2nd amended complaint filed by Calypso.
==============================================
IV. General Allegations
18. On January 20, 2004, U.S. Patent No. 6,680,923 B1, entitled “Communication
System And Method” (“the ‘923 patent”), was duly and legally issued to inventor Robert Leon. A true and correct copy of the ‘923 patent is attached hereto as Exhibit 1.
19. Calypso is the owner by assignment of the ‘923 patent, with full and exclusive
right to bring suit to enforce it.
20. Daic is a shareholder and creditor of Calypso. Daic and Williamson are owners
by assignment of certain ownership rights in the ‘923 patent.
21. The ‘923 patent relates to Seamless fixed mobile convergence, which allows a
seamless “hand off” between cellular networks and Wireless Local Area Networks.
22. Upon information and belief, T-Mobile has infringed and continues to infringe the
‘923 patent. The infringing acts include, but are not limited to, the manufacture, use, offering for sale, sale and/or importation of software/firmware, hardware, and services embodying the inventions of the Patent-in-suit. T-Mobile is liable for infringement of the ‘923 patent pursuant to 35 U.S.C. § 271.
23. Calypso was founded in 1998, and has, from its inception, been a pioneer in the
field of wireless communications. Calypso’s ground-breaking innovations include the ASNAP technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such Wi-Fi routers. Calypso’s ASNAP technology is protected by a portfolio of patents, including the ‘923 Patent.
24. Calypso has, in the last couple of years, undergone significant changes in leadership, including the replacement of Calypso’s president and CEO, and several members of
Calypso’s board of directors. Prior to April 2008, the company was run by an individual named Carlos Mendoza. Mendoza is no longer with the company.
25. In 2002, Mendoza allegedly entered into one or more agreements with an
individual called Drago Daic. Mendoza and Daic apparently made a series of outlandish
promises to one another involving, among other things, varying numbers of shares of company stock and, allegedly, a promise that Daic could force the United States Patent Office to grant a patent.
26. In 2004, Daic sued Calypso on the basis of one or more of these undocumented
agreements between him and Mendoza (Drago Daic, Curtis Scott Howell d/b/a Tribeca,
Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless, Inc., Carlos Mendoza and David Davila, Cause No. 2004-63048, in the 151st District Court of Harris County, Texas). According to Mendoza, Daic threatened to expose alleged self-dealing by Mendoza if he appeared to try to defend the suit. Mendoza, who has spent time in foreign jails for similar activities, declined to appear, and Daic was able to secure a default judgment in excess of $100 Million against Calypso.
27. In early 2008, a group of Calypso shareholders, bought out Mendoza. Mendoza is
no longer associated with Calypso, and has apparently returned to Latin America. All of
Calypso’s previous officers and directors resigned, and Richard Pattin was named interim
President, CEO, and sole director.
28. In April 2008, under new leadership, Calypso set about trying to clean up the
mess created by Mendoza and Daic. (It was not until June 2009, however, after the return of Cristian Turrini and Dave William’s appointment as President of the company, that Calypso was able to limit Daic’s involvement and interference with the day-to-day affairs of the company.) Under the threat of Daic’s execution of the $100+ Million judgment, Calypso purportedly entered into an agreement (the “2008 Agreement,” a true and correct copy of which is attached hereto as Exhibit 2) under which, among other things, Daic and Williamson took a security interest in the ‘923 Patent in the form of a 25% ownership stake in the patent.
29. The 25% security interest purportedly granted in the 2008 Agreement covered
two categories of intellectual property: the “ASNAP Patents” and the “Baxter Patents.”
30. The ASNAP Patents include, according to the 2008 Agreement, the ‘923 Patent,
U.S. Patent Application Serial No. 11/040,482, and PCT No. PCT/US01/07528, and:
all patents and applications throughout the world that claim priority to, directly or
indirectly, or from which the foregoing claim priority, directly or indirectly; [and]
all substitutions for and divisions, continuations, continuations-in-part, renewals,
reissues, patent cooperation treaty applications, foreign applications, national
phase entries, and extensions of the foregoing patents and applications throughout
the world, and including patent applications and applications throughout the
world for like protection that have now been or may in the future be granted on
the invention disclosed in any of the forgoing patents or applications, including
without limitation, those obtained or permissible under past, present, and future
laws and statutes and ... all right, title, and interest in and to any and all rights and
causes of action based on, arising out of, related to, or on account of past, present,
and future unauthorized use and/or infringement of any and all of the foregoing,
including but not limited to all past, present, and future awards, damages, and
remedies related thereto or arising therefrom.
31. The Baxter Patents include, according to the 2008 Agreement:
United States Patents No. 6,385,306, No. 6,765,996, No. 6,839,412 and No.
