) hereby pleads the following claims for Declaratory Judgment against Defendant Intercarrier Communications, LLC (ICC), and alleges as follows: THE PARTIES 1. WhatsApp is a Delaware corporation, with its principal place of business at 303

Bryant Street, Mountain View, California 94041. 2. On information and belief, ICC is an agent and alter ego of Acacia Research

Group LLC and Acacia Research Corporation. Per ICCs allegations in an earlier litigation 1
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between the parties, ICC is a Texas corporation, having its principal place of business at 6136 Frisco Square Boulevard, Suite 385, Frisco, Texas 75034. According to Texas public records, the sole member of ICC is Acacia Research Group LLC, a Texas corporation having its principal place of business at the same address as ICC. Acacia Research Group LLC is itself a subsidiary of Acacia Research Corporation, a public company comprised of numerous operating subsidiaries that are in the business of monetizing patents. Acacia Research Corporation is a Delaware corporation, with its principal place of business at 500 Newport Center Drive, 7th Floor, Newport Beach, California 92660. JURISDICTION AND VENUE 3. The Court has subject matter jurisdiction over WhatsApps declaratory judgment

claims relating to patent invalidity and non-infringement 28 U.S.C. 1331, 1338(a), 2201 and 2202. 4. On October 26, 2012, ICC sued WhatsApp for infringing United States Patent No.

6,985,748 (the 748 patent) in the United States District Court for the Eastern District of Virginia by using, and/or providing and causing to be used products that provide messaging services, including WhatsApp Messenger. ICC purported to be the owner of all right, title, and interest in the 748 patent, including the right to assert all causes of action arising under that patent and the right to any remedies for infringement of it. 5. On January 25, 2013, WhatsApp moved to dismiss ICCs Eastern District of

Virginia complaint for lack of personal jurisdiction or, in the alternative, to transfer the action to the United States District Court for the Northern District of California. 6. On February 8, 2013, ICC opposed WhatsApps motion to dismiss. In opposing

the section on transfer to the Northern District of California, ICC admitted that the patent infringement action between ICC and WhatsApp could have been brought in the Northern District of California. 7. ICC also sued numerous other companies on the 748 patent in the Eastern

District of Virginia, including Interop Technologies, LLC (Interop) and Glympse, Inc. (Glympse). 2
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8.

On April 18, 2013, ICC stipulated to have its case against Interop transferred to

the United States District Court for the Southern District of Florida, where Interops principal place of business is purportedly located. 9. On August 12, 2013, ICCs case against Glympse was transferred to the United

States District Court for the Western District of Washington, where Glympses principal place of business is purportedly located. 10. On September 13, 2013, the Eastern District of Virginia issued an order

dismissing ICCs complaint against WhatsApp for lack of personal jurisdiction over WhatsApp in Virginia. 11. WhatsApp denies that the 748 patent is infringed through the making, using,

offering for sale, or sale of WhatsApp Messenger or any other WhatsApp product or service. WhatsApp further contends that the 748 patent is invalid. On information and belief, ICC contends that the claims of the 748 patent are valid and continues to contend that WhatsApps products infringe the 748 patent. Under all the circumstances, ICCs infringement allegations and related actions threaten actual and imminent injury to WhatsApp that can be redressed by judicial relief and warrants the issuance of a declaratory judgment. An actual and justiciable controversy exists between WhatsApp and ICC with respect to the 748 patent. 12. On information and belief, ICC has taken intentional and purposeful steps to

enforce the 748 patent against residents of this judicial district including by suing WhatsApp and other companies with principal places of business or operations in this judicial district for infringement of the 748 patent. 13. On information and belief, ICC is an agent and alter ego of Acacia Research

Group LLC and Acacia Research Corporation (Acacia), the latter of which has a principal place of business in California. On information and belief, Acacia is in the business of monetizing patents and its standard business model is to create shell entities to hold patents and assert them against operating entities such as WhatsApp. On information and belief, Acacia often chooses to house these shell entities in locations in the United States in an attempt to generate jurisdiction in a particular location. 3
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14.

