Shunock v. Apple - Complaint

Case 1:23-cv-08598 Document 1 Filed 09/29/23 Page 1 of 40
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
MICHAEL SHUNOCK,
Plaintiff, Case No. __________
v. JURY TRIAL DEMANDED
APPLE, INC.,
Defendant.
COMPLAINT
Plaintiff Michael Shunock, through his attorneys, Selendy Gay Elsberg PLLC,
for his complaint against Apple, Inc. (“Apple”), alleges as follows:
NATURE OF ACTION
1. In this action, Dr. Michael Shunock seeks to recover for Apple’s ongoing
willful infringement of his patented designs, which feature—unlicensed—in millions
of Apple devices around the world.
2. On July 5, 2012, Dr. Shunock filed an international patent application
for a “System and Method for Annotating Images,” which included the below design
as a graphical illustration of his invention:
1
3. Dr. Shunock’s design serves as a visual representation of information
and can be used to display progress toward a goal, such as the above illustration’s
stakeholder-engagement tracker.
4. On August 30, 2013, Dr. Shunock attended a meeting at Apple’s head-
quarters in Cupertino, California. Dr. Shunock’s company was interested in collabo-
rating with the Silicon Valley giant, and he presented a software application incorpo-
rating his designs and their dynamic animation to the manager for Apple’s App Store
and lifestyle brands. But the parties came away from the meeting without any com-
mitment to work together.
5. Less than twenty months later, Dr. Shunock’s design was being paraded
before hundreds of millions of consumers as a central feature of Apple’s innovative
Apple Watch product—without his license or permission. Apple referred to its copy-
2
cat design as “Activity Rings,” and used it as a visual representation of an Apple
Watch user’s daily movement and activity statistics, as seen below.
6. Apple introduced the Apple Watch as the banner product in its Septem-
ber 2014 keynote, saving the product for its signature “One more thing…” treatment
traditionally reserved for its most exciting and innovative products. The infringing
Activity Rings design appeared more than a dozen times in that keynote address.
7. Since release, Apple has sold millions of Apple Watches in the United
States and worldwide, each one prominently featuring the Activity Rings design. Be-
ginning with the iPhone 12, the Activity Rings also started featuring in Apple’s iPh-
one products, eventually appearing in all iPhone products dating back to the iPhone
8 following the release of Apple’s iOS 16 software update.
8. Since the April 2015 release of the Apple Watch, Apple has earned an
estimated $161.28 billion on products featuring the Activity Rings. Those sales in-
clude value that rightfully belongs to Dr. Shunock for the use of his proprietary de-
signs. His designs are protected by seven design patents, which were granted as
continuation patents in 2022 with an effective filing date of April 9, 2014. As a result,
3
Dr. Shunock’s patents predate all of Apple’s patents related to the Activity Rings de-
sign. In June 2023, Dr. Shunock notified Apple that its Activity Rings design in-
fringed his patents, but Apple continues to use the design without license from Dr.
Shunock.
9. In this action, Dr. Shunock seeks to obtain compensation for Apple’s in-
fringements, including willful infringements, of Dr. Shunock’s design patents to date
and in the future.
THE PARTIES
10. Plaintiff Michael Shunock is an inventor based in Ontario, Canada.
11. Defendant Apple is a California corporation with its principal place of
business at 1 Infinite Loop, Cupertino, California 95014. Apple designs, manufac-
tures, and sells a wide range of electronic products, including personal computers,
mobile devices, and accessories.
JURISDICTION AND VENUE
12. This is an action for design patent infringement arising under the pro-
visions of the Patent Laws of the United States of America, title 35, United States
Code §§ 100, et seq.
13. This Court has subject matter jurisdiction over Dr. Shunock’s claims un-
der 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (patent
jurisdiction).
14. This Court has personal jurisdiction over Apple because Apple has com-
mitted and continues to commit acts of infringement in violation of 35 U.S.C. § 271
4
and places infringing products into the stream of commerce, with knowledge or un-
derstanding that such products are sold in the State of New York, including in this
District. The acts by Apple cause injury to Dr. Shunock within this District. Upon
information and belief, Apple derives substantial revenue from the sale of infringing
products within this District, expects its actions to have consequences within this
District, and derives substantial revenue from interstate and international com-
merce.
15. Venue is proper in the Southern District of New York pursuant to 28
U.S.C. § 1391(b) & (c) and § 1400(b) at least because Apple has several established
