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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
THE MATHWORKS, INC.,
Plaintiff,
v.
ACCELEREYES LLC, AMAX INFORMATION TECHNOLOGIES, INC., AMAX ENGINEERING CORPORATION, FEDERAL EDGE, INC., AND PADOVA TECHNOLOGIES, INC.
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) )
Civil Case No. 6:11-cv-00354-MHS
DEFENDANT ACCELEREYES’ FIRST AMENDED ANSWER TO MATHWORKS’
COMPLAINT, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS
Defendant and Counterclaimant AccelerEyes LLC (“AccelerEyes”), by its attorneys,
DLA Piper, LLP (US) hereby submits an Answer and Counterclaims to Plaintiff and Counter
defendant The Mathworks, Inc.’s (“Mathworks”) Complaint for Copyright Infringement (the
“Complaint”) as follows:
THE PARTIES
1. Plaintiff MathWorks is a Delaware corporation with its principal place of business
at 3 Apple Hill Drive, Natick, Massachusetts 01760-2098.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 1 of the Complaint and, therefore, denies those allegations.
2. On information and belief, Defendant AccelerEyes is a corporation organized
under the laws of the State of Georgia. On information and belief, AccelerEyes’ principal place
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of business is located at 75 5th Street N.W., Suite 204, Atlanta, Georgia 30308. On information
and belief, AccelerEyes develops and manufactures software products, including Jacket,
libJacket, Jacket Mobile NDK, various add-on libraries, and various add-on products. These
add-on libraries include Jacket Sparse Linear Algebra (“SLA”), Jacket Double Precision Linear
Algebra (“DLA”), Image Processing library, Signal Processing library, Statistics library, and
Graphics library (collectively, “Add-On Libraries”). These add-on products include Jacket
MGL, Jacket HPC, Jacket JMC, and Jacket SDK (collectively, “Add-On Products”). On
information and belief, AccelerEyes offers for sale, sells, copies, distributes and otherwise
markets, in this district and elsewhere in the United States, software products, including Jacket,
libJacket, Jacket Mobile NDK, the Add-On Products, and the Add-On Libraries.
ANSWER: AccelerEyes admits that it develops and manufactures products referred to
as Jacket, Jacket Sparse Linear Algebra (“SLA”), Jacket Double Precision Linear
Algebra (“DLA”), Jacket MGL, Jacket HPC, Jacket JMC, and Jacket SDK. AccelerEyes
admits that it has sold products in this Judicial District and elsewhere in the United
States. AccelerEyes denies the remaining allegations contained in Paragraph 2 of the
Complaint.
3. On information and belief, Defendant AMAX Engineering is a corporation
organized under the laws of the State of California. On information and belief, AMAX
Engineering’s principal place of business is located at 1565 Reliance Way, Fremont, California
94539. On information and belief, AMAX Engineering also has offices at 850 North Dorothy,
Suite 516, Richardson, Texas 75081.
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ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 3 of the Complaint and, therefore, denies those allegations.
4. On information and belief, Defendant AMAX Information Technologies, Inc.
(“AMAX Information”) is a corporation organized under the laws of the State of California. On
information and belief, AMAX Information’s principal place of business is located at 1565
Reliance Way, Fremont, California 94539.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 4 of the Complaint and, therefore, denies those allegations
5. On information and belief, AMAX Engineering and AMAX Information (jointly
“AMAX”) offer for sale, sell, copy, distribute and otherwise market, in this district and
elsewhere in the United States, software products developed and manufactured by AccelerEyes,
including Jacket, libJacket, various add-on products such as Jacket SDK, and various add-on
libraries such as Jacket DLA.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 5 of the Complaint and, therefore, denies those allegations.
6. On information and belief, Defendant FedEdge is a corporation organized under
the laws of the State of California. On information and belief, FedEdge’s principal place of
business is located at 14427 Meridian Parkway, Riverside, California 92518.
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ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 6 of the Complaint and, therefore, denies those allegations.
7. On information and belief, FedEdge offers for sale, sells, copies, distributes and
otherwise markets, in this district and elsewhere in the United States, software products
developed and manufactured by AccelerEyes, including Jacket, various add-on products such as
Jacket MGL, and various add-on libraries such as Graphics library.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 7 of the Complaint and, therefore, denies those allegations.
8. On information and belief, Defendant Padova is a corporation organized under the
laws of the State of Maryland. On information and belief, Padova’s principal place of business is
located at 1797H Cromwell Park Drive, Glen Burnie Maryland 21061. On information and
belief, Padova also has offices in Dallas, Texas.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 8 of the Complaint and, therefore, denies those allegations.
