UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

DIEBOLD, INCORPORATED and DIEBOLD SELF-SERVICE SYSTEMS Plaintiffs v. COOK SECURITY GROUP, INC. Defendant

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO.: 5:14-cv-00783 JUDGE: COMPLAINT FOR COPYRIGHT INFRINGEMENT, MISAPPROPRIATION OF TRADE SECRETS, BREACH OF CONTRACT, PATENT INFRINGEMENT, AND INJUNCTIVE RELIEF

DEMAND FOR JURY TRIAL ENDORSED HEREON

Diebold, Incorporated and Diebold Self-Service Systems (collectively "Diebold") for their Complaint against Cook Security Group, Inc. ("Cook") aver as follows: PARTIES, JURISDICTION AND VENUE 1. This is a Complaint seeking recourse for copyright infringement,

misappropriation of trade secrets, breach of contract and patent infringement. Diebold seeks damages and equitable relief. 2. Diebold, Incorporated is an Ohio corporation, whose principal place of

business is at 5995 Mayfair Road, North Canton, Ohio 44720. 3. Diebold Self-Service Systems is a New York general partnership, whose

principal place of business is at 5995 Mayfair Road, North Canton, Ohio 44720. Diebold Self-Service Systems is a subsidiary of Diebold, Incorporated. 4. Cook is an Oregon corporation, whose principal place of business is at 5841

SE International Way, Milwaukie, OR 97222.

5.

This Court has jurisdiction over this Complaint pursuant to 28 U.S.C. § 1331

(federal question), 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1338 (copyright, trademark and patent jurisdiction), 17 U.S.C. § 501 (copyright infringement) and 35 U.S.C. § 271 (patent infringement). 6. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) and 28

U.S.C. § 1400. Further, pursuant to Part 16 of a September 19, 2006 Parts Supply Agreement with Diebold (the “ATM Parts Agreement”) Cook agreed to resolve the disputes which are the subject of this action in this District. The ATM Parts Agreement has not been attached to this Complaint as it is a confidential document. FACTS Defendant’s Unauthorized Reproductions Of Diebold ATM Software 7. Diebold is the owner of the trade secret and copyright interests in numerous

computer programs used with automated teller machines ("ATMs"), also known as automated banking machines. 8. Diebold owns all right, title and interest in the following unpublished

copyrighted works of computer software: Copyright Registration TXu 834-249, entitled "TCS 4.50.01," registered on May 12, 1999, in all of its versions (Exhibit 1); Copyright Registration TXu 1-197-374. entitled “TCS," registered on November 8, 2004, in all of its versions (Exhibit 2); and Copyright Registration TXu 1-197-373, entitled "TCS Plus," registered on November 8, 2004, in all of its versions, including version 1.2.1.1 (Exhibit 3), (collectively "TCS Computer Program"). 9. Diebold owns all right, title and interest in the following unpublished

copyrighted works of computer software: Copyright Registration TXu 001238651, entitled "Agilis XFS for Opteva terminals," registered on May May 13, 2005 in all of its versions (Exhibit 4); and Copyright Registration TXu 001728380, entitled "AGILIS 91x Computer

2

Program," registered on November 22, 2010, in all of its versions, including version 1.2.1.1 (Exhibit 5), (collectively "Agilis Computer Program"). 10. Diebold owns all right, title and interest in the following unpublished

copyrighted works of computer software: Copyright Registration TXu 001887012, entitled "HF11480 - Agilis 91x XV 2.4" registered on March 3, 2014, in all of its versions (Exhibit 6): ("HF11480 Computer Program"). 11. Diebold does not sell ownership rights to copies of its computer software or

related support products to its customers. Instead, Diebold's end user customers enter into license agreements that grant each customer limited rights to use specific software programs with Diebold retaining all copyright and other intellectual property rights to these works. The license agreements require that the end user treat the software as Diebold's trade secret property and prohibit the transfer of the software by the end user. 12. On September 19, 2006, Cook signed the ATM Parts Agreement with Diebold, The ATM Parts Agreement

under which Cook was permitted to purchase ATM parts.

included provisions surviving its termination, one of which is Part 7, in which Cook agreed that any unauthorized possession, use, or reproduction of Diebold’s TCS, TCS+ or Agilis ATM operating software, or any other Diebold software, is prohibited. The ATM Parts Agreement further sets forth that any license Cook has to any Diebold software is for the limited purposes set forth in that agreement and cease upon termination. 13. In 2010, Diebold learned that, contrary to the provisions of the ATM Parts

Agreement, Cook engaged in the practice of making unauthorized copies of Diebold’s TCS, TCS+ and Agilis ATM operating software residing on Diebold ATMs owned by banks. Cook has never denied making such copies and in fact its President admitted that Cook did so in a July 16, 2010 conversation with Diebold’s outside counsel.

