Cedar Audio v. Diamond Cut Productions

8/12/2019 Cedar Audio v. Diamond Cut Productions

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Andre K. CizmarikEDWARDS WILDMAN PAI,MER LLP750 Lexington AvenueNew York, NY 10022(212) et2-2731Attorneys for Plaintiff CEDAR Audio Limited.

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEYCivil Action No.:EDAR Audio Limited,

Plaintiff,-against-

Diamond Cut Productions, Inc.Defendant.

COMPLAINT

Plaintiff, CEDAR Audio Limited ( CEDAR ), by its undersigned counsel, for itsComplaint against Defendant, Diamond Cut Productions, Lrc. ( DCP ), alleges as follows:

The Parties1. Plaintiff CEDAR is a corporation organized and existing under the laws of the

United Kingdom, having its principal place of business at 20 Home End, Fulbourn, Cambridge,CBzl 5BS United Kingdom.

2. CEDAR is in the business of designing, developing and marketing innovativeproducts for audio restoration, speech enhancement for film, post, TV and radio broadcast, CDand DVD mastering, libraries and archives, and for audio forensic investigation.3. On information and belief, Defendant DCP is a New Jersey corporation with aprincipal place of business in Boonton, New Jersey.

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 1 of 11 PageID: 535502


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4. On information and belief, DCP is in the business of selling audio restorationsoftware, including its Direct Spectral Editor supplied as part of at least DCP's Diamond CutForensics8 Audio Software and DC Forensics Audio Laboratory, Version 8 & DC8 with aspectrogram view (the Accused Product ), throughout the United States, including within thisjudicial district. On information and belief, DCP also uses the Accused Product within thisjudicial district to develop, test and support theAccused Product, in addition to using theAccused Product to restore, enhance, remaster andlor edit audio signals (i.e., audio recordings).

Nature OfAction5. This is an action for patent infringement arising under the patent laws of the

United States, Title 35, United States Code and arising under 35 U.S.C. $$ 271 and,28l-285.Jurisdiction And Venue

6. Subject matter jurisdiction is proper under 28 U.S.C. $$ 1331 and 1338(a).7 . Personal jurisdiction is proper based on DCP's incorporation in the State of New

Jerse andlor from a persistent course of conduct andlor derivation of substantial revenue fromits conduct in the State of New Jersey. DCP does business in the State of New Jersey bymarketing, offering for sale, selling andlor using the Accused Product in New Jersey. Uponinformation and belief, DCP has purposely availed itself of the privileges of conducting businesswithin the State of New Jersey andlor has committed acts of patent infringement within the Stateof New Jersey. Further, upon information and belief, DCP has placed the Accused Product intothe stream of commerce with the expectation that it will be purchased and used in an infringingmanner by consumers throughout the United States including within the State of New Jersey.

8. Venue is proper under 28 U.S.C. $$ 1391(b)-(c) and 1400(b).

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The Patent in Suit9. United States Patent No. 7,978,862 ( the'862 patent ), entitled Method and

Apparatus for Audio Signal Processing, atrLte and correct copy of which is appended hereto asExhibit A, was duly issued on July 12,20ll to inventor David Anthony Betts and assigned toCEDAR.

10. Plaintiff CEDAR has been and still is the owner through assignment of the '862patent.

11. Plaintiff CEDAR manufactures and sells products embodying one or more claimsandlor used to practice the methods of the '862 patent, including the CEDAR Cambridge,CEDAR Tools, CEDAR for Pyramix and CEDAR for SADiE products.

12. Plaintiff CEDAR will be both substantially and irreparably harmed byinfringement of the '862 patent There is no adequate remedy at law.

COUNT I@irect Infringement of the 6862 Patent - 35 U.S.C. g 271(a))

13. Plaintiff CEDAR repeats and incorporates herein by reference each of theforegoing paragraphs as if fully set forth herein.

14. On information and belief, DCP has been infringing one or more claims of the'862 patenf by using the Accused Product to develop, test and support the Accused Product, inaddition to using the Accused Product to restore, enhance, remaster andlor edit audio signals(i.e., audio recordings) in the United States.

15. DCP has had actual knowledge of the '862 patent since at least on or aboutFebruary 6,2014 when, by letter dated February 6,2014, counsel for CEDAR informed DCP ofits infringement of the '862 patent and demanded that DCP immediately cease and desist fromsaid infringement. DCP acknowledged actual notice of the '862 patent in correspondence to

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CEDAR's counsel dated February 6,2014 and February 13,2014 and in a post on its internetmessageboard (http:llwww.diamondcut.com/vforum/forum.php) on or about February 7,2014.

