Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 1 of 11 PageID: 535502

Andre K. Cizmarik EDWARDS WILDMAN PAI,MER LLP 750 Lexington Avenue New York, NY 10022 (212) et2-2731 Attorneys for Plaintiff CEDAR Audio Limited.

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

CEDAR Audio Limited,

Civil Action No.:

Plaintiff,
-against-

Diamond Cut Productions, Inc.

COMPLAINT
Defendant.

Plaintiff, CEDAR Audio Limited ("CEDAR"), by its undersigned counsel, for its
Complaint against Defendant, Diamond Cut Productions, Lrc. ("DCP"), alleges as follows:

The Parties

1.

Plaintiff CEDAR is a corporation organized

and existing under the laws of the

United Kingdom, having its principal place of business at 20 Home End, Fulbourn, Cambridge,

CBzl 5BS United Kingdom.

2.

CEDAR is in the business of designing, developing and marketing innovative

products for audio restoration, speech enhancement for film, post, TV and radio broadcast, CD
and DVD mastering, libraries and archives, and for audio forensic investigation.

3.

On information and belief, Defendant DCP is a New Jersey corporation with a

principal place of business in Boonton, New Jersey.

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 2 of 11 PageID: 535503

4.

On information and belief, DCP is in the business of selling audio restoration

software, including its Direct Spectral Editor supplied as part of at least DCP's Diamond Cut
Forensics8 Audio Software and DC Forensics Audio Laboratory, Version 8

& DC8 with

spectrogram view (the "Accused Product"), throughout the United States, including within this

judicial district. On information and belief, DCP also uses the Accused Product within this judicial district to develop, test and support theAccused Product, in addition to using the
Accused Product to restore, enhance, remaster andlor edit audio signals (i.e., audio recordings).

Nature OfAction

5.

This is an action for patent infringement arising under the patent laws of the

United States, Title 35, United States Code and arising under 35 U.S.C. $$ 271 and,28l-285.

Jurisdiction And Venue

6.
7

Subject matter jurisdiction is proper under 28 U.S.C. $$ 1331 and 1338(a). Personal jurisdiction is proper based on DCP's incorporation in the State of New
a

Jerse andlor from

persistent course of conduct andlor derivation of substantial revenue from

its conduct in the State of New Jersey. DCP does business in the State of New Jersey by marketing, offering for sale, selling andlor using the Accused Product in New Jersey. Upon information and belief, DCP has purposely availed itself of the privileges of conducting business

within the State of New Jersey andlor has committed acts of patent infringement within the State
of New Jersey. Further, upon information and belief, DCP has placed the Accused Product into
the stream of commerce with the expectation that it will be purchased and used in an infringing
manner by consumers throughout the United States including within the State of New Jersey.

8.

Venue is proper under 28 U.S.C. $$ 1391(b)-(c) and 1400(b).

-2-

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 3 of 11 PageID: 535504

The Patent in Suit

9.

United States Patent No. 7,978,862 ("the'862 patent"), entitled "Method and

Apparatus for Audio Signal Processing," atrLte and correct copy of which is appended hereto as

Exhibit A,
CEDAR.

was duly issued on July

12,20ll to inventor David Anthony

Betts and assigned to

10.
patent.

Plaintiff CEDAR has been and still is the owner through assignment of the '862

11.

Plaintiff CEDAR manufactures and sells products embodying one or more claims

andlor used to practice the methods of the '862 patent, including the CEDAR Cambridge,

CEDAR Tools, CEDAR for Pyramix and CEDAR for SADiE products.

12.

Plaintiff CEDAR will be both substantially and irreparably harmed by

infringement of the '862 patent There is no adequate remedy at law.

COUNT I 6862 Patent @irect Infringement of the

35 U.S.C. g 271(a))

13. 14.

Plaintiff CEDAR repeats and incorporates herein by reference each of the

foregoing paragraphs as if fully set forth herein.

On information and belief, DCP has been infringing one or more claims of the

'862 patenf by using the Accused Product to develop, test and support the Accused Product, in
addition to using the Accused Product to restore, enhance, remaster andlor edit audio signals

(i.e., audio recordings) in the United States.

15.

DCP has had actual knowledge of the '862 patent since at least on or about

February 6,2014 when, by letter dated February 6,2014, counsel for CEDAR informed DCP

of

its infringement of the '862 patent and demanded that DCP immediately cease and desist from
said infringement. DCP acknowledged actual notice of the '862 patent in correspondence to

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 4 of 11 PageID: 535505

CEDAR's counsel dated February 6,2014 and February 13,2014 and in

messageboard (http:llwww.diamondcut.com/vforum/forum.php)

a post on

its internet

on or about February 7,2014.

16.

On information and belief, DCP has continued to make, use, sell, offer for sale in

the United States andlor import into the United States the Accused Product to develop, test and support the Accused Product, in addition to using the Accused Product to restore, enhance, remaster andlor edit audio signals (i.e., audio recordings) since having acknowledged actual

notice of the '862 patent On information and belief, DCP has taken no action to cease its infringement of the '862 patent or otherwise exercise reasonable care to avoid infringement

of

the '862 patent. On information and belief DCP has thus acted in reckless disregard of the'862 patent making its infringement deliberate and willful under 35 U.S.C. $ 2S4.

