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COMPLAINT -1- CASE NO. 3:17-cv-00075

MITCHELL + COMPANY

Brian E. Mitchell (SBN 190095)

brian.mitchell@mcolawoffices.com 

Marcel F. De Armas (SBN 289282)

mdearmas@mcolawoffices.com

4 Embarcadero Center, Suite 1400

San Francisco, CA 94111

Telephone: (415) 766-3514

Facsimile: (415) 402-0058

Attorneys for Plaintiff

FABLETICS, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

FABLETICS, LLC,

Plaintiff,

v.

LANDMARK TECHNOLOGY LLC,

Defendant.

Case No. 3:17-cv-00075

COMPLAINT FOR (1) DECLARATORY JUDGMENT 

OF INVALIDITY AND (2) DECLARATORY 

JUDGMENT OF NON-INFRINGEMENT of U.S. 

PATENT NO. 6,289,319 

JURY TRIAL DEMANDED 

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COMPLAINT -2- CASE NO. 3:17-CV-00075

Plaintiff Fabletics, LLC (“Plaintiff” or “Fabletics”) files this Complaint for Declaratory 

Judgment of Non-Infringement and Declaratory Judgment of Invalidity of U.S. Patents No. 

6,289,319 (the ’319 Patent) against Defendant Landmark Technology, LLC, stating as follows:

THE PARTIES

1. Plaintiff Fabletics is a Delaware limited liability company based in California.

2. Fabletics is an athleisure company that sells stylish women’s sportswear and 

accessories. It is headquartered in El Segundo, California.

3. On information and belief, Defendant Landmark Technology LLC (“Landmark 

Technology”) is a Delaware limited liability company and having its principal place of business at

329 Laurel Street, San Diego, California 92102. 

4. On information and belief, PanIP, LLC was the predecessor to Landmark 

Technology. 

JURISDICTION AND VENUE

5. This Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1338 because 

the Complaint states claims arising under an Act of Congress relating to patents, 35 U.S.C. § 

271. 

6. This Complaint also arises under the Federal Declaratory Judgment Act, 28 U.S.C. 

§§ 2201 et seq. based on Defendants’ accusations towards Plaintiff for patent infringement and 

pattern of actual litigation, thereby giving rise to an actual case or controversy under 28 U.S.C. 

§§ 2201 and 2202. 

7. This Court has personal jurisdiction over Landmark Technology. Upon 

information and belief, Landmark Technology conducts substantial business in this judicial 

district, including regularly doing or soliciting business, engaging in other persistent courses of 

conduct, and deriving substantial revenue from individuals and entities in California. 

8. More specifically, since September 2008, Landmark Technology has been 

involved in 39 lawsuits asserting the ’319 Patent, of which one suit, excluding this one, have been

or are being litigated in California. And as PanIP, LLC, Landmark Technology filed 17 

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COMPLAINT -3- CASE NO. 3:17-CV-00075

additional lawsuits, 16 of which were in California involving the ’319 Patent and other related 

patents.

9. As “PanIP, LLC,” Landmark Technology regularly, continuously, and 

systematically availed itself of the California federal district courts, and repeatedly used these 

courts as a preferred forum for asserting the ’319 Patent.

10. By its own admission, Landmark Technology files patent infringement lawsuits 

against companies that refuse to pay the requested sum in Landmark’s licensing demand letters. 

See, e.g., Landmark Technology, LLC v. G Stage Love.com Inc., S.D. Cal. Case No. 3:16-cv00760, Dkt. No. 1, ¶ 11 (“Plaintiff sent Defendant a letter informing Defendant of the ‘319 Patent 

that Defendant’s actions, as more fully described below, constituted infringement of the ‘319 

Patent.”); Landmark Technology, LLC v. Canada Drugs LP, S.D. Cal. Case No. 3:16-cv-00558, 

Dkt. No. 1, ¶ 11 (“On or about November 16, 2015, Plaintiff sent Defendant a letter informing 

Defendant of the ‘319 Patent that Defendant’s actions, as more fully described below, constituted 

infringement of the ‘319 Patent.”); Landmark Technology, LLC v. YOOX Corp., E.D. Tex. Case 

No. 6:15-cv-00069, Dkt. No. 1, ¶ 8 (“On or about September 19, 2014, Plaintiff provided notice 

to Defendant informing Defendant of the ‘319 Patent and that Defendant’s actions, as more fully 

described below, constituted infringement of the ‘319 Patent.”).

