datatreasury v. austin bancorp et. al

8/4/2019 Datatreasury v. Austin Bancorp et. al.

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_________________________________________________________________________________Original Complaint for Patent Infringement Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DataTreasury Corporation

Plaintiff

v. CIVIL ACTION NO:

JURY DEMANDED

Austin Bancorp, Inc.;

Austin Bank Texas, N.A.;

BOK Financial Corp.;

Bank of Texas, N.A.;

Bank of the Ozarks, Inc.;

Bank of the Ozarks;

Cathay General Bancorp;

Cathay Bank;

Community Trust Financial Corporation; Community Trust Bank of Texas; Coppermark Bancshares,Inc.

Coppermark Bank;

Fifth Third Bancorp;

Fifth Third Bank;

First Financial Bankshares, Inc.; First Financial Bank, N.A.;

First National of Nebraska, Inc.;

First National Bank of Omaha;

First National Bank Southwest;

Durant Bancorp, Inc.;

First United Bank and Trust Company d/b/a First United Bank;

Inwood Bancshares, Inc.;

Inwood National Bank;

Marquette Financial Companies;

Meridian Bank Texas;

Metrocorp Bancshares, Inc,:

MetroBank, N.A.;

North Dallas Bank and Trust Co.;

PlainsCapital Corporation;

PlainsCapital Bank;

Texas Capital Bancshares, Inc.;

Texas Capital Bank, N.A.; The ANB Corporation;

The American National Bank of Texas;

Central Bancorp, Inc.;

United Central Bank;

Woodforest Financial Group, Inc.; and

Woodforest National Bank Defendants


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ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

I. BACKGROUND

1. The patents in suitU.S. Patent No. 5,910,988 and 6,032,137 (collectively the

Ballard patents) are among the most thoroughly validated and valuable patents in the

United States. The Ballard patents have been credited as being foundational to modern day,

image-based check processing, enabling technological improvements that save the banking

industry billions of dollars annually.

2. A vast majority of the top twenty-five banking institutions in America

including Bank of America, Citibank, J.P. Morgan Chase Bank, Wells Fargo Bank, and many

othershave licensed the Ballard patents in recognition of the significant contribution of the

Ballard patents to modern image-based check processing. It has been publicly reported that

these banks have collectively paid more than $350 million to license the Ballard patents.

3. Industry leading J.P. Morgan Chase Bank has agreed to a Consent Judgment,

confessing in Federal Court that the Ballard patents are valid, enforceable and infringed.

Other large financial institutions such as PNC Bank have made similar confessions of validity

in open court.

4. Dozens of prior litigants have spent hundreds of millions of dollars attempting

to invalidate the Ballard patents or to prove them unenforceable. Despite this concerted joint

effort by the banking industry, not a single bank has ever prevailed against the Ballard

patents.

5. The only bank in the nation that has been sued for infringing the Ballard

patents and then refused to pay for a license to use the patents all the way up through a jury


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trial was U.S. Bank. In March 2010, U.S. Bank was found guilty of willfully infringing the

Ballard patents by a federal jury, and subsequently ordered to pay over $50 million dollars for

its willful infringement of the patents. The same federal jury also unanimously found that the

Ballard patents were not invalid.

6. The Ballard patents have been re-examined by the United States Patent and

Trademark Office (USPTO), to determine their validity. Ultimately, each and every claim

of the Ballard patents was upheld in full, and issued as valid for a second time by the USPTO.

7. The Ballard patents have had press coverage ranging from The Wall Street

Journal and The Washington Post to industry publications such as The American Banker.

Claudio Ballard, inventor of the Ballard patents was recognized as the 2010 Inventor of the

Year by the United States Business and Industry Council in Washington, D.C.

8. The United States Congressional Budget Office has independently determined

the value of the Ballard patents to be more than $1 billion.

9. Despite this unimpeachable validity, significant financial value, and

widespread recognition as the cornerstone intellectual property underlying modern image-

based check processing, the Ballard patents are being willfully infringed by the Defendants in

this case. DataTreasury files this lawsuit to continue to protect its intellectual property and

prevent these Defendants from continuing to willfully violate DataTreasurys intellectual

property rights and the U.S. patent laws.

II. THE PARTIES

10. The allegations of paragraphs 1-9 above are incorporated by reference as if

fully set forth herein.


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11. Plaintiff DataTreasury Corporation ("DataTreasury") is a Delaware

corporation that maintains its principal place of business at 2301 W. Plano Parkway, Ste. 106,

Plano, Texas 75074.

12. Defendant Austin Bancorp, Inc. is a Texas corporation with its principal place

of business at 200 East Commerce St., P.O. Box 951, Jacksonville, Texas 75766. This

Defendant does business in Texas and can be served with process through its Chairman, Jeff

Austin, Jr., at 200 E. Commerce St., Jacksonville, TX 75766.

13. Defendant Austin Bank Texas, National Association is a subsidiary of

Austin Bancorp, Inc. with its principal place of business located at 200 East Commerce Street,

Jacksonville, Texas 75766. This Defendant does business in Texas and can be served with

process through its Registered Agent for Service, Debbie Colville, 200 East Commerce Street,

Jacksonville, Texas 75766.

14. Defendant BOK Financial Corp. is an Oklahoma Corporation with its

principal place of business located at Bank of Oklahoma Tower, Tulsa, Oklahoma 74192.

This Defendant does business in Texas and can be served with process through its Registered

Agent for Service, Frederic Dorwart, 124 E. 4th

Street, Tulsa, Oklahoma 74103-5010.

15. Defendant Bank of Texas, National Association is a national banking

association with its principal place of business at 5956 Sherry Lane, Suite 1100, Dallas, Texas

75225. This Defendant does business in Texas and can be served with process through any

officer, member or managing agent at 5956 Sherry Lane, Suite 1100, Dallas, Texas 75225.

16. Defendant Bank of the Ozarks, Inc. is an Arkansas Corporation with its

principal place of business located at 17901 Chenal Parkway, Little Rock, Arkansas 72223.