9. On information and belief, Padova sells, offers for sale, copies, distributes and
otherwise markets, in this district and elsewhere in the United States, software products
developed and manufactured by AccelerEyes, Jacket, various add-on products such as Jacket
MG, Jacket SDK and Jacket JMC, and various add-on libraries such as Jacket SLA and Jacket
DLA.
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ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 9 of the Complaint and, therefore, denies those allegations.
10. On information and belief, AMAX, FedEdge, and Padova (jointly, “Reseller
Defendants”), resell, offer for sale, copy and distribute software products developed and
manufactured by AccelerEyes, including Jacket, add-on products, and add-on libraries,
throughout the United States.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 10 of the Complaint and, therefore, denies those allegation.
JURISDICTION AND VENUE
11. This is a civil action for copyright infringement arising under the copyright laws
of the United States, Title XVII of the United States Code. Accordingly, this Court has subject
matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.
ANSWER: Paragraph 11 contains legal assertions to which no response is required. To
the extent that the allegations contained in Paragraph 11 require a response, AccelerEyes
denies those allegations.
12. Personal jurisdiction exists generally over Defendant AccelerEyes and Reseller
Defendants because AccelerEyes and Reseller Defendants have purposely established minimum
contacts with this forum as a result of business conducted within the State of Texas and within
this district and specifically as a result of, at least, the Defendants’ distribution networks wherein
Defendants offer for sale, sell, market, distribute and place products that infringe MathWorks’
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copyrights within the stream of commerce, which stream is directed at Texas and this district,
and by committing the tort of copyright infringement within Texas and this district. Further,
Defendants have purposefully directed activities toward the State of Texas, including the offer
for sale, sale, distribution and marketing of products that infringe MathWorks’ copyrights within
the State of Texas and this district.
ANSWER: Paragraph 12 contains legal assertions to which no response is required. To
the extent that the allegations contained in Paragraph 12 require a response, AccelerEyes
denies those allegations.
13. Venue is proper in this district under 28 U.S.C. §§ 1391 and 1400.
ANSWER: Paragraph 13 contains legal assertions to which no response is required. To
the extent that the allegations contained in Paragraph 13 require a response, AccelerEyes
denies those allegations.
FACTUAL BACKGROUND
14. MathWorks is a leading developer of mathematical computing software that is
used by engineers and scientists worldwide to accelerate the pace of discovery, innovation, and
development. Founded in 1984, MathWorks creates software for technical computing and
model-based design for engineers, scientists, mathematicians, and researchers. MathWorks’ core
products include its MATLAB® computer software.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 14 of the Complaint and, therefore, denies those allegations.
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15. MATLAB® is a computer program that provides an environment for algorithm
development, data analysis, visualization, and numeric computation. MathWorks develops and
markets MATLAB® as “the language of technical computing,” a proprietary, high-level
computer programming language and interactive environment that enables a user to perform
computationally intensive tasks faster than through the use of traditional programming languages
such as C, C++, and Fortran.
ANSWER: AccelerEyes admits that Mathworks develops and markets MATLAB®.
AccelerEyes lacks knowledge or information sufficient to admit or deny the other
allegations in Paragraph 15 of the Complaint and, therefore, denies those allegations.
16. MATLAB® is a popular software tool for engineering and scientific work used
by over a million of the world’s leading technical people, in over 100 countries, who work at the
world’s most innovative technology companies, government research labs, financial institutions,
and at more than 3,500 universities. MathWorks also offers add-on toolboxes (collections of
special-purpose MATLAB® functions) to extend the MATLAB® environment to solve
particular classes of problems in different application areas. The toolboxes provide application-
specific numerical, analysis, and graphical functions. MathWorks’ Toolboxes include, among
others, the Image Processing Toolbox, the Statistics Toolbox, and the Signal Processing
Toolbox.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 16 of the Complaint and, therefore, denies those allegations.
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17. MATLAB® and MathWorks’ Toolboxes provide engineers, scientists,
mathematicians, and educators with a powerful set of tools. These products serve a broad range
of tasks across a variety of industries from biotech and pharmaceutical to communications,
energy production, financial services and industrial automation. For example, MathWorks’
customers have used MATLAB® to develop a tool that enables doctors to assess the depth and
severity of burn injuries, allowing them to treat threatened tissue while there is still time to save
it; to predict losses from potential natural disasters; to enhance performance, reduce costs, and
improve manufacturing of fuel cells; to predict a breast cancer patient’s clinical outcome based
on the gene expression profile of the primary tumor; and to improve the safety of oil exploration
by improving the ability to monitor explosions that perforate the well bore.
