IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION Adaptive Sonics LLC

Plaintiff, v. Cochlear Limited, an Australian corporation, and Cochlear Americas Corporation, a Delaware corporation, Defendants. ) ) ) ) ) ) ) ) ) )

Civil Action No. ____________________

COMPLAINT WITH JURY DEMAND

Plaintiff Adaptive Sonics LLC ("Plaintiff" or "Adaptive Sonics"), for its Complaint with Jury Demand for patent infringement against Defendants Cochlear Limited and Cochlear Americas Corporation ("Cochlear Americas") (collectively "Defendants"), alleges as follows: I. THE PARTIES 1. Adaptive Sonics is a limited liability company existing under the laws of Texas

with its principal place of business at 6136 Frisco Square Blvd., Suite 385, Frisco, TX 75034. 2. On information and belief, Defendant Cochlear Limited is a corporation existing

under the laws of Australia with a principal place of business at 1 University Avenue, Macquarie University NSW 2109, Australia. Upon further information and belief, Defendant Cochlear Americas Corporation is the United States subsidiary corporation of Defendant Cochlear Limited, existing under the laws of Delaware with its principal place of business at 13059 East Peakview Avenue, Centennial, CO 80111. Upon information and belief, Defendants transact business in the

Marshall division, including offering infringing products through affiliated health care professionals located in the Marshall division. II. JURISDICTION AND VENUE 3. This is an action for patent infringement under the Patent Laws of the United

States, 35 U.S.C. 271. 4. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C.

1331 and 1338(a). 5. Upon information and belief, Defendants have minimum contacts with the Eastern

District of Texas such that this forum is a fair and reasonable one. Specifically and also upon information and belief, Defendants have committed such purposeful acts and/or transactions in Texas that they reasonably knew and/or expected that they could be hauled into court as a future consequence of such activity. Also specifically and upon information and belief, Defendants have transacted and/or, at the time of the filing of this Complaint, are transacting, business within the Eastern District of Texas. For these reasons, personal jurisdiction exists over Defendants. 6. Venue is proper in this Court under 28 U.S.C. 1391(b) and (c) as Defendants

may be found in this judicial district and Defendants are subject to personal jurisdiction within this judicial district. Venue is also proper in this Court under 28 U.S.C. 1400(b) as Defendants have committed acts of infringement in this judicial district. Venue is proper in this judicial district, upon information and belief, because Defendants do business here and Defendants have an authorized distributor of infringing products in this district.

III. FACTS 7. Adaptive Sonics is the owner of all right, title, and interest in and to United States

Patent No. 5,473,701 entitled "Adaptive Microphone Array" ("the '701 Patent"). A true and correct copy of the '701 Patent is attached as Exhibit A. 8. Independent Claim 1 of the '701 Patent reads:

1. A method of enhancing the signal-to-noise ratio of a microphone array, the array including a plurality of microphones and having a directivity pattern, the directivity pattern of the array being adjustable based on one or more parameters, the method comprising the steps of: a. evaluating one or more parameters to realize an angular orientation of a directivity pattern null, which angular orientation reduces microphone array output signal level in accordance with a criterion, said evaluation performed under a constraint that the null be precluded from being located within a predetermined region of space which comprises a range of directions about the array, which range reflects a predetermined directional variability of the desired acoustic energy with respect to the array; b. modifying output signals of one or more microphones of the array based on the one or more evaluated parameters; and c. forming an array output signal based on one or more modified output signals and zero or more unmodified microphone output signals. 9. Independent Claim 11 of the '701 Patent reads:

11. An apparatus for enhancing the signal-to-noise ratio of a microphone array, the array including a plurality of microphones and having a directivity pattern, the directivity pattern of the array being adjustable based on one or more parameters, the apparatus comprising: a. means for evaluating one or more parameters to realize an angular orientation of a directivity pattern null, which angular orientation reduces microphone array output signal level in accordance with a criterion, said evaluation performed under a constraint that the null be precluded from being located within a predetermined region of space which comprises a range of directions about the array which range reflects a predetermined directional variability of the desired acoustic energy with respect to the array; 3

b. means for modifying output signals of one or more microphones of the array based on the one or more evaluated parameters; and c. means for forming an array output signal based on one or more modified output signals and zero or more unmodified microphone output signals. 10. The claims of the '701 Patent were recently subjected to an ex parte reexamination

