IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION AXIOMETRICS, INC.

Plaintiff, v. PIERCE-EISLEN, INC., Defendant. § § § § § § § § §

C.A. No. _____________________ JURY TRIAL DEMANDED

ORIGINAL COMPLAINT OF AXIOMETRICS, INC. FOR DECLARATORY JUDGMENT Plaintiff Axiometrics, Inc. (“Plaintiff”) states its Complaint against defendant PierceEislen, Inc. (“Defendant”) and alleges as follows: NATURE OF ACTION 1. By this action, Plaintiff seeks a declaration that: (a) it has not infringed and is not

infringing Defendant’s United States Patents Nos. 7,974,930 and 8,060,450; (b) it has not committed and is not committing unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or the common law or statutes of any State; (c) it has not committed and is not committing false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or the common law or statutes of any State. BACKGROUND FACTS 2. Founded in 1994, Plaintiff Axiometrics, Inc. has established itself as the leading Plaintiff

provider of apartment data and apartment market research in the United States.

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provides accurate and timely performance measures for the U.S. apartment market. Plaintiff’s clients include investors, apartment operators, and developers. Plaintiff’s clients use its services in order to improve their apartment property and portfolio performance and to identify markets, submarkets and specific sites for apartment acquisitions and development. 3. On or about April 16, 2013, Plaintiff received a demand letter from Defendant

claiming that Defendant is the owner of United Patent No. 7,974,930 (“the ‘930 patent”) and United States Patent No. 8,060,450 (“the ‘450 patent”). A copy of the demand letter (the “Letter”) is attached as Exhibit A. A copy of the ‘930 patent is attached as Exhibit B. A copy of the ‘450 patent is attached as Exhibit C. Defendant further claimed in the Letter that it “routinely and actively” enforces its intellectual property. 4. The Letter further claimed that: It has come to our attention that Axiometrics’ services and products, including but not limited to the Property Report, Market Report and CPS Report products, are covered by one or more claims of Pierce-Eislen's Issued patents. 5. patents. 6. The Letter further claims that “Axiometrics is engaging in false/misleading The Letter further “requests” that Plaintiff “obtain a license” for the ‘930 and ‘450

advertising that is in violation of federal law” and that Plaintiff’s actions “constitute a violation of Section 43(a) of the Lanham Act.” The Letter also claims that Plaintiff’s actions “constitute a violation of state law statutes regarding unfair trade practices.” 7. The Letter closes by stating that if Plaintiff does not “immediately” comply with

Defendant’s demands, defendant may enforce its rights “by filing a suit against Axiometrics.”
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The closing of the Letter also states that if Plaintiff does not agree to Defendant’s demands by April 26, 2013, “Pierce-Eislen will have to proceed as indicated.” The only reasonable

interpretation of the closing of the Letter is that Defendant intends to file suit against Plaintiff. PARTIES 8. Plaintiff Axiometrics, Inc. is a corporation organized under the laws of the State

of Texas, with a principal place of business located at 14901 Quorum Dr., Suite 600, Dallas, Texas. Plaintiff is a Texas Citizen. 9. Upon information and belief, Defendant Pierce Eislen, Inc. is a corporation

organized under the laws of the State of Delaware, with a principal place of business located at 9200 Pima Center Parkway, Suite 150, Scottsdale, Arizona. Defendant can be served with process through its designated agent, Ronald Brock, at 9200 Pima Center Parkway, Suite 140, Scottsdale, Arizona. Defendant is a citizen of Delaware and Arizona. JURISDICITON AND VENUE 10. This is a civil action regarding allegations of patent infringement, unfair

competition and false advertising under the laws of the United States, Titles 15 and 35, and under the common law and statutes of the unidentified States that Defendant references in the Letter. Thus, the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1338, 2201 and 2202. The Court has subject matter jurisdiction of the State law claims in this action under 28 U.S.C. § 1367 because these claims arise out of the same transaction and occurrences giving rise to the federal jurisdiction. The Court has also subject matter jurisdiction

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under 28 U.S.C. § 1332 because the amount in controversy exceeds $75,000, exclusive or interest and costs, and Plaintiff and Defendants are citizens of different states. 11. An actual, live, and justiciable controversy exists between Plaintiff and Defendant

by virtue of Defendant’s Letter accusing Plaintiff of patent infringement, unfair competition and false advertising. 12. The Court has personal jurisdiction over Defendant because, upon information

and belief, Defendant has sold or advertised for sale its products or services in this district; because Defendant operates an e-commerce website, http://www.pi-ei.com, which is readily accessible by persons residing in this district; and because Defendant has by letter sent communications into this district raising alleged infringement issues and other cause of action. Defendant’s website offers for sale apartment related information and/or data for apartments located in this judicial district. See Exhibit D. Further, upon information and belief, Defendant sells apartment related information and/or data to customers who are located in this judicial district. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 and 1400 and for the

reasons stated above. FIRST CAUSE OF ACTION (Declaratory Judgment of Non-Infringement of the ‘930 Patent) 14. Plaintiff hereby incorporated its allegations contained in paragraphs 1 through 13

of this Complaint as though fully set forth herein.