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 17 of the Complaint and, therefore, denies those allegations.
18. Over the years, MathWorks’ products have received substantial recognition in the
form of industry awards and accolades. For example, EDN, a magazine published for engineers
and focused on electronic design technologies, has recognized MathWorks’ products as “Top
Software” products, “Hot Products,” and top “Innovative” products on separate occasions.
Scientific Computing Magazine has also recognized MathWorks’ products with variety of
awards over the years. Automotive Engineering International has also recognized MathWorks’
products as a “Top Product.” MATLAB® has also received choice awards from the readers of
NASA Tech Briefs and Scientific Computing & Automation, and the editors of Microwaves &
RF.
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ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 18 of the Complaint and, therefore, denies those allegations.
19. According to AccelerEyes’ website, www.accelereyes.com, AccelerEyes provides
“MATLAB GPU Computing.” On wiki.accelereyes.com, AccelerEyes advertises that:
Jacket enables developers to write and run code on the GPU in the native M language used in MATLAB. Jacket accomplishes this by automatically wrapping the M language into a GPU compatible form. By simply casting input data to Jacket’s GPU data structure, MATLAB functions are transformed into GPU functions. Jacket also preserves the interpretive nature of the M language by providing realtime, transparent access to the GPU compiler.
ANSWER: AccelerEyes denies the allegations contained in Paragraph 19 of the
Complaint.
20. AccelerEyes advertises that “JACKET is a MATLAB® library for GPU
computing.” (http://wiki.accelereyes.com/wiki/index.php/Category:JACKET). In presentations,
AccelerEyes has touted that “Jacket combines the speed of CUDA and the graphics of the GPU
with the user friendliness of MATLAB.” AccelerEyes states that:
Jacket was initially launched in 2007 as a MATLAB accelerator and has become the fastest, broadest GPU computing platform adopted widely by MATLAB programmers. In conjunction with the Jacket 1.5 release in Sep 2010, AccelerEyes began releasing LIBJACKET to enable C/C++ applications to benefit from the core technology that has heretofore been available only to MATLAB programmers.
http://wiki.accelereyes.com/wiki/index.php?title=LIBJACKET&oldid=10710.
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ANSWER: AccelerEyes admits that it has hosted web content and made presentations
that provide descriptions of Jacket as it relates to MATLAB. AccelerEyes denies the
other allegations contained in Paragraph 20 of the Complaint.
21. Upon information and belief, AccelerEyes developed Jacket, libJacket, Jacket
Mobile NDK and Add-On Libraries by copying MathWorks’ MATLAB® product and
associated MATLAB® Toolboxes. Upon information and belief, AccelerEyes based decisions
about which MATLAB® and associated MATLAB® Toolbox functions to include in its
products after surveying users about which MATLAB® functions they used or relied upon.
ANSWER: AccelerEyes denies the allegations contained in Paragraph 21 of the
Complaint.
22. Upon information and belief, AMAX markets, distributes and sells AccelerEyes’
software throughout the United States, including in this judicial district, including Jacket,
libJacket, and various add-on libraries such as Jacket DLA. On its website, www.amax.com,
AMAX markets AccelerEyes’ Jacket product as “a popular method for accelerating MATLAB
code on the GPU.” AMAX also markets AccelerEyes’ libJacket software, claiming that: “ After
achieving success with the fast MATLAB prototypes, Jacket programmers can also use
LIBJACKET to achieve high-level acceleration directly in C/C++.”
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 22 of the Complaint and, therefore, denies those allegations.
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23. Upon information and belief, FedEdge markets, distributes and sells AccelerEyes’
software throughout the United States, including in this judicial district, including Jacket and
various add-on libraries such as Graphics library. On their website, www.federaledge.com,
FedEdge markets AccelerEyes’ Jacket software as a “combination of rapid application
development with very high level languages, such as the M language of MATLAB® ... changes
the landscape for technical and analytical computing.”
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 23 of the Complaint and, therefore, denies those allegations.
24. Upon information and belief, Padova markets, distributes and sells AccelerEyes’
software throughout the United States, including in this judicial district, including Jacket and
various add-on libraries such as Jacket SLA and Jacket DLA. On its website,
www.padovatech.com, Padova markets that “MATLAB Acceleration [is] Made Easy with
Jacket” and states that Padova “offer[s] the unmatched Jacket, a GPU engine for MATLAB
enabling standard MATLAB code to run on the GPU - connecting the user-friendliness of
MATLAB directly to the speed and visual computing of the GPU.”
