Apple Computer Inc. v. Burst.com, Inc.

Filing 179

ANSWER TO COUNTERCLAIM 171 Answer to to CounterClaim,, Counterclaim, Burst.com, Inc.'s, Answer to Apple Computer, Inc.'s Amended Counterclaim for Declaratory Judgment byBurst.com, Inc.. (Crosby, Ian) (Filed on 10/9/2007)

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Apple Computer Inc. v. Burst.com, Inc. Doc. 179 Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 1 of 6 1 PARKER C. FOLSE III (WA Bar No. 24895 Pro Hac Vice) pfolse@susmangodfrey.com 2 IAN B. CROSBY (WA Bar No. 28461 Pro Hac Vice) icrosby@susmangodfrey.com 3 FLOYD G. SHORT (WA Bar No. 21632 Pro Hac Vice) fshort@susmangodfrey.com 4 SUSMAN GODFREY, L.L.P. 1201 Third Avenue, Suite 3800 5 Seattle, Washington 98101-3000 (206) 516-3880 Tel. 6 (206) 516-3883 Fax 7 SPENCER HOSIE (CA Bar No. 101777) shosie@hosielaw.com 8 BRUCE WECKER (CA Bar No. 078530) bwecker@hosielaw.com 9 HOSIE McARTHUR LLP One Market, 22nd Floor 10 San Francisco, CA 94105 (415) 247-6000 Tel. 11 (415) 247-6001 Fax (additional attorneys listed on signature page) 12 Attorneys for Defendant/Counterclaimant 13 BURST.COM, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION APPLE COMPUTER, INC., Plaintiff/Counterdefendant, v. BURST.COM, INC., Defendant/Counterclaimant. CASE NO. C06-00019 MHP BURST.COM, INC.'S, ANSWER TO APPLE COMPUTER, INC.'S, AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT JURY TRIAL DEMANDED BURST.COM, INC.'S, ANSWER TO APPLE COMPUTER, INC.'S, AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT Defendant Burst.com, Inc. ("Burst") replies to the amended counterclaim for declaratory judgment on U.S. Patents Nos. 4,963,995 (the "`995 patent"), 5,057,932 (the "`932 patent"), 5,164,839 (the "`839 patent"), 5,995,705 (the "`705 patent"), asserted by Plaintiff Apple Computer, Inc. ("Apple") in Apple's "Amended Answer to Burst.com, Inc.'s Amended Counterclaim and Counterclaim for Declaratory Judgment" (Docket No. 171), as follows: ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT CASE NO. C-06-00019 MHP Dockets.Justia.com Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 2 of 6 1 1-48. Paragraphs 1 through 48 do not assert claims to which a response is required except Paragraphs 1-31 set forth 2 to the extent later realleged in support of Apple's Counterclaims. 3 admissions, denials, and affirmative defenses in reply to the counterclaim asserted in Burst's 4 "Amended Answer and Counterclaim" (Docket No. 42), but do not set forth affirmative allegations 5 of fact, and therefore do not require reply. In the alternative, to the extent that the admissions, 6 denials, and affirmative defenses set forth in paragraphs 1-31 constitute "allegations" in support of 7 Apple's counterclaim, Burst replies by re-alleging and adopting by reference the entirety of Burst's 8 Counterclaim, Prayer for Relief, and Demand for Jury Trial, and by denying all of Apple's 9 affirmative defenses. 10 11 32. 33. Denied. To the extent this paragraph accurately quotes deposition transcripts and/or 12 documents, Burst admits that the transcripts and/or documents so state. In all other respects, denied. 13 34. To the extent this paragraph accurately quotes deposition transcripts and/or 14 documents, Burst admits that the transcripts and/or documents so state. In all other respects, denied. 15 16 17 35. 36. 37. Denied. Denied. To the extent this paragraph accurately quotes deposition transcripts and/or 18 documents, Burst admits that the transcripts and/or documents so state. Burst admits that the EPO 19 rejected the then-pending claims of Burst's Application No. 90 902 741.9 in an Office Action dated 20 April 22, 1994. In all other respects, denied. 21 38. To the extent this paragraph accurately quotes deposition transcripts and/or 22 documents, Burst admits that the transcripts and/or documents so state. Burst admits that Lang and 23 Hein were aware of the rejections in the EPO. In all other respects, denied. 24 39. To the extent this paragraph accurately quotes deposition transcripts and/or 25 documents, Burst admits that the transcripts and/or documents so state. Burst admits that Lang and 26 Hein first disclosed Walter to the PTO in an Information Disclosure Statement on May 6, 1991. In 27 all other respects, denied. 