Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 36

ANSWER to 30 Answer to Amended Complaint, Counterclaim by Cygnus Systems, Inc.. (Grossman, Lee) Modified on 3/25/2009 (SAT). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "RESPONSE" TO "ANSWER".

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter C. Warner (Ariz. State Bar #009338) 1723 W. 4th Street Tempe, AZ 85281-2404 Tel.: (480) 894-6500 Fax: (602) 798-8279 pcw@warnerpatents.com Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Cygnus Systems, Inc. Plaintiff, vs. Microsoft Corporation; Apple Inc.; and Google Inc., Defendants. ) ) ) Case No. 2:08-CV-02337-NVW ) ) ) ) ) ) ) JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO GOOGLE INC.'S ANSWER AND COUNTERCLAIMS Plaintiff Cygnus Systems, Inc. ("Cygnus") responds to the Counterclaims contained in the Defendant Google Inc.'s Answer to Amended Complaint and Counterclaims filed on March 2, 2009 by Defendant Google Inc. ("Google") as follows: COUNTERCLAIMS FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT AND INVALIDITY 1. Google incorporates the responses, denials and admissions above as fully set forth herein. Response: Cygnus incorporates its allegations in its Amended Complaint as fully set forth herein. 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. A valid and justiciable controversy has arisen and exists between Google and plaintiff as to whether Google is infringing any of plaintiff's patent rights, including the '850 patent, which plaintiff claims to have exclusively licensed. Response: Cygnus admits that a valid and justiciable controversy has arisen and exists between Google and Cygnus as to whether Google is infringing the '850 patent, which plaintiff has the exclusive right to license and enforce. Cygnus denies the remaining allegations in this paragraph. 3. The Court has subject matter jurisdiction over Google's counterclaims pursuant to 28 U.S.C. 2201-2202, 1331, and 1338. Response: Admitted. 4. Google has not infringed, and is not infringing any of plaintiff's patent rights, including any valid claim of the '850 patent, either literally or under the doctrine of equivalents. Response: Denied. 5. Google is entitled to a declaratory judgment that it has not infringed, and is not infringing, plaintiff's patent rights, including any rights plaintiff may have in the '850 patent. Response: Denied. 6. A valid and justiciable controversy has arisen and exists between Google and plaintiff as to whether the '850 patent is valid. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Response: Denied. 7. On information and belief, a reasonable opportunity for discovery will establish that the '850 patent is invalid for failure to comply with the requirements of 35 U.S.C. 102, 103 and/or 112. Response: Denied. 8. Google is entitled to a declaratory judgment that the '850 patent is invalid. Response: Denied. Cygnus denies that Google is entitled to any of the relief requested in its Prayer for Relief. PLAINTIFF'S AFFIRMATIVE DEFENSES Cygnus asserts the following Affirmative Defenses against Google's Counterclaims and reserves the right to further amend its responses as additional information becomes available. 1. The claims of United States Patent No. 7,346,850 are valid, enforceable and infringed by Google. 2. Google has also knowingly contributed to or induced the infringement of others by willfully and intentionally aiding, assisting and encouraging such infringement. 3. 4. Google's infringement has been willful, deliberate and objectively reckless. Cygnus adopts and incorporates herein all affirmative defenses available pursuant to Federal Rule of Civil Procedure 8 (or any applicable statute or regulation), to 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the extent the facts known at this time would make any of said defenses available or facts developed in the future would make same available. WHEREFORE, Cygnus requests that judgment be entered against Google and in Cygnus's favor on the Counterclaims brought by Google. Cygnus further requests that it be granted all of the relief requested in its Amended Complaint. JURY DEMAND Cygnus demands a trial by jury on all issues properly triable to a jury. Date: 3/24/2009 Respectfully submitted PETER C. WARNER, P.C. By: OF COUNSEL Raymond P. Niro Lee F. Grossman Matthew G. McAndrews Anna B. Folgers Niro, Scavone, Haller & Niro 181 West Madison St., Suite 4600 Chicago, Illinois 60602 Tel: (312) 236-0733 Fax: (312) 236-3137 /s/ Peter C. Warner Peter C. Warner 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Certificate of Service The undersigned hereby certifies that a copy of the foregoing PLAINTIFF'S RESPONSE TO GOOGLE INC.'S ANSWER AND COUNTERCLAIMS was served via electronic mail and First-Class United States Mail on the following: David J. Healey healy@fr.com Garland Stephens stephens@fr.com John R. Lane jclane@fr.com Benjamin C. Elacqua elacqua@fr.com Fish & Richardson P.C. One Huston Center 28th Floor 1221 McKinney Street Houston, TX 77010 Tel: (713) 652-0115 Fax: (713) 652-0109 James Nicholas Bunch bunch@fr.com Fish & Richardson P.C. 1717 Main Street, Suite 5000 Dallas, TX 75201 Tel: (214) 747-5070 Fax: (214) 747-2091 Attorneys for Defendant Microsoft Corporation and Apple Inc. Jonathan M. James JJames@perkinscoie.com Mark E. Strickland MStrickland@perkinscoie.com Perkens, Coie, Brown & Bain P.A. 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Tel: (602) -351-8000 Fax: (602)-648-7000 Attorneys for Defendant Google Inc. on this 24th day of March 2009 /s/ Lee F. Grossman 5