ANSWER: AccelerEyes lacks knowledge or information sufficient to admit or deny the
allegations in Paragraph 24 of the Complaint and, therefore, denies those allegations.
COUNT I COPYRIGHT INFRINGEMENT – 17 U.S.C. § 106
25. Plaintiff incorporates by reference each of the allegations contained in the
foregoing paragraphs 1-24.
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ANSWER: AccelerEyes repeats and incorporates by reference its answers to each of
the preceding Paragraphs 1-24 as though fully set forth herein.
26. MathWorks has registered MATLAB® in compliance with the Federal Copyright
Laws. MathWorks has also registered various MATLAB® Toolboxes in compliance with the
Federal Copyright Laws, including the Image Processing Toolbox, Statistics Toolbox, and the
Signal Processing Toolbox. MathWorks is the owner of all right, title and interest to the
copyright registrations for MATLAB®, Image Processing Toolbox, Statistics Toolbox, and the
Signal Processing Toolbox (collectively, “the Copyrighted Software”). The relevant copyright
registration numbers include but are not limited to TX 1-625-488; TX 5-619-564; TX 6-290-220;
TX 7-347-461; TX 7-347-459; TX 7-347-456; TX 7-347-457; and TX 7-364-764. Copies of
these registrations are attached as Exhibits A-H hereto.
ANSWER: AccelerEyes admits that Exhibits A - H purport to be copyright registrations
issued to The MathWorks, Inc. AccelerEyes denies the allegation that any of the
copyright registrations alleged in Paragraph 26 were duly and lawfully issued.
AccelerEyes is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in Paragraph 26, and, therefore, denies such
allegations.
27. In compliance with Copyright Regulations, MathWorks filed with the Copyright
Office a copyright application, the registration fee, and a deposit of the works being registered.
The effective date of a copyright registration is the day on which an application, deposit, and fee
have all been received in the Copyright Office. 17 U.S.C. § 410(d).
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ANSWER: AccelerEyes admits that 17 U.S.C. §410(d) states that the effective date of a
copyright registration is the day on which an application, deposit, and fee have all been
received in the Copyright Office. AccelerEyes is without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations contained in
Paragraph 27, and, therefore, denies such allegations.
28. The Copyrighted Software are original works of authorship and comprise
copyrightable subject matter under the copyright laws of the United States, 17 U.S.C. §§ 101 et.
seq. MathWorks has complied in all respects with the laws governing copyright including, for
example, marking and has secured the exclusive rights and privileges in, to, and under the
copyrights in the Copyrighted Software.
ANSWER: AccelerEyes denies that The Copyrighted Software referenced in Paragraph
28, including at least MATLAB®, Image Processing Toolbox, Statistics Toolbox, and the
Signal Processing Toolbox, are original works of authorship and comprise copyrightable
subject matter material. AccelerEyes is without knowledge or information sufficient to
form a belief as to the truth of the remaining allegations contained in Paragraph 28, and,
therefore, denies such allegations.
29. As the owner of the Copyrighted Software, MathWorks enjoys the exclusive right
to, among other things, reproduce the Copyrighted Software, prepare derivative works based
upon the Copyrighted Software, and distribute copies of the Copyrighted Software. 17 U.S.C.
§§ 101, 106.
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ANSWER: AccelerEyes denies the allegations contained in Paragraph 29 of the
Complaint.
30. The AccelerEyes software, including Jacket, libJacket, Jacket Mobile NDK, and
Add-On Libraries, being offered for sale, sold, copied and distributed by AccelerEyes and the
Reseller Defendants (“the Accused Software”) infringe MathWorks’ copyrights in the
Copyrighted Software.
ANSWER: AccelerEyes denies the allegations contained in Paragraph 30 of the
Complaint.
31. At all times relevant hereto, AccelerEyes has been aware or should have been
aware of the existence of MathWorks’ copyrights in the Copyrighted Software and, therefore,
AccelerEyes is a willful infringer of MathWorks’ copyrights.
ANSWER: AccelerEyes denies the allegations contained in Paragraph 31 of the
Complaint.
32. The infringement of MathWorks’ copyrights by AccelerEyes and Reseller
Defendants will cause imminent harm to MathWorks’ reputation and goodwill unless restrained
by this Court. AccelerEyes’ and Reseller Defendants’ infringement will irreparably harm
MathWorks’ business and deprive it of a competitive advantage. MathWorks has no adequate
remedy at law for AccelerEyes’ and Reseller Defendants’ infringement. MathWorks has a
substantial likelihood of success on the merits with respect to copyright infringement and the
injury faced by MathWorks substantially outweighs the injury that would be sustained by
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AccelerEyes and/or Reseller Defendants as a result of granting injunctive relief. Furthermore,
granting injunctive relief on the basis of AccelerEyes’s and Reseller Defendants’ copyright
infringement would not adversely affect public policy or public interest.
