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Jacob Song #265371 jacob.song@kutakrock.com Kutak Rock LLP Suite 1500 5 Park Plaza Irvine, CA 92614-8595 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Chad T. Nitta (pro hac vice pending) chad.nitta@kutakrock.com Blair E. Kanis (pro hac vice pending) blair.kanis@kutakrock.com Kutak Rock LLP 1801 California St., Suite 3100 Denver, CO 80202 Telephone: (303) 297-2400 Attorneys for Plaintiff ZYME SOLUTIONS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION ZYME SOLUTIONS, INC., COMPLAINT FOR: Plaintiff, DECLARATORY RELIEF v. INFONOW CORPORATION, d/b/a CHANNELINSIGHT, and DOES 1 through 100, INCLUSIVE Defendants. DEMAND FOR JURY TRIAL

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Plaintiff Zyme Solutions, Inc. (“Zyme”) for its Complaint for Declaratory Relief against Defendant InfoNow Corporation d/b/a Channelinsight (“Channelinsight”) alleges as follows: PARTIES 1. Zyme is corporation duly organized and existing under the laws of the State of

Delaware having its principal place of business at 240 Twin Dolphin Drive, Suite E, Redwood Shores, CA 94065. 2. On information and belief, Channelinsight is a corporation duly organized and

existing under the laws of the State of Delaware having its principal place of business at 1875 Lawrence Street, Suite 1100, Denver, CO 80202. On information and belief, Channelinsight also maintains a place of business in this jurisdiction at 525 University Avenue, Suite #1350, Palo Alto, California 94301. JURISDICTION AND VENUE 3. This action arises under the patent laws of the United States, 35 U.S.C. §§ 1 et seq.

and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§

1331 and 1338. 5. This Court has personal jurisdiction over Channelinsight because Channelinsight

maintains a place of business in this judicial district, transacts business and/or offers to transact business within this judicial district (directly or through intermediaries) and because Zyme is being damaged in the State of California. 6. Venue is proper in the United States District Court for the Northern District of

California pursuant to 28 U.S.C. § 1391. FACTUAL BACKGROUND 7. On December 14, 2012, Channelinsight filed a Complaint for Patent Infringement

(the “Colorado Complaint”) against Zyme in the United States District Court for the District of Colorado (the “Colorado Action”). attached hereto as Exhibit A. ///
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A true and correct copy of the Colorado Complaint is

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8.

In the Colorado Complaint, Channelinsight alleged that it was the owner and

assignee of all right, title, and interest in and to United States Patent No. 8,296,258 B2 (the “‘258 Patent”). A true and correct copy of the ’258 Patent is attached hereto as Exhibit B. 9. Channelinsight further alleged that Zyme “has been and now is infringing, literally

and/or under the doctrine of equivalents, the ‘258 Patent … by, among other things, making, using, importing, offering to sell, and/or selling in the United States products and services that embody the inventions claimed in the ‘258 Patent, including, but not limited to, it’s channel data solutions products and services.” (See Exh. A, Colorado Complaint at ¶ 9.) 10. In the Colorado Action, Channelinsight sought preliminary and permanent

injunctive relief and damages for Zyme’s alleged infringement of the ‘258 Patent. 11. Despite engaging Zyme in communications related to Channelinsight’s intellectual

property in general, Channelinsight did not inform Zyme of its belief that Zyme was infringing the ‘258 Patent prior to initiating the Colorado Action. 12. On January 7, 2013, Zyme filed a Motion to Dismiss for Failure to State a Claim

Upon Which Relief Can Be Granted and for Lack of Personal Jurisdiction (the “Motion to Dismiss”). In support of its request for dismissal of the Colorado Complaint, Zyme asserted, among other things, that it was not subject to the personal jurisdiction of the United States District Court for the District of Colorado. 13. In response to the Motion to Dismiss, Channelinsight requested and received from

the Colorado Court the right to take limited discovery related to Zyme’s alleged business contacts with Colorado. 14. While the Motion to Dismiss remained pending, the parties engaged in written

discovery related to Channelinsight’s allegation that Zyme sold or offered to sell products and services that embody the inventions claimed in the ‘258 Patent as well as related to the validity of the ‘258 Patent. 15. During the course of discovery, Channelinsight identified multiple products or

services offered by Zyme that it alleged infringed the ‘258 Patent. ///
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16.

