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

Filing 37

ANSWER to 28 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".

Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 37 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 MICROSOFT CORPORATION'S ANSWER AND COUNTERCLAIMS Plaintiff Cygnus Systems, Inc. ("Cygnus") responds to the Counterclaims contained in the Defendant Microsoft Corporation's Answer and Counterclaims filed on March 2, 2009 by Defendant Microsoft Corporation ("Microsoft") as follows: COUNTERCLAIM The Parties 22. Microsoft incorporates by reference paragraphs 1 through 21 of its Answer and Counterclaims as though set forth fully herein. Response: Cygnus incorporates by reference paragraphs 1 through 21 of its Amended Complaint as though set forth fully 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 23. Microsoft is a Washington corporation with its principal place of business at One Microsoft Way, Redmond, Washington 98052. Response: Admitted. 24. Upon information and belief, Cygnus is an Indiana corporation that has its principal place of business at 40117 N. High Noon Way, Anthem, Arizona 85086. Response: Admitted. Jurisdiction and Venue 25. This Court has subject-matter jurisdiction over Microsoft's declaratory- judgment counterclaims under 28 U.S.C. 2201 and 2202. There is an actual controversy between Microsoft and Cygnus regarding United States Patent No. 7,346,850 ("the '850 patent") because Cygnus asserted in its First Amended Complaint that Microsoft infringed the '850 patent. Response: Admitted. 26. An actual and justiciable controversy exists between Microsoft and Cygnus as to whether the '850 patent is infringed, valid, and enforceable against Microsoft. Absent a declaration of noninfringement, invalidity, or unenforceability, Cygnus will continue to wrongfully assert the '850 patent against Microsoft, and thereby cause Microsoft irreparable injury and damage. Response: Cygnus admits that an actual and justiciable controversy exists between Microsoft and Cygnus as to whether the `850 patent is infringed. Cygnus denies the remaining allegations in this paragraph. 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 27. This Court has personal jurisdiction over Cygnus because Cygnus has voluntarily appeared before this Court for all purposes. Moreover, this Court has personal jurisdiction over Cygnus because Cygnus is located in Arizona with its principal place of business at 40117 N. High Noon Way, Anthem, Arizona 85086. Response: Admitted. 28. 1400(b). Response: Admitted. First Counterclaim (Declaratory Judgment re: '850 patent) 29. Microsoft incorporates by reference paragraphs 1 through 28 of its Venue is proper in this judicial district under 28 U.S.C. 1391 and Answer and Counterclaims as thought set forth fully herein. Response: Cygnus incorporates by reference paragraphs 1 through 28 of its Response to Microsoft's Answer And Counterclaims as though set forth fully herein. 30. Cygnus alleges in paragraph 2 of the First Amended complaint that it "owns" the '850 patent and that it "has the exclusive right to license and enforce the '850 Patent and to collect all damages for infringement of such patent." Cygnus further alleges in paragraph 2 of the First Amended Complaint that it "has standing to sue for infringement of the '850 Patent." Response: Admitted. 31. Cygnus has asserted that Microsoft infringes the '850 patent. Response: Admitted. 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 32. Microsoft has not infringed, and is not infringing, either directly or indirectly under 35 U.S.C. 271, any valid claim of the '850 patent, either literally or under the doctrine of equivalents. Response: Denied. 33. The claims of the '850 patent are invalid for failure to meet the conditions of patentability of 35 U.S.C. 101 et seq., including without limitation those of sections 102, 103, and/or 112. Response: Denied. 34. This case is exceptional and, pursuant to 35 U.S.C. 285, Microsoft is entitled to an award of attorneys' fees. Response: Denied. Cygnus denies that Microsoft is entitled to any of the relief requested in its Prayer for Relief. PLAINTIFF'S AFFIRMATIVE DEFENSES Cygnus asserts the following Affirmative Defenses against Microsoft'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 Microsoft. 2. Microsoft has also knowingly contributed to or induced the infringement of others by willfully and intentionally aiding, assisting and encouraging such infringement. 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 3. Microsoft's infringement has been willful, deliberate and objectively reckless. 4. Cygnus adopts and incorporates herein all affirmative defenses available pursuant to Federal Rule of Civil Procedure 8 (or any applicable statute or regulation), to 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 Microsoft and in Cygnus's favor on the Counterclaims brought by Microsoft. 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 5 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 MICROSOFT CORPORATION'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 6