ANSWER: To the extent this Paragraph is directed to Defendant AccelerEyes,
AccelerEyes denies the allegations contained in Paragraph 32 of the Complaint.
JURY DEMAND
33. MathWorks requests a trial by jury on all issues so triable.
ANSWER: Paragraph 33 is a request of the Court to which no answer is required.
ACCELEREYES’ AFFIRMATIVE DEFENSES
In addition to the defenses described below, AccelerEyes specifically reserves the right to
assert additional defenses as they become known over the course of discovery. The assertion of
additional defenses is not a concession that AccelerEyes has the burden of proving the matter
asserted.
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
MathWorks is not entitled to maintain this suit or to assert infringement by AccelerEyes
by reason of estoppel by laches. AccelerEyes has relied to its detriment upon MathWorks’
acquiescence and delay.
THIRD AFFIRMATIVE DEFENSE
MathWorks is not entitled to maintain this suit or to assert infringement by AccelerEyes
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by reason of estoppel by acquiescence. AccelerEyes has relied to its detriment upon
MathWorks’ acquiescence and delay.
FOURTH AFFIRMATIVE DEFENSE
MathWorks’ claims are barred by unclean hands and/or copyright misuse.
FIFTH AFFIRMATIVE DEFENSE
Any allegedly infringing reproduction, dissemination, display, sale or other use of the
material alleged herein was made pursuant to permission and/or an implied license granted by
MathWorks to AccelerEyes and is therefore not an infringement of any rights that MathWorks
may claim in those materials.
SIXTH AFFIRMATIVE DEFENSE
To the extent that MathWorks seeks to recover for alleged acts or incidents occurring
prior to the applicable limitations period under 17 U.S.C. Section 507(b), its claim and all relief
sought is barred.
SEVENTH AFFIRMATIVE DEFENSE
MathWorks has abandoned any copyrights asserted herein and relinquished copyright
protection in alleged material by encouraging Defendants and others to freely use the material
alleged herein.
EIGHTH AFFIRMATIVE DEFENSE
MathWorks’ claims are barred, precluded and/or limited because of the doctrine of
merger.
ACCELEREYES’ COUNTERCLAIMS
With respect to AccelerEyes’ Counterclaims, AccelerEyes alleges as follows:
THE PARTIES
1. Defendant and Counterclaimant AccelerEyes is a corporation organized under the
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laws of the State of Georgia with its principal place of business in Atlanta, Georgia.
2. Upon information and belief, and upon MathWorks’ complaint, Plaintiff and
Counter Defendant MathWorks is a Delaware corporation with its principal place of business in
Natick, Massachusetts.
JURISDICTION AND VENUE
3. On July 9, 2011, MathWorks filed a Complaint against AccelerEyes seeking, inter
alia, a judgment that AccelerEyes has infringed MathWorks’ copyrights, and AccelerEyes has
denied those allegations. An active, ripe, and justiciable controversy exists between MathWorks
and AccelerEyes regarding the alleged infringement of these copyrights, and other ancillary
matters related thereto.
4. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. § 1332.
5. This Court has personal jurisdiction over MathWorks because MathWorks is the
Plaintiff in this action, and has voluntarily submitted to this Court’s jurisdiction.
6. This Court is a proper venue for this action because MathWorks has voluntarily
submitted to this Court’s jurisdiction, resides in this district, and pursuant to 28 U.S.C. § 1391.
AccelerEyes reserves the right to move to transfer this case to a more convenient venue pursuant
to 28 U.S.C. § 1404.
FACTUAL BACKGROUND
7. AccelerEyes is an innovative startup company specializing in the development of
programming tools for parallel programming and visual computing on complicated graphics
processing unit (GPU) chipsets. Founded in 2007, AccelerEyes has created software to improve
the efficiency of technical computing and model-based designs. AccelerEyes’ core products
include its Jacket® computer software (“Jacket”).
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8. Jacket is a computer program which interoperates with MathWorks’ MATLAB
language and enables users to perform computationally intensive tasks in MATLAB faster and
more efficiently through the use of the available GPU chipset.
