Patent Lawsuit Complaint

7/28/2019 Patent Lawsuit Complaint

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UNITED STATES BANKRUPTCY COURTWESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

IN RE:

THINK3 INC., a Delaware Corporation,

Debtor.

Versata Development Group, Inc., VersataSoftware, Inc., Versata FZ-LLC, and GensymCayman, L.P.,

Plaintiffs,

vs.

Think3 Inc., a Delaware Corporation;Andrea Ferri, in his capacity as Trustee appointedin the Italian Think3 Bankruptcy action; andThe Italian Estate of Think3 Inc., as represented

by Andrea Ferri;

Defendants.

Chapter 11

Case No. 11-11252 (HCM)

Adversary Proceeding No. ___

Versata Development Group, Inc., Versata FZ-LLC, Versata Software, Inc., and Gensym

Cayman, L.P. (collectively, Versata), by their undersigned attorneys, hereby state the

following for its complaint upon knowledge with respect to their own acts, and upon information

and belief as to all other matters.

NATURE OF THE ACTION

This is an adversary proceeding commenced by Versata pursuant to sections 105(a) and

362(a) of title 11 of the United States Code, Rules 7001(7), 7001(9) and 7003 of the Federal

Rules of Bankruptcy Procedure (the Bankruptcy Rules) and Rule 65 of the Federal Rules of

Civil Procedure (the Federal Rules), made applicable hereto by Bankruptcy Rule 7065, seeking

declaratory relief, preliminary and permanent injunctive relief, equitable subordination, and

damages to remedy tortious interference with contractual relations, tortious interference with

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prospective business advantage and prospective contract, breach of contract, and patent

infringement. If the relief requested herein is not granted, Versata will be irreparably harmed.

JURISDICTION AND VENUE

1. On May 18, 2011 (the Petition Date), Think3 Inc. (Debtor) filed a voluntary petition in this Court for relief under chapter 11 of the Bankruptcy Code.

2. Versata initiates this adversary proceeding pursuant to Bankruptcy Rule 7001(1)

(to recover money), Bankruptcy Rule 7001(7) (to obtain an injunction or other equitable relief),

Bankruptcy Rule 7001(8) (to subordinate claims) and Bankruptcy Rule 7001(9) (to obtain a

declaratory judgment).

3. This Court has jurisdiction over the parties and the subject matter of this

adversary proceeding pursuant to 28 U.S.C. 157 and 1334. This proceeding arises under title

11, or arises in or relates to a case under title 11.

4. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2), 157(b)(2)(B), and

157(b)(2)(O) and, accordingly, this Court has the power to enter final findings of fact and

conclusions of law, subject to review pursuant to 28 U.S.C. 158.

5. Venue is proper before this Court pursuant to U.S.C. 1408 and 1409.

6. The wrongful actions of Defendants, where committed outside the United States,

were knowingly done with the intent to harm Versata and the Chapter 11 Debtor in the United

States and to harm contracts and intellectual property and other assets of Versata and the Chapter

11 Debtor in the United States.

THE PARTIES

7. Versata Development Group, Inc. (the Patent Owner), f/k/a Trilogy

Development Group, Inc., is a Delaware corporation with its principal place of business at 6011West Courtyard Drive, Austin, Texas 78730.

8. Plaintiff Versata Software, Inc. is a Delaware corporation with its principal place

of business at 6011 West Courtyard Drive, Austin, Texas 78730.



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9. Versata FZ-LLC (the IP Buyer) is a Dubai free zone limited liability company

with its principal place of business at 707-708 Al Thuraya 1, Dubai Media City, PO Box 502092,

Dubai, 43659, United Arab Emirates.

10. Gensym Cayman, L.P. (the DIP Lender) is a Cayman Island exempted limited partnership and the provider of debtor-in-possession financing in this case pursuant to 11 U.S.C.

364 and the applicable orders of this Court. (Docket Nos. 64, 97.)

11. Think3 Inc. (Think3 or the Debtor) is a company organized and existing

under the laws of the State of Delaware and has its principal place of business located at 6011 W.

Courtyard Dr., Suite 250, Austin, Texas. Think3 continues to manage and operate its business as

Chapter 11 debtor-in-possession under sections 1107 and 1108 of the Bankruptcy Code, whose

responsible officer and Chief Restructuring Officer is Rebecca A. Roof (the CRO).

12. Dr. Andrea Ferri (the Italian Trustee or the Trustee) purports to act pursuant

to Section 104 of the Italian Bankruptcy Law and other Italian laws and procedures to administer

the estate of the Debtors Italian branch (the Italian Estate) created by the Italian bankruptcy

case (the Italian Bankruptcy Case) before a bankruptcy court in Bologna, Italy (the Italian

Bankruptcy Court) and to manage Think3 as its trustee. The Italian Trustee has also brought

related proceedings seeking injunctive relief against Versata before an Italian intellectual

property court also in Bologna, Italy (the Italian IP Court).

13. The Italian Estate of Think3 Inc., as represented by the Italian Trustee, purports to

control numerous Think3 assets and continues to conduct business in Think3s name to the

exclusion of the responsible officers of this Chapter 11 estate of the Debtor and to operate in

other related names in competition with the U.S. bankruptcy estate of the Debtor arising in

connection with the above-captioned bankruptcy case (the U.S. Estate), misusing the assets of the U.S. Estate in that unfair, wrongful and unauthorized business.

14. Indeed, the Italian Trustee continues without legal right under applicable law to

act outside the jurisdictional territory of Italy with respect to assets and parties outside of that

Italian territory, contrary to the specific statements of the Italian IP Court in its July 26, 2011



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ruling (the Italian TRO Order). The Italian TRO Order states that Think3 is a Delaware

corporation with [a] secondary office in Italy (at p.11) and that the Italian Trustees powers are

obviously limited to the territory of the Italian state (at pp. 4-5).

FACTUAL BACKGROUND15. Think3 is engaged in the business of computer software creation, licensing, sales

and support, and its products include software used for Computer Aided Design (CAD) and

Product Lifecycle Management (PLM). On information and belief, Think3 has its facilities

and principal place of business in Austin, Texas, a registered branch in the country of Italy, as

well as subsidiaries in Italy and other countries.

Events Before the Chapter 11 Petition Was Filed

16. On October 7, 2010, Think3 and Versata entered into a Technology License

Agreement (the Agreement, attached as Exhibit A) effective as of that same date. Pursuant to

the Agreement, Versata fully and finally satisfied the obligation to pay to Think3 the sum of

$3,000,000 as full consideration for the rights and exclusive licenses granted by Think3 to

Versata under the Agreement. That sum was paid to or for the benefit of Think3 in periodic

installments as directed by Think3 either to its Silicon Valley Bank account or to the account of

its wholly-owned Italian subsidiary, Think3 SRL (SRL), at Banca Imola, in every case for

payment of valid claims of employees and creditors of Think3 as mutually planned with pre-

merger management. That purchase price was determined based on a valuation of Think3s

intellectual property, and the valuation and the methodology used to arrive at it were determined

to be reasonable and correct by a qualified independent professional, Dr. Antonio Bragaglia, an

Italian CPA (Dottore Commercialista) jointly retained by Think3 and Versata to implement their

salvage plan. More recently that valuation has been confirmed by additional appraisals filed or soon to be filed in this Court in support of the Debtors motion for this Court to approve the

U.S. Settlement defined below.