3

14.

Because of Cook’s unauthorized copying of Diebold’s ATM operating

software, Diebold sent a letter dated October 12, 2010 to Cook terminating the ATM Parts Agreement. (Exhibit 7). Cook has never disputed Diebold’s right to terminate the ATM Parts Agreement. 15. Subsequent to and despite termination of the ATM Parts Agreement, Cook has

continued to make unauthorized copies of Diebold’s TCS, TCS+ and Agilis ATM operating software. 16. In 2011, Diebold developed a software program named HF11480, which is

incorporated as an update to Diebold’s Agilis ATM operating software. HF11480 has never been offered for license or marketed as a standalone program. 17. Although Diebold has restricted access to HF11480 to its technical employees,

Cook obtained a copy of the program, on information and belief from a former Diebold employee hired by Cook, and has installed it on one known Diebold ATM and, on information and belief, has continued to install the program on Diebold ATMs. Defendant’s Infringement Of Diebold Patents Covering Remote Diagnostics And Servicing Of ATM Machines 18. Diebold owns all right, title and interest in the following United States Patents: U.S. Patent No. 7,740,169, entitled Cash Dispensing Automated Banking Machine System And Method ("the '169 patent") (Exhibit 8) U.S. Patent No. 7,661,583, entitled Cash Dispensing Automated Banking Machine Diagnostic System And Method ("the '583 patent") (Exhibit 9) U.S. Patent No. 7,604,164, entitled Cash Dispensing Automated Banking Machine Diagnostic System And Method ("the '164 patent") (Exhibit 10) U.S. Patent No. 7,445,144, entitled Cash Dispensing Automated Banking Machine Diagnostic System And Method ("the '144 patent") (Exhibit 11) U.S. Patent No. 7,334,723, entitled Cash Dispensing Automated Banking Machine Diagnostic Method ("the '723 patent") (Exhibit 12) U.S. Patent No. 7,617,971, entitled Cash Dispensing Automated Banking Machine Diagnostic Method ("the '971 patent") (Exhibit 13)

4

U.S. Patent No. 7,891,552, entitled Cash Dispensing Automated Banking Machine Diagnostic Method ("the '552 patent") (Exhibit 14) U.S. Patent No. 5,984,178, entitled Cash Dispensing Automated Banking Machine Diagnostic Method ("the '178 patent") (Exhibit 15) The above patents are collectively referred to herein as the “Remote Service Patents.” 19. The Remote Service Patents are generally directed to a remote computer that

accesses an ATM, or a network of ATMs, for purposes of, among other things, performance monitoring, providing software updates, detection of existing errors, prediction of potential future errors, as well as corrective actions, such as delivery of software repairs. 20. Cook offers a product and/or service to ATM owners under the brand name

RemoteView ATM comprising a computer system that remotely monitors the performance of ATMs to which it is networked. According to Cook, RemoteView, among other things, “enables [Cook] to automate the [error] alert process,” “includes automatic installation of relevant Windows updates,” performs patch management, as well as “problem identification and repair of basic software issues” and predicts future “problem” ATMs. As set forth further in the Claims For Relief, the foregoing admitted RemoteView ATM functions infringe numerous claims of the Remote Service Patents. FIRST CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT 21. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 22. Pursuant to 17 U.S.C. § 501, Cook has infringed Diebold's copyright rights by

copying, reproducing and/or distributing Diebold's unpublished copyrighted TCS, Agilis and Hotfix Computer Programs without the authorization of Diebold. 23. The Diebold TCS, Agilis and Hotfix Computer Programs that Cook copied,

reproduced and/or distributed include works that are protected under the Federal Copyright Act, 17 U.S.C, § 101 et seq. These works are original works of authorship, owned by

