IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION

NO.: 3:12-cv-476 AGILITY RECOVERY SOLUTIONS, INC. Plaintiff, v. F4W, INC., Defendant. ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY RELIEF

JURY TRIAL DEMANDED

Plaintiff, AGILITY RECOVERY SOLUTIONS, INC. (Plaintiff or Agility Recovery Solutions), for its Complaint against Defendant, F4W, INC. (Defendant or F4W), alleges as follows:

Nature of the Case 1. This is an action for a Declaratory Judgment and other relief brought under the

Federal Declaratory Judgment Act, 28 U.S.C. 2201-02. In this action, Plaintiff seeks a declaratory judgment that Plaintiff does not have liability for infringement of certain patent rights purportedly owned by Defendant. Specifically, Plaintiff seeks a declaratory judgment (a) that Plaintiffs products and services do not infringe U.S. Patent No. 8,175,632 (the 632 patent), (b) that Plaintiffs products and services do not infringe U.S. Patent No. 7,546,139 (the 139 patent), and/or (c) that the 632 patent is invalid, and (d) that the 139 patent is invalid.

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The Parties 2. Plaintiff is a corporation organized and existing under the laws of the State of

Delaware, having a principal place of business at 2101 Rexford Road, Suite 350E, Charlotte, NC 28211, and is doing business in this State and District. 3. On information and belief, Defendant is a corporation organized and existing

under the laws of the State of Florida, and is doing business in this State. 4. On information and belief, Defendant is the alleged owner of the 632 patent and

the 139 patent.

Jurisdiction and Venue 5. 6. grounds: (a) 28 U.S.C. 1331, this being a civil action arising under the laws of the United States; (b) 28 U.S.C. 1337(a), this being a civil action arising under an Act of Congress regulating commerce and protecting trade and commerce; and (c) 28 U.S.C. 1338(a), this being a civil action arising under an Act of Congress relating to alleged patent rights. 7. This Court may declare the rights and other legal relations of the parties in this This is a declaratory judgment action brought under 28 U.S.C. 2201-02. This Court has jurisdiction over the subject matter of this action on the following

case under 28 U.S.C. 2201, and Rule 57, Fed.R.Civ.P., because an actual and justiciable controversy exists concerning the rights of, and legal relations between, Plaintiff and Defendant.

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This Court has personal jurisdiction over Defendant consistent with the

principles underlying the U.S. Constitution and N.C. Gen Stat. 1-75.4. On information and belief, Defendant has conducted business in this State and is subject to personal jurisdiction in this State by virtue of its contacts here. 9. On information and belief, Defendant has availed itself of the privileges of the

laws of this State by, inter alia, attending trade shows, soliciting customers, offering for sale products and/or services, selling products and/or services, providing a website, sending solicitations, and otherwise engaging in business activities within this State. 10. On information and belief, Defendant has placed its products

into the stream of commerce while knowing that the products will likely arrive in this State. On information and belief, Defendants products are offered for sale to customers residing in this State and have been sold to customers in this State. 11. Venue is proper in this Court under the provisions of 28 U.S.C. 1391.

Facts Related to All Claims 12. Plaintiff creates and implements business continuity solutions, including satellite

recovery solutions for establishing data and voice connectivity after the destruction or failure of traditional business information infrastructure. 13. Defendant, through its counsel, has alleged that Plaintiff has violated federal

patent laws and has attempted to enforce its alleged patent rights against Plaintiff through threats of legal action. Specifically, Defendant has accused Plaintiff of patent infringement through the use and sale of Plaintiffs products and services.

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In a letter dated July 17, 2012, Defendant, through its counsel, accused Plaintiff

of infringing the 632 patent and the 139 patent, and issued several demands to Plaintiff, including but not limited to the payment of fees to Defendant and the purchase of a license from Defendant. 15. The letter dated July 17, 2012, in addition to the demands issued to Plaintiff,

included a threat of suit against Plaintiff. 16. On information and belief, Plaintiff does not infringe and has not infringed any

valid and enforceable patent rights Defendant has or may have in the 632 patent or the 139 patent. 17. On information and belief, contrary to Defendants allegations, Plaintiff has not

infringed any of Defendants purported rights and is not liable to Defendant for patent infringement or any other federal, state, or common law causes of action, in law or in equity. 18. On information and belief, Plaintiff is not liable to Defendant for any fees,

monetary damages, or any other damages Defendant now claims.