17. Under the Agreement, Think3 granted to Versata, among other things, the

exclusive right and license to use Think3s intellectual property to manufacture, sell, license,



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distribute, modify, market, support, and commercially exploit all of Think3s CAD and PLM

products (collectively, the Products) that use or incorporate any of Think3s intellectual

property, and all related maintenance and support contracts and services (excluding a carve-out

for the intellectual property rights owned by Think3 in China). Pursuant to the U.S. CopyrightAct, 17 U.S.C. 101, et seq ., the Agreement constitutes a transfer of copyright ownership by

exclusive license under 101 and 201(d), and the Agreement satisfies all requirements

applicable thereto, including pursuant to 204. Hence, under both the U.S. copyright Act and

Texas law, the transfer of the copyright ownership to Versata transferred the ownership of the

Products to Versata.

18. Under the Agreement, Think3 also granted to Versata the exclusive right to use

Think3s Marks, including its trademarks, trade names, service marks, logos, and similar

designations, and the exclusive right to enforce its intellectual property rights.

19. Following the execution of the Agreement, Versata invested substantial sums in

modifying and improving the Products and the intellectual property, including by creating

derivative copyright works; supporting preexisting end user licensees of those Products; and

entering into new contracts with end users of the Products. Versatas improvements and

modifications to the Products are Versatas own intellectual property, and Versata is the owner

of the copyrights and other intellectual property rights in those improvements and modifications,

including derivative works to upgrade the copyrighted software of the Products. As provided

under the Agreement, Versata is entitled to receive, and began receiving, licensing and

maintenance revenues from end users of the Think3 Products located around the world.

20. On or after May 2, 2011, Versata was informed that, on or about April 14, 2011,

the Italian Bankruptcy Court had declared Think3 bankrupt, notwithstanding the fact that Think3is a Delaware corporation headquartered in Austin, Texas and merely has a registered branch in

Italy. By a letter dated May 2, 2011, received on or after that date, Versata was informed that

Dr. Andrea Ferri of Ferri & Associati had been appointed by the Italian Bankruptcy Court to be

the Italian Trustee and representative of Think3 Inc., Italian Branch. The Italian Trustee



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purports to use that authority to assert sole and exclusive control over all of the assets and

business of Think3, wherever located, to the exclusion of this Chapter 11 estate, the CRO and

United States creditors, despite the contrary limitations on his authority in Italy as explained in

the Italian TRO Order and the fact that the Italian Trustee is merely the trustee of the bankruptcy branch, and not of Think3, the Delaware corporation. Among the assets to which the Italian

Trustee asserts sole control are the Debtors intellectual property, contracts and other intangible

assets that under United States law applicable to this United States corporation are located in its

Austin Texas headquarters.

21. On May 2, 2011, the Italian Trustee asserted that, in his capacity as the Italian

Trustee and, supposedly, as representative of Think3 and on behalf of Think3, he was

terminating, effective immediately, the Agreement between Versata and Think3.

22. The Italian Trustees May 2, 2011 letter demanded that Versata immediately

cease using or distributing the Products and intellectual property, in which Versata has invested

substantial effort and expense to create improvements and modifications in which Versata

indisputably owns the copyrights and other intellectual property rights. The Italian Trustee

asserted that any use, disclosure, dissemination or sublicense of Think3s intellectual property

rights, which Versata had fully licensed and paid for under the Agreement between Think3 and

Versata, as well as the use of any related trademark, is strictly prohibited and will be

prosecuted. The letter further demanded that Versata immediately cease and desist from

displaying the Think3 trademark and immediately delete from its IT systems and deliver to the

Italian Trustee all documents and electronic files related in any way to the Think3 intellectual

property rights.

23.

In effect, the Italian Trustee is purporting to act as if he has total jurisdiction andcontrol over Think3 and the intellectual property rights of Think3 which have been licensed by

and transferred to Versata, and as if the Italian Bankruptcy Case is a sufficient basis to bind all

persons throughout the world, regardless of the Debtors protection in this Court through its



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Chapter 11 filing. The Italian Trustee is masquerading as though he was somehow the trustee of

Think3 or otherwise authorized to act on behalf of Think3.

24. From approximately mid-April 2011 through approximately June 28, 2011, the

Italian Trustee improperly usurped control over the Think3 and ThinkCare websites, eventhough those websites were owned by Think3 Inc. in the United States and were subject to U.S.

contracts with web hosting companies. He still asserts control over related non-U.S. websites in

violation of the rights of the Chapter 11 Debtor and others.

25. Among other things, the Italian Trustee was able to post on websites frequented

by Versatas customers and partners false, misleading, and defamatory messages regarding

Versatas ownership of Think3 intellectual property. At the time, Versata had no website of its

own to counter the Italian Trustees claims and had to build a new website from the ground up

with no notice. The Italian Trustees take-over of the Think3 websites and his communications

through the Internet have caused tremendous confusion among Versatas customers over who

owns the rights to Think3 intellectual property, also denying the rights reserved by the Chapter

11 Debtor, who pledged them as collateral to the DIP Lender.

26. For example, on or about May 11, 2011, the Italian Trustee posted a document

entitled Official Press Release. Among other things, this document states that the [Italian]

Trustee dott. Andrea Ferri has terminated the license contract between Think3 and Versata and

that Think3 restarts operations and confirms that it is the only owner of the software and the

intellectual property rights. This document is currently available on the Internet at

http://www.think3.eu/en/news--events/news, which is a website that appears to be controlled by

the Italian Trustee.

27.

Versata is informed and believes, and on that basis alleges, that Think3, actingthrough the Italian Trustee, has used and continues to use Versatas license keys, as well as those

of the Debtor, to generate unauthorized sublicenses (the Unauthorized Sublicenses) of the

intellectual property and/or Products to which Versata has an exclusive license under the

Agreement.



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28. Versata is informed and believes, and on that basis alleges, that Think3, acting

through the Italian Trustee, has sold and continues to sell and/or attempt to sell the Unauthorized

Sublicenses at steeply discounted prices (as compared with the price of authorized licenses sold

by Versata).1

29. Versata is informed and believes, and on that basis alleges, that the Italian Trustee

falsely asserts that one result of his purported termination of the Agreement is that he somehow

acquired by forfeiture all of Versatas relevant intellectual property, customer contracts and all

past and future revenues thereunder and proceeds thereof, whether for software, goods or

services provided by Versata to its customers or for intellectual property owned by Versata. The

Italian Trustee has wrongly demanded payment to him from customers and wrongly asserts that

he, and not Versata, is a party to the Versata contracts.