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Agent for Service, George G. Gleason II, 17901 Chenal Parkway, Little Rock, Arkansas

72211.

17. Defendant Bank of the Ozarks is a wholly owned subsidiary of Bank of the

Ozarks, Inc. with its principal place of business located at 17901 Chenal Parkway, Little

Rock, Arkansas 72211. This Defendant does business in Texas and can be served with

process through its Registered Agent for Service Dan Thomas, 5949 Sherry Lane, Ste. 1075,

Dallas, Texas 75225.

18. Defendant Cathay General Bancorp is a Delaware Corporation with its

principal place of business located at 777 N. Broadway St., Los Angeles, California 90012-

2819. This Defendant does business in Texas and can be served with process through its

Registered Agent for Service, Perry Oei, 9650 Flair Drive, El Monte, California 91731.

19. Defendant Cathay Bank is a California state chartered commercial bank with

its principal place of business located at 777 N. Broadway St., Los Angeles, California

90012-2819. This Defendant does business in Texas and can be served with process through

its Registered Agent for Service Herbert Ng, Vice President and Manager, 10375 Richmond

Avenue, Suite 1600, Houston, Texas 77042.

20. Defendant Community Trust Financial Corporation is a Louisiana

Corporation with its principal place of business located at 1511 N. Trenton St., Ruston,

Louisiana 71270. This Defendant does business in Texas and can be served through its

Registered Agent for Service, John F. Emory, 1511 N. Trenton St., Ruston, Louisiana 71270.

21. Defendant Community Trust Bank of Texas is a wholly owned subsidiary of

Community Trust Financial Corporation with its principal place of business located at 8222

Douglas Avenue, Ste. 1, Dallas, Texas 75225. This Defendant does business in Texas and


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can be served with process through its Registered Agent for Service, Van E. Pardue, 8222

Douglas Avenue., Ste. 1, Dallas, Texas 75225.

22. Defendant Coppermark Bancshares, Inc. is an Oklahoma Corporation with

its principal place of business located at 4631 NW 23rd

Street, Oklahoma City, Oklahoma

73127-2103. This Defendant does business in Texas and be served with process through its

Registered Agent for Service, Jacque Fiegel, 3333 NW Expressway, Oklahoma City,

Oklahoma 73112.

23. Defendant Coppermark Bank is an Oklahoma Banking Corporation with its

principal place of business at 3333 NW Expressway, Oklahoma City, Oklahoma 73112. This

Defendant does business in Texas and can be served with process through its Registered

Agent for Service, Jerald L. Sanders, 17177 Preston Road, Ste. 150, Dallas, Texas 75248.

24. Defendant Fifth Third Bancorp is an Ohio Corporation with its principal

place of business at 38 Fountain Square Plaza, Cincinnati, Ohio 45263. This Defendant does

business in Texas and can be served with process through its Registered Agent for Service,

Paul L. Reynolds, 38 Fountain Square Plaza, Cincinnati, Ohio 45263.

25. Defendant Fifth Third Bank is an Ohio Corporation with its principal place of

business at 38 Fountain Square Plaza, Cincinnati, Ohio 45263. This Defendant does business

in Texas and can be served with process through its Registered Agent for Service,

Corporation Service Company d/b/a CSC Lawyers Incorporating Service Company, 211 E.

7th

Street, Suite 620, Austin, Texas 78701-3218.

26. Defendant First Financial Bankshares, Inc. is a Texas Corporation with its

principal place of business located at 400 Pine Street, Abilene, Texas 79601. This Defendant


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does business in Texas and can be served with process through its Registered Agent for

Service, F. Scott Dueser, 400 Pine Street, Abilene, Texas 79601.

27. Defendant First Financial Bank, National Association is a Texas State

Financial Institution and a wholly owned subsidiary of First Financial Bankshares, Inc. with

its principal place of business located at 400 Pine Street, Abilene, Texas 79601. This


Agent for Service, J. Bruce Hildebrand, 400 Pine Street, Suite 310, Abilene, Texas 79601.

28. Defendant First National of Nebraska, Inc. is a privately held interstate bank

holding company with its principal place of business located at 1620 Dodge Street, Omaha,

Nebraska 68197-0003. This Defendant does business in Texas and may be servied with

process through its Registered Agent for Service Timothy D. Hart, 1620 Dodge Street,

Omaha, Nebraska 68197.

29. Defendant First National Bank of Omaha is a banking subsidiary of First

National of Nebraska, Inc. with its principal place of business located at 1620 Dodge Street,

Omaha, Nebraska 68197-0003. This Defendant does business in Texas and can be served

with process through its Registered Agent for Service, CT Corporation System, 350 N. St.

Paul Street, Ste. 2900, Dallas, Texas 75201-4234.

30. Defendant First National Bank Southwest is a banking division of Defendant

First National Bank of Omaha. This Defendant does business in Texas and can be served

with process through its Registered Agent for Service, CT Corporation System, at 350 N. St.

Paul St., Ste. 2900, Dallas, TX 75201-4234.

31. Defendant Durant Bancorp, Inc. is an Oklahoma Corporation with its

principal place of business located at 1400 West Main Street, Durant, Oklahoma 74701. This


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Agent for Service, John Massey, at 1400 West Main Street, Durant, Oklahoma 74701.

32. Defendant First United Bank and Trust Company d/b/a First United Bank

is a wholly owned subsidiary of Durant Bancorp, Inc. with its principal place of business

located at 1400 West Main Street, Durant, Oklahoma 74701. This Defendant does business in

Texas and can be served with process through its Registered Agent for Service, William

David Keese, at 1700 Redbud Boulevard, Suite 130, McKinney, Texas 75069.

33. Defendant Inwood Bancshares, Inc. is a Texas Corporation with its principal

place of business located at 7621 Inwood Road, Dallas, Texas 75209. This Defendant does

business in Texas and can be served with process through its Registered Agent for Service,

John C. Shackelford, Two Lincoln Centre, 5420 LBJ Freeway, Suite 1475, Dallas, Texas

75240.

