Mark A. Miller, 9563 mmiller@hollandhart.com Bryan G. Pratt, 9924 bgpratt@hollandhart.com Christopher B. Hadley, 14055 cbhadley@hollandhart.

com H OLLAND & H ART LLP 222 South Main Street, Suite 2200 Salt Lake City, UT 84101 Telephone: (801) 799-5800 Facsimile: (801) 799-5700 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

1-800 CONTACTS, INC. d/b/a GLASSES.COM, a Delaware corporation and Utah d/b/a, Plaintiff, vs. DITTO Technologies, Inc., a California corporation, Defendant.

COMPLAINT

Case No. 2:13-cv-00145 Magistrate Judge Paul M. Warner Jury Demand

Plaintiff 1-800 CONTACTS, Inc. d/b/a Glasses.com (“Glasses.com” or “Plaintiff”), by and through counsel, alleges and complains against Defendant DITTO Technologies, Inc. (“DITTO” or “Defendant”) as follows: THE PARTIES 1. Plaintiff is a Delaware corporation doing business as Glasses.com and having its

principal place of business at 66 East Wadsworth Park Drive, Draper, Utah 84020. Plaintiff

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owns and operates the retail website www.glasses.com through which it offers and sells eye glasses to consumers. 2. Plaintiff owns a valid and enforceable United States patent, U.S. Patent

No. 7,061,824 (“the ‘824 patent”), entitled “INTERACTIVE TRY-ON PLATFORM FOR EYEGLASSES.” The ‘824 patent issued March 21, 2006. A copy of the ‘824 patent is attached as Exhibit A. 3. Upon information and belief, Defendant DITTO is a California corporation

having a place of business at 888 Villa St., Suite 310, Mountain View, California 94041 and offers and sells eye glasses to consumers throughout the United States, including this judicial district, via its retail website www.ditto.com. JURISDICTION AND VENUE 4. This action is for patent infringement under 35 U.S.C. § 271. This Court

has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338. 5. This Court has personal jurisdiction over DITTO due to its infringing

activities in the State of Utah, including the use of its infringing virtual try-on system to sell, offer for sale, and advertise eye glasses to consumers throughout the country, including consumers in Utah. 6. Venue is proper in the District of Utah pursuant to 28 U.S.C. § 1391. GENERAL ALLEGATIONS 7. Plaintiff’s ‘824 patent discloses and claims an interactive 3-dimensional

virtual try-on (“3D VTO”) platform that enables a consumer to “try on” eye glasses

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virtually without having to visit a brick-and-mortar store and physically try on the glasses. 8. Plaintiff has developed and is launching (or will soon launch) an

interactive 3D VTO platform through its www.glasses.com website and related mobile applications for tablet computers and/or mobile phones. Plaintiff has invested and

continues to invest significant time and resources into developing its 3D VTO platform and acquiring the patent rights to protect it. 9. DITTO uses and offers an interactive 3D VTO platform via its website,

www.ditto.com, and via mobile applications for tablet computers and/or mobile phones. DITTO’s 3D VTO platform is labeled “Create Your DITTO” and enables consumers to virtually try on eyeglasses in an interactive environment. DITTO provides consumers with detailed instructions on how to use DITTO’s 3D VTO platform in order to virtually try on eyeglasses. 10. DITTO’s interactive “Create Your DITTO” 3D VTO platform infringes

one or more claims of the ‘824 patent. 11. If DITTO’s infringing actions are not immediately and permanently

enjoined by this Court, Plaintiff will suffer irreparable harm to its good will, brand image, market share, exclusivity, and the overall marketing impact of Plaintiff’s 3D VTO platform. Monetary damages alone will be insufficient to fully redress this harm.

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FIRST CAUSE OF ACTION (Patent Infringement Under 35 U.S.C. § 271(a)) 12. Plaintiff re-alleges and incorporates by this reference the preceding

allegations of this Complaint. 13. DITTO’s actions as described above, and specifically DITTO’s use of its

3D VTO platform, constitutes infringement of the ‘824 patent under 35 U.S.C. § 271(a). 14. Subsequent to DITTO’s knowledge of the ‘824 patent, whether occurring

via this complaint or otherwise, DITTO’s continued use of its 3D VTO platform demonstrates a deliberate and conscious decision to infringe the ‘824 patent or, at the very least, a reckless disregard of Plaintiff’s patent rights. 15. Plaintiff is entitled to an injunction prohibiting DITTO from further use of

the infringing 3D VTO platform without permission or license from Plaintiff under 35 U.S.C. § 283. 16. Plaintiff is entitled to recover all damages caused by DITTO’s

infringement under 35 U.S.C. § 284. 17. Plaintiff is entitled to trebled damages and attorneys’ fees and costs

incurred in this action, along with prejudgment interest under 35 U.S.C. §§ 284, 285 if DITTO’s infringement is found to be willful or otherwise exceptional. SECOND CAUSE OF ACTION (Induced Infringement Under 35 U.S.C. § 271(b)) 18. Plaintiff re-alleges and incorporates by this reference the preceding

allegations of this Complaint. 4
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19.