30. Versata is further informed and believes, and on that basis alleges, that Think3,

acting through the Italian Trustee, has directed end users of Think3 Products to submit payments

to the Italian Trustee or his designee, rather than to Versata, even though those end users have

sublicenses and other contracts obligating them to make payments to Versata or to the Chapter

11 Debtor, who would own any windfall resulting from any loss of Versatas rights, thereby

creating additional collateral for the DIP Lender.

31. Versata is informed and believes, and on that basis alleges, that the Italian Trustee

improperly converted one or more of the Think3 websites maintained in the United States to his

own use, including www.think3.com and care.Think3.com (each a Website, collectively

the Websites), and that he has wrongfully competed and continues to compete with Think3 and

its U.S. Estate by use of the property of the U.S. Estate, including through use of the websites

www.think3.it, www.think3.de, www.think3.eu and their links to the relatedwww.customercare.com. Plaintiff is informed and believes, and on that basis avers, that on or

about May 2, 2011, the Italian Trustee took control of the Websites and caused the posting of

1 Versata maintains that Think3, acting through the Italian Trustee or otherwise, is prohibited from selling and/or attempting to sell the Unauthorized Sublicenses at any price.



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notices on the Websites stating that as of May 2, 2011, Versata could not license Think3

products or use its trademarks, and that as of May 4, 2011, Think3 Inc. restarts its operations

and will be managed by the trustee, Dr. A. Ferri, and the Creditors Committee [...]. Again,

this would also violate the stay under 11 U.S.C. 362 and other rights of the Chapter 11 Debtor and, therefore, its DIP Lender.

Post-Petition Events

32. After the Petition Date, the Italian Trustee has taken several additional actions to

interfere with Versatas relationships with customers and impede Versatas ability to market the

Think3 Products and intellectual property, as well as those of the Chapter 11 Debtor and,

therefore, its DIP Lender.

33. Until the www.think3.com United States website was reclaimed by the CRO on or

about June 28, 2011, the Italian Trustee was using the US-based Websites of the Debtor to

market, sell, and license Think3 Products, protected by intellectual property licensed exclusively

to Versata pursuant to the Agreement.

34. Despite the U.S. Chapter 11 estates eventual recapture of the U.S. Websites on or

about June 28, 2011, the Italian Trustee appears to use other websites, including www.think3.eu,

www.think3.it, and www.think3.de, hosted outside the U.S. as a platform to spread messages

attacking Versata and targeting Versatas customers and potential customers and partners,

including United States customers and partners. The Italian Trustees current website includes a

page at http://www.think3.eu/en/news--events/news that links to other messages to Versatas

Think3 customers by which the Italian Trustee purports to conduct business regarding the IP that

Think3 transferred to Versata under the Agreement.

35.

Versata is informed and believes, and on that basis alleges, that the Italian Trusteehas on multiple occasions communicated with Versatas customers in an attempt to persuade

Versatas customers that they are not legally permitted to continue to do business with Versata or

the Chapter 11 Debtor, thereby harming the DIP Lender by impairing its collateral. For example,

Versata is informed and believes, and on that basis alleges, that on June 9, 2011, the Italian



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Trustee wrote to a large number of Versata customers, in multiple languages. The letter included

the following statements:

Pursuant to Art. 72 of Italian Bankruptcy Law (R.D. 16.03.1942, N. 267)the Trustee dott. Andrea Ferri has terminated the Technology LicenseAgreement entered into and between Think3 Inc. and Versata FZ-LLC onOctober 7 2010. . . .

All goods (including IP), employees and goodwill are located in Italy andtherefore the Court of Bologna is protecting the assets of the bankruptced[sic] company.

The US Court has no jurisditcion [sic] against the Italian BankruptcyProcedure. Therefore the opening of the Chapter 11 process does not giveany rights to Versata.

Versata is sendig [sic] to Think3 clients messages illegally using theThink3 trademark and advertising Think3 products in order to distractcustomers. The use of http://www.think3.versata.com/ domain name isalso illegal.

Therefore, Think3 is the only owner of the intellectual property rights of the software (ThinkDesign, Thinkteam, TD PLM etc) and it is not

permitted in any way the use of this software without the requiredauthorization of dott. Andrea Ferri through legal sales by AuthorisedThink3 VARs.

All contracts related to license agreement entered into and betweenVersata and third parties has to be considered null and void and all

payments concerning the use of Think3 products have to be effected to the

Italian Bankruptcy Procedure.A copy of this letter was placed on the Think3.com United States website on or around June 7,

2011.

36. Several significant customer relationships were disrupted and continue to be

disrupted by the improper actions of the Italian Trustee. For example:

a. BMW Group . The BMW Group was a Versata customer. As of May

2011, BMW Group was in the process of negotiating a renewal of its

contract. However, on June 16, 2011, Versatas account manager in

Germany, Krisztina Ugrin, received an e-mail from Arnulf Lipp at BMW

Group stating: In light of a letter sent from Think3 Italy to all customers,

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our in-house lawyers have advised us to cancel our teleconference

[previously scheduled for] June 21, 2011 until further notice.

b. Toyota Caelum Incorporated . The Italian Trustees conduct has

particularly damaged Versatas relationship with its largest value addedreseller (VAR), Toyota Caelum Incorporated (TCI). TCI signed a

contract with Versata on April 1, 2011. Before the Italian Trustees

involvement, Versatas records show that TCI accounted for

approximately $1.4 million or 20% of the Think3 Divisions total annual

revenue in fiscal year 2011, and 51% of total VAR revenue in the same

period. As of April 1, 2011, Versata expected that TCI would represent $2

to $3 million in revenue for fiscal year 2012, ending in June. On May 6,

2011, the General Manager of TCI communicated to Versata his

frustration at Versatas inability to generate licenses in a timely fashion.

Versatas inability to do so was caused by the Italian Trustees takeover of

Think3 websites, as discussed above in Paragraphs 24 et seq . On May 17,

2011, TCI cancelled orders with Versata, citing the difficulty in obtaining

licenses. Since then, TCI has not responded to emails or calls from

Versata and has placed no subsequent orders with Versata.

c. ThinkLine Solution GmbH. Thinkline Solution GmbH (Thinkline) is a

German VAR, which represented over $226,000 in annual recurring

revenue for Think3 in fiscal year 2011. On May 4, 2011, the owner of

Thinkline expressed concern to Versata about the legal status of the

Think3 IP and Versatas ability to deliver licenses given Versatas loss of the ThinkCare site. The next day, Thinkline sent an email to Versatas

VAR manager questioning Versatas legal rights.

d. Open Mind. As of May 2011, Open Mind and Versata were in the

process of negotiating a contract that had expired. Open Mind represented



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a significant opportunity for Versata. But given the conduct of the Italian

Trustee, Open Minds CEO advised Versata that he will not engage in

further negotiations with Versata until the legal issues are resolved.

e. SENER Ingenieria Y Sistemas, S.A. . SENER is an OEM partner withwhom Versata had been negotiating a large-volume license agreement for

upgrading all customers to the new Enterprise software version. SENER is

a Spanish engineering firm that provides services to ship builders with

operations in multiple countries. The CEO of SENER advised Versata that

the Italian Trustee had contacted SENER and that that SENER was

concerned about liability if it engages in negotiations with Versata.