16. On information and belief, DCP has continued to make, use, sell, offer for sale inthe United States andlor import into the United States the Accused Product to develop, test andsupport the Accused Product, in addition to using the Accused Product to restore, enhance,remaster andlor edit audio signals (i.e., audio recordings) since having acknowledged actualnotice of the '862 patent On information and belief, DCP has taken no action to cease itsinfringement of the '862 patent or otherwise exercise reasonable care to avoid infringement ofthe '862 patent. On information and belief DCP has thus acted in reckless disregard of the'862patent making its infringement deliberate and willful under 35 U.S.C. 2S4.

17. By reason of the foregoing, CEDAR has suffered, and will continue to suffer,substantial damages as a result of DCP' infringement of the '862 patent in an amount to bedetermined at the trial of this action.

18. Upon information and belief, DCP will continue to infringe lhe'862 patent unlessand until it is enjoined by this Court.19. Unless Defendants are enjoined from infringing the'862 patent, CEDAR willsuffer substantial and irreparable injury. CEDAR has no adequate remedy at law.

COUNT II(Inducement of Infringement of the '862 Patent - 35 U.S.C. g 271(b))20. Plaintiff CEDAR repeats and incorporates herein by reference each of the

foregoing paragraphs as if fully set forth herein.21. On information and belief, having had actual notice of the '862patent, DCP hasinduced and continues to induce infringement of one or more claims of the '862 patent(including at least claims l-4,9, 12, 22, 25 and 26) by selling, offering for sale in the United

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States andlor importing into the United States the Accused Product with the specific intent for itscustomers to use the Accused Product in a manner that would directly infnge one or moreclaims of the' 862 patent.

22. DCP has had acutal knowledge of the '862 patent since at least on or aboutFebruary 6,2014 when, by letter dated February 6,2014, counsel for CEDAR informed DCP ofits infringement of the '862 patent and demanded that DCP immediately cease and desist fromsaid infringement. DCP acknowledged actual notice of the '862 patentin correspondence toCEDAR's counsel dated February 6,2014 and February 13,2014 and in a post on its internetmessageboard' (http:/lwww.diamondcut.com/vforum/forum.php) on or about February 7,2014.

23. On information and belief, DCP's customers using the Accused Product(according to DCP's website), include government agencies and forensics professionals all overthe world, including within the United States. On information and belief, these customers usethe Accused Product in a manner that infringes one or more claims of the '862 patent, as set forthin DCP's User's Manual for DC Forensics Audio Laboratory, Version 8 & DC 8 ( DCP's UserManual ).24. DCP's lJser's Manual, beginning on page 115 specifically instructs users of theAccused Product to directly infringe one or more claims of the '862 patent, for example, byusing the Replace feature, of which there is no substantial noninfringrng use. On informationand belief, with actual knowledge of the '862 patent DCP's instructions for the directinfringment of the '862 patent are knowing and intentional.

25. DCP's User Manual instructs users to practice the methods claimed in the '862patent with, inter ala,the following language on pp. 116-17:

The DSE paintbrush allows you to isolate a signal and either amplifii it,attenuate it, or interpolate it. The Replace feature is very useful for

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interpolating long-lived events such as a chair moving during a concert ora dropped drumstick or a member of a live audience coughing, yelling orwhistling.The primary control for the DSE is the Paintbrush tool. It is used toencircle the signal which is to be processed by drawing a rectangle aroundit. Horizontal movement of the paintbrush establishes the time range ofaction and movement along the vertical axis establishes the range offrequencies over which it functions.

{. rl {.Extent Control: This controls how far on each side of the highlighted gapthe Replace algorithm looks when performing the interpolation.Nominally (by default), it looks roughly 200mS on each side of the gap(when the control is set to 100 - - - all the way to the left side). You canclose that down to roughly 20ms at the 10% setting (by moving it towardsthe right side). Experiment with this control to obtain the optimalreplacement. Please note that this control is not in play when performingErase or Highlight functions.26. On information and belief, DCP has continued to sell, offer for sale in the United

States andlor import into the United States the Accused Product with instructions for users todirectly infringe one or more claims of the '862 patent since having acknowledged actual noticeof the '862patent. On information and belief, DCP has taken no action to cease its inducementof infringement of the '862 patent or otherwise exercise reasonable care to avoid inducinginfringement of the '862 patent On information and belief, DCP's has thus acted in recklessdisregard of the '862 patent making its infringement deliberate and willful under 35 U.S.C. $284.

27. By reason of the foregoing, CEDAR has suffered, and will continue to suffer,substantial damages as a result of DCP's inducement of infringement of the '862 patent in anamount to be determined at the trial of this action.

28. Upon information and belief, DCP will continue to induce infngement of the'862 patent unless and until it is enjoined by this Court.

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29. Unless Defendants are enjoined from inducing infringement of the '862 patent,CEDAR will suffer substantial and irreparable injury. CEDAR has no adequate remedy at law.