34. Defendant Inwood National Bank is a national banking association with its

principal place of business located at 7621 Inwood Road, Dallas, Texas 75209. This

Defendant does business in Texas and can be served with process through any officer,

member or managing agent at 7621 Inwood Road, Dallas, Texas 75209.

35. Defendant Marquette Financial Companies is a privately held financial

services company with its principal place of business located at 60 South Sixth Street, Suite

3800, Minneapolis, Minnesota 55402. This Defendant does business in Texas and can be

served with process through any officer, member or managing agent at 60 South Sixth Street,

Ste. 3800, Minneapolis, Minnesota 55402.

36. Defendant Meridian Bank Texas is a Texas State Financial Institution with its

principal place of business located at 100 Lexington Street, Suite 100, Fort Worth, Texas


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76102. This Defendant does business in Texas and can be served with process through any

officer, member or managing agent at 100 Lexington Street, Suite 100, Ft. Worth, Texas

76102.

37. Defendant Metrocorp Bancshares, Inc. is a Texas Corporation with its

principal place of business located at 9600 Bellaire Blvd., Suite 252, Houston, Texas 77036.


Agent for Service, Don J. Wang, 9600 Bellaire Blvd., Suite 252, Houston, Texas 77036.

38. Defendant MetroBank, National Association is a wholly owned subsidiary of

Metrocorp Bancshares, Inc. with its principal place of business located at 9600 Bellaire Blvd.,

Suite 252, Houston, Texas 77036. This Defendant does business in Texas and can be served

with process by serving any officer, member or managing agent at 9600 Bellaire Blvd., Suite

252, Houston, Texas 77036

39. Defendant North Dallas Bank & Trust Co. is a Texas state bank with its

principal place of business located at 12900 Preston Road, Dallas, Texas 75230. This

Defendant does business in Texas and can be served with process by serving its registered

agent and president, Mike Shipman, at 12900 Preston Road, Dallas, Texas 75230.

40. Defendant PlainsCapital Corporation is a Texas Corporation with its

principal place of business located at One Victory Park, 2323, Suite 1400, Victory Avenue,

Dallas, Texas 75219. This Defendant does business in Texas and can be served with process

through its Registered Agent for Service Scott J. Luedke, 2323 Victory Avenue, Suite 1400,

Dallas, Texas 75219.

41. Defendant PlainsCapital Bank is a wholly owned subsidiary of PlainsCapital

Corporation with its principal place of business located at One Victory Park, 2323 Victory


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Avenue, Dallas, Texas 75219. This Defendant does business in Texas and can be served with

process through its Registered Agent for Service, Scott J. Luedke, at 2323 Victory Avenue,

Suite 1400, Dallas, Texas 75219.

42. Defendant Texas Capital Bancshares, Inc. is a Delaware Corporation with its

principal place of business at 2000 McKinney Avenue, Suite 700, Dallas, Texas 75201. This


Agent for Service, James C. White, at 2100 McKinney Avenue, Ste. 900, Dallas, Texas

75201.

43. Defendant Texas Capital Bank, National Association is a Texas State

Financial Institution with its principal place of business located at 2000 McKinney Ave., Suite

700, Dallas, Texas 75201. This Defendant does business in Texas and can be served with

process through its Registered Agent for Service, James White, 2350 Lakeside Boulevard,

Suite 800, Richardson, Texas 75082.

44. Defendant The ANB Corporation is a Texas Limited Partnership with its

principal place of business located at 102 West Moore Avenue, Terrell, Texas 75160-3114.


Agent for Service, John Davidson,, 102 West Moore Avenue, Terrell, Texas 75160.

45. Defendant The American National Bank of Texas is a wholly owned

subsidiary of The ANB Corporation with its principal place of business located at 102 West

Moore Avenue, Terrell, Texas 75160-3114. This Defendant does business in Texas and can

be served with process through its Registered Agent for Service, John Davidson, 102 West

Moore Avenue, Terrell, Texas 75160.


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46. Defendant Central Bancorp, Inc. is a Texas Corporation with its principal

place of business located at 4555 West Walnut Street, Garland, Texas 75042. This Defendant

does business in Texas and can be served with process through its Registered Agent for

Process, Keith Ward, 4555 West Walnut, Garland, Texas 75042.

47. Defendant United Central Bank is a Texas State Financial Institution with its

principal place of business located at 4555 West Walnut Street, Garland, Texas 75042. This


Agent for Service, R. Tim White, at 4555 West Walnut Street, Garland, Texas 75042.

48. Defendant Woodforest Financial Group, Inc. is a Texas Corporation with its

principal place of business located at 1330 Lake Robbins Drive, Suite 150, The Woodlands,

Texas 77380-3268. This Defendant does business in Texas and can be served with process

through its Registered Agent for Service, M Ann Thomas, 1330 Lake Robbins Drive, The

Woodlands, Texas 77380

49. Defendant Woodforest National Bank is a national banking association with

its principal place of business at 1330 Lake Robbins Drive, The Woodlands, Texas 77380.

This Defendant does business in Texas and can be served with process by serving any officer,

member or managing agent at 1330 Lake Robbins Drive, The Woodlands, Texas 77380.

III. JURISDICTION AND VENUE



51. This action for patent infringement arises under the patent laws of the United

States, Title 35 of the United States Code. The Court's jurisdiction over this action is proper


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under the above statutes, including 35 U.S.C. 271 et seq., 28 U.S.C. 1332, and 28 U.S.C.

1338.

52. Personal jurisdiction exists generally over Defendants pursuant to 28 U.S.C.

1391 because they have sufficient minimum contacts with the forum as a result of business

conducted within the State of Texas and within this district. Personal jurisdiction also exists

specifically over Defendants because of Defendants conduct in making, using, selling,

offering to sell, and/or importing, directly, contributorily, and/or by inducement, infringing

products and services within the State of Texas and within this district. At least one of each

of those products and services sold in this District in an infringing manner is set forth in this

Complaint. In addition, upon information and belief Defendants have provided services and

sold products in this District separately and independently, and with or for other infringing

companies that are or were Defendants in related pending litigation in the United States

District Court for the Eastern District of Texas.