SENER has declined to conduct business with Versata until the legal

issues are resolved.

f. First Solution S.r.L. First Solution S.r.L (First Solution) novated its

Think3 contract on October 22, 2010 and later signed a Versata contract

on January 2, 2011. Andrea Zoppi, the owner of First Solution, was an

effective VAR for Versata. First Solution represented potential annual

recurring revenue greater than $250,000 for the Think3 Division. Around

May 6, 2011, Mr. Zoppi was called into court in Bologna. Versatas

relationship with First Solution effectively ended after Mr. Zoppis court

date. Apparently, Mr. Zoppi is now contacting Versata direct customers in

an effort to divert business from Versata. For example, Mr. Zoppi

contacted the Sidel Group, a large Versata customer that purchases a high

level of services. That contact apparently resulted in the Sidel Groupcancelling a business call with Versata and informing Versata that the

Sidel Group intends to sever connections with Versata.

g. Alessi S.P.A. Like Versatas other Think3 customers, the Italian design

company Alessi S.P.A. (Alessi) was contacted by the Italian Trustee.



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Based on such communications, Alessi has sent e-mails to Versata

attempting to cancel existing contracts worth about $50,000. On May 4,

2011 Stefano Calderoni of Alessi wrote to several Versata employees

stating:

[O]n May 2 nd, 2011 we have been acquainted withthe fact that, following the bankruptcy of the Italian

branch of Think3 Inc. declared by the Court of Bologna on 14 April 2011, the trustee terminatedthe license agreement between Think3 Inc. andVersata FZ LLC pursuant to Italian Law, thereforestarting from the same day Versata FZ LLC couldnot license Think3 products and/or use Think3trademarks.

As Alessi Spa has agreed with Versata FZ LLCabout a service of maintenance and support since 31December 2010 for a year on, and for this reason wehave already paid 29.558 on 9 March 2011, weask you to pay back the same amount we paid as afee for the service you could not legally providesince May 2 nd, 2011.

On June 20, 2011, Mr. Calderoni wrote to Versata confirming Alessis

position: we trust in the Think3 trustee and Italian courts, thats why we

believe Versata is not anymore the legal owner of the [IP] purchased from

Think3.

h. Sidel Group . The Sidel Group is a large, Platinum Versata customer. The

Sidel Group had a call scheduled with a Versata product expert in July

2011. On July 7, 2011, the Sidel Group sent Versata an email cancelling

the call based on a conversation with First Solutions, described above.

37. Even customers who continue to conduct business with Versata have expressedconcern and frustration at the ongoing confusion between Versata and the Italian Trustee, and

between the CRO and the Italian Trustee. For example, Pacal Boisse, the president of a

Canadian customer of Versata, Auto-Motive Design & Co. (Auto-Motive Design), sent an

email to Versata dated July 28, 2011. In the email, Mr. Boisse stated that he was at the bank, in



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line to do my wire transfer to Versatawhen I got an eMail on my iPhone confirming that the

Italian scammers had won their cause. He stated that he then turned around and left the bank.

Mr. Boisse forwarded to Versata an email from the Italian Trustee, which states that Versata lost

its Italian appeal of the rejection of the Agreement. Even though, on information and belief, thestill-disputed Italian interim proceedings regarding the Agreement are not yet final and remain

subject to further proceedings, the Italian Trustees message (which is also posted on his

website) claimed that the matter had been definitively decided. Mr. Boisse, an otherwise loyal

customer who understood Versatas difficult position, refused to make further payments to

Versata because of the Italian Trustees assertions. Mr. Boisse wrote: I need sound answers

before I go back to the bank to pay these invoices again. Mr. Boisse also spoke to the

reputational damage that Think3 has suffered in light of the Italian Trustees interference: I

think enough damage has been done this year to the Think3 brand (people are now laughing at

me when I mention what CAD software I use)

38. As a direct result of the Italian Trustees actions, Versata has lost a substantial

amount of revenue, as has the Chapter 11 Debtor, who is entitled to anything taken by the Italian

Trustee that does not belong to Versata. For example, in January, February and March of 2011,

Versata was able to retain approximately 75% of the revenue from customers whose accounts

were due for renewal. In June of 2011, by contrast, Versata could retain only 15% of the

revenue for customers whose accounts were due to be renewed.

39. The Italian Trustee has not only interfered with Versatas business relations and

contracts with Versata customers and suppliers, but he has also interfered with Versatas dealings

with the CRO and the Debtors U.S. Estate, including by threatening her, like Versata and its

personnel and agents, with suit or criminal prosecution in Italy for performing her official duties,so as to discourage her from cooperating with Versata in the U.S. Settlement and other mutually

beneficial matters or transactions. This also impairs the collateral and rights of the DIP Lender.

Certain, but not all, of the Italian trustees threats are recounted in the Italian TRO Order.



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The Proposed Settlement

40. On July 11, 2011, the CRO filed a Motion to (I) Approve Compromise and

Settlement of Claims by and between Think3 Inc., Versata FZ-LLC, Versata Development

Group, Inc., and Versata Software, Inc. and (II) Assume Technology License Agreement, and(III) Approve Sale of Certain Intellectual Property Interests to Versata FZ-LLC (the Settlement

Motion). (Docket No. 81.) In the Settlement Motion, the CRO seeks approval of a settlement

agreement involving Versata (the U.S. Settlement).

Chapter 11 Estate Issues

41. Nothing herein seeks any relief on account of pre-Chapter 11 filing claims,

actions and liabilities of the Debtor in this Chapter 11 case. This complaint seeks relief from the

Debtor for claims, liabilities and conduct after the Chapter 11 petition was filed, under 11 U.S.C.

503, rather than as pre-petition unsecured claims. No wrongdoing is alleged against the CRO

or her agents or professionals, but rather against whatever part of the Debtor is controlled by the

Italian Trustee or which is responsible for his wrongdoing.

42. As to the Italian Trustee and the Italian Estate, Versata seeks relief to the

maximum extent permitted by law, consistent with the aforementioned 503 claims against the

Debtor. For avoidance of doubt, to the extent that the Italian Trustee or the Italian Estate are

separate from the Debtor for such purposes, Versata seeks the maximum possible relief without

regard to the timing of those Defendants wrongdoing.

43. The wrongs alleged against the Italian Trustee and the Italian Estate after the

filing of the Chapter 11 petition were done in knowing and willful disregard of the automatic

stay under 11 U.S.C. 362 and the turnover demands of the CRO under 11 U.S.C. 543, and

were reckless and grossly inequitable.