5

Diebold. Cook's acts violated Diebold's exclusive rights to reproduce, create derivative works, publish, publicly display, offer for sale and distribute these works. 24. Diebold gave Cook notice that Cook had infringed Diebold's copyright rights

in its software, including in TCS and Agilis ATM operating software, and after receiving such notice Cook has continued to infringe Diebold’s copyright rights in its software, thus making its infringement willful. 25. Due to Cook's infringement of Diebold's copyright rights, Cook has caused

damage to Diebold and has unlawfully realized profits which belong to Diebold. Cook is liable to Diebold for the full amount of such unlawful profits, or, alternatively, statutory damages and any other remedies available to Diebold in accordance with 17 U.S.C. § 504. 26. A remedy at law is not adequate to compensate Diebold for the injury caused

by Cook and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 17 U.S.C. § 502, there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook, a remedy in equity is warranted, and the public interest would not be disserved by an injunction. SECOND CLAIM FOR RELIEF MISAPPROPRIATION OF TRADE SECRETS 27. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 28. Cook has misappropriated trade secrets of Diebold, including but not limited

to possessing without authorization Diebold’s trade secret computer programs and performing the ATM operations which are enabled by such programs in violation of Ohio Revised Code § 1333.61. The misappropriated trade secrets are not eligible for copyright protection. 29. Cook has misappropriated trade secrets from Diebold and has directly and

proximately caused and continues to cause harm and damage to Diebold, whereby such misappropriation has unjustly enriched Cook. 6

30.

On information and belief, Cook’s conduct is willful, deliberate, intentional,

and in bad faith, making this an exceptional case, whereby Diebold is entitled to punitive damages and attorney’s fees under Ohio Revised Code §§ 1333.63 and 1333.64. 31. By reason of the misappropriation of Diebold’s trade secrets, Cook has caused,

and unless enjoined will continue to cause, irreparable harm to Diebold. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook’s activities are not enjoined in accordance with Ohio Revised Code § 1333.62, there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook, a remedy in equity is warranted, and the public interest would not be disserved by an injunction. THIRD CLAIM FOR RELIEF BREACH OF CONTRACT 32. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 33. 34. Cook has continuing obligations pursuant to the ATM Parts Agreement. Cook has violated its continuing obligations under the ATM Parts Agreement,

including without limitation, the obligation not to, possess, reproduce, use, access or operate the TCS, TCS+, Agilis or Hotfix Computer Programs. 35. damaged. 36. As acknowledged by Cook in Parts 15(a) and (b) of the ATM Parts Agreement, As a result of Cook's breach of the ATM Parts Agreement Diebold has been

Diebold has no adequate remedy at law, has been irreparably harmed and is entitled to injunctive relief. If Cook's activities are not enjoined, there will be irreparable harm to Diebold. In addition to Cook’s express contractual agreement to an injunction, considering the balance of hardships between Diebold and Cook, a remedy in equity is warranted, and the public interest would not be disserved by an injunction. 7

37.

Parts 15(a) and (d) of the ATM Parts Agreement provide that, in addition to

damages and injunctive relief, Cook shall be liable to Diebold for court costs and attorneys fees in the event that Cook fails to comply with and/or breaches the ATM Parts Agreement or violates any copyright, trade secret, or patent of Diebold. 38. As a result of Cook’s breach of the ATM Parts Agreement and its infringement

of Diebold copyrights, trade secrets and patents, Cook is liable to Diebold for its court costs and attorneys fees in this action. FOURTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,740,169 39. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 40. On January 22, 2010, the '169 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '169 patent is attached hereto as Exhibit 8. 41. The '169 patent discloses and claims, among other things, an apparatus

comprising an ATM that generates and stores data corresponding to a future repair need and a remote computer that outputs information responsive to that data. 42. Cook has infringed and is infringing at least Claim 37 of the '169 patent by

making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote analysis computer that, in response to data generated by an ATM, generates and outputs a prediction of a future need to perform services on an ATM’s transaction function devices. 43. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claim 37 of the '169 patent, either literally or under the doctrine of equivalents. 44. Cook is liable for infringement of the '169 patent pursuant to 35 U.S.C. § 271. 8

45. 46.

As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '169 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 47. Cook’s infringement of the '169 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. FIFTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,661,583 48. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 49. On February 16, 2010, the '583 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '583 patent is attached hereto as Exhibit 9. 50. The '583 patent discloses and claims, among other things, a method of

avoiding faults in the operation of an ATM by gathering operational data in order to predict the need for a future repair activity. 51. Cook has infringed and is infringing at least Claims 1, 22 and 37 of the '583

patent by using its RemoteView ATM system comprising a remote analysis computer that, in response to data generated by an ATM, generates and outputs a prediction of a future activity that will need to be conducted on a selected one of the ATM’s transaction function devices. 52. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claims 1, 22 and 37 of the '583 patent, either literally or under the doctrine of equivalents. 9

53. 54. 55.