53. Venue is proper in this Court under 28 U.S.C. 1391(b), (c), and (d), as well

as 28 U.S.C., 1400(b) for the reasons set forth above and below.

IV. PATENT INFRINGMENT



55. DataTreasury is the owner as assignee of all rights, title and interest in and

under United States Patent No. 5,910,988 (the 988 patent), which duly and legally issued

on June 8, 1999, with Claudio Ballard as the named inventor, for an invention in remote

image capture with centralized processing and storage. This patent went through re-

examination with the United States Patent and Trademark Office (USPTO) and was duly


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and legally reissued under United States Patent No. 5,910,988 C1 (the 988 patent) on

October 23, 2007. DataTreasury is the owner as assignee of all rights, title and interest in and

under United States Patent No. 5,910,988 C1 (attached as Exhibit A).

56. DataTreasury is the owner as assignee of all rights, title, and interest in and

under United States Patent No. 6,032,137 (the 137 patent), which duly and legally issued

on February 29, 2000, with Claudio Ballard as the named inventor, for an invention in remote

image capture with centralized processing and storage. This patent went through re-

examination with the USPTO and was duly and legally reissued under United States Patent

No. 6,032,137 C1 (the 137 patent) on December 25, 2007. DataTreasury is the owner as

assignee of all rights, title and interest in and under United States Patent No. 6,032,137 C1

(attached as Exhibit B).

57. This is an exceptional case within the meaning of 35 U.S.C. 285.

V. COUNT ONETHE 988 DEFENDANTS



59. The Defendants have been and are infringing the '988 patent by making, using,

selling, offering for sale, and/or importing in or into the United States, directly, contributorily,

and/or by inducement, without authority, products and services that fall within the scope of

the claims of the 988 patent.

60. Specifically, Defendants make, use, sell and offer to sell systems and methods

for image-based check processing. These systems and methods involve Defendants capturing

images of paper checks and processing those checks by electronic image.


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61. Defendants Austin Bank Texas, National Association and Austin Bancorp, Inc.

(the Austin Bank Defendants) infringe the 988 patent by making, using, selling, offering to

sell, and/or importing, systems and methods for image-based check processing. Specifically,

the Austin Bank Defendants infringe, literally and/or under the doctrine of equivalents, at

least through their prime pass image capture and archive and remote deposit capture (e.g.

Merchant Deposit) systems and processes. Image capture is performed on checks and other

financial documents by and through Austin Banks prime pass image capture and remote

deposit capture systems and processes. The check images are transmitted electronically,

processed, archived, and/or exchanged with other financial institutions by and/or within these

image-based systems and processes. Customers of Austin Bank can view the check images

through their online banking services.

62. Defendants Bank of Texas, National Association and BOK Financial Corp.

(the Bank of Texas Defendants) infringe the 988 patent by making, using, selling, offering

to sell, and/or importing, systems and methods for image-based check processing.

Specifically, the Bank of Texas Defendants infringe, literally and/or under the doctrine of

equivalents, at least through their prime pass image capture and archive and remote deposit

capture (e.g., Remote Corporate Capture (RCC)) systems and processes. Image capture is

performed on checks and other financial documents by and through Bank of Texass prime

pass image capture and remote deposit capture systems and processes. The check images are

transmitted electronically, processed, archived, and/or exchanged with other financial

institutions by and/or within these image-based systems and processes. Customers of Bank of

Texas can view the check images through their online banking services.


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63. Defendants Bank of the Ozarks and Bank of the Ozarks, Inc. (the Bank ofthe

Ozarks Defendants) infringe the 988 patent by making, using, selling, offering to sell,

and/or importing, systems and methods for image-based check processing. Specifically, the

Bank of the Ozarks Defendants infringe, literally and/or under the doctrine of equivalents, at


Express Deposit) systems and processes. Image capture is performed on checks and other

financial documents by and through Bank of the Ozarks prime pass image capture and

remote deposit capture systems and processes. The check images are transmitted

electronically, processed, archived, and/or exchanged with other financial institutions by

and/or within these image-based systems and processes. Customers of Bank of the Ozarks

can view the check images through their online banking services.

64. Defendants Cathay Bank and Cathay General Bancorp (the Cathay Bank

Defendants) infringe the 988 patent by making, using, selling, offering to sell, and/ or

importing, systems and methods for image-based check processing. Specifically, the Cathay

Bank Defendants infringe, literally and/or under the doctrine of equivalents, at least through

their prime pass image capture and archive and remote deposit capture (e.g., Merchant

Deposit Capture) systems and processes. Image capture is performed on checks and other

financial documents by and through Cathay Banks prime pass image capture and remote



image-based systems and processes. Customers of Cathay Bank can view the check images



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65. Defendants Community Trust Bank of Texas and Community Trust Financial

Corporation (the Community Trust Bank Defendants) infringe the 988 patent by making,

using, selling, offering to sell, and/or importing, systems and methods for image-based check

processing. Specifically, the Community Trust Bank Defendants infringe, literally and/or

under the doctrine of equivalents, at least through their prime pass image capture and archive

and remote deposit capture (e.g., Community Trust Bank Remote Deposit) systems and

processes. Image capture is performed on checks and other financial documents by and

through Community Trust Banks prime pass image capture and remote deposit capture

systems and processes. The check images are transmitted electronically, processed, archived,

and/or exchanged with other financial institutions by and/or within these image-based systems

and processes. Customers of Community Trust Bank can view the check images through their

online banking services.

66. Defendants Coppermark Bank and Coppermark Bancshares, Inc. (the

Coppermark Bank Defendants) infringe the 988 patent by making, using, selling, offering


Specifically, the Coppermark Bank Defendants infringe, literally and/or under the doctrine of


capture (e.g., Desktop Deposit) systems and processes. Image capture is performed on checks

and other financial documents by and through Coppermark Banks prime pass image capture

and remote deposit capture systems and processes. The check images are transmitted


and/or within these image-based systems and processes. Customers of Coppermark Bank can

view the check images through their online banking services.