COUNT ONE(Tortious Interference With Contractual Relations)

44. Versata incorporates by reference paragraphs 1 through 43, above.

45. Pursuant to its Agreement with Think3, Versata had and has the exclusive right to

exploit commercially and to sublicense Think3 Products and intellectual property as provided in



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the Agreement, free of any restraint by Think3 or the Italian Trustee. Pursuant to that

Agreement, Versata is the successor in interest to Think3 on numerous sublicense and

maintenance contracts with end users under which license fees and maintenance payments are

payable to Versata. Versata has also entered into additional direct contracts with end users of Think3 Products under which the customers license and/or maintenance payments are payable

to Versata.

46. Think3, and the Italian Trustee purporting to control Think3, are aware of

Versatas contractual relations with end users. Defendants, acting at the direction of the Italian

Trustee, have acted and continue to act to disrupt and interfere with those contractual

relationships and to induce the end users breach thereof. Specifically, without justification,

Defendants, at the direction of the Italian Trustee, have wrongfully informed customers that

Versata has no right to sublicense Think3 products or to use its trademarks or logos. Defendants

have directed customers to remit payment to Think3 or to the Italian Trustee rather than to

Versata.

47. As a direct and proximate consequence of Defendants conduct performed at the

direction of the Italian Trustee, contractual relations between Versata and its customers have

been disrupted and Versata has sustained damage as a direct result. Versata has suffered and will

continue to suffer irreparable loss and injury and other damages unless Defendants are enjoined

by this Court from interfering with Versatas contractual relations.

48. On information and belief, Defendants, acting at the direction of the Italian

Trustee, have acted intentionally and with a willful and conscious disregard of the rights of

Versata to induce a disruption and/or breach of the contracts, as alleged above, between Versata

and its customers. On information and belief, these acts of interference were unlawful, and werewithout privilege, justification, just cause or excuse, and were accompanied by a specific intent

to cause substantial injury to Versata. The acts of Defendants, performed at the direction of the

Italian Trustee, when viewed objectively at the time such acts occurred, involved an extreme

degree of risk, considering both the probability and magnitude of the potential harm to Versata.



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Defendants, acting at the direction of the Italian Trustee, nevertheless engaged in such acts,

proceeding with conscious indifference to the rights, safety and welfare of Versata, despite

Defendants actual subjective awareness of the risk involved through the Italian Trustee. Versata

is therefore entitled to recover exemplary damages in addition to the direct compensatorydamages that Versata has suffered.

COUNT TWO(Tortious Interference With Prospective Business Advantage

And Prospective Contract)


50. Versata maintains business and economic relationships with many customers

based on or as a result of its exclusive rights with respect to the Think3 Products and intellectual

property, with probable future economic benefit flowing therefrom. Specifically, there is a

reasonable probability that Versata would have renewed sublicensing and maintenance

agreements with existing customers and entered into additional sublicensing and maintenance

agreements with new customers absent the intentional acts of interference by Defendants acting

at the direction of the Italian Trustee.

51. Defendants, acting under the direction of the Italian Trustee, have knowledge of

these prospective business relations and have acted intentionally and maliciously to disrupt them

and to prevent these future relationships and contractual agreements from coming into existence.

52. Defendants conduct was also independently tortious or unlawful, including by

disparaging Versata, encouraging others to conduct an illegal boycott of Versata, and by making

fraudulent statements about Versata to third persons with intent to deceive them.

53. As a direct and proximate cause of Defendants conduct directed by the Italian

Trustee, business relations between Versata and potential customers have been disrupted, andVersata has sustained direct damages as a result. Versata has suffered and will continue to suffer

irreparable loss and injury and other damages, unless and until Defendants are enjoined by this

Court from interfering with Versatas business relationships and prospective business



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relationships, whether or not such interference is directed by the Italian Trustee or performed by

the Italian Trustee purporting to act on behalf of Think3.

54. On information and belief, Defendants actions at the direction of the Italian

Trustee were reckless, malicious, without privilege or justification, and were intentionallyengaged in with the express purpose of interfering with or preventing further relationships and

agreements between Versata and third parties, and to harm Versata. Furthermore, Defendants

acts of interference directed by the Italian Trustee were accompanied by a specific intent to cause

substantial injury to Versata, or Defendants acts of interference directed by the Italian Trustee,

when viewed objectively at the time such acts occurred, involved an extreme degree of risk,

considering both the probability and magnitude of the potential harm to Versata. Defendants

nevertheless engaged in such acts directed by the Italian Trustee, proceeding with conscious

indifference to the rights and welfare of Versata despite Defendants actual subjective awareness

of the risk involved. Versata is therefore entitled to recover exemplary damages in addition to its

direct compensatory damages.

COUNT THREE(Business Disparagement)

55. Versata incorporates by reference paragraphs 1 to 54, above.

56. Defendants, acting at the direction of the Italian Trustee, have disseminated false

and disparaging information concerning Versata to the public and Versatas customers, including

by falsely stating, among other defamatory statements, that (a) Versata is not entitled to use or

sublicense Think3 Products and other Think3 intellectual property, including Think3 trademarks,

(b) Versata is not entitled to deal with and collect payments from its customers, (c) the

Agreement has been terminated and that Versata is infringing on the intellectual property rights

granted to it under the Agreement, (d) that Versata is engaged in illegal behavior, including by

supposedly using the Think3 trademark and advertising Think3 products in order to distract

customers, (e) that Versatas use of the Think3.verstat.com domain name is illegal, (f) that

customers should not direct payments to Versata, (g) that the Italian Trustee is the proper party to



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whom payments should be made, and (g) that Versatas intellectual property is located in Italy

and subject to the jurisdiction of the Italian courts.

57. The statements were false and disparaging words about Versatas economic

interests in intangible property. They were published intentionally, with malice, and without privilege. Defendants acted with malice because they knew the statements in question were

false, acted with reckless disregard for whether the statements were true, acted with ill will, and

intended to interfere with Versatas economic interest. The publication of these statements

caused special damages directly attributable to the statements, including pecuniary losses that

have been realized or liquidated. Defendants disparaging words concerning Versata have also

induced others not to deal with Versata, causing further damage and pecuniary loss, including,

but not limited to actual damages, economic injury, loss of sales, and loss of business.

58. On information and belief, Defendants actions at the direction of the Italian

Trustee were reckless, malicious, without privilege or justification, and were intentionally

engaged in with the express purpose of damaging, interfering with , and preventing further

relationships and agreements between Versata and third parties, and to harm Versata.

Furthermore, Defendants acts of interference directed by the Italian Trustee were accompanied

by a specific intent to cause substantial injury to Versata, or Defendants acts directed by the

Italian Trustee, when viewed objectively at the time such acts occurred, involved an extreme

degree of risk, considering both the probability and magnitude of the potential harm to Versata.