Cook is liable for infringement of the '583 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '583 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 56. Cook’s infringement of the '583 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. SIXTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,604,164 57. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 58. On October 20, 2009, the '164 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '164 patent is attached hereto as Exhibit 10. 59. The '164 patent discloses and claims, among other things, an apparatus

comprising an ATM that generates and stores data corresponding to configurable settings of configurable features of an ATM and an analysis computer that receives that data. 60. Cook has infringed and is infringing at least Claim 1 of the '164 patent by

making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote analysis computer that, in response to data generated by an ATM, produces and outputs results corresponding to errors in configurable settings of configurable features of the ATM.

10

61.

Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claim 1 of the '164 patent, either literally or under the doctrine of equivalents. 62. 63. 64. Cook is liable for infringement of the '164 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '164 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 65. Cook’s infringement of the '164 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. SEVENTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,445,144 66. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 67. On November 4, 2008, the '144 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '144 patent is attached hereto as Exhibit 11. 68. The '144 patent discloses and claims, among other things, a method of using a

remote computer to analyze data associated with an ATM. 69. Cook has infringed and is infringing at least Claims 29, 30, 31, 32 and 33 of

the '144 patent by using its RemoteView ATM system comprising a remote analysis computer to analyze and output data associated with an ATM; performing services on an ATM based on

11

such output; identifying errors in setting configurable features of the ATM; analyzing ATM data to identify faults in devices in the ATM; and predicting future service needs in an ATM. 70. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claims 29, 30, 31, 32 and 33 of the '144 patent, either literally or under the doctrine of equivalents. 71. 72. 73. Cook is liable for infringement of the '144 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '144 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 74. Cook’s infringement of the '144 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction.

12

EIGHTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,334,723 75. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 76. On February 26, 2008, the '723 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '723 patent is attached hereto as Exhibit 12. 77. The '723 patent discloses and claims, among other things, an apparatus

comprising an ATM that stores data corresponding to conditions of at least one of the ATM’s currency dispenser, input device and a software component and communicates that data to a remote computer. 78. Cook has infringed and is infringing at least Claims 1 and 20 of the '723 patent

by making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote computer that among other things, in response to error logs generated by an ATM pertaining to the ATM software, provides software repairs. 79. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claims 1 and 20 of the '723 patent, either literally or under the doctrine of equivalents. 80. 81. 82. Cook is liable for infringement of the '723 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '723 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 83. Cook’s infringement of the '723 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the 13

balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. NINTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,617,971 84. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 85. On November 17, 2009, the '971 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '971 patent is attached hereto as Exhibit 13. 86. The '971 patent discloses and claims, among other things, an apparatus

comprising an ATM and a remote computer that exchange encrypted data pertaining to the condition of transaction function devices of the ATM such as the currency dispenser, keypad and display screen. 87. Cook has infringed and is infringing at least Claims 1 and 20 of the '971 patent

by making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote computer that among other things, in response to encrypted data communicated by an ATM’s processor concerning the condition of a transaction function device, sends encrypted data back to the ATM concerning a remedial action, which is decrypted by the ATM’s processor. 88. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claim 1 and 20 of the '971 patent, either literally or under the doctrine of equivalents. 89. 90. 91. Cook is liable for infringement of the '971 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '971 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 14

92.

Cook’s infringement of the '971 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. TENTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 7,891,552 93. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 94. On February 22, 2011, the '552 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '552 patent is attached hereto as Exhibit 14. 95. The '552 patent discloses and claims, among other things, an article including

computer executable instructions to operate and to store and send ATM condition data to a remote computer, and in turn to receive various data from the remote computer. 96. Cook has infringed and is infringing at least Claims 1, 12 and 15 of the '552

patent by making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote computer that among other things, in response to error logs generated by an ATM pertaining to the ATM software, provides software repairs, distributes software components and sends, receives and decrypts messages between the ATM and remote computer. 97. Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claim 1, 12 and 15 of the '552 patent, either literally or under the doctrine of equivalents. 98. Cook is liable for infringement of the '552 patent pursuant to 35 U.S.C. § 271. 15

99. 100.