places of business in the Southern District of New York, transacts business within
this district, and has committed acts of infringement in this district.
BACKGROUND
I. Dr. Shunock Creates the Designs at Issue and Files Them as Part of an
International Patent Application.
16. Building on significant investment and experience in his field, Dr.
Shunock developed an innovative “System and Method for Annotating Images,” or
specific portions of an image, with information (the “Invention”).
17. On July 5, 2012, Dr. Shunock sought to protect his Invention by filing
International Patent Application No. PCT/CA2012/050454 (the “PCT Application”)
with the World Intellectual Property Organization pursuant to the Patent Coopera-
tion Treaty (“PCT”). The PCT enables applicants to file patent applications in multi-
ple countries through a single international application. While patent protection may
later be sought in any PCT member country, including the United States, the filer
5
receives the benefit of the same filing and priority dates associated with the interna-
tional application. A true and correct copy of Dr. Shunock’s PCT Application is at-
tached here. See Exhibit 1 (available online at https://pa-
tentscope.wipo.int/search/en/detail.jsf?docId=WO2013003957).
18. The PCT Application included a graphical illustration (“Fig. 13,” below)
to show how Dr. Shunock’s Invention “may provide information related to ratings,
such as any of the various qualitative measures that can be associated with images
in items,” including an illustration of “the number and types of users that ‘love’ an
item or image; or that ‘want an item or image.’” Id at 25. For example, the graphical
illustration below shows a user’s “spread” of influence, tracking the popularity of a
given product across various audiences, including friends, customers, and social me-
dia followers:
6
II. Dr. Shunock Implements his Designs into the Logo for his Company
and Meets with Apple for the First Time.
19. Dr. Shunock used the designs from his PCT Application, including Fig.
13’s spread illustration, as the basis for the logo of his company, Spread Media, Inc.,
as depicted below in grayscale and its original color.
20. Spread Media was a software development and creative firm that built,
among other things, phone and computer applications aimed at connecting consum-
ers with their favorite brands while also recording market information about con-
sumer sentiment towards a given product or brand.
21. In August 2013, Dr. Shunock sought a meeting with Apple to discuss
ways to improve the reach of his Spread Media mobile application, which was already
published on Apple’s App Store. On August 30, 2013, Dr. Shunock attended a meet-
ing at Apple’s headquarters in Cupertino, California, where he met with Donna
Ogier, then-manager for Apple’s App Store and several of Apple’s lifestyle brands.
Dr. Shunock displayed several of Spread Media’s trademarks and concentric circle
7
designs, including the design shown in paragraph 19, supra. Upon seeing this design
and animation, Ms. Ogier specifically complimented Dr. Shunock on both the design
and animation.
22. Apple and Spread Media ultimately did not pursue a collaboration, but
Apple came away from the meeting with notice of Dr. Shunock and his designs.
23. On May 27, 2014, Dr. Shunock registered a trademark for Spread Me-
dia’s logo, which consisted of “a centrally positioned circle with a plurality of concen-
tric crescents surrounding the central circle.” See Exhibit 2 (available online at
https://tsdr.uspto.gov/#caseNumber=4,538,975&caseSearchType=US_APPLICA-
TION&caseType=DEFAULT&searchType=statusSearch).
III. Dr. Shunock Files a National Stage Entry for his International Patent
Application and Apple Launches the “Apple Watch.”
24. On April 9, 2014, shortly before registering a trademark for the Spread
Media logo, Dr. Shunock filed U.S. Application 14/129,132 (the “National Stage Ap-
plication”) with the U.S. Patent and Trademark Office as a “national stage entry” of
his PCT Application. A “national stage entry” is the process by which a PCT Patent
Application gains patent protection under the domestic laws of a PCT member nation.
See 35 U.S.C. § 371.
25. Dr. Shunock’s National Stage Application sought a “utility patent” that
would protect Dr. Shunock’s Invention under the patent laws of the United States.
In general, a “utility patent” protects the way something is used and works, see 35
U.S.C. § 101, while a “design patent” protects how something looks (e.g., its ornamen-
tal appearance), see id. § 171. Legally, the two types of patents offer separate and
8
distinct protections—that is, a utility patent will not protect the appearance of an
invention, and a design patent will not protect the invention’s utility; however, an
inventor can obtain both a utility patent and a design patent for the same invention.