Defendants nevertheless engaged in such acts directed by the Italian Trustee, proceeding with

conscious indifference to the rights and welfare of Versata despite Defendants actual subjective

awareness of the risk involved. Versata is therefore entitled to recover exemplary damages in

addition to its direct compensatory damages.COUNT FOUR

(Breach of Contract)

59. Versata incorporates by reference paragraphs 1 to 58, above.



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60. By informing the public or customers that Versata is not entitled to sublicense

Think3 Products and intellectual property, to use Think3 trademarks, or to deal with and collect

payments from its customers; by continuing to exploit the Products and intellectual property

itself; and by asserting that the Agreement has been terminated and that Versata is infringing onthe intellectual property rights granted to it under the Agreement, Defendants, acting at the

direction of the Italian Trustee, have breached and continue to breach continuously on a daily

basis the express and implied terms of the Agreement. By failing to defend, indemnify and hold

Versata harmless from the allegations of violation of intellectual property rights made by and at

the direction of the purported Italian Trustee, Defendants have breached the Agreement. As a

direct result of these breaches, Versata has been damaged, including in the amount of $3,000,000

paid under the Agreement, plus all sums invested by Versata in its business relating to or based

on that Agreement, plus all additional damages proximately caused by these breaches, in an

amount according to proof.

61. Defendants, acting at the direction of the Italian Trustee, have asserted

continuously on a daily basis that the Agreement was terminated effective May 2, 2011. Versata

disputes that Think3, the Italian Trustee, or the Italian Bankruptcy Court has the right to

terminate the Agreement or to do any of the other acts about which Plaintiff complains in this

Complaint. If the Agreement can be terminated or rescinded, however, Versata will not have

received the consideration for which it has already paid Think3 $3,000,000; accordingly, Think3

has been unjustly enriched in an amount of at least $3,000,000. Under such circumstances

Versata is entitled to damages or restitution from each of the Italian Trustee and the Italian Estate

in the amount of no less than $3,000,000, plus all sums invested by Versata in its business based

on that Agreement, plus all amounts for which Versata may be liable to its customers as a resultof the termination of the Agreement.

COUNT FIVE(Infringement of United States Patent No. 6,675,294)




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63. On January 6, 2004, the United States Patent and Trademark Office issued U.S.

Patent No. 6,675,294 (the 294 Patent), entitled Method and Apparatus for Maintaining and

Configuring Systems, a copy of which is attached as Exhibit B. Versata holds all right, title,

and interest in and to the 294 Patent.64. Defendants, acting at the direction of the Italian Trustee, have been and are now

infringing, contributorily infringing, and/or actively inducing infringement of the 294 Patent by

making, using, offering to sell, selling, promoting, instructing others regarding the use of, and/or

importing into the United States of America CAD and PLM software products, including

ThinkDesign Suite, Product Configurator, and ThinkConfigure.

65. As a consequence of Defendants infringement, Versata is entitled to recover

damages adequate to compensate it for the infringement complained of herein, but in no event

less than a reasonable royalty.

66. Defendants infringement has injured and will continue to injure Versata, unless

and until such infringement is enjoined by this Court.

COUNT SIX(Infringement of United States Patent No. 7,188,335)


68. On March 15, 2002, the United States Patent and Trademark Office issued U.S.

Patent No. 7,188,335 (the 335 Patent), entitled Product Configurator Using Configuration

Patterns, a copy of which is attached as Exhibit C. Versata holds all right, title, and interest in

and to the 335 Patent.

69. Defendants, acting at the direction of the Italian Trustee, have been and are now

infringing, contributorily infringing, and/or actively inducing infringement of the 335 Patent by

making, using, offering to sell, selling, promoting, instructing others regarding the use of, and/or

importing into the United States of America CAD and PLM software products, including

ThinkDesign Suite, Product Configurator, and ThinkConfigure.



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71. Defendants infringement has injured and will continue to injure Versata, unlessand until such infringement is enjoined by this Court.

COUNT SEVEN(Infringement of European Patent No. 0 719 432 B2)


73. On May 23, 2007 the European Patent Office granted European Patent No. 0 719

432 B2, entitled Method and Apparatus for Configuring Systems (the 432 European

Patent), a copy of which is attached as Exhibit D. Versata holds all right, title, and interest in

and to the 432 European patent.

74. Defendants, acting at the direction of the Italian Trustee, have been and are now

infringing, contributorily infringing, and/or actively inducing infringement of the 432 European

Patent by making, using, offering to sell, selling, promoting, and/or instructing others regarding

the use of CAD and PLM software products, including ThinkDesign Suite, Product Configurator,

and ThinkConfigure.




76. Defendants infringement has injured and will continue to injure Versata, unless

and until such infringement is enjoined by this Court.

COUNT EIGHT

(Equitable Subordination Under 11 U.S.C. 510(c))77. Versata incorporates by reference paragraphs 1 through 76 above.

78. The Italian Trustee has engaged in a pattern and practice of wrongful conduct

specifically directed at stripping both Versata and the U.S. Estate of their respective property and



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business opportunities in order to convert such property and opportunities for the benefit of the

Italian Trustee, both specifically in the U.S. and elsewhere around the world.

79. The Italian Trustee has engaged and continues to engage in wrongful conduct that

is specifically intended to convert property of both Versata and the U.S. Estate to his ownwrongful use in unfair competition for customers and suppliers, using his own infringing

intellectual property and websites. The harm to the U.S. Estate also harms the DIP Lender,

because it reduces the value of the DIP Lenders collateral and its ability to recover its

administrative claims from the Debtors U.S. Estate. The harm to the U.S. Estate also harms the

Patent Owner, because it infringes the Patent Owners rights, some of which are also licensed to

the Debtors U.S. Estate. The harm to the U.S. Estate also harms the IP Buyer, because of

infringement of the intellectual property and rights acquired under the Agreement, as well as

increasing the liability of the U.S. Estate to the IP Buyer.

80. This wrongful, inequitable conduct of the Italian Trustee was made knowingly

and in willful disregard of applicable U.S. law, including without limitation the automatic stay

under 11 U.S.C. 362, and of other rights of the Debtors U.S. Estate under the Bankruptcy

Code for the specific protection of Versata.

81. Accordingly, Versata is entitled to equitable subordination pursuant to 11 U.S.C.

510(c) of all rights, claims, interests of the Italian Trustee against those of the Debtor or against

those of Versata.

COUNT NINE(Declaratory Judgment Of Versatas Rights Under The Agreement

82. Plaintiff Versata incorporates by reference paragraphs 1 through 81, above.

83. On or about October 7, 2010, Versata entered into the Agreement, governed by

Texas law, that gave Versata the exclusive right to make, use, sell, modify, sublicense and

exploit commercially all of Think3s Intellectual Property, all Products that use or incorporate

that Intellectual Property, and all of Think3s Marks.