COUNT III(Contributory Infringement of the '862 Patent - 35 U.S.C. g 271(c))30. Plaintiff CEDAR repeats and incorporates herein by reference each of the

foregoing as if fully set forth herein.31. On information and belief, having had actual notice of the '862patent, DCP has

contributed to the infringement of one or more claims of the '862 patent (including at leastclaims l-4,9,12,22,25 and26)by selling, offering for sale in the United States andlorimporting into the United States the Accused Product, of which the Replace feature is not astaple article of commerce suitable for substantial noninfringrng uses, but is instead especiallymade or adapted for use in a manner that would directly infringe one or more claims of the '862patent, inter lia, as shown beginning on page 115 of DCP's LJser Manual.

32. On information and belief, the Replace feature of the Accused Product has nosubstantial noninfringing uses for at least the reason that DCP's (Jser's Manual for DC ForensicsAudio Laboratory, Version 8 & DC 8, beginning on page 115 specifically instructs users of theAccused Product to directly infringe one or more claims of the '862 patent.

33. On information and belief, DCP's customers using the Accused Product(according to DCP's website) include government agencies and forensics professionals all overthe world, including within the United States. On information and belief, these customers usethe Accused Product in a manner that infringes one or more claims of the '862patent, as set forthin DCP's (Jser's Manual.

34. On information and belief, DCP has continued to sell, offer to sell and/or importinto the United States the Accused Product which is made or especially adapted for use in a

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manner that would directly infringe one or more claims of the '862 patent since havingacknowledged actual notice of the '862 patent On information and belief, DCP has taken noaction to cease its contribution to the infringement of the '862 patent or otherwise exercisereasonable care to avoid contributing to the infringement of the '862 patent. On information andbelief DCP's has thus acted in reckless disregard of the '862 patentmaking its infringementdeliberate and willful under 35 U.S.C. 284.

35. By reason of the foregoing, CEDAR has suffered, and will continue to suffer,substantial damages as a result of DCP's contribution to the infrigement of the '862 patent in anamount to be determined at the trial of this action.

36. Upon information and belief, DCP will continue to contribute to the infngementof the '862 patent unless and until it is enjoined by this Court.

37. Unless Defendants are enjoined from contributing to the infringement of the '862patent, CEDAR will suffer substantial and irreparable injury. CEDAR has no adequate remedyat law.

RELIEF REQUESTEDWHEREFORE, Plaintiff respectfully requests the following relief:(a) Judgment that Defendant has directly infringed one or more claims of the '862

patent;(b) Judgment that Defendant has induced infringement of one or more claims of the

'862 patent;(c) Judgment that Defendant has contributed to the infringement of one or more

claims of the' 862 patent;(d) Judgment for an award of compensatory damages in an amount to be determined

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at atnal of this action;(e) Judgment that Defendant s direct infringement of the 862 patent has been wilful;( Judgment that Defendant s inducement of infringement of the 862 patent has

been wilful;(g) Judgment that Defendant s contribution to the infringement of the 862 patent hasbeen wilful;

(h) An Order requiring Defendant to surrender for destruction or other disposition, atthe election of the Plaintiff, all code, specifications, computer programs, manuals, programs,components and programs in all states, and any and all inventory of articles that infringethe 862patent.

( An Order preliminarily and permanently restraining and enjoining against anyinfngement by Defendants, their officers, agents, attorneys, or employees, or those acting inprivity or concert with them, of the 862 patent through the commercial manufacture, use, sale,offer for sale or importation into the United States of any products which infringe the 862patent; (t) Multiple damages in this action under 35 U.S.C. g 254;

(k) Attorneys fees in this action under 35 U.S.C. g 285;

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(l) Such further and other relief as this Court may deem just and properJURY DEMAND

Plaintiff demands atrial by Jury on all issues so triable,

Dated: New York, New YorkMarch 24,2014

AM 30185037

/s/ Andre K, CizmarikAndre K. CizmarikEdwards V/ildman Palmer LLPAttorneys for Plaintiff CEDAR Audio Ltd,750 Lexington AvenueNew York, New York 10022Phone: (212)308-4411

Of Counsel (to be admitted pro hac vice)George W. NeunerAdam P. SamanskyEdwards Wildman Palmer LLPAttorneys for Plaintiff CEDAR Audio Ltd111 Huntington AvenueBoston, MA 02199-7613Phone: (617)239-0100

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CERTIFICATION PURSUANT TO L. CIV. R. 11.2

Andre K. Cizmarik, pursuant to L. Civ. R. 1L2, deposes and states as follows:1. I am Counsel to the law firm of Edwards Wildman Palmer LLP, counsel for

plaintiffs, and have personal knowledge of the facts of this action2, The matter in controversy is not the subject of any other action pending in any

court, or of any pending arbitration or administrative proceeding.

Dated: March 24,2014

/s/ Andre K. CizmarikAndre K. Cizmarik

AM 317s9613,1


Cedar Audio v. Diamond Cut Productions

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