On August 12, 2013, Chief Judge Marcia Krieger issued an Opinion and Order

Sustaining Objections and Granting Motion to Dismiss (the “Dismissal Order”). 17. In the Dismissal Order, Chief Judge Krieger ruled that Zyme was not subject to the

personal jurisdiction of the United States District Court for the District of Colorado. Given that the absence of personal jurisdiction was a threshold matter, Chief Judge Krieger did not resolve any of the other arguments raised by Zyme in the Motion to Dismiss. 18. United States District Court for the District of Colorado entered Final Judgment

dismissing Channelinsight’s Complaint for lack of personal jurisdiction and administratively closing the Colorado Action. A true and correct copy of the Final Judgment is attached as Exhibit C to this Complaint. 19. On information and belief, including based in part on its allegations in the

Colorado Action, Channelinsight believes that one or more products or services currently being offered by Zyme infringe the claims of the ‘258 Patent. 20. By, among other things, filing the Colorado Action, Channelinsight has

demonstrated its intention to protect and enforce the ‘258 Patent against Zyme through litigation. 21. Zyme reasonably believes and apprehends that Channelinsight will file suit against

it based on a claim of infringement of the ‘258 Patent. 22. Zyme reasonably believes that it does not infringe, either literally or under the

doctrine of equivalents, any of the claims of the ‘258 Patent. 23. Zyme reasonably believes that the claims of the ‘258 Patent are not valid under

applicable statutory law, including without limitation, Sections 101, 102, 103, and/or 112 of Title 35 of the United States Code. 24. Based, without limitation, on the public allegations made by Channelinsight in the

Colorado Action, an actual and justiciable controversy exists between Zyme and Channelinsight regarding whether any of Zyme’s products or services infringe any of the claims of the ‘258 Patent and regarding the validity of the claims of the ‘258 Patent. /// ///
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FIRST CLAIM FOR RELIEF (Declaratory Judgment of Noninfringement of the ‘258 Patent) 25. Zyme hereby incorporates by reference each and every allegation set forth in

paragraphs 1 through 24 of this Complaint. 26. None of the products or services that have been or currently are offered by Zyme

infringe, either literally (including directly or indirectly) or under the doctrine of equivalents, any of the claims of the ‘258 Patent. 27. There exists an actual controversy between Zyme and Channelinsight regarding

whether any product or service offered by Zyme infringes any of the claims of the ‘258 Patent, and a judicial declaration of noninfringement is necessary and appropriate at this time. SECOND CLAIM FOR RELIEF (Declaratory Judgment of Invalidity of the ‘258 Patent) 28. Zyme hereby incorporates by reference each and every allegation set forth in

paragraphs 1 through 27 of this Complaint. 29. The ‘258 Patent, and each claim thereof, is invalid for failing to comply with the

requirements of the patent laws of the United States, particularly with regard to one or more of the requirements specified in Sections 101, 102, 103, and/or 112 of Title 35 of the United States Code. 30. There exists an actual controversy between Zyme and Channelinsight regarding

the validity of the ‘258 Patent, and a judicial declaration of invalidity is necessary and appropriate at this time. DEMAND FOR JURY TRIAL Zyme demands a trial by jury of any and all issues triable as of right by a jury in this action. /// /// /// ///
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PRAYER FOR RELIEF WHEREFORE, Zyme asks the Court to enter judgment in its favor and grant the following relief: 1. Declare that none of Zyme’s products or services infringe, either literally (including

directly or indirectly) or under the doctrine of equivalents, any of the claims of the ‘258 Patent; 2. 3. Declare every claim of the ‘258 Patent invalid; Find this an exceptional case and award Zyme its costs, attorneys’ fees, and expenses

pursuant to 35 U.S.C. § 285; and 4. Grant such other and further relief as the Court may deem just and proper.

Dated:

September 3, 2013

Kutak Rock LLP By: s/ Jacob Song Jacob Song Chad T. Nitta Blair E. Kanis Attorneys for Plaintiff Zyme Solutions, Inc.

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