17.

By reason of the foregoing, CEDAR has suffered, and will continue to suffer,

substantial damages as a result of DCP' infringement of the '862 patent in an amount to be determined at the trial of this action.

18.
and

Upon information and belief, DCP will continue to infringe lhe'862 patent unless

until it is enjoined by this Court.

19.

Unless Defendants are enjoined from infringing the'862 patent, CEDAR

will

suffer substantial and irreparable injury. CEDAR has no adequate remedy at law.

COUNT II (Inducement of Infringement of the '862 Patent

35 U.S.C. g 271(b))

20. 21.

Plaintiff CEDAR repeats and incorporates herein by reference each of the

foregoing paragraphs as if fully set forth herein.

On information and belief, having had actual notice of the '862patent, DCP has

induced and continues to induce infringement of one or more claims of the '862 patent

(including at least claims

l-4,9,

12, 22,

25 and 26) by selling, offering for sale in the United

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 5 of 11 PageID: 535506

States andlor importing into the United States the Accused Product with the specific intent for its customers to use the Accused Product in a manner that would directly infnge one or more

claims of the' 862 patent.

22.

DCP has had acutal knowledge of the '862 patent since at least on or about

February 6,2014 when, by letter dated February 6,2014, counsel for CEDAR informed DCP

of

its infringement of the '862 patent and demanded that DCP immediately cease and desist from
said infringement. DCP acknowledged actual notice of the '862 patentin correspondence to

CEDAR's counsel dated February 6,2014 and February 13,2014 and in a post on its internet
messageboard' (http:/lwww.diamondcut.com/vforum/forum.php)

on or about February 7,2014.

23.

On information and belief, DCP's customers using the Accused Product

(according to DCP's website), include "government agencies and forensics professionals all over the world," including within the United States. On information and belief, these customers use the Accused Product in a manner that infringes one or more claims of the '862 patent, as set forth

in DCP's User's Manual for DC Forensics Audio Laboratory, Version 8 & DC 8 ("DCP's User
Manual").

24.

DCP's lJser's Manual, beginning on page 115 specifically instructs users of the

Accused Product to directly infringe one or more claims of the '862 patent, for example, by using the "Replace" feature, of which there is no substantial noninfringrng use. On information
and belief, with actual knowledge of the '862 patent DCP's instructions for the direct

infringment of the '862 patent are knowing and intentional.

25.

DCP's User Manual instructs users to practice the methods claimed in the '862

patent with, inter ala,the following language on pp. 116-17:

The DSE paintbrush allows you to isolate a signal and either amplifii it, attenuate it, or interpolate it. The "Replace" feature is very useful for

-5-

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 6 of 11 PageID: 535507

interpolating long-lived events such as a chair moving during a concert or a dropped drumstick or a member of a live audience coughing, yelling or whistling. The primary control for the DSE is the Paintbrush tool. It is used to encircle the signal which is to be processed by drawing a rectangle around it. Horizontal movement of the paintbrush establishes the time range of action and movement along the vertical axis establishes the range of frequencies over which it functions.
{.
rl

{.

Extent Control: This controls how far on each side of the highlighted gap

the "Replace" algorithm looks when performing the interpolation. Nominally (by default), it looks roughly 200mS on each side of the gap
(when the control is set to 100 - - - all the way to the left side). You can close that down to roughly 20ms at the 10% setting (by moving it towards the right side). Experiment with this control to obtain the optimal replacement. Please note that this control is not in play when performing "Erase" or "Highlight" functions.

26.

On information and belief, DCP has continued to sell, offer for sale in the United

States andlor import into the United States the Accused Product with instructions for users to

directly infringe one or more claims of the '862 patent since having acknowledged actual notice of the '862patent. On information and belief, DCP has taken no action to cease its inducement of infringement of the '862 patent or otherwise exercise reasonable care to avoid inducing infringement of the '862 patent On information and belief, DCP's has thus acted in reckless
disregard of the '862 patent making its infringement deliberate and willful under 35 U.S.C.
$

284.

27.

By reason of the foregoing, CEDAR has suffered, and will continue to suffer,

substantial damages as a result of DCP's inducement of infringement of the '862 patent in an amount to be determined at the trial of this action.

28.

Upon information and belief, DCP will continue to induce infngement of the

'862 patent unless and until it is enjoined by this Court.

-6-

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 7 of 11 PageID: 535508

29.
CEDAR

Unless Defendants are enjoined from inducing infringement of the '862 patent, suffer substantial and irreparable injury. CEDAR has no adequate remedy at law.

will

COUNT III (Contributory Infringement of the '862 Patent

35 U.S.C. g 271(c))

30. 31.

Plaintiff CEDAR repeats and incorporates herein by reference each of the

foregoing as if fully set forth herein.