9. MathWorks and AccelerEyes first had contact in May of 2008. At or around this
time, AccelerEyes apprised MathWorks of its Jacket project, and MathWorks encouraged
AccelerEyes to join its Connections Program. The MathWorks Connections Program includes
more than 400 commercially-available third-party products and services based on MATLAB and
Simulink that address technical needs across a wide range of applications and industries.
10. AccelerEyes submitted an application to join the partner program in May 2008,
and was accepted. From September 2008 to September 2010, AccelerEyes was a member of the
MathWorks Connections Program.
11. During the two years AccelerEyes participated in the Connections Program,
MathWorks licensed Jacket software from AccelerEyes and encouraged AccelerEyes’ progress
and development. MathWorks encouraged distribution of AccelerEyes’ Jacket software because
it assisted MathWorks in selling and making its MATLAB®, Parallel Computing ToolboxTM,
Distributed Computing ServerTM, Signal Processing ToolboxTM, Image Processing ToolboxTM,
Statistics ToolboxTM, and other products more marketable and profitable.
12. Representatives of AccelerEyes and MathWorks first met face-to-face on or about
February 10, 2009, at MathWorks’ headquarters in Natick, Massachusetts, and the parties
engaged in discussions to better understand each other’s product offerings and cultivate future
business opportunities. It was agreed and understood by the parties at the beginning of the
meeting that the discussions and information conveyed therein would be maintained as
confidential and not used, and AccelerEyes relied on this agreement and understanding. Based
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on this agreement and understanding from MathWorks, AccelerEyes conveyed significantly
more information regarding Jacket structure and function than it had made available publically,
including Jacket architecture and business slides with a confidentiality designations, and
descriptions of GFOR technology, how Jacket uses caching to improve GPU performance, and
techniques for integrating NVIDIA toolchains with the MATLAB environment.
13. With this information in hand and having observed the growing appeal of
AccelerEyes’ Jacket solution in the technical computing marketplace, MathWorks became
interested in a potential acquisition of AccelerEyes. After preliminary acquisition discussions in
September and early October, 2009, the parties convened again in Natick, Massachusetts on or
about October 15, 2009 to discuss the potential acquisition and additional technical details of
Jacket. It was agreed and understood at that meeting that the discussions and information
conveyed therein would be maintained as confidential and not used, and AccelerEyes relied on
this agreement and understanding. Based on this agreement and understanding from
MathWorks, AccelerEyes conveyed additional confidential information regarding Jacket
structure and function, including how Jacket uses PTX files to optimize performance, how Jacket
uses caching to improve GPU performance, GFOR descriptions, techniques for optimizing
CUDA kernels, and techniques for integrating NVIDIA toolchains with the MATLAB
environment.
14. AccelerEyes’ confidential and proprietary information conveyed at these meetings
was not generally known to the public or readily ascertainable and had independent economic
value, and provided AccelerEyes with a significant commercial advantage over would-be
competitors. AccelerEyes spent significant time and effort developing the trade secrets and
confidential business information enumerated above since its founding.
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15. AccelerEyes has taken and continues to take steps to maintain and protect its
confidential information and trade secrets, including those contained in the Jacket product. Its
efforts include, without limitation, requiring employees (including its founders) to sign
confidentiality and non-solicitation agreements, limiting physical access to AccelerEyes facilities
through extensive security devices, limiting electronic access to the AccelerEyes computer code,
limiting access to the trade secrets and confidential business information through the use of
confidentiality agreements, and securely storing and archiving AccelerEyes computer code and
documentation. The trade secrets and confidential business information identified above have
been in continued use by AccelerEyes.
16. MathWorks abruptly terminated acquisition discussions following the October,
2009 meeting. AccelerEyes subsequently learned that MathWorks developed its own competing
MATLAB add-on computer program purporting to enable users to improve the efficiency of
MATLAB through the use of the available GPU chipset, and integrated that offering into its
Parallel Computing Toolbox. On information and belief, MathWorks integrated, relied upon
and/or utilized the confidential information and trade secrets conveyed by AccelerEyes in these
2009 meetings in its competing offering, which was released in or about September 2010. At or
about that time, AccelerEyes was terminated from the MathWorks’ Connections Program.
17. On information and belief, MathWorks leveraged the prospect of acquiring
AccelerEyes to induce AccelerEyes’ officers and employees to convey trade secrets and
confidential business information which MathWorks could deploy to its benefit.
18. As a result of MathWorks’ misappropriation and use of AccelerEyes’ trade
secrets and confidential business information, AccelerEyes has been damaged, and has suffered
irreparable harm not compensable by money damages.
