Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 553

MOTION to Dismiss GOOGLE INC.'S AND MATCH.COM, LLC'S COUNTERCLAIMS (DKT. NOS. 476 AND 477) by Bedrock Computer Technologies, LLC. (Attachments: # 1 Text of Proposed Order)(Cawley, Douglas)

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Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al Doc. 553 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. CASE NO. 6:09-cv-269-LED Jury Trial Demanded BEDROCK'S MOTION TO DISMISS GOOGLE INC.'S AND MATCH.COM, LLC'S COUNTERCLAIMS (DKT. NOS. 476 AND 477) Dallas 319625v1 Dockets.Justia.com I. INTRODUCTION On January 12, 2011, Bedrock Computer Technologies LLC ("Bedrock") filed a letter brief seeking leave to file a motion for summary judgment of Defendants' affirmative defenses of lack of standing. Dkt. No. 387. The day after Bedrock's request for leave was denied, all Defendants joined in a Motion to Dismiss for Lack of Standing. Dkt. No. 452. After considering the Motion, Bedrock's Response, and Defendants' Reply, the Court recommended that the Motion be denied. Dkt. No. 542. On February 10, Google Inc. and Match.com, LLC (collectively "Defendants") both asserted counterclaims seeking a declaratory judgment that Bedrock does not own U.S. Patent No. 5,893,120 (the "'120 patent") and does not have standing to sue for infringement. Dkt. Nos. 476, 477. Because Defendants have improperly characterized their standing defenses as counterclaims and because Bedrock is the legal owner of the `120 patent, the Court should strike Defendants' counterclaims. II. ARGUMENT A. Defendants Have Mislabeled Their Standing Defenses as Counterclaims. Defendants improperly raise the issue of Bedrock's standing to sue as a counterclaim. "Standing is a jurisdictional issue, not a counterclaim." Ardisam, Inc. v. Ameristep, Inc., 302 F. Supp. 2d 991, 993 (W.D. Wis. 2004). For this reason alone, Defendants' counterclaims regarding standing and ownership of the `120 patent should be struck. In addition, neither Google nor Match.com has asserted any ownership interest in the `120 patent. Instead, Defendants' argument boils down to a claim that Telcordia, a third party not named in this lawsuit, owns the `120 patent and is being harmed by Bedrock's enforcement of the patent. Even assuming Defendants' allegations to be true, Defendants are not Telcordia 1 Dallas 319625v1 and have not, themselves, been deprived of any opportunity to enforce the `120 patent. As such, Defendants cannot demonstrate an injury-in-fact and lack standing to seek a declaratory judgment that Bedrock does not own the `120 patent. See Teva Pharm. USA, Inc. v. Novartis Pharm. Corp., 482 F.3d 1330, 1337 (Fed. Cir. 2007) (To establish Article III standing, "[a]an injury-in-fact must be `personal,' `concrete and particularized,' and `actual or imminent.'). B. Bedrock Is the Legal Owner of the `120 Patent. As made clear in both the summary judgment letter briefing and the motion to dismiss briefing,1 Bedrock owns all interest in the `120 patent. Bedrock has affirmatively established such ownership, and Defendants' have not met their burden to establish that Dr. Nemes previously assigned the `120 patent to Bellcore. See SiRF Tech., Inc. v. ITC, 601 F.3d 1319, 1327 (Fed. Cir. 2010). There is, thus, no support for Defendants' assertion that Bedrock lacks standing to assert the `120 patent, and in light of the Court's ruling as to Defendants' joint Motion to Dismiss for Lack of Standing, Defendants' counterclaims are moot. See Dkt. No. 542. III. CONCLUSION. For the foregoing reasons, the Court should strike Defendants' counterclaims seeking a declaratory judgment that Bedrock does not own the `120 patent and does not have standing to sue for infringement. Bedrock hereby incorporates the arguments contained within its opening and reply summary judgment letter briefs on lack of standing (Dkt. Nos. 387-1, 436) and its Response in Opposition to Defendants' Motion to Dismiss for Lack of Standing (Dkt. No. 511). 2 Dallas 319625v1 1 DATED: March 7, 2011 Respectfully submitted, McKOOL SMITH, P.C. /s/ Douglas A. Cawley Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley, Lead Attorney Texas Bar No. 04035500 dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 tstevenson@mckoolsmith.com Scott W. Hejny Texas Bar No. 24038952 shejny@mckoolsmith.com Jason D. Cassady Texas Bar No. 24045625 jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com Phillip M. Aurentz Texas Bar No. 24059404 paurentz@mckoolsmith.com Stacie Greskowiak Texas State Bar No. 24074311 sgreskowiak@mckoolsmith.com Ryan A. Hargrave Texas State Bar No. 24071516 rhargrave@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 3 Dallas 319625v1 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: rmparker@pbatyler.com E-mail: rcbunt@pbatyler.com ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC 4 Dallas 319625v1 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of the forgoing document via the Court's CM/ECF system pursuant to the Court's Local Rules this 7th day of March, 2011. /s/ Ryan A. Hargrave Ryan A. Hargrave 5 Dallas 319625v1