26. Dr. Shunock’s National Stage Application included the same Fig. 13
shown in paragraph 18, supra. See Exhibit 3 at 16.
27. Upon information and belief, Apple filed its first design patent related
to the Activity Rings on September 2, 2014—almost a year to the day after Dr.
Shunock first showed his Spread Media designs to Apple at its headquarters, see su-
pra ¶ 21, and four months after Dr. Shunock filed his National Stage Application,
supra ¶ 24.
28. On September 9, 2014, Apple announced its new Apple Watch product
at a special keynote presentation, heralding the Watch as Apple’s “most personal de-
vice ever—featuring revolutionary new technologies and a pioneering user interface
with a beautiful design that honors the rich tradition of precision watchmaking.”
During that presentation, Apple displayed the Activity Rings design more than a
dozen times.
29. Upon information and belief, on February 2, 2015, Apple released the
first print advertisement for the Apple Watch, which prominently featured the “Ac-
tivity Ring” design, as shown below.
9
30. Apple officially launched the Apple Watch on April 24, 2015, which in-
cluded the Activity Ring design as a central feature. A side-by-side comparison of Dr.
Shunock’s design (left) and the Activity Ring feature (right) is shown below, with Dr.
Shunock’s design superimposed on the face of an Apple Watch.
10
31. To date, the Activity Ring design remains central to Apple’s marketing
campaign for the Apple Watch, helping to portray the device as a lifestyle product
that encourages exercise and wellbeing. Below is a promotional shot from Apple,
displaying the infringing Activity Rings as a central feature.
32. As Watch-users move and exercise throughout the day, the Activity
Rings “fill” to show the user’s daily progress. The below image shows an Apple Watch
user’s daily progress using the Activity Rings, as recorded over the course of a month
on the user’s iPhone.
11
33. Upon information and belief, Apple has released advertising videos and
continues to update a promotional webpage encouraging Apple Watch users to “Close
Your Rings” by completing daily exercise goals. Below is an image from Apple’s pro-
motional materials featuring Apple’s Activity Rings that encourages Apple Watch us-
ers to “Close Your Rings.”
34. In another promotional campaign, Apple challenged users to “Ring in
the New Year,” rewarding users if they can “close” their rings for seven straight days
during the first month of the year.
35. Apple has further integrated the Activity Rings design into other well-
ness offerings by allowing Apple Watch users to track their progress for each Activity
Ring on a separate screen as part of the Apple Fitness+ service. The below image
from the online Apple Watch User Guide demonstrates how the Activity Ring design
has been integrated into this separate offering.
12
36. Demonstrating the importance of the Activity Rings design to the Apple
Watch, Apple also permits Apple Watch users to customize their default Apple Watch
face to display the Activity Rings more prominently, an option that is described
within the online Apple Watch User Guide, as shown below.
37. In 2016, Dr. Shunock became aware of Apple’s new Activity Ring design
and its striking similarity to the Spread Media designs he shared with Apple in Cu-
pertino and the graphical illustrations disclosed in his National Stage Application.
13
38. Over the following months, Dr. Shunock would routinely stop at Apple
Stores to ask Apple employees whether they believed the graphical illustrations dis-
closed in his National Stage Application were designed by Apple. Invariably, the
Apple employees said they believed Dr. Shunock’s designs were derived from the Ap-
ple Watch’s Activity Rings, rather than the other way around.
39. On July 7, 2017, Dr. Shunock sent Apple a trademark demand letter
predicated on his Spread Media logo design. See supra ¶ 19. In the letter, Dr.
Shunock alleged that Apple Watches use an activity history feature shown by a con-
centric ring of circles similar to his trademarked “Spread” icon, with varying rings
that convey activity information in the same way the Spread rings conveyed infor-
mation concerning levels of social interaction. The demand letter further explained
that Dr. Shunock created the Spread design in 2012 and that Apple had reason to
know about the design, given that both parties were involved with the same design
and animation studio in 2012: 1K Studios.
40. Several employees for 1K Studios were former Apple employees, and
several others left 1K Studios to work for Apple—either as a direct employee or inde-
pendent contractor—while the studio was under contract with Dr. Shunock. Below
is a list of individuals who had access to Dr. Shunock’s designs and, upon information
and belief, hold either a direct or indirect professional connection with Apple.
14
Position during Relevant Relevance to Matter and/or

