IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: GN NETCOM, INC.

, a Delaware corporation; Plaintiff, v. CALLPOD, INC., an Illinois corporation; DARREN GUCCIONE, an individual; Defendants.

COMPLAINT FOR FALSE PATENT MARKING Plaintiff GN Netcom, Inc. (GN Netcom), for its Complaint against Callpod, Inc. (Callpod) and Darren Guccione (Guccione), states as follows: NATURE OF THE ACTION 1. This is an action at law and in equity for false patent marking, arising

under 35 U.S.C. 292. 2. Defendant Callpod designs, manufactures, offers for sale, and/or sells,

throughout the United States an electronic device known as the Phoenix that enables conference calling. 3. Defendant Guccione is the CEO of Callpod and also a named inventor on

United States Patents Nos. U.S. Design Patent No. D464,957 and Utility Patent Number 6,801,611. 4. Callpod and Guccione have blatantly and systematically misrepresented

the Phoenix device as being covered and/or protected by two United States Patents even though neither patent covers the Phoenix device. This action seeks injunctive

relief to put an end to Callpods and Gucciones intentional misrepresentations and efforts to deceive members of the public about the Phoenix product and two patents issued by the United States. GN Netcom also seeks monetary damages to remedy the competitive injury caused by Callpods and Gucciones false patent markings and advertisements. PARTIES, JURISDICTION AND VENUE 5. Plaintiff GN Netcom is a Delaware corporation with a principal place of

business at 77 Northeastern Blvd., Nashua, NH 03062-3128. 6. On information and belief, Defendant Callpod is an Illinois corporation

with a principal place of business at 850 W. Jackson Boulevard #400, Chicago, Illinois. 7. On information and belief, Defendant Guccione is a resident of the State

of Illinois. Defendant Gucciones residential address is unknown, but, on information and belief, Guccione maintains an office address at 850 W. Jackson Boulevard #400, Chicago, Illinois. 8. The Court has subject matter jurisdiction over this case pursuant to 28

U.S.C. 292 and 1338(a). 9. The exercise of in personam jurisdiction over Callpod and Guccione

comports with the laws of the State of Colorado and the constitutional requirements of due process because Callpod and Guccione and/or their agents transact business and/or offer to transact business within Colorado and/or because Callpod and Guccione, advertise, offer for sale, sell, and/or distribute the falsely marked Phoenix device throughout the United States, including within the State of Colorado. 10. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and 28

U.S.C. 1400(b), as a substantial part of the events or omissions giving rise to GN Netcoms claims occurred within the District of Colorado and because Callpod and Guccione are subject to the personal jurisdiction in the District of Colorado. -2-

GENERAL ALLEGATIONS 11. GN Netcom is one the worlds leading suppliers of hands-free

communications solutions. GN Netcoms products include corded headsets, Bluetooth headsets, and wireless headset devices for use in offices and call centers. GN

Netcoms product mix includes office headset devices such as the GN 9140 and GN 9350, among others, that include a feature that allows the device to be used in a manner that permits conference calling. 12. Callpod competes with GN Netcom in certain product lines. Like GN

Netcom, Callpod also offers and/or has offered for sale Bluetooth headsets. Callpod also promotes its Phoenix device as giving users the ability to wirelessly connect multiple headsets in a manner that enables private, mobile communication, including portable conference calling between multiple users. 13. Callpod and Guccione advertise the Phoenix as being covered by certain

specific patents when in fact it is not covered by these patents. 14. Callpods website advertises that the Phoenix is covered under U.S.

Design Patent No. D464,957 and Utility Patent Numbers: 6,801,611 15. Contrary to Callpods and Gucciones assertions, the D464,957 (957

Patent) and the 6,801,611 (611 Patent) do not cover the Phoenix product. 16. Callpod and Guccione have intentionally marked, affixed to, or used in

advertising, and continue to do so, the word patent, and other words or patent numbers importing that the Phoenix is covered by certain patents. 17. On information and belief, Callpod and Guccione have on multiple

occasions, similarly promoted, advertised or otherwise imported that the Phoenix is covered by the 957 Patent and/or the 611 Patent, including in presentations and correspondence, including with GN Netcom agents and personnel.

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THE 957 PATENT 18. The 957 Patent is a United States Design Patent. A copy of the 957 Design patents cover the

Patent is submitted with this Complaint as Exhibit A.

ornamental design shown in the drawings contained in the 957 Patent. The design covered by the 957 Patent, as shown in its entirety in Exhibit A, is not even remotely similar to the design of the Phoenix. Below is a comparison of the design in the 957 Patent and the Phoenix device.

19.

Callpod and Guccione intentionally falsely mark, advertise, or import

that the Phoenix is covered by the 957 Patent with an intent to deceive. 20. Callpods and Gucciones false marking and advertising is part of an

intentional strategy to deliberately misrepresent the Phoenixs design as innovative by referring to the 957 Patent as evidence. Callpod and Guccione have continued their false marking with the intent of deceiving potential investors to commit funds to Callpod or acquire Callpods assets. For example, Callpod and Guccione have made false representations to GN Netcom and its agents though correspondence and at meetings as part of efforts to sell the Phoenix technology and assets.

