01 Communique believes Citrix willfully infringed on its patent when it released the GoToMyPC product

Mississauga, Ont.-based integrated communications software developer, 01 Communique, is suing Citrix Systems for willful patent infringement regarding Citrix’s GoToMyPC technology solution versus 01 Communique’s I’m InTouch remote access solution.

The lawsuit stems back a year and a half ago when 01 Communique created and developed what they believed was a unique remote access solution called I’m InTouch that gives users access to and control of data found on their home or office PC by locating another Internet connected PC. Once the software is activated, users can access their computers from virtually anywhere simply by clicking on a Web link and logging in via a login name and password.

Brian Stringer, CFO at 01 Communique, explains once I’m InTouch was developed, the company sought a patent for it and received one in August 2005.

“Citrix came out after us with their GoToMyPC solution that we believe uses our technology,” Stringer said. “We’ve worked real long and hard to get where we are today. The technology is so complex yet the solution is so simple, making remote access [easy] for customers. Citrix has a good product [GoToMyPC] because it’s built on our technology. We’re defending and enforcing our patent with this lawsuit against Citrix.”

01 Communique’s I’m InTouch software solution gives users anywhere access to computers from virtually any space. All that’s required is a connection to the Internet as well as a user name and password. Some of the features of I’m InTouch include the ability to run desktop programs, the ability to transfer files between PCs and the ability to manage Microsoft Outlook e-mail.

Citrix’s GoToMyPC solution is a managed service that provides Web-based access to all desktop resources. Like 01 Communique’s I’m InTouch, GoToMyPC users are required to log in via a login name and password. Once authorization is granted, users have complete access and control over their remote desktops as if they were using their actual PC. Similar to I’m InTouch, users can also access their desktops from virtually anywhere.

It is a combination of all of these similarities and similar technology that has 01 Communique battling it out in court with the Ft. Lauderdale, Fla.-based enterprise software company over patent infringement.

“This is a U.S. patent,” Stringer said. “We’re suing [Citrix] for willful infringement and we’re looking for past damages plus an injunction. We want them to stop infringing on our patent and we’d like to see them stop using our technology.”

Stringer says if the U.S. court hands down an injunction to Citrix, close to one million U.S.-based fee-paying subscribers of GoToMyPC will experience a service blackout where their services would be terminated.

Javad Heydary, a technology lawyer at Heydary Hamilton PC’s of Toronto, says there are many reasons to take this type of legal action.

“The reason why a company has a patent is to protect the company’s intellectual property rights,” Heydary said.

“Patents relate to technology and are issued from a country to country basis, so they’re only valid in the country where they’re issued. For Canadian businesses, it’s absolutely crucial to get a patent in the U.S. to better protect yourself.”

Heydary explains that because 01 Communique is suing for willful patent infringement, if they can prove Citrix is guilty, they have a better chance of claiming more damages.

“From a business perspective, this is important for the Canadian company because if they can establish infringement, they’ll be looking at a fairly sizeable judgment,” Heydary said.

01 Communique is also seeking past damages from Citrix, but Heydary warns this could be hard to measure because it’s a matter of knowing just how far back they can go to claim these.

Heydary says if 01 Communique wins the case, both companies would have to come to a settlement agreement where Citrix pays them a certain amount of money. Also, he speculates there may also be a mandatory licensing fee that Citrix would have to pay for their products. While this all depends on what the judge rules, Heydary explains the licensing fee could be based per product or by the percentage of revenue.

Stringer says if Citrix were to pull its GoToMyPC products from the market, 01 Communique would quickly step in to serve that space.

“This would affect our company very positively,” Stringer said. “If Citrix were to theoretically pull from the market, we would step in to fill that void with our solutions for their subscribers.”

CDN was refused an interview regarding the O1 Communique lawsuit by Citrix. Eric Armstrong, the director of corporate communications at the company, would only provide this e-mail statement: “We believe that we do not infringe 01 Communique’s patent and intend to vigorously contest this litigation.”

During a Markman hearing, which took place in the U.S. District Court at the Northern District of Ohio’s Eastern Division on Nov. 6, the U.S. court looked over 01 Communique’s patent and the protections included within it (a Markman hearing only handles patent issues and is solely used in the U.S).

In the Markman hearing notes, the court stated, “that while it is available to mediate and settle such discovery disputes, parties should make a greater effort in scenarios such as this to confer and settle among themselves.”

A court date is set to take place in Cleveland in January.

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