11. Not one of the 56 lawsuits involving Landmark Technology or PanIP, LLC has 

made it as far as claim construction. In fact, only seven defendants have ever filed an Answer: 

five consolidated defendants filed answers in U.S. District Court for the Eastern District of Texas, 

one defendant filed its answer in U.S. District Court for Eastern District of North Carolina, and 

another defendant answered counterclaims in a case pending before this Court. The 48 remaining 

cases appear to have been resolved prior to the deadline to answer.

12. On information and belief, Landmark Technology has sent letters to numerous 

other companies, including numerous other companies based in California, asserting infringement 

of the ’319 Patent and demanding payment of money. 

Case 3:17-cv-00075-WHO Document 1 Filed 01/06/17 Page 3 of 11
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COMPLAINT -4- CASE NO. 3:17-CV-00075

13. On information and belief, as “PanIP, LLC,” Landmark Technology has sent letters 

to numerous companies, including companies based in California, asserting infringement of the 

’319 Patent and demanding payment of money. 

14. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial 

part of the events or omissions giving rise to the claims herein occurred in this judicial district.

FACTUAL BACKGROUND

A. The Patents-in-suit

15. On September 11, 2001, U.S. Patent No. 6,289,319 (the “’319 Patent”), entitled 

Automatic Business and Financial Transaction Processing System, was issued.

16. The ’319 Patent is directed to an automatic data processing system for processing 

business and financial transactions between entries from remote sites.

17. Subsequently, the ’319 Patent went through two Ex Parte Reexaminations during 

which 22 new dependent claims were added. Certificates for the Ex Parte Reexaminations Issued 

on July 17, 2007 and January 9, 2013. 

18. As a representative claim, Claim 1 of the ’319 Patent claims as follows:

1. An automatic data processing system for processing business and 

financial transactions between entities from remote sites which comprises:

a central processor programmed and connected to process a variety of 

inquiries and orders transmitted from said remote sites;

said central processor including:

means for receiving information about said transactions from said remote 

sites;

means for retrievably storing said information;

at least one terminal at each of said remote sites including a data processor 

and operational sequencing lists of program instructions;

means for remotely linking said terminal to said central processor and for 

transmitting data back and forth between said central processor and said 

terminal;

said terminal further comprising means for dispensing information and 

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COMPLAINT -5- CASE NO. 3:17-CV-00075

services for at least one of said entities including:

a video screen;

means for holding operational data including programing, informing, and 

inquiring sequences of data;

means for manually entering information;

means for storing information, inquiries and orders for said transactions 

entered by one of said entities via said means for manually entering 

information, and data received through and from said central processor;

on-line means for transmitting said information, inquiries, and orders to 

said central processor;

on-line means for receiving data comprising operator-selected information 

and orders from said central processor via said linking means;

means for outputting said informing and inquiring sequences on said video 

screen in accordance with preset routines and in response to data entered 

through said means for entering information;

means for controlling said means for storing, means for outputting, and 

means for transmitting, including means for fetching additional inquiring 

sequences in response to a plurality of said data entered through said means 

for entering and in response to information received from said central 

processor;

said informing sequences including directions for operating said terminal, 

and for presenting interrelated segments of said operational data describing 

a plurality of transaction operations;

said programming sequences including means for interactively controlling

the operation of said video screen, data receiving and transmitting means; 

and for selectively retrieving said data from said means for storing;

said means for storing comprising means for retaining said operational 

sequencing list and means responsive to the status of the various means for 

controlling their operation;

said central processor further including:

means responsive to data received from one of said terminals for 

immediately transmitting selected stored information to said terminal; and

means responsive to an order received from a terminal for updating data in 

said means for storing;

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COMPLAINT -6- CASE NO. 3:17-CV-00075

whereby said system can be used by said entities, each using one of said 

terminals to exchange information, and to respond to inquiries and orders 

instantaneously and over a period of time.

’319 Patent, Claim 1 (emphasis added).