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67. Defendants Fifth Third Bank and Fifth Third Bancorp (the Fifth Third Bank

Defendants) infringe the 988 patent by making, using, selling, offering to sell, and/or

importing, systems and methods for image-based check processing. Specifically, the Fifth

Third Bank Defendants infringe, literally and/or under the doctrine of equivalents, at least

through their prime pass image capture and archive and remote deposit capture (e.g.,

Electronic Deposit Manager (EDM)) systems and processes. Image capture is performed on

checks and other financial documents by and through Fifth Third Banks prime pass image

capture and remote deposit capture systems and processes. The check images are transmitted


and/or within these image-based systems and processes. Customers of Fifth Third Bank can


68. Defendants First Financial Bank, National Association and First Financial

Bankshares, Inc. (the First Financial Bank Defendants) infringe the 988 patent by making,


processing. Specifically, the First Financial Bank Defendants infringe, literally and/or under

the doctrine of equivalents, at least through their prime pass image capture and archive and

remote deposit capture systems and processes. Image capture is performed on checks and

other financial documents by and through First Financial Banks prime pass image capture



and/or within these image-based systems and processes. Customers of First Financial Bank



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69. Defendants First National Bank of Omaha, First National Bank Southwest, and

First National of Nebraska, Inc. (the First National Bank Defendants) infringe the 988

patent by making, using, selling, offering to sell, and/or importing, systems and methods for

image-based check processing. Specifically, the First National Bank Defendants infringe,

literally and/or under the doctrine of equivalents, at least through their prime pass image

capture and archive and remote deposit capture (e.g., FirstImage Remote) systems and

processes. Image capture is performed on checks and other financial documents by and

through the First National Bank Defendants prime pass image capture and remote deposit

capture systems and processes. The check images are transmitted electronically, processed,

archived, and/or exchanged with other financial institutions by and/or within these image-

based systems and processes. Customers of the First National Bank Defendants can view the

check images through their online banking services.

70. Defendants First United Bank and Trust Company d/b/a First United Bank and

Durant Bancorp, Inc. (the First United Bank Defendants) infringe the 988 patent by

making, using, selling, offering to sell, and/or importing, systems and methods for image-

based check processing. Specifically, the First United Bank Defendants infringe, literally

and/or under the doctrine of equivalents, at least through their prime pass image capture and

archive and remote deposit capture (e.g., eMerchant DepositSM

) systems and processes.

Image capture is performed on checks and other financial documents by and through First

United Banks prime pass image capture and remote deposit capture systems and processes.

The check images are transmitted electronically, processed, archived, and/or exchanged with

other financial institutions by and/or within these image-based systems and processes.


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Customers of First United Bank can view the check images through their online banking

services.

71. Defendants Inwood National Bank and Inwood Bancshares, Inc. (the Inwood

National Bank Defendants) infringe the 988 patent by making, using, selling, offering to


the Inwood National Bank Defendants infringe, literally and/or under the doctrine of


capture systems and processes. Image capture is performed on checks and other financial

documents by and through Inwood National Banks prime pass image capture and remote



image-based systems and processes. Customers of Inwood National Bank can view the check

images through their online banking services.

72. Defendants Meridian Bank Texas and Marquette Financial Companies (the

Meridian Bank Texas Defendants) infringe the 988 patent by making, using, selling,

offering to sell, and/or importing, systems and methods for image-based check processing.

Specifically, the Meridian Bank Texas Defendants infringe, literally and/or under the doctrine

of equivalents, at least through their prime pass image capture and archive and remote deposit

capture (e.g., Express Deposit) systems and processes. Image capture is performed on checks

and other financial documents by and through Meridian Bank Texass prime pass image




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and/or within these image-based systems and processes. Customers of Meridian Bank Texas


73. Defendants MetroBank, National Association and Metrocorp Bancshares, Inc.

(the MetroBank Defendants) infringe the 988 patent by making, using, selling, offering to


the MetroBank Defendants infringe, literally and/or under the doctrine of equivalents, at least


Deposit@Work) systems and processes. Image capture is performed on checks and other

financial documents by and through MetroBanks prime pass image capture and remote



image-based systems and processes. Customers of MetroBank can view the check images


74. Defendant North Dallas Bank & Trust Co. (NDBT) infringes the 988 patent

by making, using, selling, offering to sell, and/or importing, systems and methods for image-

based check processing. Specifically, NDBT infringes, literally and/or under the doctrine of


capture systems and processes. Image capture is performed on checks and other financial

documents by and through NDBTs prime pass image capture and remote deposit capture



and processes. Customers of NDBT can view the check images through their online banking

services.


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75. Defendants PlainsCapital Bank and PlainsCapital Corporation (the

PlainsCapital Bank Defendants) infringe the 988 patent by making, using, selling, offering


Specifically, the PlainsCapital Bank Defendants infringe, literally and/or under the doctrine of


capture (e.g., DepositDirect) systems and processes. Image capture is performed on checks

and other financial documents by and through PlainsCapital Banks prime pass image capture



and/or within these image-based systems and processes. Customers of PlainsCapital Bank


76. Defendants Texas Capital Bank, National Association and Texas Capital

Bancshares, Inc. (the Texas Capital Bank Defendants) infringe the 988 patent by making,


processing. Specifically, the Texas Capital Bank Defendants infringe, literally and/or under


remote deposit capture (e.g., BankNow Treasury Services Remote Deposit Capture) systems

and processes. Image capture is performed on checks and other financial documents by and

through Texas Capital Banks prime pass image capture, remote deposit capture, and cash

vault imaging systems and processes. The check images are transmitted electronically,


image-based systems and processes. Customers of Texas Capital Bank can view the check



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77. Defendants The American National Bank of Texas and The ANB Corporation

(the ANB Texas Defendants) infringe the 988 patent by making, using, selling, offering to


the ANB Texas Defendants infringe, literally and/or under the doctrine of equivalents, at least

through their prime pass image capture and archive and remote deposit capture (e.g., A-Direct

Way) systems and processes. Image capture is performed on checks and other financial

documents by and through ANB Texass prime pass image capture and remote deposit



based systems and processes. Customers of ANB Texas can view the check images through

their online banking services.