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84. The Agreement further provides in Section 7.3 that Think3 shall defend,

indemnify, and hold [Versata] harmless against any and all claims, suits, actions, proceeding,

losses, damages, liabilities, costs and expenses arising from or attributable to, any allegations

that Versatas use of Think3s Property infringes any copyright, trademark, trade secret, patentor other proprietary right [...].

85. As alleged herein, the Italian Trustee, purporting to act on behalf of Think3, has

asserted that he has terminated the Technology License Agreement entered into and between

Think3 Inc. and Versata FZ-LLC on October 7 2010. The Italian Trustee has further asserted

that Think3 is the only owner of the intellectual property rights of the software (ThinkDesign,

Thinkteam, TD PLM etc) and it is not permitted in any way the use of this software without

the required authorization of dott. Andrea Ferri through legal sales by Authorised Think3

VARs. The Italian Trustee has also asserted that [a]ll contracts related to license agreement

entered into and between Versata and third parties has to be considered null and void and all

payments concerning the use of Think3 products have to be effected to the Italian Bankruptcy

Procedure.

86. Versata disputes all of these assertions and allegations by the Italian Trustee and

contends that Versata is entitled to all of the rights granted to it under the Agreement. In

particular, Versata asserts (a) that the Italian Trustee has no authority to act outside of Italy with

respect to Think3, and specifically lacks authority to take any actions to limit, interfere with, or

in any way impact the rights and operations of Think3, the Delaware corporation with whom

Versata contracted, and (b) that, in any event, the Italian Trustee has no authority to invalidate or

undermine Versatas rights under the Agreement after Versata paid the full consideration under

the Agreement. Further, the Trustee lacks authority to interfere with Versatas use of theIntellectual Property or with Versatas customers. The Italian Trustee has no authority to prevent

Versata from enforcing its customer contracts or to interfere with Versatas recovery of any

amounts owing to Versata from its customers.



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87. Versata further contends that under Texas law, which governs its Agreement with

Think3, the grant of an exclusive license to Versata operated as an executed transfer of Think3s

copyrights and intellectual property to Versata. As such, the Agreement is not a mere executory

agreement that a trustee in bankruptcyeven a properly-appointed U.S. bankruptcy trustee would be free to terminate.

88. By virtue of the unauthorized and overreaching actions of the Italian Trustee

purporting to act as the representative of Think3, and the actions of Think3 performed at the

direction of the Italian Trustee, there is an actual controversy between Versata and Think3 with

respect to Versatas rights arising under the Agreement. Specifically, actual controversy exists

concerning:

a. who has the authority to direct the conduct of Think3;

b. whether Versatas exclusive rights under the Agreement (including the exclusive

license to Versata of all of the Think3 Intellectual Property and Versatas

contracts with and rights to proceeds from its customers) can be or have been

terminated or impaired;

c. who is entitled to receive the license and maintenance fees from CAD and PLM

software end users;

d. who, if anyone, other than Versata is entitled to enforce rights as to Versata

customers and sublicensees;

e. whether Think3 itself is responsible for the breaches of the Agreement, harms and

wrongs done to Versata by its actions performed at the direction of the Italian

Trustee; and

f.

whether Think3 is required to defend, indemnify and hold Versata harmless fromall claims and allegations that Versatas actions (as authorized by the Agreement)

constitute an infringement of any intellectual property rights of Think3 and those

acting for or through it, such as the Italian Trustee.



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89. Pursuant to 28 U.S.C. 2201, 2202, an actual and substantial controversy exists

between Versata and Think3, acting on its own or at the direction of the Italian Trustee.

90. Versata seeks a declaration that:

a. Neither Think3 nor any person purporting to act on its behalf (including theItalian Trustee) has the right to terminate the Agreement and that Versata

continues to have all of the rights granted to it under the Agreement, including,

but not limited to, the right to use, sell, or exploit of any of the intellectual

property granted to Versata under the Agreement worldwide;

b. Think3 is obligated to defend, indemnify and hold Versata harmless from all

claims, suits, actions, proceeding, losses, damages, liabilities, costs and expenses

arising from or attributable to, any allegationsincluding, without limitation,

those asserted or to be asserted by the Italian Trustee purporting to act on behalf

of Think3alleging that Versata is not entitled to exercise any rights to use or

market Intellectual Property or Marks as set forth in the Agreement, or to deal

with and recover contract payments from Versata customers;

c. The Italian Trustee is not entitled or authorized to manage Think3, a Delaware

corporation, or to terminate or interfere with its Agreement with Versata or

Versata customers in any way that impacts Versatas rights or customers;

d. Versata FZ-LLC is the exclusive owner of all right, title and interest in and to the

intellectual property rights in the Think3 software products (excluding the

intellectual property rights owned by Think3 Inc.s China business). These

intellectual property rights include the rights to both (i) the Think3 software code

exclusively licensed to Versata, as a transfer of ownership of the copyright inaccordance with 101 of the United States Copyright Act (the Copyright Act),

as well as in accordance with in thereof, and (ii) all enhancements,

modifications, and derivate works of such software code, which constitute

separate copyrights owned by Versata as their author under 103 of the



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Copyright Act. The intellectual property further includes all other Think3-related

intellectual property, including, but not limited to, the Think3 product trademarks,

trade names, service marks, logos, naming rights, and domain name.

e. The Agreement does not merely convey a license to Versata FZ-LLC to use theabove-mentioned intellectual property, but rather is a full and completed sale and

transfer of the above-mentioned intellectual property to Versata FZ-LLC within

the assigned territory, which consists of the entire world except for China.

f. The exclusive license granted with respect to copyrights and related rights under

the Agreement in connection with the Debtors software products constituted a

transfer of copyright ownership as provided in Sections 101 and 201(d) of the

Copyright Act 17 U.S.C. 101 and 201(d).

g. Because the exclusive license granted under the Agreement has been substantially

performed by both parties and fully performed by Versata, as licensee, the transfer

of the exclusive rights thereunder has been completed and is nonexecutory under

the principles articulated in In re Exide Tech , 607 F.3d 957 (3 rd Cir. 2010).

Accordingly, the Agreement is not an executory contract that can be rejected

under 11 U.S.C. 365(a).

h. The effect of the Agreement was to achieve in substance, even if not necessarily

in form, a partition sale of the intellectual property, with (i) ownership of

exclusive rights for the Debtor in China, and (ii) exclusive rights for Versata

everywhere else.

i. For purposes of Section 72 of the Italian Bankruptcy Law, the Agreement was a

sufficiently complete transaction upon signing (and even more so on payment)that all transferred rights were vested and in full force and effect as valid and

completed transfers that could not thereafter be reversed by rejection or

termination of the contract under 72 or by 11 U.S.C. 365.