Name Period Connection to Apple
Donna Ogier Apple App Store Manager, Met with Dr. Shunock during
2013-17 August 2013 meeting at Apple’s
Cupertino headquarters;
Reviewed design and UI/UX
experience of Spread Media
App logo and derivative
designs.
Mike Stern Apple Design Manager and Reviewed design and UI/UX
Design Lead, 2006-12 experience of Spread Media
designs.
Alex Rofman Apple Director – App Store Reviewed design and UI/UX
2009-18 experience of Spread Media
designs.
David DeLong Apple UIKit Framework Reviewed design and UI/UX

Engineer, 2010-13 experience of Spread Media
designs.
Marco Iacono Apple EPM for Apple Watch, Reviewed design and UI/UX
2011-14 experience of Spread Media
designs.
Lindsey Blumenthal Apple App Store Business Granted App Store approval,
Manager ratings, and resolutions for
Spread Media App.
Mike Alfano Apple App Store Reviewed design and UI/UX

Manager/Editor, 2010-18 experience of Spread Media
designs.
Mike Gottschalk 1K Studios, Senior Art Director Named inventor to Shunock

and Assoc. Creative Director Utility Patent. Involved in
2011-16 creating design, UI/UX, and
animation.
Matt Kennedy 1K Studios Co-Founder & CEO Lists Apple as a client of 1K;
1997-2011 worked as Sr. Design Director
for Apple from 2015-16
15
Position during Relevant Relevance to Matter and/or

Name Period Connection to Apple
Alan Hellard 1K Studios Group Creative Current Creative Director for

Director 2010-12, VP & Outpost Media, driving creative
Ecevutive Creative Director projects for companies,
2012-15 including Apple+
Jeff Southard 1K Studios Interaction Designer Designed mobile, tablet, web

& Strategist 2005-2014 and set-top user experiences for
Apple and others. Reviewed
design and UI/UX experience
for Spread Media App logo and
derivative designs.
Ben Higgins 1K Studios President 2013-14 Project management and

strategy for various Shunock IP
Andy Dunn 1K Studios Executive Producer Worked on motion design

2005-2012 themes for Apple Keynote and
iMovie
Nicole Mercolino 1K Studios VP Strategic Project management and

Development & Executive strategy for various Shunock IP
Producer 2010-2014
41. On August 8, 2017, Apple responded to Dr. Shunock’s trademark de-
mand letter, stating that Dr. Shunock did not have a colorable trademark infringe-
ment claim. Dr. Shunock did not pursue his trademark infringement demand fur-
ther.
42. Upon information and belief, Apple sold an estimated 11.7 million Apple
Watch products in its first year of sales and has sold more than 235 million to date.
43. Upon information and belief, as of Apple’s September 16, 2022 release
of iOS 16, the Activity Rings feature became backward compatible with all iPhones
dating back to the 8th generation, appearing regardless of whether the user owned
16
an Apple Watch. Apple has sold more than one billion iPhones since the release of
the 8th generation model.
IV. Dr. Shunock Files Seven Design Patent Applications as Continuations