On information and belief, Acacia, as part of its role as alter ego for ICC,

performed an investigation of the 748 patent before it acquired the patent from its previous owner, Telecommunication Systems, Inc. On information and belief, Acacia prepared for litigation, performed whatever pre-filing infringement and validity analysis it may have done, if any, and executed the original lawsuits in the Eastern District of Virginia, all while operating primarily from California, and all as part of its status as principal and alter ego of ICC. 15. On information and belief, Acacia is subject to general personal jurisdiction

within this judicial district in light of its substantial, continuous and systematic contacts with California. Acacias principal place of business is in California. Acacia purposefully, systematically, and continuously directs activities in California and in this judicial district, including interactions with inventors and other patent holders in this judicial district, and interactions with operating entities in this judicial district it or its subsidiaries engage with in litigation or licensing activities. 16. As a result of the foregoing allegations, ICC is subject to personal jurisdiction

within this judicial district. 17. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 in that a

substantial part of the acts giving rise to the claim occurred in this judicial district, and because ICC is subject to personal jurisdiction in this judicial district. COUNT I Declaratory Relief Regarding Noninfringement 18. WhatsApp restates and incorporates by reference each of the allegations set forth

in paragraphs 1 through 17 above, as if fully set forth herein. 19. On information and belief, ICC is the owner of all right, title and interest in the

748 patent, including the right to assert all causes of action arising under that patent and the right to any remedies for infringement of it. A true and correct copy of the 748 patent is attached hereto as Exhibit A.

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20.

WhatsApp does not infringe any claim of the 748 patent, directly or indirectly,

contributorily or otherwise, through its or its customers activities in conjunction with WhatsApp Messenger or any other WhatsApp product. 21. As set forth above, an actual and justiciable controversy exists between

WhatsApp and ICC as to WhatsApps non-infringement of the 748 patent. 22. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq.,

WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any theory of infringement, any valid claim of the 748 patent. COUNT II Declaratory Relief Regarding Invalidity 23. WhatsApp restates and incorporates by reference each of the allegations set forth

in paragraphs 1 through 17 and 19 above, as if fully set forth herein. 24. The claims of the 748 patent are invalid for failure to comply with one or more of

the conditions for patentability set forth in Title 35 of the United States Code, including without limitation 35 U.S.C. 101, 102, 103, and/or 112. 25. As set forth above, an actual and justiciable controversy exists between

WhatsApp and ICC as to whether the claims of the 748 Patent are invalid. 26. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq.,

WhatsApp requests that this Court enter a judgment that the claims of the 748 patent are invalid pursuant to Title 35 of the United States Code, including without limitation 35 U.S.C. 101, 102, 103, and/or 112. PRAYER FOR RELIEF WHEREFORE, WhatsApp respectfully prays for judgment in favor of WhatsApp and against ICC, as follows: 1. For a judicial determination and declaration that WhatsApp has not infringed and

is not infringing, directly or indirectly, any claim of the 748 patent; 2. invalid; 5
COMPLAINT FOR DECLARATORY JUDGMENT CASE NO. 5:13-CV-4272

For a judicial determination and declaration that each claim of the 748 patent is

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3.

For injunctive relief against ICC, and all persons acting on its behalf or in concert

with it, restraining them from further prosecuting or instituting any action against WhatsApp or WhatsApps customers claiming that the 748 patent is valid or infringed, or for representing that WhatsApps products or services, or that others use thereof, infringe the 748 patent; 4. For a declaration that this case is exceptional under 35 U.S.C. 285 and for an

award of attorneys fees and costs in this action; and 5. For such other and further relief as this Court may deem just and proper.

DEMAND FOR JURY TRIAL WhatsApp respectfully demands a jury trial in this action on all issues so triable.

Dated: September 15, 2013

LATHAM & WATKINS, LLP

By: /s/ Richard G. Frenkel Michael A. Ladra Richard G. Frenkel Lisa K. Nguyen Shoney A.H. Blake LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 Tel: (650) 328 4600 Kyle A. Virgien LATHAM & WATKINS LLP 505 Montgomery St. Suite 2000 San Francisco, CA 94111 Tel: (415) 646-7879 Attorneys for Plaintiff WHATSAPP INC.

COMPLAINT FOR DECLARATORY JUDGMENT CASE NO. 5:13-CV-4272