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15.

Defendant contends that Plaintiff sells products and/or services that have

infringed and continue to infringe the claims of the ‘930 patent. 16. 17. Plaintiff has not and does not directly or indirectly infringe the ‘930 patent. An actual, live, and justiciable controversy therefore exists between Plaintiff and

Defendant as to whether Plaintiff’s products and/or services infringe the claims of the ‘930 patent. 18. Accordingly, Plaintiff seeks and is entitled to a judgment against Defendant that

its products and/or services do not infringe the claims of the ‘930 patent. SECOND CAUSE OF ACTION (Declaratory Judgment of Non-Infringement of the ‘450 Patent) 19. Plaintiff hereby incorporated its allegations contained in paragraphs 1 through 18

of this Complaint as though fully set forth herein. 20. Defendant contends that Plaintiff sells products and/or services that have

infringed and continue to infringe the claims of the ‘450 patent. 21. 22. Plaintiff has not and does not directly or indirectly infringe the ‘450 patent. An actual, live, and justiciable controversy therefore exists between Plaintiff and

Defendant as to whether Plaintiff’s products and/or services infringe the claims of the ‘450 patent. 23. Accordingly, Plaintiff seeks and is entitled to a judgment against Defendant that

its products and/or services do not infringe the claims of the ‘930 patent.
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THIRD CAUSE OF ACTION (Declaratory Judgment of No Unfair Competition) 24. Plaintiff hereby incorporated its allegations contained in paragraphs 1 through 23

of this Complaint as though fully set forth herein. 25. Defendant contends that Plaintiff has unfairly competed and is unfairly

competing with Defendant under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) 26. Plaintiff has not unfairly competed and is not unfairly competing with Defendant

under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 27. Defendant contends that Plaintiff has unfairly competed and is unfairly

competing with Defendant under the common law or statutes of an unidentified State. 28. Plaintiff has not unfairly competed and is not unfairly competing with Defendant

under the common law or statutes of any State. 29. An actual, live, and justiciable controversy therefore exists between Plaintiff and

Defendant as to whether Plaintiff has unfairly competed or is unfairly competing with Defendant under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State. 30. Accordingly, Plaintiff seeks and is entitled to a judgment against Defendant that

Plaintiff has not unfairly competed and is not unfairly competing with Defendant under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State.

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FOURTH CAUSE OF ACTION (Declaratory Judgment of No False Advertising) 31. Plaintiff hereby incorporated its allegations contained in paragraphs 1 through 30

of this Complaint as though fully set forth herein. 32. Defendant contends that Plaintiff has falsely advertised and is falsely advertising

under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) 33. Plaintiff has not falsely advertised and is not falsely advertising under Section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 34. Defendant contends that Plaintiff has falsely advertised and is falsely advertising

under the common law or statutes of an unidentified State. 35. Plaintiff has not falsely advertised and is not falsely advertising under the

common law or statutes of any State. 36. An actual, live, and justiciable controversy therefore exists between Plaintiff and

Defendant as to whether Plaintiff has falsely advertised or is falsely advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State. 37. Accordingly, Plaintiff seeks and is entitled to a judgment against Defendant that

Plaintiff has not falsely advertised and is not falsely advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State.

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DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury on all issues triable or right to a jury under Rule 38 of the Federal Rules of Civil Procedure. PRAYER FOR RELIEF For these reasons, Plaintiff respectfully requests the court to: a. Grant and enter judgment declaring that Plaintiff has not infringed and is

not infringing any valid and enforceable claim of the ‘930 patent. b. Grant and enter judgment declaring that Plaintiff has not infringed and is

not infringing any valid and enforceable claim of the ‘450 patent. c. Grant and enter judgment that Plaintiff has not unfairly competed and is

not unfairly competing with Defendant under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State. d. Grant and enter judgment that Plaintiff has not falsely advertised and is

not falsely advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State. e. Enter an injunction enjoining Defendant from claiming infringement by

Plaintiff of the ‘930 or ‘450 patent. f. Enter an injunction enjoining Defendant from claiming unfair competition

by Plaintiff under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State.

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g.

Enter an injunction enjoining Defendant from claiming false advertising

by Plaintiff under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) or under the common law or statutes of any State. h. That Plaintiff be entitled to recover its costs, expenses, and reasonable

attorney’s fees pursuant to 35 U.S.C. § 285 and 28 U.S.C. § 1927, under the common law, Texas law, and otherwise; and i. That such other and further relief as the Court deems just, equitable, and

proper be awarded to Plaintiff Dated: April 26, 2013 Respectfully Submitted, MUNSCH HARDT KOPF & HARR, P.C.

By: /s/ Jon B. Hyland_______ ________________ Jon B. Hyland State Bar No. 24046131 Em: jhyland@munsch.com 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659 Tel: (214) 855-7500 Fax: (214) 855-7584 COUNSEL FOR PLAINTIFF

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