of his National Stage Application.
44. As a Canadian inventor, Dr. Shunock’s National Stage Application in
April 2014 was his first foray into U.S. patent registration. Initially, his National
Stage Application sought only the protection of a utility patent—not a design pa-
tent—which meant that the ornamental appearance of his Invention would remain
unprotected under U.S. patent law until he applied for and received a design patent
for his Invention.
45. On November 24, 2020, with his National Stage Application still pend-
ing, Dr. Shunock attended a legal presentation through the University of Waterloo
Technology Accelerator where a patent attorney explained that, despite the fact that
Dr. Shunock’s National Stage Application sought a utility patent, it was still possible
for Dr. Shunock to protect the ornamental appearance of the designs disclosed in his
National Stage Application through what is known as a “continuation patent appli-
cation.”
46. A “continuation patent application” allows an inventor to file a chain of
patent applications that relate back to a first-filed application, entitling the later ap-
plications to the benefit of the filing date of the first-filed application for each appli-
cation in the chain. See 35 U.S.C. § 120. Applications filed after the initial applica-
tion are known as “continuation patent applications.” Thus, a continuation patent
application has an “effective filing date” that is the same as the filing date as of the
17
earlier-filed patent application. See id.; see also 2 Gregory E. Upchurch, IP Litigation
Guide: Patents & Trade Secrets § 15:5 (October 2023 Update).
47. If a continuation patent application is unable to claim the benefit of an
earlier-filed application in its application chain, then the later-filed application will
only be entitled to its actual filing date, and the later-filed application will be ana-
lyzed against prior art that became available between the earlier-filed application
and the later-filed application.
48. On July 5, 2022, the USPTO granted Dr. Shunock seven design patents
(collectively, the “Design Patents”), each of which was granted as a continuation of
the National Stage Application. As a result, all seven Design Patents share the same
effective filing date as Dr. Shunock’s earlier-filed National Stage Application: April
9, 2014. See 35 U.S.C. § 120. True and correct copies of the Design Patents are
attached to this complaint. See Exhibit 4 (US D956,802), Exhibit 5 (US D956,803),
Exhibit 6 (US D956,804), Exhibit 7 (US D956,805), Exhibit 8 (US D956,806), Exhibit
9 (US D956,807), Exhibit 10 (US D956,808).
49. Because the Design Patents enjoy the same effective filing date as the
National Stage Application (April 9, 2014), they predate the filing date for the design
patents covering Apple’s Activity Rings (earliest filed September 2, 2014). Dr.
Shunock’s valid Design Patents therefore constitute prior art to Apple’s Activity Ring
patents.
18
50. On November 29, 2022, the USPTO granted the National Stage Appli-
cation and issued U.S. Patent 11,514,101 (the “’101 Utility Patent”). A true and cor-
rect copy of the ’101 Utility Patent is attached here. See Exhibit 11 (US 11,514,101).
Apple’s Infringing Products
51. Apple’s Activity Ring design is an infringement of the ornamental de-
signs described in and protected by the Design Patents. Instead of innovating and
creating its own, unique design for its Activity Ring feature, Apple chose to copy Dr.
Shunock’s design in its iPhone and Watch products without Dr. Shunock’s permission
or license.
52. The list of Apple’s infringing products includes:
Product Release Date

Apple Watch 1st generation 4/24/2015
Apple Watch Series 1 9/16/2016
iPhone 12 10/23/2020
iPhone 13 mini 9/24/2021
iPhone 13 9/24/2021
iPhone SE (3rd generation) 3/18/2022
iPhone 14 9/16/2022
iPhone 14 Pro 9/16/2022
iPhone 14 Pro Max 9/16/2022
iPhone 14 Plus 10/8/2022
19
53. Additionally, all iPhones that have updated with Apple’s iOS 16 soft-
ware may include the Activity Ring design independent of an Apple Watch.
Plaintiff’s Demand Letter to Apple
54. On June 26, 2023, counsel for Dr. Shunock sent a letter by email and
First-class Certified Mail addressed to Katherine Adams, General Counsel of Apple
Inc. Dr. Shunock’s letter informed Apple that it was selling products that infringe
his Design Patents, including those listed in the above table, supra ¶ 52. Dr. Shunock
provided information related to the patents, as well as publicly available information
related to the design.
55. Apple replied to Dr. Shunock’s letter on the same day, June 26, 2023,
and the parties met via video conference on June 30, 2023. The parties met several
more times thereafter and exchanged multiple letters until their final video confer-
ence meeting on September 6, 2023.
56. Apple denies infringement and Dr. Shunock has been left with no alter-
native but to file this action. Based upon Apple’s continued use of the Activity Rings
design in its products, and its conduct in denying infringement allegations in the face
of substantial evidence, Apple’s actions are willful and deliberate.
FIRST CAUSE OF ACTION
(Infringement of the ’D802 Patent)
57. Dr. Shunock incorporates and realleges paragraphs 1 through 56 of this
Complaint.
20
58. On July 5, 2022, the USPTO duly and legally issued United States De-
sign Patent No. D956,802 (the “’D802 Patent”) for an invention entitled “Display
Screen with Graphical User Interface,” as shown and described. A true and correct
copy of the ’D802 Patent is attached here. See Exhibit 4. As a continuation of the
National Stage Application pursuant to 35 U.S.C. § 120, the ’D802 Patent claims an
effective filing date of at least April 9, 2014. Apple has been aware of the ’D802 Patent
since at least June 26, 2023. Apple also has notice of the ’D802 Patent from the filing
of this Complaint.
59. Dr. Shunock is the owner of all right, title, and interest in and to the
’D802 Patent, including all right to recover for any and all infringement thereof. The
’D802 Patent is valid and enforceable.
60. Apple has not obtained permission from Dr. Shunock to use the design
described in the ’D802 Patent.
61. Below is a side-by-side comparison of the patented design described in
the ’D802 Patent and Apple’s Activity Ring feature. As shown, and when viewed as
a whole, Apple’s Activity Rings are substantially the same as the design covered by
the ’D802 Patent such that an ordinary observer would be deceived into purchasing
one, supposing it to be the other.
21
’D802 Annotated – Accused Activity Ring