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19. AccelerEyes is entitled to preliminary and permanent injunctive relief prohibiting
MathWorks, its respective officers, agents, servants, and employees, and those people in active
concert or participation with them from using its confidential business information and trade
secrets in its product offerings.
COUNT I
MISAPPROPRIATION OF TRADE SECRETS (M.G.L. C. 93, § 42 AND COMMON LAW)
20. AccelerEyes realleges and incorporates by reference the allegations of the
paragraphs 1-19 of the counterclaims, inclusive, as if fully set forth herein.
21. This Count is an action for misappropriation of trade secrets under Massachusetts
Gen. Laws ch. 93 §§ 42 and 42A and common law.
22. MathWorks, through its employees, gained access to AccelerEyes’ confidential
business information and trade secrets through improper means, including at the meetings as set
forth above.
23. MathWorks owed to AccelerEyes a duty not to use AccelerEyes’ confidential
information and trade secrets for any purposes other than the cultivation of business
opportunities for the parties, collaboration and potential acquisition of AccelerEyes.
24. MathWorks breached this duty by using AccelerEyes’ confidential information
and trade secrets to develop at least the GPU computing capability of MathWorks’ Parallel
Computing Toolbox product.
25. MathWorks unlawfully took AccelerEyes’ confidential information and trade
secrets with the intent to use them to develop at least the GPU computing capability of its
Parallel Computing Toolbox product, thereby converting the confidential information and trade
secrets to their own use.
26. As a result of MathWorks’ misappropriation of confidential information and trade
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secrets and release of a competing product offering, AccelerEyes and its Jacket product have
been damaged.
27. If MathWorks is permitted to continue to create and sell products incorporating
AccelerEyes’ trade secrets and confidential business information, including at least the Parallel
Computing Toolbox, AccelerEyes will be irreparably harmed, and is accordingly entitled to
preliminary and permanent injunctive relief against MathWorks, its respective officers, agents,
servants, and employees, and those people in active concert or participation with them.
COUNT II
UNFAIR AND DECEPTIVE ACTS AND PRACTICES (M.G.L. C. 93A)
28. AccelerEyes realleges and incorporates by reference the allegations of paragraphs
1-27 of the counterclaims, inclusive, as if fully set forth herein.
29. At all material times herein, both MathWorks and AccelerEyes have been
engaged in trade or commerce in the Commonwealth of Massachusetts.
30. The acts and transactions complained of herein occurred primarily and
substantially within the Commonwealth of Massachusetts.
31. The conduct of MathWorks as alleged herein constitutes unfair competition and
unfair or deceptive acts and practices within the Commonwealth of Massachusetts which has
damaged AccelerEyes, in violation of Sections 2 and 11 of Chapter 93A of the General Laws of
the Commonwealth of Massachusetts. MathWorks’ violations were knowing and willful,
entitling AccelerEyes to an award of treble damages.
32. As a result of MathWorks’ violations, AccelerEyes is also entitled to an award of
attorneys’ fees and costs under M.G.L. c. 93A, § 11, and preliminary and permanent injunctive
relief to prevent further irreparable harm.
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COUNT III
BREACH OF CONTRACT
33. AccelerEyes realleges and incorporates by reference the allegations of paragraphs
1-32 of the counterclaims, inclusive, as if fully set forth herein.
34. Under the agreement and understanding between MathWorks and AccelerEyes,
MathWorks was contractually obligated not to use AccelerEyes’ trade secrets and confidential
information for any purposes other than the cultivation of business opportunities for the parties,
collaboration and potential acquisition of AccelerEyes.
35. By using AccelerEyes’ confidential information and trade secrets to develop at
least the GPU computing capabilities of the Parallel Computing Toolbox, MathWorks breached
its contractual obligations.
36. As a result of the breach of contract, AccelerEyes and its Jacket product have
been damaged.
37. If MathWorks is permitted to continue to create and sell products incorporating
AccelerEyes’ trade secrets and confidential business information, including at least the Parallel
Computing Toolbox, AccelerEyes will be irreparably harmed, and is accordingly entitled to
preliminary and permanent injunctive relief against MathWorks, its respective officers, agents,
servants, and employees, and those people in active concert or participation with them.
COUNT IV
PROMISSORY ESTOPPEL
38. AccelerEyes realleges and incorporates by reference the allegations of paragraphs
1-37 of the counterclaims, inclusive, as if fully set forth herein.
39. In order to obtain nonpublic information regarding the structure and function of
Jacket, MathWorks agreed to maintain it in confidence and acknowledged its confidential nature
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so as to induce action or forbearance of a definite and substantial character on the part of
AccelerEyes.