78. Defendants United Central Bank and Central Bancorp, Inc. (the United

Central Bank Defendants) infringe the 988 patent by making, using, selling, offering to sell,


United Central Bank Defendants infringe, literally and/or under the doctrine of equivalents, at

least through their prime pass image capture and archive and remote deposit capture systems

and processes. Image capture is performed on checks and other financial documents by and

through United Central Banks prime pass image capture and remote deposit capture systems

and processes. The check images are transmitted electronically, processed, archived, and/or

exchanged with other financial institutions by and/or within these image-based systems and

processes. Customers of United Central Bank can view the check images through their online

banking services.


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79. Defendants Woodforest National Bank and Woodforest Financial Group, Inc.

(the Woodforest National Bank Defendants) infringe the 988 patent by making, using,

selling, offering to sell, and/or importing, systems and methods for image-based check

processing. Specifically, the Woodforest National Bank Defendants infringe, literally and/or


and remote deposit capture systems and processes. Image capture is performed on checks and

other financial documents by and through Woodforest National Banks prime pass image



and/or within these image-based systems and processes. Customers of Woodforest National

Bank can view the check images through their online banking services.

80. In addition to the direct infringement identified, each Defendant is liable for

contributory infringement and/or inducement of infringement, as well as joint infringement,

because these Defendants direct their customers to infringe directly and participate with their

customers in directly infringing when using the banks products and services identified herein.

In addition, the Defendants have been and are actively inducing and/or contributing to the

infringement of the '988 patent among themselves.

81. Unless the Defendants are enjoined by this Court, DataTreasury is without an

adequate remedy at law.

82. The Defendants infringement of the '988 patent has been and is willful. Each

Defendant listed herein has had notice and knowledge of the DTC patents and their

infringement of the patents for years, including by way of the public notice set forth in

paragraphs 1-9. Upon information and belief, the Defendants have known for years about the


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Ballard patents and their affirmation in re-examination, success in court, and multiple consent

judgments and licenses through the widespread press coverage, industry organization

meetings, and/or Congressional activities discussed herein.

VI. COUNT TWOTHE 137 DEFENDANTS



84. The Defendants have been and are infringing the 137 patent by making, using,

selling, offering for sale, and/or importing in or into the United States, directly, contributorily,

and/or by inducement, without authority, products and services that fall within the scope of

the claims of the 137 patent.

85. Specifically, Defendants make, use, sell and offer to sell systems and methods

for image-based check processing. These systems and methods involve Defendants capturing

images of paper checks and processing those checks by electronic image.

86. Defendants Austin Bank Texas, National Association and Austin Bancorp, Inc.

(the Austin Bank Defendants) infringe the 137 patent by making, using, selling, offering to


the Austin Bank Defendants infringe, literally and/or under the doctrine of equivalents, at


Merchant Deposit) systems and processes. Image capture is performed on checks by and

through Austin Banks prime pass image capture and remote deposit capture systems and

processes. The check images are transmitted electronically, processed, archived, and/or



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processes. Customers of Austin Bank can view the check images through their online

banking services.

87. Defendants Bank of Texas, National Association and BOK Financial Corp.

(the Bank of Texas Defendants) infringe the 137 patent by making, using, selling, offering


Specifically, the Bank of Texas Defendants infringe, literally and/or under the doctrine of


capture (e.g., Remote Corporate Capture (RCC)) systems and processes. Image capture is

performed on checks by and through Bank of Texass prime pass image capture and remote



image-based systems and processes. Customers of Bank of Texas can view the check images


88. Defendants Bank of the Ozarks and Bank of the Ozarks, Inc. (the Bank of the

Ozarks Defendants) infringe the 137 patent by making, using, selling, offering to sell,


Bank of the Ozarks Defendants infringe, literally and/or under the doctrine of equivalents, at


Express Deposit) systems and processes. Image capture is performed on checks by and

through Bank of the Ozarkss prime pass image capture and remote deposit capture systems




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processes. Customers of Bank of the Ozarks can view the check images through their online

banking services.

89. Defendants Cathay Bank and Cathay General Bancorp (the Cathay Bank


importing, systems and methods for image-based check processing. Specifically, the Cathay

Bank Defendants infringe, literally and/or under the doctrine of equivalents, at least through

their prime pass image capture and archive and remote deposit capture (e.g., Merchant

Deposit Capture) systems and processes. Image capture is performed on checks by and

through Cathay Banks prime pass image capture and remote deposit capture systems and



processes. Customers of Cathay Bank can view the check images through their online

banking services.

90. Defendants Community Trust Bank of Texas and Community Trust Financial

Corporation (the Community Trust Bank Defendants) infringe the 137 patent by making,


processing. Specifically, the Community Trust Bank Defendants infringe, literally and/or


and remote deposit capture (e.g., Community Trust Bank Remote Deposit) systems and

processes. Image capture is performed on checks by and through Community Trust Banks

prime pass image capture and remote deposit capture systems and processes. The check

images are transmitted electronically, processed, archived, and/or exchanged with other


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financial institutions by and/or within these image-based systems and processes. Customers

of Community Trust Bank can view the check images through their online banking services.