19. In other words, to infringe this means plus function claim, one must at the very 

least have a central processor programed to process data in a specific manner, such as a web 

server, and remote site terminals. Fabletics does not infringe Claim 1, or any other claim of the 

’319 Patent, for at least the following reason: Claim 1 is invalid for claiming an abstract idea. 

C. Landmark Technology’s Multiple Letters Threatening Fabletics with Litigation

20. Upon information and belief, Landmark Technology is in the business of patent 

licensing through the threat of litigation—commonly referred to as a patent troll.

21. Upon information and belief, a key part of Landmark Technology’s business model 

is sending letters threatening patent litigation and following through on that threat.

22. On or about October 13, 2016, Landmark Technology sent a form letter (the “First 

Landmark Letter”) to Don Ressler and Adam Goldenberg, Fabletics’ Co-CEOs, asserting that 

Fabletics infringes the ’319 Patent, and claims that “the specific functionalities implemented by 

Fabletics using [Fabletic’s] servers and devices interfaced to Fabletics’ web servers constitutes use 

of the technology taught within the meaning of Claim 1 of the ‘319 patent.” A true and correct 

copy of the First Landmark Letter is attached as Exhibit A. 

23. The First Landmark Letter concludes with an offer for a “non-litigation” and nonexclusive license to Landmark’s patent portfolio, which includes the ’319 Patent, in exchange for

$45,000. Immediately following the offer, the First Landmark Letter threatens to withdraw the 

offer in the event of litigation to discourage Fabletics from defending itself. 

24. On or about December 2, 2016, Landmark Technology sent a second form letter 

(the “Second Landmark Letter”) to Messrs. Ressler & Goldenberg again accusing Fabletics of 

infringing Landmark Technology’s patent rights, reminding Fabletics that the prior offer had 

elapsed, and offering a non-exclusive license to its patent portfolio, which includes the ’319 

Patent, in exchange for $45,000. The offer in the Second Landmark Letter was to expire on 

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COMPLAINT -7- CASE NO. 3:17-CV-00075

December 31, 2016. A true and correct copy of the Second Landmark Letter is attached as Exhibit 

B. 

25. Nowhere in the Second Landmark Letter did Landmark Technology indicate that 

the offer was negotiable. In fact, the Second Landmark Letter’s brevity and lack of facts presents

a take it or leave it—read “litigate it”—approach designed to extract a payment that would be 

significantly cheaper than defending a questionable patent infringement claim in court. 

26. Based on a review of Complaints filed by Landmark against other, similarly 

situated, e-commerce companies, Landmark’s infringement theory appears to be based on a claim 

of contributory or induce infringement. 

D. Landmark Technology’s Patent Portfolio

27. The Landmark Technology Patent Portfolio includes, but is not necessarily limited 

to, U.S. Patent Nos. 6,239,319 and 7,010,508. 

COUNT I – DECLARATION OF INVALIDITY

(U.S. Patent No. 6,289,319)

28. Fabletics restates and incorporates by reference the allegations in paragraphs 1 

through 27 of this Complaint as if fully set forth herein.

29. Landmark Technology claims to have exclusive rights, title, and interest to the ’319

Patent.

30. Landmark Technology has demanded that Fabletics take a license to the ’319 

Patent, as well as to the entire Landmark Technology Patent Portfolio.

31. Landmark Technology, or its predecessor in interest, has asserted the ’319 Patent 

50 of the 55 times it has been litigated. And Landmark Technology, or its predecessor in interest, 

has asserted in court one or more patents from its portfolio 110 times. Not only does this 

demonstrate a pattern of litigious zeal, but the fact that roughly half of Landmark Technology’s 

patent litigation involves the ‘319 Patent creates a reasonable fear that Fabletics was Landmark 

Technology’s next target. 

32. Accordingly, a substantial, immediate, and real controversy exists between 

Fabletics and Landmark Technology regarding whether the claims of the ’319 Patent are valid. 

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COMPLAINT -8- CASE NO. 3:17-CV-00075

33. The claims of the ’319 Patent are invalid under at least 35 U.S.C. §§ 101, 102, 103,

and 112.

