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

Filing 35

ANSWER to 26 Answer to Amended Complaint, Counterclaim by Cygnus Systems, Inc.. (Grossman, Lee) Modified on 3/25/2009 (SAT). INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "RESPONSE" TO "ANSWER".

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

Doc. 35

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.: [phone] Fax: [phone] [e-mail] 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 APPLE INC.'S ANSWER AND COUNTERCLAIMS Plaintiff Cygnus Systems, Inc. ("Cygnus") responds to the Counterclaims contained in the Defendant Apple Inc.'s Answer and Counterclaims filed on March 2, 2009 by Defendant Apple Inc. ("Apple") as follows: COUNTERCLAIM The Parties 21. Apple incorporates by reference paragraphs 1 through 20 of its Answer and

Counterclaims as though set forth fully herein. Response: Cygnus incorporates by reference paragraphs 1 through 20 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

22.

Apple is a California corporation with its principal place of business at 1

Infinite Loop, Cupertino, California 95014. Response: Admitted. 23. 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 24. This Court has subject-matter jurisdiction over Apple's declaratory-

judgment counterclaims under 28 U.S.C. §§ 2201 and 2202. There is an actual controversy between Apple and Cygnus regarding United States Patent No. 7,346,850 ("the '850 patent") because Cygnus asserted in its First Amended Complaint that Apple infringed the '850 patent. Response: Admitted. 25. An actual and justiciable controversy exists between Apple and Cygnus as

to whether the '850 patent is infringed, valid, and enforceable against Apple. Absent a declaration of noninfringement, invalidity, or unenforceability, Cygnus will continue to wrongfully assert the '850 patent against Apple, and thereby cause Apple irreparable injury and damage. Response: Cygnus admits that an actual and justiciable controversy exists between Apple 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

26.

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. 27. 1400(b). Response: Admitted. First Counterclaim (Declaratory Judgment re: '850 patent) 28. Apple incorporates by reference paragraphs 1 through 27 of its Answer Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and

and Counterclaims as thought set forth fully herein. Response: Cygnus incorporates by reference paragraphs 1 through 27 of its Response to Apple's Answer and Counterclaims as though set forth fully herein. 29. 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. 30. Cygnus has asserted that Apple 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

31.

Apple 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. 32. 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. 33. This case is exceptional and, pursuant to 35 U.S.C. § 285, Apple is

entitled to an award of attorneys' fees. Response: Denied. Cygnus denies that Apple is entitled to any of the relied requested in its Prayer for Relief. PLAINTIFF'S AFFIRMATIVE DEFENSES Cygnus asserts the following Affirmative Defenses against Apple'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 Apple.
2.

Apple has also knowingly contributed to or induced the infringement of

others by willfully and intentionally aiding, assisting and encouraging such infringement.
3.

Apple's infringement has been willful, deliberate and objectively reckless.

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

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 Apple and in Cygnus's favor on the Counterclaims brought by Apple. 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: [phone] Fax: [phone] /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 APPLE INC.'S ANSWER AND COUNTERCLAIMS was served via electronic mail and First-Class United States Mail on the following: David J. Healey [e-mail] Garland Stephens [e-mail] John R. Lane [e-mail] Benjamin C. Elacqua [e-mail] Fish & Richardson P.C. One Huston Center ­ 28th Floor 1221 McKinney Street Houston, TX 77010 Tel: [phone] Fax: [phone] James Nicholas Bunch [e-mail] Fish & Richardson P.C. 1717 Main Street, Suite 5000 Dallas, TX 75201 Tel: [phone] Fax: [phone] Attorneys for Defendant Microsoft Corporation and Apple Inc. Jonathan M. James [e-mail] Mark E. Strickland [e-mail] Perkens, Coie, Brown & Bain P.A. 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Tel: (602) -351-8000 Fax: [phone] Attorneys for Defendant Google Inc. on this 24th day of March 2009 /s/ Lee F. Grossman

6