40. AccelerEyes was in MathWorks’ Connections Program at the time and reasonably
relied on these actions and acknowledgements on the part of MathWorks to its detriment when it
conveyed to MathWorks the trade secrets and confidential business information set forth above.
41. As a result of the breach of contract, AccelerEyes and its Jacket product have
been damaged, and injustice can only be avoided by virtue of enforcing the aforementioned
promises.
42. If MathWorks is permitted to continue to create and sell products incorporating
AccelerEyes’ trade secrets and confidential business information, including at least the Parallel
Computing Toolbox, AccelerEyes will be irreparably harmed, and is accordingly entitled to
preliminary and permanent injunctive relief against MathWorks, its officers, agents, servants,
and employees, and those people in active concert or participation with them.
COUNT V
UNJUST ENRICHMENT
43. AccelerEyes realleges and incorporates by reference the allegations of paragraphs
1-42 of the counterclaims, inclusive, as if fully set forth herein.
44. MathWorks was unjustly enriched by its unlawful and unauthorized exploitation
of AccelerEyes’ confidential and trade secret information, which MathWorks used in its
development of at least the GPU computing capabilities of the Parallel Computing Toolbox.
45. MathWorks appreciated the benefit of the information being conveyed by
AccelerEyes and indeed sought it out.
46. Under the circumstances described herein, it would be inequitable and unfair to
permit MathWorks to retain the benefit of the proceeds derived from MathWorks’ exploitation of
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AccelerEyes’ confidential and trade secret information without compensating AccelerEyes for
such benefit.
47. As a result of MathWorks’ unjust enrichment, AccelerEyes and its Jacket product
have been damaged.
48. If MathWorks is permitted to continue to create and sell products incorporating
AccelerEyes’ trade secrets and confidential business information, including at least the Parallel
Computing Toolbox, AccelerEyes will be irreparably harmed, and is accordingly entitled to
preliminary and permanent injunctive relief against MathWorks, its officers, agents, servants,
and employees, and those people in active concert or participation with them.
WHEREFORE, counter claimant AccelerEyes, Inc., prays that this Court:
A. Dismiss MathWorks’ Complaint with prejudice and order that MathWorks is
entitled to no recovery on the Complaint;
B. Award AccelerEyes damages resulting from MathWorks’ misappropriation of
trade secrets, unfair competition and unfair and deceptive acts and practices, breach of
contract, and promissory estoppel;
C. Award AccelerEyes restitution for MathWorks’ unjust enrichment;
D. Increase the damages award for misappropriation of trade secrets by a factor of
two pursuant to Mass. Gen. Laws ch. 93 § 42;
E. Increase the damages award for unfair competition and unfair or deceptive acts or
trade practices by a factor of three pursuant to Mass. Gen. Laws ch. 93A § 11, and award
AccelerEyes its attorneys’ fees and costs;
F. Enjoin MathWorks, its officers, agents, servants, and employees, and those in
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active concert and participation with them who receive actual notice of the Court’s order,
from any further manufacture, distribution, or sale of the Parallel Computing Toolbox
including the GPU computing capabilities;
G. Enjoin MathWorks, its officers, agents, servants, and employees, and those in
active concert and participation with them who receive actual notice of the Court’s order,
from any further use, disclosure, or copying of AccelerEyes’ confidential information and
trade secrets, and compel MathWorks to destroy any materials in its possession which
disclose, include, or reflect AccelerEyes’ confidential information, and trade secrets;
H. Award AccelerEyes pre- and post-judgment interest on any recovery; and
I. Award AccelerEyes such other and further relief to which it may be justly
entitled.
JURY DEMAND
AccelerEyes hereby demands a jury trial on all claims, defenses and counterclaims so
triable.
Dated: September 22, 2011 Respectfully submitted,
By: /s/ John M. Guaragna John M. Guaragna Henning Schmidt DLA PIPER LLP (US) 401 Congress Avenue, Suite 2500 Austin, Texas 78701-3799 T: (512) 457-7000 F: (512) 457-7001 john.guaragna@dlapiper.com henning.schmidt@dlapiper.com Attorneys for ACCELEREYES LLC
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CERTIFICATE OF SERVICE
The undersigned certifies that on this 22nd day of September 2011, all counsel of record
who are deemed to have consented to electronic service are being served with a copy of this
document through the Court’s CM/ECF system under Local Rule CV-5(a)(3). Any other counsel
of record will be served by a facsimile transmission and/or first class mail.
/s/ John M. Guaragna John M. Guaragna
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