34. The claims of the ’319 Patent do not constitute patentable subject matter pursuant 

to 35 U.S.C. § 101, and therefore are an invalid patent on an abstract idea. The ’319 Patent claims 

the abstract idea of automated data processing of business transactions. Nothing in the claims, 

“transform the nature of the claims” into patent eligible subject matter. Mayo Collaborative 

Services v. Prometheus Labs., Inc., 566 U.S. 10 (2012). Furthermore, “[t]he mere visitation of a 

generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible 

invention.” Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). 

35. Additionally, the ’319 Patent is invalid as anticipated pursuant to § 102 or as

obvious pursuant to § 103. Prior art that renders the ’319 Patent anticipated and/or obvious 

includes, but is not necessarily limited to:

• U.S. Patent No. 4,994,964 (Wolfberg); and

• U.S. Patent No. 6,105,007 (Norris).

36. The claims of ’319 Patent are invalid because the specification does not provide any 

structure for the numerous means plus function clauses recited in the claims other than generic 

computer parts. 

37. Based on Landmark Technology’s letter, its threat of litigation for patent 

infringement, its pattern of carrying out its threat, and other characteristics typical of a patent troll, 

as well as Fabletics’ denial of infringement, an actual case or controversy exists as to whether 

Fabletics infringes any valid claim of the ’319 Patent, and Fabletics is entitled to a declaration that 

the claims of the ’319 Patent are invalid.

COUNT II – DECLARATION OF NON-INFRINGEMENT 

(U.S. Patent No. 6,289,319)

38. Fabletics restates and incorporates by reference the allegations in paragraphs 1 

through 37 of this Complaint as if fully set forth herein.

39. Landmark Technology claims to have exclusive rights, title, and interest in the ’319 

Patent.

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COMPLAINT -9- CASE NO. 3:17-CV-00075

40. Landmark Technology has demanded that Fabletics take a license to the ’319 

Patent, as well as to the entire Landmark Technology Patent Portfolio.

41. Based on Landmark Technology’s letters, its repeated accusations of patent 

infringement, its pattern of and fondness for litigation, and Fabletics’ denial of infringement, a

substantial, immediate, and real controversy exists between Fabletics and Landmark Technology

regarding whether Fabletics directly or indirectly infringes or has infringed the ’319 Patent. A 

judicial declaration is necessary to determine the parties’ respective rights regarding the ’319 

Patent.

42. Fabletics seeks a judgment declaring that Fabletics does not directly or indirectly 

infringe any claim of the ’319 Patent.

PRAYER FOR RELIEF

WHEREFORE, Fabletics respectfully prays for the following relief:

A. A declaration that Fabletics’ services, systems, and practices do not infringe the 

’319 Patent;

B. A declaration that ’319 Patent is invalid;

C. That Landmark Technology be enjoined from enforcing any Patent related to the 

’319 Patent against Fabletics; 

D. A determination that this is an exceptional case and an award of all costs and 

attorneys’ fees to Fabletics; 

E. That Fabletics be awarded its costs of suit, and pre- and post-judgment interest on 

any money amount; and

F. Any other relief as this Court deems just and proper.

Dated: January 6, 2017 Respectfully submitted,

/s/ Brian E. Mitchell

Brian E. Mitchell

Brian E. Mitchell 

Marcel F. De Armas

MITCHELL + COMPANY

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COMPLAINT -10- CASE NO. 3:17-CV-00075

4 Embarcadero Center, Suite 1400 

San Francisco, CA 94111

Telephone: (415) 766-3515

Facsimile: (415) 402-0058

brian.mitchell@mcolawoffices.com 

mdearmas@mcolawoffices.com

Attorneys for Plaintiff

FABLETICS, LLC

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COMPLAINT -11- CASE NO. 3:17-CV-00075

DEMAND FOR JURY TRIAL 

Plaintiff demands a jury trial on all claims as to which it has a right to a jury. 

Dated: January 6, 2017 Respectfully submitted,

/s/ Brian E. Mitchell

Brian E. Mitchell

Brian E. Mitchell 

Marcel F. De Armas

MITCHELL + COMPANY

4 Embarcadero Center, Suite 1400 

San Francisco, CA 94111

Telephone: (415) 766-3515

Facsimile: (415) 402-0058

brian.mitchell@mcolawoffices.com 

mdearmas@mcolawoffices.com

Attorneys for Plaintiff

FABLETICS, LLC

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