before the U.S. Patent and Trademark Office ("USPTO") that was initiated by the K/S Hearing Industries Manufacturers Patent Partnership ("K/S HIMPP"). On February 23, 2010, the USPTO issued an Ex Parte Reexamination Certificate indicating that the claims of the '701 Patent, including, without limitation, independent Claims 1 and 11, were confirmed as valid without amendment. A true and correct copy of the Reexamination Certificate is attached as Exhibit B. 11. On January 13, 2010, K/S HIMPP requested a second ex parte reexamination of

the '701 Patent. That second request for reexamination was denied by the USPTO on April 22, 2011. A true and correct copy of the USPTO decision denying K/S HIMPP's second ex parte reexamination request is attached as Exhibit C. 12. Upon information and belief, Defendants Cochlear Limited and Cochlear

Americas Corporation have manufactured, made, had made, used, practiced, imported, provided, supplied, distributed, sold, and/or offered for sale the Cochlear Nucleus System (the "Accused Product"). 13. According to Defendants' marketing materials for the Accused Product, the

Accused Product includes dual omni directional microphones that "utilize[] spatial input processing and an adaptive noise canceling algorithm to automatically adjust microphone directionality depending on the presence and type of noise sources . . . designed to attenuate the sensitivity in the direction of interfering noises to the side and behind the listener, while 4

maintaining maximum sensitivity to the front." According to Defendants' marketing materials this "noise cancelation is adaptive: the null point will follow the noise source to the side or the back of the listener." 14. Upon information and belief, Defendants have conducted testing involving the

Accused Product that infringed one or more claims of the '701 Patent. IV. FIRST CLAIM FOR RELIEF (Patent Infringement) 15. 16. Adaptive Sonics incorporates the foregoing paragraphs as if fully set forth herein. Defendants manufactured, made, have made, used, practiced, imported, provided,

supplied, distributed, sold, and/or offerd for sale products and/or services that infringe one or more claims of the '701 Patent in violation of 35 U.S.C. 271(a). 17. Adaptive Sonics has been damaged as a result of Defendants' infringing conduct.

Defendants are thus liable to Adaptive Sonics in an amount that adequately compensates Adaptive Sonics for such infringement which cannot be less than a reasonable royalty, together with interest and costs as fixed by this Court under 35 U.S.C. 284. 18. Defendants' acts of infringement have been willful, deliberate, and in reckless

disregard of Adaptive Sonics' patent rights, and will continue unless permanently enjoined by this Court. V. PRAYER FOR RELIEF Adaptive Sonics requests that the Court find in its favor and against Defendants, and that the Court grant Adaptive Sonics the following relief: A. Judgment that one or more claims of the '701 Patent has been infringed, either

literally and/or under the doctrine of equivalents, by Defendants; 5

B.

A permanent injunction enjoining Defendants, along with their officers, directors,

agents, servants, employees, affiliates, divisions, branches, subsidiaries, and parents, from infringing, inducing the infringement of, or contributing to the infringement of the '701 Patent; C. Judgment that Defendants account for and pay to Adaptive Sonics all damages to

and costs incurred by Adaptive Sonics because of Defendants' infringing activities and other conduct complained of herein in an amount not less than a reasonable royalty; D. Pre-judgment and post-judgment interest on the damages caused to it by reason of

Defendants' infringing activities and other conduct complained of herein; and E. circumstances. VI. DEMAND FOR JURY TRIAL Adaptive Sonics hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of Civil Procedure. Such other and further relief as the Court may deem just and proper under the

FERGUSON LAW GROUP, P.C.

Dated: April 25, 2012

By:

/s/ John D. Fraser John D. Fraser Attorney-in-Charge State Bar No. 07393550 2500 Dallas Parkway, Suite 260 Plano, Texas 75093 Phone: 972.378.9111 Fax: 972.378.9115 E-Mail: jfraser@dallasbusinesslaw.com

Of Counsel (applications pro hac vice forthcoming) Robert R. Brunelli (pending pro hac admission) rbrunelli@sheridanross.com Benjamin B. Lieb (pending pro hac admission) blieb@sheridanross.com John R. Posthumus (pending pro hac admission) jposthumus@sheridanross.com Patricia Y. Ho (pending pro hac admission) pho@sheridanross.com SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: litigation@sheridanross.com ATTORNEYS FOR PLAINTIFF