91. Defendants Coppermark Bank and Coppermark Bancshares, Inc. (the

Coppermark Bank Defendants) infringe the 137 patent by making, using, selling, offering


Specifically, the Coppermark Bank Defendants infringe, literally and/or under the doctrine of


capture (e.g., Desktop Deposit) systems and processes. Image capture is performed on checks

by and through Coppermark Banks prime pass image capture and remote deposit capture



and processes. Customers of Coppermark Bank can view the check images through their


92. Defendants Fifth Third Bank and Fifth Third Bancorp (the Fifth Third Bank


importing, systems and methods for image-based check processing. Specifically, the Fifth

Third Bank Defendants infringe, literally and/or under the doctrine of equivalents, at least


Electronic Deposit Manager (EDM)) systems and processes. Image capture is performed on

checks by and through Fifth Third Banks prime pass image capture and remote deposit




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based systems and processes. Customers of Fifth Third Bank can view the check images


93. Defendants First Financial Bank, National Association and First Financial

Bankshares, Inc. (the First Financial Bank Defendants) infringe the 137 patent by making,


processing. Specifically, the First Financial Bank Defendants infringe, literally and/or under


remote deposit capture systems and processes. Image capture is performed on checks by and

through First Financial Banks prime pass image capture and remote deposit capture systems



processes. Customers of First Financial Bank can view the check images through their online

banking services.

94. Defendants First National Bank of Omaha, First National Bank Southwest, and

First National of Nebraska, Inc. (the First National Bank Defendants) infringe the 137

patent by making, using, selling, offering to sell, and/or importing, systems and methods for

image-based check processing. Specifically, the First National Bank Defendants infringe,

literally and/or under the doctrine of equivalents, at least through their prime pass image

capture and archive and remote deposit capture (e.g., FirstImage Remote) systems and

processes. Image capture is performed on checks by and through the First National Bank

Defendants prime pass image capture and remote deposit capture systems and processes.




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Customers of the First National Bank Defendants can view the check images through their


95. Defendants First United Bank and Trust Company d/b/a First United Bank and

Durant Bancorp, Inc. (the First United Bank Defendants) infringe the 137 patent by

making, using, selling, offering to sell, and/or importing, systems and methods for image-

based check processing. Specifically, the First United Bank Defendants infringe, literally

and/or under the doctrine of equivalents, at least through their prime pass image capture and

archive and remote deposit capture (e.g., eMerchant DepositSM) systems and processes. Image

capture is performed on checks by and through First United Banks prime pass image capture



and/or within these image-based systems and processes. Customers of First United Bank can


96. Defendants Inwood National Bank and Inwood Bancshares, Inc. (the Inwood

National Bank Defendants) infringe the 137 patent by making, using, selling, offering to


the Inwood National Bank Defendants infringe, literally and/or under the doctrine of


capture systems and processes. Image capture is performed on checks by and through Inwood

National Banks prime pass image capture and remote deposit capture systems and processes.




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Customers of Inwood National Bank can view the check images through their online banking

services.

97. Defendants Meridian Bank Texas and Marquette Financial Companies (the

Meridian Bank Texas Defendants) infringe the 137 patent by making, using, selling,

offering to sell, and/or importing, systems and methods for image-based check processing.

Specifically, the Meridian Bank Texas Defendants infringe, literally and/or under the doctrine

of equivalents, at least through their prime pass image capture and archive and remote deposit

capture (e.g., Express Deposit) systems and processes. Image capture is performed on checks

by and through Meridian Bank Texass prime pass image capture and remote deposit capture



and processes. Customers of Meridian Bank Texas can view the check images through their


98. Defendants MetroBank, National Association and Metrocorp Bancshares, Inc.

(the MetroBank Defendants) infringe the 137 patent by making, using, selling, offering to


the MetroBank Defendants infringe, literally and/or under the doctrine of equivalents, at least


Deposit@Work) systems and processes. Image capture is performed on checks by and

through MetroBanks prime pass image capture and remote deposit capture systems and




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processes. Customers of MetroBank can view the check images through their online banking

services.

99. Defendant North Dallas Bank & Trust Co. (NDBT) infringes the 137 patent

by making, using, selling, offering to sell, and/or importing, systems and methods for image-

based check processing. Specifically, NDBT infringes, literally and/or under the doctrine of


capture systems and processes. Image capture is performed on checks by and through

NDBTs prime pass image capture and remote deposit capture systems and processes. The

check images are transmitted electronically, processed, archived, and/or exchanged with other


of NDBT can view the check images through their online banking services.

100. Defendants PlainsCapital Bank and PlainsCapital Corporation (the

PlainsCapital Bank Defendants) infringe the 137 patent by making, using, selling, offering


Specifically, the PlainsCapital Bank Defendants infringe, literally and/or under the doctrine of


capture (e.g., DepositDirect) systems and processes. Image capture is performed on checks by

and through PlainsCapital Banks prime pass image capture and remote deposit capture



and processes. Customers of PlainsCapital Bank can view the check images through their



32/38


101. Defendants Texas Capital Bank, National Association and Texas Capital

Bancshares, Inc. (the Texas Capital Bank Defendants) infringe the 137 patent by making,


processing. Specifically, the Texas Capital Bank Defendants infringe, literally and/or under


remote deposit capture (e.g., BankNow Treasury Services Remote Deposit Capture) systems

and processes. Image capture is performed on checks by and through Texas Capital Banks

prime pass image capture, remote deposit capture, cash vault imaging systems and processes.



Customers of Texas Capital Bank can view the check images through their online banking

services.

102. Defendants The American National Bank of Texas and The ANB Corporation

(the ANB Texas Defendants) infringe the 137 patent by making, using, selling, offering to


the ANB Texas Defendants infringe, literally and/or under the doctrine of equivalents, at least

through their prime pass image capture and archive and remote deposit capture (e.g., A-Direct

Way) systems and processes. Image capture is performed on checks by and through ANB

Texass prime pass image capture and remote deposit capture systems and processes. The

check images are transmitted electronically, processed, archived, and/or exchanged with other


of ANB Texas can view the check images through their online banking services.


33/38


103. Defendants United Central Bank and Central Bancorp, Inc. (the United

Central Bank Defendants) infringe the 137 patent by making, using, selling, offering to sell,


United Central Bank Defendants infringe, literally and/or under the doctrine of equivalents, at

least through their prime pass image capture and archive and remote deposit capture systems

and processes. Image capture is performed on checks by and through United Central Banks

prime pass image capture and remote deposit capture systems and processes. The check

images are transmitted electronically, processed, archived, and/or exchanged with other


of United Central Bank can view the check images through their online banking services.