’D802 Patent Broken Lines Removed Design
62. Among other things, an ordinary observer would conclude that the Ac-
tivity Rings share a number of the same or very similar features as the design pa-
tented in the ’D802 Patent that contribute to an overall appearance that is substan-
tially the same, including that both the Activity Rings and the patented design share
(a) a plurality of concentric arcs and circles (b) with rounded ends (c) and uniform
width (d) that curve around a fixed, center circle, and which (e) vary in length to
indicate progress towards a measurable goal.
63. To the extent there are differences in features between the ’D802 Patent
claim and Apple’s Activity Rings, those differences involve features of the Activity
Rings that are either insignificant when compared to the totality of the ’D802 Patent
claim or substantially similar ornamental equivalents of the comparable features
claimed in the ’D802 Patent.
64. Apple has infringed and continues to infringe the ’D802 Patent by using,
selling, and/or offering to sell in the United States, and/or importing into the United
States, one or more of the Apple products identified in this Complaint, which embody
22
the design covered by the ’D802 design patent. Apple’s infringing activities violate
35 U.S.C. § 271.
65. Upon information and belief, Apple’s infringement of the ’D802 Patent
has been and continues to be intentional, willful, and without regard to Dr. Shunock’s
rights. Upon information and belief, Apple knows its infringing designs properly be-
long to Dr. Shunock because Dr. Shunock notified Apple of his design patents by email
and certified first-class mail on June 26, 2023.
66. Dr. Shunock is informed and believes, and on that basis alleges, that
Apple has gained profits by virtue of its infringement of the ’D802 Patent.
67. Dr. Shunock has sustained damages as a direct and proximate result of
Apple’s infringement of the ’D802 Patent.
SECOND CAUSE OF ACTION
Complaint.
effective filing date of at least April 9, 2014. Apple has been aware of the’D803 Patent
of this Complaint.
23

tivity Rings share a number of the same, or very similar, features as the design pa-
24
35 U.S.C. § 271.
25
THIRD CAUSE OF ACTION
Complaint.
of this Complaint.
26

27
35 U.S.C. § 271.
FOURTH CAUSE OF ACTION
Complaint.
of this Complaint.
28

29
35 U.S.C. § 271.
30
FIFTH CAUSE OF ACTION
101. Dr. Shunock incorporates and realleges paragraphs 1 through 100 of
this Complaint.
of this Complaint.
31

32
35 U.S.C. § 271.
SIXTH CAUSE OF ACTION
this Complaint.
of this Complaint.
33

34
35 U.S.C. § 271.
35
SEVENTH CAUSE OF ACTION
this Complaint.
of this Complaint.
36

37
35 U.S.C. § 271.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for relief as follows:
a. A judgment that each of Dr. Shunock’s asserted pa-

tents is valid and enforceable;
b. A judgment that Apple has infringed, contributorily

infringed, and/or induced infringement of one or
more claims of each of Dr. Shunock’s asserted pa-
tents;
c. A judgment that Apple’s infringement of one or more

claims of each of Dr. Shunock’s asserted patents is
willful;
d. A judgment awarding Dr. Shunock all damages ad-

equate to compensate for Apple’s infringement of Dr.
Shunock’s asserted patents, and in no event less
than a reasonable royalty for Apple’s acts of infringe-
ment, including all pre-judgment and post-judgment
interest at the maximum rate permitted by law;
38
e. A judgment awarding Dr. Shunock all damages, in-

cluding treble damages, based on any infringement
found to be willful, pursuant to 35 U.S.C. § 284, to-
gether with prejudgment interest;
f. A judgment awarding Dr. Shunock all of Apple’s

profits, pursuant to 35 U.S.C. § 289, together with
prejudgment interest;
g. Actual damages suffered by Dr. Shunock as a result

of Apple’s unlawful conduct, in an amount to be
proven at trial, as well as prejudgment interest as
authorized by law;
h. A judgment that this is an exceptional case and an

award to Dr. Shunock of its costs and reasonable at-
torneys’ fees incurred in this action as provided by
35 U.S.C. § 285; and
i. Such other relief as this Court deems just and

proper.
JURY DEMAND
Plaintiff demands a trial by jury, pursuant to Rule 38(b) of the Federal Rules
of Civil Procedure, for all issues so triable as a matter of right.
39
Dated: New York, NY Respectfully submitted,