To the extent DITTO’s 3D VTO platform utilizes services, servers, or

hardware from third parties to accomplish or perform one or more of the recited steps in the claims of the ‘824 patent, then DITTO’s conduct of directing such parties to take actions that result in infringement of the ‘824 patent after having notice of the ‘824 patent constitutes induced infringement of the ‘824 patent under 35 U.S.C. § 271(b). 20. In addition, following DITTO’s notice of the ‘824 patent, whenever that

occurred, DITTO’s express instructions to users/consumers on how to use its 3D VTO platform in a manner that the consumers infringe or participate in the infringement of the claims of the ‘824 patent constitutes induced infringement of the ‘824 patent under 35 U.S.C. § 271(b). 21. Subsequent to DITTO’s knowledge of the ‘824 patent, DITTO’s continued

use of its 3D VTO platform and/or its active inducement of others to implement its 3D VTO platform demonstrates a deliberate and conscious decision to infringe the ‘824 patent or, at the very least, a reckless disregard of Plaintiff’s patent rights. 22. Plaintiff is entitled to an injunction prohibiting DITTO from further use of

the infringing 3D VTO platform without permission or license from Plaintiff under 35 U.S.C. § 283. 23. Plaintiff is entitled to recover all damages caused by DITTO’s

infringement under 35 U.S.C. § 284. 24. Plaintiff is entitled to trebled damages and attorneys’ fees and costs

incurred in this action, along with prejudgment interest under 35 U.S.C. §§ 284, 285 if DITTO’s infringement is found to be willful or otherwise exceptional. 5
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THIRD CAUSE OF ACTION (Contributory Infringement Under 35 U.S.C. § 271(c)) 25. Plaintiff re-alleges and incorporates by this reference the preceding

allegations of this Complaint. 26. DITTO provides an interactive platform to consumers for 3D VTO via its

website and via mobile applications for tablet computers and/or phones. DITTO’s 3D VTO mobile applications and 3D VTO online platform are especially and specifically designed to perform the processes and systems claimed in the ‘824 patent and are not staple articles of commerce suitable for substantial non-infringing uses. Accordingly, DITTO is liable for contributory infringement under 35 U.S.C. § 271(c). 27. Subsequent to DITTO’s knowledge of the ‘824 patent, DITTO’s continued

use of its 3D VTO platform and/or its contributory infringement through providing others with its 3D VTO platform demonstrates a deliberate and conscious decision to infringe the ‘824 patent or, at the very least, a reckless disregard of Plaintiff’s patent rights. 28. Plaintiff is entitled to an injunction prohibiting DITTO from further use of

the infringing 3D VTO platform without permission or license from Plaintiff under 35 U.S.C. § 283. 29. Plaintiff is entitled to recover all damages caused by DITTO’s

infringement under 35 U.S.C. § 284.

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30.

Plaintiff is entitled to trebled damages and attorneys’ fees and costs

incurred in this action, along with prejudgment interest under 35 U.S.C. §§ 284, 285 if DITTO’s infringement is found to be willful or otherwise exceptional. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that: a. the Court preliminarily and permanently enjoin DITTO, its officers, directors, principals, agents, servants, employees, successors and assigns, and all others aiding, abetting, or acting in concert or active participation therewith, from making, using, selling, offering to sell, or providing to the public via a website, mobile applications, or any other means DITTO’s infringing 3D VTO platform or any other 3D VTO platform that infringes the ‘824 patent; b. the Court enter judgment against DITTO for infringement of the ‘824 patent under 35 U.S.C. § 271; c. the Court order DITTO to account to Plaintiff for all sales, revenues, and profits derived from its use of the infringing 3D VTO platform, and that DITTO pay to Plaintiff all compensatory damages to which Plaintiff is entitled by law, including without limitation lost profits, reasonable royalties, price erosion damages, and convoyed sales damages; d. the Court award Plaintiff three times the damages found in accordance with subparagraph (c) above pursuant to 35 U.S.C. § 284;

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e. the Court award Plaintiff the costs and reasonable attorneys’ fees and expenses incurred in this action pursuant to 35 U.S.C. § 285 and the equity powers of the Court; f. the Court award Plaintiff prejudgment interest against Defendant on all sums allowed by law; and g. the Court award Plaintiff such other and further relief as the Court may deem just and proper. JURY DEMAND Plaintiff demands that all claims or causes of action raised in this Complaint be tried by a jury to the fullest extent possible under the United States Constitution. DATED this 26th day of February, 2013. H OLLAND & H ART LLP /s/ Mark A. Miller Mark A. Miller Bryan G. Pratt Christopher B. Hadley Attorneys for Plaintiff Plaintiff’s Address: 66 East Wadsworth Park Drive Draper, Utah 84020

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