Count I: Declaratory Judgment of Non-Infringement and/or Invalidity of the 632 Patent 19. Plaintiff realleges and incorporates by reference the allegations in the foregoing

paragraphs as if fully set forth herein. 20. Defendant has threatened Plaintiffs business in this State and District and

elsewhere by accusing Plaintiff of unlawful actions, including infringement of the 632 patent, and threatening to undertake legal action against Plaintiff.

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Plaintiff is legally permitted to make, use, sell, and offer to sell Plaintiffs

products and services and otherwise conduct its business activities without permission, involvement, or interference from Defendant. 22. On information and belief, at least to the extent that Defendant alleges that

Plaintiffs products infringe the 632 patent, the invention claimed in the 632 patent was known or used by others in this country before the invention thereof by the named inventors of the 632 patent. 23. On information and belief, at least to the extent that Defendant alleges that

Plaintiffs products infringe the 632 patent, Plaintiffs products were in public use or on sale in this country more than one year prior to the date the application underlying the 632 patent was filed. 24. On information and belief, the 632 patent is invalid for failure to meet one or

more of the conditions of patentability specified in 35 U.S.C 101 et seq., 25. There is an actual and substantial controversy between Plaintiff and Defendant of

sufficient immediacy and reality to warrant the rendering of a declaratory judgment by this Court. 26. Plaintiff is entitled to a judgment declaring that it has not violated any purported

rights of Defendant under federal, state or common law and is not liable to Defendant for any claims, including any claim of patent infringement concerning the 632 patent.

Count II: Declaratory Judgment of Non-Infringement and/or Invalidity of the 139 Patent 27. Plaintiff realleges and incorporates by reference the allegations in the foregoing

paragraphs as if fully set forth herein.

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Defendant has threatened Plaintiffs business in this State and District and

elsewhere by accusing Plaintiff of unlawful actions, including infringement of the 139 patent, and threatening to undertake legal action against Plaintiff. 29. Plaintiff is legally permitted to make, use, sell, and offer to sell Plaintiffs

products and services and otherwise conduct its business activities without permission, involvement, or interference from Defendant. 30. On information and belief, at least to the extent that Defendant alleges that

Plaintiffs products infringe the 139 patent, the invention claimed in the 139 patent was known or used by others in this country before the invention thereof by the named inventors of the 139 patent. 31. On information and belief, at least to the extent that Defendant alleges that

Plaintiffs products infringe the 139 patent, Plaintiffs products were in public use or on sale in this country more than one year prior to the date the application underlying the 139 patent was filed. 32. On information and belief, the 139 patent is invalid for failure to meet one or

more of the conditions of patentability specified in 35 U.S.C 101 et seq. 33. There is an actual and substantial controversy between Plaintiff and Defendant of

sufficient immediacy and reality to warrant the rendering of a declaratory judgment by this Court. 34. Plaintiff is entitled to a judgment declaring that it has not violated any purported

rights of Defendant under federal, state or common law and is not liable to Defendant for any claims, including any claim of patent infringement concerning the 139 patent.

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WHEREFORE, Plaintiff prays for the entry of a judgment: A. Declaring that Plaintiff has not infringed or otherwise violated any purported rights of Defendant, including any provisions of 35 U.S.C. 101 et seq. or any other asserted federal, state, or common law laws; B. Declaring that the 632 patent is invalid; C. Declaring that the 139 patent is invalid; and D. Granting Plaintiff any such further legal and equitable relief as the Court may deem just and proper.

Plaintiff demands a trial by jury on all issues so triable.

Date: July 31, 2012

Respectfully submitted, s/Benjamin R. Huber Benjamin R. Huber N.C. State Bar No. 40721 Dickson M. Lupo N.C. State Bar No. 13024 MOORE & VAN ALLEN PLLC Bank of America Corporate Center 100 North Tryon Street, Suite 4700 Charlotte, North Carolina 28202 Telephone: (704) 331-1000 Facsimile: (704) 378-2046 E-mail: benjaminhuber@mvalaw.com Attorneys for Plaintiff

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