On information and belief, having had actual notice of the '862patent, DCP has

contributed to the infringement of one or more claims of the '862 patent (including at least

claims l-4,9,12,22,25 and26)by selling, offering for sale in the United States andlor importing into the United States the Accused Product, of which the "Replace" feature is not a
staple article of commerce suitable for substantial noninfringrng uses, but is instead especially made or adapted for use

in a manner that would directly infringe one or more claims of the '862

patent, inter lia, as shown beginning on page 115 of DCP's LJser Manual.

32.

On information and belief, the "Replace" feature of the Accused Product has no

substantial noninfringing uses for at least the reason that DCP's (Jser's Manual for DC Forensics

Audio Laboratory, Version 8 & DC 8, beginning on page 115 specifically instructs users of the
Accused Product to directly infringe one or more claims of the '862 patent.

33.

On information and belief, DCP's customers using the Accused Product

(according to DCP's website) include "government agencies and forensics professionals all over
the

world," including within the United States. On information and belief, these customers

use

the Accused Product in a manner that infringes one or more claims of the '862patent, as set forth

in DCP's (Jser's Manual.

34.

On information and belief, DCP has continued to sell, offer to sell and/or import

into the United States the Accused Product which is made or especially adapted for use in a

-7

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 8 of 11 PageID: 535509

manner that would directly infringe one or more claims of the '862 patent since having acknowledged actual notice of the '862 patent On information and belief, DCP has taken no action to cease its contribution to the infringement of the '862 patent or otherwise exercise reasonable care to avoid contributing to the infringement of the '862 patent. On information and

belief DCP's

has thus acted in reckless disregard of

the '862 patentmaking its infringement

deliberate and willful under 35 U.S.C. $ 284.

35.

By reason of the foregoing, CEDAR has suffered, and will continue to suffer,

substantial damages as a result of DCP's contribution to the infrigement of the '862 patent in an amount to be determined at the trial of this action.

36. 37.

Upon information and belief, DCP will continue to contribute to the infngement

of the '862 patent unless and until it is enjoined by this Court.

Unless Defendants are enjoined from contributing to the infringement of the '862

patent, CEDAR
at law.

will suffer substantial

and irreparable

injury. CEDAR

has no adequate remedy

RELIEF REQUESTED
WHEREFORE, Plaintiff respectfully requests the following relief:

(a)
patent;

Judgment that Defendant has directly infringed one or more claims of the '862

(b)
'862 patent;

Judgment that Defendant has induced infringement of one or more claims of the

(c) (d)

Judgment that Defendant has contributed to the infringement of one or more

claims of the' 862 patent;

Judgment for an award of compensatory damages in an amount to be determined

-8-

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 9 of 11 PageID: 535510

at atnal of this action;

(e) (
been

Judgment that Defendant's direct infringement of the '862 patent has been wilful; Judgment that Defendant's inducement of infringement of the '862 patent has

wilful;

(g)
been

Judgment that Defendant's contribution to the infringement of the '862 patent has

wilful;

(h)

An Order requiring Defendant to surrender for destruction or other disposition, at

the election of the Plaintiff, all code, specifications, computer programs, manuals, programs, components and programs in all states, and any and all inventory of articles that infringethe'862
patent.

An Order preliminarily and permanently restraining and enjoining against any

infngement by Defendants, their officers, agents, attorneys, or employees, or those acting in

privity or concert with them, of the '862 patent through the commercial manufacture, use, sale,
offer for sale or importation into the United States of any products which infringe the'862
patent;

(t) (k)

Multiple damages in this action under 35 U.S.C. g 254; Attorneys' fees in this action under 35 U.S.C. g 285;

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 10 of 11 PageID: 535511

(l)

Such further and other relief as this Court may deem just and proper

JURY DEMAND Plaintiff demands atrial by Jury on all issues so triable,

Dated: New York, New York March 24,2014

/s/ Andre K, Cizmarik Andre K. Cizmarik Edwards V/ildman Palmer LLP Attorneys for Plaintiff CEDAR Audio Ltd, 750 Lexington Avenue New York, New York 10022 Phone: (212)308-4411

Of Counsel (to be admitted pro hac vice)

George'W. Neuner Adam P. Samansky Edwards Wildman Palmer LLP Attorneys for Plaintiff CEDAR Audio Ltd 111 Huntington Avenue Boston, MA 02199-7613 Phone: (617)239-0100

AM 30185037

-10-

Case 2:33-av-00001 Document 20793 Filed 03/24/14 Page 11 of 11 PageID: 535512

CERTIFICATION PURSUANT TO L. CIV. R.

11.2

Andre K. Cizmarik, pursuant to L. Civ. R. 1L2, deposes and states as follows:

1. 2,

am Counsel to the law firm of Edwards Wildman Palmer LLP, counsel for

plaintiffs, and have personal knowledge of the facts of this action'

The matter in controversy is not the subject of any other action pending in any

court, or of any pending arbitration or administrative proceeding.

Dated: March 24,2014

/s/ Andre K. Cizmarik Andre K. Cizmarik

AM 317s9613,1