As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '552 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 101. Cook’s infringement of the '552 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. ELEVENTH CLAIM FOR RELIEF INFRINGEMENT OF U.S PATENT NO. 5,984,178 102. Diebold realleges the allegations of Paragraphs 1 through 20 of this Complaint

as if fully rewritten herein. 103. On November 16, 1999, the '178 patent was duly and legally issued to Diebold

Self-Service Systems. A true and correct copy of the '178 patent is attached hereto as Exhibit 15. 104. The '178 patent discloses and claims, among other things, a system that

receives status messages from ATMs operating in a network, including fault condition messages generated by the machines and generates reports based on those messages that include information on the frequency of a fault condition. 105. Cook has infringed and is infringing at least Claim 51 of the '178 patent by

making, using, selling, licensing and/or offering for sale or license its RemoteView ATM system comprising a remote computer that among other things, in response to error logs generated by an ATM, provides reports that include the identification of faults that are reported more than three times within thirty days.

16

106.

Cook has, and upon information and belief, continues to directly or indirectly

infringe at least the above Claim 1, 12 and 15 of the '178 patent, either literally or under the doctrine of equivalents. 107. 108. 109. Cook is liable for infringement of the '178 patent pursuant to 35 U.S.C. § 271. As a result of Cook's infringement, Diebold has been damaged. Cook's infringement of the '178 patent has caused, and continues to cause,

irreparable harm to Diebold in an amount to be proven at trial. 110. Cook’s infringement of the '178 patent will continue unless enjoined by this

Court. A remedy at law is not adequate to compensate Diebold for the injury caused by Cook, and Diebold has been irreparably harmed. If Cook's activities are not enjoined in accordance with 35 U.S.C. § 283. there will be irreparable harm to Diebold. Considering the balance of hardships between Diebold and Cook a remedy in equity is warranted, and the public interest would not be disserved by an injunction. WHEREFORE, Diebold prays the Court grant it the following relief: a) b) Enter a judgment against Cook on behalf of Diebold; Injunctive relief in accordance with 17 U.S.C. § 502, Ohio Revised Code §

1333.62 and 35 U.S.C. § 283 barring Cook, its officers, directors, agents, subsidiaries and employees, and those in privity or active concert with them, from possessing, using, operating, accessing, copying, installing, servicing, distributing, selling, and reproducing in any manner whatsoever any computer programs in which the copyright is owned by Diebold, or any derivatives thereof, and from infringement of U.S. Patent Nos. 7,740,169, 7,661,583, 7,604,164, 7,445,144, 7,334,723, 7,617,971, 7,891,552 and 5,985,178; c) Impounding or other reasonable disposition of all infringing materials in

accordance with 17 U.S.C. § 503;

17

d)

An accounting of profits improperly earned by Cook as a result of Cook's

misconduct and violation of Diebold's copyright and trade secret rights; e) Damages from Cook in an amount of the total of all Cook profits from the use,

reproduction, sale, service, operation or distribution of the infringing copyrighted software in accordance with 17 U.S.C. § 504; or statutory damages on account of Cook's violation of Diebold's copyright rights in accordance with 17 U.S.C. § 504; and all available damages under Ohio Revised Code § 1333.63; f) An Order awarding Diebold punitive damages in a sum to be determined at

trial, on the basis of Cook’s willful and deliberate violation of Diebold’s trade secret rights in accordance with Ohio Revised Code § 1333.63; g) An award of lost profits or a reasonable royalty and other damages arising

from Cook's infringement of U.S. Patent Nos. 7,740,169, 7,661,583, 7,604,164, 7,445,144, 7,334,723, 7,617,971, 7,891,552 and 5,985,178, including triple damages to Diebold, together with pre-judgment and post-judgment interest; h) An award of attorney's fees and costs of the action in accordance with 17

U.S.C. § 505, Ohio Revised Code § 1333.64, 35 U.S.C. § 285 and Parts 15(a) and (d) of the ATM Parts Agreement, under which Cook expressly agreed that Diebold is entitled to recover attorneys fees if Cook breaches that agreement, or violates any copyright, trade secret or patent of Diebold; i) j) k) An award of any other available compensatory damages: An award of prejudgment interest; and Such other and further relief as Diebold may be entitled in equity or law.

18

A TRIAL BY JURY IS HEREBY DEMANDED. Respectfully submitted,

/s/ Michael J. Garvin Michael J. Garvin (0025394) mjgarvin@hahnlaw.com R. Eric Gaum (0066573) regaum@hahnlaw.com HAHN LOESER & PARKS LLP 200 Public Square, Suite 2800 Cleveland, Ohio 44114 Phone: (216) 621-0150 Fax: (216) 241-2824 Attorneys for Plaintiffs Diebold, Incorporated and Diebold Self-Service Systems

19

Sign up to vote on this title
UsefulNot useful