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j. The Agreement is valid, binding, supported by sufficient consideration, and

legally enforceable in all respects.

k. Versata FZ-LLC has fully performed all of its obligations under the Agreement,

including all payment obligations, and that there has been no breach or unsatisfiedcondition on the part of Versata FZ-LLC.

l. Even if Versata had not fully paid the stated consideration under the Agreement,

the transfers of property under the agreement were nevertheless fully vested,

accomplished and consummated at the signing of the Agreement.

m. All of the Debtors contracts, intellectual property and other intangible assets,

including the intellectual property that is the subject of the Agreement, are located

as a matter of law in Austin, Texas, at the Debtors headquarters and constitutes

property of the Debtors bankruptcy estate under 11 U.S.C. 541.

n. The only assets of the Debtor located in Italy are the tangible assets that were

physically located in Italy at the time when the Italian bankruptcy proceeding was

commenced.

o. No actions or events by or for the benefit of the Italian Trustee taken with respect

to the Debtors property, including its intellectual property and customer

relationships, occurring subsequent to the Debtors filing of its Chapter 11

petition have been or will be effective to expand the Trustees rights, title or

interest in any of the Debtors assets or to increase his power, remedies or

jurisdiction. Every such event occurring outside of Italy or impacting or affecting

the Debtor outside of Italy constitutes a violation of the stay under 11 U.S.C.

362 and, therefore, is ineffective, void, unenforceable and of no consequence tothe Debtor or its creditors, including the settling creditors.

p. The U.S. Bankruptcy Court for the Western District of Texas, Austin Division, is

the principal forum whose law governs the global assets of the Debtor and the

rights and obligations of creditors and other parties in interest. On account of



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11 U.S.C. 1529(1) and other applicable law, the Italian Trustee has no right,

power, jurisdiction or control over the Debtor in the U.S. or outside of Italy,

except as may be created by order of the U.S. Bankruptcy Court.

q. The Agreement and related transactions with the Debtor were valid, fair,equitable, at fair market value, in line with the market prices for this kind of

goods notwithstanding the economical situation of the seller, providing

reasonably equivalent value to the Debtor at the time of the transaction.

r. Versata FZ-LLC properly paid to Think3 Inc., or for the benefit of Think3 Inc.,

US$ 3,000,000 for the above-mentioned intellectual property.

s. The payments made by Versata FZ-LLC for the intellectual property were all

valid and proper payments and constituted valid, proper, and fully adequate

consideration for the intellectual property.

t. Payments made through the bank account of Think3 SRL, the Debtors

subsidiary, were proper and constituted payments to the Debtor or for the

Debtors benefit. Such subsidiary was authorized by the Debtor to receive

payments for the account of the Debtor from Versata and others. All funds paid

by Versata to such subsidiary were used to pay employees and other creditors of

the Debtor that had been approved for payment by the Debtor.

u. All improvements made by Versata FZ-LLC to the Think3 software products and

copyright code are derivative copyrights owned by Versata FZ-LLC, and, as such,

exist independent of the Agreement.

v. All contracts made or novated by Versata FZ-LLC with any customer, supplier or

other counter-party, whether assigned from the Debtor or made with Versata FZ-LLC at its inception, belong to Versata FZ-LLC independent of the Agreement

and any right of the Italian Trustee to purport to terminate them.

w. Versata FZ-LLC is an independent legal entity, properly incorporated under the

laws of the UAE, and any engagement with any customer, supplier or other



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counter-party belong to Versata FZ-LLC independent of the Agreement executed

with Think3 and any right of the Italian Trustee to terminate them.

x. Versata has the right to communicate with any individual or entity, including

customers of Versata, any truthful statements regarding the ownership rights inthe intellectual property conveyed under the Agreement, the proceedings in this

Court, the proceedings in the Italian Bankruptcy Court, or the proceedings in the

Italian IP Court.

PRAYER FOR RELIEF

WHEREFORE, Versata requests that the Court:

a. Grant preliminary and permanent injunctive relief against further tortious

interference with Versatas contractual relations with its customers, including by

way of the use of unauthorized communications, unauthorized websites, or

unauthorized website access;

b. Grant preliminary and permanent injunctive relief against further tortious

interference with Versatas prospective business advantage and prospective

contracts;

c. Grant preliminary and permanent injunctive relief to preclude Defendants from

generating or providing to anyone Unauthorized Sublicenses.

d. Grant an award of damages in an amount to be proved at trial, for all damages

caused by Think3s infringement and tortious interference;

e. Adjudge that the 294 Patent, the 335 Patent, and 432 European Patent are valid

and enforceable;

f.

Adjudge that Defendants, acting at the direction of the Italian Trustee, areinfringing and have infringed, and have contributed to and induced infringement

of, the 294 Patent, the 335 Patent, and the 432 European Patent;

g. Enjoin Defendants, acting at the direction of the Italian Trustee, and its affiliates,

subsidiaries, officers, directors, employees, agents, representatives, licensees,



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successors, assigns, and all those acting for it and on its behalf, or acting in

concert with them, from further infringement of the 294 Patent, the 335 Patent,

and the 432 European Patent;

h. Issue declaratory relief, including one or more declarations in the manner sought by this complaint;

i. Grant an award of attorneys fees and costs of suit;

j. Grant an award of exemplary damages; and

k. Award Versata such other and further relief as the Court deems just and proper.

Dated: August 17, 2011 Respectfully submitted,

FULBRIGHT & J AWORSKI L.L.P.

/s/ Berry D. SpearsBerry D. Spears (Texas No. 18893300)600 Congress Avenue, Suite 2400Austin, Texas 78701-2878Telephone: (512) 536-5246Facsimile: (512) 536-4598

Zack A. Clement (Texas No. 04361550)John D. Cornwell (Texas No. 24050450)1301 McKinney Street, Suite 5100Houston, TX 77010-3095

Telephone: (713) 651-5151Facsimile: (713) 651-5246

Camisha L. Simmons (Texas No. 24056328)2200 Ross Avenue, Suite 2800Dallas, Texas 75201Telephone: (214) 855-8000Facsimile: (214) 855-8200

-and-

(list continued on next page)



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M ORRISON & FOERSTER LLP

G. Larry Engel (admitted pro hac vice)California State Bar No. 53484Vincent J. Novak (admitted pro hac vice)California State Bar No. 233003

Kristin Hiensch (admitted pro hac vice)California State Bar No. 275676425 Market StreetSan Francisco, California 94105-2482Telephone: (415) 268-7000Facsimile: (415) 268-7522

-and-

AHMAD , Z AVISANOS & ANAIPAKOS , P.C.

Demetrios AnaipakosTexas State Bar No. 007932581221 McKinney St, Suite 3460Houston, Texas 77010-2009Telephone: (713) 655-1101Facsimile: (713) 655-0062

COUNSEL FOR VERSATA FZ-LLC,VERSATA DEVELOPMENT GROUP, INC.,VERSATA SOFTWARE, INC., ESWCAPITAL, LLC AND GENSYM CAYMAN L.P.


Patent Lawsuit Complaint

Documents

Transcript of Patent Lawsuit Complaint