7,031,439; [and] all patents and applications throughout the world that claim
priority to (directly or indirectly) the foregoing, or from which the foregoing
claim priority (directly or indirectly); [and] all substitutions for and divisions,
continuations, continuations-in-part, renewals, reissues, patent cooperation treaty
applications, foreign applications, national phase entries, and extensions of the
foregoing patents and applications throughout the world, and including patent
applications and applications throughout the world for like protection that have
now been or may in the future be granted on the invention disclosed in any of the
foregoing patents or applications, including without limitation, those obtained or
permissible under past, present, and future laws and statutes; and ... all right, title,
and interest in and to any and all rights and causes of action based on, arising out
of, related to, or on account of past, present, and future unauthorized use and/or
infringement of the [sic] any and all of the foregoing, including but not limited to
all past, present, and future awards, damages, and remedies related thereto or
arising therefrom.
32. Drago Daic did not comply with his obligations under the 2008 Agreement. He
made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.
33. Daic also refused to join in as plaintiff in the present suit for infringement of the
‘923 Patent. As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.
34. In the spring of 2009, D&W complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented. Daic threatened to enforce his $100+ Million default judgment, to take the ‘923 Patent away from Calypso, along with the other patents in Calypso’s ASNAP portfolio, and to refuse to cooperate in the current suit for patent infringement.
35. Calypso and D&W negotiated throughout the spring of 2009 to attempt to resolve
D&W’s issues. In the end, D&W presented Calypso with a draft of the 2009 Duress Agreement, a true and correct copy of which is attached hereto as Exhibit 3.
36. Calypso proposed several sets of revisions to D&W’s proposed amended
agreement, but each time Calypso was told that D&W would only sign the agreement “as is,” and reminded of the various threats that D&W had made (which are described in a paragraph above).
37. To enter into a contract such as the 2009 Duress Agreement, a majority of Calypso’s board of directors would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement. Daic and Williamson knew this fact, but the board of
directors never gave its approval.
38. There were three individuals on the Calypso board of directors in the spring of
2009: (1) Cristian Turrini, (2) Richard Pattin, and (3) Kathy Daic. Kathy Daic is Drago Daic’s wife. She resigned her board position on April 3, 2009 – the same date as the purported execution of the 2009 Duress Agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.
39. Cristian Turrini and Richard Pattin never agreed together that Calypso should
enter into the 2009 Duress Agreement. In fact, Cristian Turrini repeatedly voiced his
disagreement with the idea (and disapproval of the proposed terms of the 2009 Duress
Agreement). This was communicated to D&W, along with the fact that Calypso could not enter into the 2009 Duress Agreement without Turrini’s consent. D&W therefore knew or should have known that there could be no valid 2009 Duress Agreement unless Cristian Turrini consented to Calypso’s entry into the agreement.
40. Although Richard Pattin signed the 2009 Duress Agreement, he did not have an
authority to do so. Calypso’s Bylaws state that as the President, he “shall see that all orders and resolutions of the Board of Directors are carried into effect.” (Article IX, Section 7 of Calypso’s Bylaws). The signing of the 2009 Duress Agreement was never approved by the Board of Directors. In fact, as described above, the board member Cristian Turrini specifically and explicitly instructed Pattin, in writing, not to sign the 2009 Duress Agreement.
41. Among the terms of the 2009 Duress Agreement were several that Daic (as a
shareholder and spouse of a former member of the board of directors) knew would be impossible for Calypso to comply with, including one provision that required Calypso to issue 13.4 Million shares of Calypso stock to Daic within two weeks of the purported execution of the 2009 Duress Agreement.
42. Neither the board of directors nor Richard Pattin had the requisite to authority
issue the 13.4 Million shares without first obtaining shareholder approval (which, of course, was not done). Now that Calypso has not complied (for reasons of impossibility as well as the fact that Calypso never executed or agreed to the 2009 Duress Agreement), Daic is claiming that the 2009 Duress Agreement has been breached, and that he is entitled to foreclose on a security interest in the ‘923 Patent purportedly given to him by the terms of the 2009 Duress Agreement.
43. On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated
by him as plaintiff under Fed. R. Civ. P. 25(c). In his Motion, Daic claims that he and
Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ‘923 Patent) under the 2009 Duress Agreement, and, implicitly, that the 2009 Duress Agreement is a valid and enforceable contract. D&W purportedly assigned the ASNAP and Baxter Patents (which include the ‘923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.
44. Actual controversies exist as to the existence, validity, and enforceability of the
2009 Duress Agreement, as well as to D&W’s rights vis-à-vis the ‘923 Patent. These
controversies are ripe for adjudication by this Court.
45. Calypso now therefore seeks declaratory judgment, under Fed. R. Civ. P. 57 and
28 U.S.C. §§ 2201, 2202, that the 2009 Duress Agreement is invalid and unenforceable.
46. Calypso also seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C.
§§ 2201, 2202, that Calypso is the sole title holder of the ’923 Patent.
47. Calypso also seeks a preliminary and permanent injunction to prevent any further
attempts by Daic and Stephens to exercise or act upon Daic’s and Williamson’s alleged rights with respect to or interests in Calypso’s ‘923 Patent, and to prevent Daic from continuing to breach the terms of the 2008 Agreement.
48. Calypso also seeks damages and attorney’s fees relating to D&W’s breaches of
the 2008 Agreement.
49. Calypso also seeks damages for Daic’s tortuous interference with Calypso’s
business relationships and prospective contracts.