September 29, 2023
SELENDY GAY ELSBERG PLLC
By: /s/ Sean Baldwin

Sean Baldwin
Temidayo Aganga-Williams
Michael Duke
Bret Matera
SELENDY GAY ELSBERG PLLC
1290 Avenue of the Americas
New York, NY 10104
Tel: 212-390-9000
sbaldwin@selendygay.com
tagangawilliams@selendygay.com
mduke@selendygay.com
bmatera@selendygay.com
Attorneys for Plaintiff Michael Shunock
40

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Case 1:23-cv-08598 Document 1 Filed 09/29/23 Page 1 of 40

UNITED STATES DISTRICT COURT

Plaintiff, Case No. __________

v. JURY TRIAL DEMANDED

for his complaint against Apple, Inc. (“Apple”), alleges as follows:

willful infringement of his patented designs, which feature—unlicensed—in millions

of Apple devices around the world.

2. On July 5, 2012, Dr. Shunock filed an international patent application

as a graphical illustration of his invention:

3. Dr. Shunock’s design serves as a visual representation of information

4. On August 30, 2013, Dr. Shunock attended a meeting at Apple’s head-

quarters in Cupertino, California. Dr. Shunock’s company was interested in collabo-

mitment to work together.

before hundreds of millions of consumers as a central feature of Apple’s innovative

cat design as “Activity Rings,” and used it as a visual representation of an Apple

Watch user’s daily movement and activity statistics, as seen below.

8 following the release of Apple’s iOS 16 software update.

fringements, including willful infringements, of Dr. Shunock’s design patents to date

and in the future.

10. Plaintiff Michael Shunock is an inventor based in Ontario, Canada.

11. Defendant Apple is a California corporation with its principal place of

business at 1 Infinite Loop, Cupertino, California 95014. Apple designs, manufac-

mobile devices, and accessories.

JURISDICTION AND VENUE

Code §§ 100, et seq.

mitted and continues to commit acts of infringement in violation of 35 U.S.C. § 271

15. Venue is proper in the Southern District of New York pursuant to 28

this district, and has committed acts of infringement in this district.

16. Building on significant investment and experience in his field, Dr.

Shunock developed an innovative “System and Method for Annotating Images,” or

specific portions of an image, with information (the “Invention”).

International Patent Application No. PCT/CA2012/050454 (the “PCT Application”)

tached here. See Exhibit 1 (available online at https://pa-

illustration below shows a user’s “spread” of influence, tracking the popularity of a

as depicted below in grayscale and its original color.

sumer sentiment towards a given product or brand.

ing at Apple’s headquarters in Cupertino, California, where he met with Donna

See 35 U.S.C. § 371.

shown in paragraph 18, supra. See Exhibit 3 at 16.

vice ever—featuring revolutionary new technologies and a pioneering user interface

tivity Ring” design, as shown below.

Shunock’s design superimposed on the face of an Apple Watch.

displaying the infringing Activity Rings as a central feature.

on the user’s iPhone.

continues to update a promotional webpage encouraging Apple Watch users to “Close

ers to “Close Your Rings.”

34. In another promotional campaign, Apple challenged users to “Ring in

during the first month of the year.

has been integrated into this separate offering.

within the online Apple Watch User Guide, as shown below.

and animation studio in 2012: 1K Studios.

Position during Relevant Relevance to Matter and/or

David DeLong Apple UIKit Framework Reviewed design and UI/UX

Mike Alfano Apple App Store Reviewed design and UI/UX

Mike Gottschalk 1K Studios, Senior Art Director Named inventor to Shunock

Position during Relevant Relevance to Matter and/or

Alan Hellard 1K Studios Group Creative Current Creative Director for

Jeff Southard 1K Studios Interaction Designer Designed mobile, tablet, web

Ben Higgins 1K Studios President 2013-14 Project management and

Andy Dunn 1K Studios Executive Producer Worked on motion design

Nicole Mercolino 1K Studios VP Strategic Project management and

41. On August 8, 2017, Apple responded to Dr. Shunock’s trademark de-

the 8th generation model.

IV. Dr. Shunock Files Seven Design Patent Applications as Continuations