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THE 611 PATENT 21. The 611 Patent is a utility patent. A copy of the 611 Patent is

submitted with this Complaint as Exhibit B. The 611 Patent has various apparatus and method claims related to a specific device and method of making portable conference calls. 22. Independent Claim 1 of the 611 Patent requires a sense circuit structured

to automatically activate and deactivate the call pod upon termination of a call wherein the sense circuit detects a microphone bias current on the microphone input of the wireless telephone and activates the call pod using the detected microphone bias. Independent claims 9 and 18 have similar requirements. 23. The Phoenix, on information and belief, does not contain, among other

things, a sense circuit that detects microphone bias for the purpose of activating or deactivating the Phoenix device and does not activate the call pod using the detected microphone bias, as required by the 611 Patent. Because this requirement, among others, is a part of every claim of the 611 Patent, and missing in the Phoenix, the Phoenix is not covered by any of the claims of the 611 Patent. 24. Callpod and Guccione are well aware that the Phoenix does not practice

the 611 Patent. Callpod and Guccione have nonetheless continued on an intentional campaign of false marking and advertisement for the purpose of, and with the intent to, deceive. 25. Callpod and Guccione have publically stated that the Phoenix is

disruptive technology and innovative and have referred to Callpods patents, including to the 611 Patent, among others, as evidence of this claim. 26. In prior proceedings over the 611 patent in the Northern District of

Illinois, Guccione and Callpod declared that the Phoenix was covered by the 611 Patent. In the same proceedings, however, Callpod and Guccione, when challenged to -5-

demonstrate how the 611 Patent covered the Phoenix, declined to defend their assertion, and after months of proceedings ultimately withdrew the contention. Since at least that time, Callpod and Guccione have been aware that the Phoenix product was not covered by the 611 Patent. Nonetheless, Callpod and Guccione willfully ignored the falsity of their advertisements and statements, including to GN Netcom, and each of them, together and separately, continued to falsely mark, advertise, or import the Phoenix as being covered by the 611 Patent. 27. Because of Callpods and Gucciones prior knowledge that the 611

Patent did not cover the Phoenix, their repeat, continuous, and intentional false marking has been willful and/or recklessly undertaken and with the intent to deceive as part of a pattern of conduct designed to puff each Defendants purported prowess as an innovator and to secure a competitive advantage in the marketplace, including over GN Netcom. FIRST CLAIM FOR RELIEF False Patent Marking 957 Patent 35 U.S.C. 292 (Against All Defendants) 28. GN Netcom hereby incorporates each of the preceding paragraphs as if

fully set forth herein. 29. Callpod and Guccione intentionally mark and/or advertise, or have

marked and/or advertised, or otherwise imported that the Phoenix product is covered by the 957 Patent. 30. 31. The Phoenix is not covered by the 957 Patent. Callpods and Gucciones false patent marking and advertisement of the

Phoenix as being covered by the 957 was intentional, undertaken with the intent to and for the purpose of deceiving, and with full knowledge and/or reckless disregard.

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32.

Callpods and Gucciones false marking has competitively injured GN

Netcom, and continues to competitively injure GN Netcom in an amount to be proven at trial. 33. Callpods and Gucciones false marking of the Phoenix as being covered

by the 957 Patent has caused irreparable harm to GN Netcom, and will continue to do so unless enjoined. As a result, GN Netcom is entitled to injunctive relief. SECOND CLAIM FOR RELIEF False Patent Marking 611 Patent 35 U.S.C. 292 (Against All Defendants) 34. GN Netcom hereby incorporates each of the preceding paragraphs as if

fully set forth herein. 35. Callpod and Guccione intentionally mark and/or advertise, or have

marked and/or advertised, or otherwise imported that the Phoenix product is covered by the 611 Patent. 36. 37. The Phoenix is not covered by the 611 Patent. Callpods and Gucciones false patent marking and advertisement of the

Phoenix as being covered by the 611 was intentional, undertaken with the intent to and for the purpose of deceiving, and with full knowledge and/or reckless disregard. 38. Callpods and Gucciones false marking has competitively injured GN

Netcom, and continues to competitively injure GN Netcom in an amount to be proven at trial.

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39.

Callpods and Gucciones false marking of the Phoenix with the 611

Patent has caused irreparable harm to GN Netcom, and will continue to do so unless enjoined. As a result, GN Netcom is entitled to injunctive relief. GN Netcom hereby incorporates each of the preceding paragraphs as if fully set forth herein. PRAYER FOR RELIEF WHEREFORE, GN Netcom prays for entry of judgment granting: A. A preliminary and/or permanent injunction restraining Callpod, its officers,

agents, servants, employees, directors, representatives, successors-in-interest, parent corporations, subsidiary corporations, affiliated companies, and all other persons, firms or entities acting in concert or participating with them, directly or indirectly, who receive actual notice of this judgment, from marking, advertising, or importing that the Phoenix is covered by the 957 and/or 611 Patents; B. An award to GN Netcom of its actual damages based on its claims in an

amount according to proof; C. D. Compensatory damages; A declaration that this case is exceptional, and, in conjunction therewith, an

award of reasonable attorney fees and costs; E. F. proper. Pre-judgment and post-judgment interest as allowed by law; and Such other and further equitable and legal relief as this Court deems just and

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JURY DEMAND GN Netcom hereby demands a trial by jury on all issues so triable.

Respectfully submitted this 13th day of December, 2011. /s/_L. James Lyman L. James Lyman, Esq. Arnold & Porter LLP 370 17th St # 4400 Denver, CO 80202-5647 Telephone: (303) 863-1000 Monty Agarwal, Esq. Arnold & Porter LLP One Embarcadero Center, 22nd Floor San Francisco, CA 94111-3711 Telephone: (415) 356-3000 Attorneys for Plaintiff GN Netcom, Inc. Plaintiffs Address: 77 Northeastern Blvd. Nashua, NH 03062-3128

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