104. Defendants Woodforest National Bank and Woodforest Financial Group, Inc.

(the Woodforest National Bank Defendants) infringe the 137 patent by making, using,

selling, offering to sell, and/or importing, systems and methods for image-based check

processing. Specifically, the Woodforest National Bank Defendants infringe, literally and/or


and remote deposit capture systems and processes. Image capture is performed on checks by

and through Woodforest National Banks prime pass image capture and remote deposit



based systems and processes. Customers of Woodforest National Bank can view the check


105. In addition to the direct infringement identified, each Defendant is liable for

contributory infringement and/or inducement of infringement, as well as joint infringement,


34/38


because these Defendants direct their customers to infringe directly and participate with their

customers in directly infringing when using the banks products and services identified herein.

In addition, the Defendants have been and are actively inducing and/or contributing to the

infringement of the 137 patent among themselves.

106. Unless the Defendants are enjoined by this Court, DataTreasury is without an

adequate remedy at law.

107. The Defendants infringement of the 137 patent has been and is willful. Each

Defendant listed herein has had notice and knowledge of the DTC patents and their

infringement of the patents for years, including by way of the public notice set forth in

paragraphs 1-9. Upon information and belief, the Defendants have known for years about the

Ballard patents and their affirmation in re-examination, success in court, and multiple consent

judgments and licenses through the widespread press coverage, industry organization

meetings, and/or Congressional activities discussed herein.

VII. VICARIOUS LIABILITY



109. In addition to liability for their own independent conduct, the Defendants are

also liable for the conduct of their subsidiaries, affiliates, and related entities under the

doctrines of alter ego and single business enterprise, and under applicable state and federal

statutes and regulations. Specifically, each parent company or holding company entity

identified herein is the alter ego of its operating entity Defendant identified herein. For

example, they have common stock ownership (i.e., parent companies owning all stock of the

operating subsidiaries), common directors and officers, common business departments and


35/38


headquarters; the parent or holding company finances and pays the expenses of the subsidiary;

and the daily operations, board meetings, books and/or records of the two companies are not

kept separate.

VIII. DAMAGES



111. For the above-described infringement, Plaintiff has been injured and seeks

damages to adequately compensate it for Defendants infringement of the Ballard patents.

Such damages should be no less than the amount of a reasonable royalty under 35 U.S.C.

284.

112. DataTreasury contends that Defendants willfully infringed the Ballard patents.

Plaintiff requests that the Court enter a finding of willful infringement and enhanced damages

under 35 U.S.C. 284 up to three times the amount found by the trier of fact.

113. Plaintiff further requests that the Court enter an order finding that this is an

exceptional case within the meaning of 35 U.S.C. 285. Pursuant to such an order Plaintiff

seeks recovery of its reasonable attorneys fees and expenses.

IX. JURY DEMAND



115. Plaintiff requests a jury trial for all issues triable to a jury.

X. PRAYER FOR RELIEF




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117. DataTreasury respectfully requests the following relief:

A. That the Court declare that the 988 and 137 patents are valid and

enforceable and that they are infringed by Defendants as described herein;

B. That the Court enter a permanent injunction against Defendants direct

infringement of the 988 and 137 patents;

C. That the Court enter a permanent injunction against Defendants active

inducement of infringement and/or contributory infringement of the 988 and 137

patents among themselves and by others;

D. That the Court award damages to DataTreasury to which it is entitled

for patent infringement;

E. That the Court award interest on the damages to DataTreasury;

F. That the Court treble all damages and interest for willful infringement;

G. That the Court award to DataTreasury its costs and attorneys fees

incurred in this action; and

H. Such other and further relief as the Court deems just and proper.

Dated: September 8, 2011

Respectfully submitted,

____________________________________

NELSON J.ROACH, Attorney in Charge

STATE BARNO. 16968300

DEREK GILLILANDSTATE BARNO. 24007239

NIX PATTERSON &ROACH,L.L.P.


37/38


205 Linda Drive

Daingerfield, Texas 75638

903.645.7333 (telephone)

[email protected]

[email protected]

C. CARY PATTERSONSTATE BARNO. 15587000

BRADY PADDOCKSTATE BARNO. 00791394

R.BENJAMIN KING


NIX PATTERSON &ROACH L.L.P.2900 St. Michael Drive, Suite 500

Texarkana, Texas 75503

903.223.3999 (telephone)903.223.8520 (facsimile)

[email protected]

[email protected]

ANTHONY BRUSTER


ROD COOPER


EDWARD CHIN

STATE BARNO..50511688

NICOLE REED KLIEWERSTATE BARNO.24041759

ANDREW WRIGHT

STATE BARNO.24063927

NIX PATTERSON &ROACH,L.L.P.5215 N. OConnor Blvd., Suite 1900

Irving, Texas 75039972.831.1188 (telephone)

972.444.0716 (facsimile)

[email protected]

[email protected]@me.com

[email protected]

[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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JOE KENDALLSTATE BARNO. 11260700

KARL RUPP


KENDALL LAW GROUP,LLP

3232 McKinney Avenue, Ste. 700Dallas, Texas 75204214.744.3000 (telephone)

214.744.3015 (facsimile)

[email protected]@kendalllawgroup.com

ERIC M. ALBRITTONSTATE BARNO. 00790215

ALBRITTON LAW FIRM

P.O. Box 2649Longview, Texas 75606

903.757.8449 (telephone)

903.758.7397 (facsimile)

[email protected]

T.JOHN WARD,JR.

STATE BAR NO. 00794818WARD &SMITH LAW FIRM

P.O. Box 1231Longview, Texas 75606903.757.6400 (telephone)903.757.2323 (facsimile)[email protected]

ATTORNEYS FOR PLAINTIFF

DATATREASURY CORPORATION
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

datatreasury v. austin bancorp et. al

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