28 ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT 2 CASE NO. C-06-00019 MHP Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 3 of 6 1 40. To the extent this paragraph accurately quotes deposition transcripts and/or 2 documents, Burst admits that the transcripts and/or documents so state. In all other respects, denied. 3 41. To the extent this paragraph accurately quotes deposition transcripts and/or 4 documents, Burst admits that the transcripts and/or documents so state. Burst is without knowledge 5 of and on that basis denies the allegations regarding the development, capabilities, and public 6 demonstration of DVI. In all other respects, denied. 7 42. To the extent this paragraph accurately quotes deposition transcripts and/or 8 documents, Burst admits that the transcripts and/or documents so state. Burst admits that it was 9 attempting to build a prototype of its system around September 1990. Burst admits that it adopted 10 DVI for use in its prototypes. In all other respects, denied. 11 43. Burst is without knowledge of and on that basis denies the allegations regarding the 12 development and publicization of DVI years before the Burst patents were filed. In all other 13 respects, denied. 14 44. Burst is without knowledge of and on that basis denies the allegations regarding 15 nondisclosure of printed publications describing DVI technology that was in development and 16 displayed to the public before the filing of the Burst patents. In all other respects, denied. 17 45. Burst admits that in an Office Action dated April 22, 1994 for Application No. 90 902 18 741.9, the EPO cited and discussed prior art references including IEEE Transactions on Consumer 19 Electronics, "1988 International Conference on Consumer Electronics, Part 1", 34 (1988) August, 20 No. 3, New York, U.S., pages 838-845; Hildering et al.: "Programmable Compact Disk Picture 21 Memory and Video Processing System" ("Hildering"); EP-A-0 283 727 ("Parker"); and EP-A-0 082 22 077 ("Gremillet EP"). In all other respects denied. 23 24 25 26 27 28 ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT 46. 47. 48. Denied. Denied. Denied. 3 CASE NO. C-06-00019 MHP Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 4 of 6 1 49. Paragraph 49 restates, realleges, and incorporates by referece the allegations set forth 2 in paragraphs 1 through 48. In response, Burst restates, realleges, and incorporates by reference its 3 responses to paragraphs 1 through 48. 4 50. Burst admits that Apple counterclaims against Burst for declaratory judgment, and 5 that declaratory judgment is a remedy contemplated in the patent laws of the United States and the 6 Federal Rules of Civil Procedure, including Title 35 of the United States Code; 28 U.S.C. 1331, 7 1338(a), 2201, 2202; and Fed. R. Civ. P. 13. Burst denies that Apple is entitled to the remedy 8 sought. 9 10 11 12 13 51. 52. 53. 54. 55. Denied. Denied. Denied. Denied. Burst denies that Apple is entitled to any relief from Burst and in particular to any of 14 the relief requested in paragraphs 1 through 6 of Apple's Prayer for Relief. 15 16 Dated October 9, 2007. 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT SUSMAN GODFREY, L.L.P. /s/ Ian B. Crosby PARKER C. FOLSE III (WA Bar No. 24895- Admitted Pro Hac Vice) pfolse@susmangodfrey.com IAN B. CROSBY (WA Bar No. 28461- Admitted Pro Hac Vice) icrosby@susmangodfrey.com FLOYD G. SHORT (WA Bar No. 21632- Admitted Pro Hac Vice) fshort@susmangodfrey.com SUSMAN GODFREY, L.L.P. 1201 Third Avenue, Suite 3800 Seattle, Washington 98101-3000 (206) 516-3880 Tel. (206) 516-3883 Fax SPENCER HOSIE (CA Bar No. 101777) shosie@hosielaw.com BRUCE WECKER (CA Bar No. 078530) bwecker@hosielaw.com HOSIE McARTHUR LLP One Market, 22nd Floor San Francisco, CA 94105 4 CASE NO. C-06-00019 MHP Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 5 of 6 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 ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT (415) 247-6000 Tel. (415) 247-6001 Fax MICHAEL F. HEIM (TX Bar No. 9380923 - Admitted Pro Hac Vice) LESLIE V. PAYNE (TX Bar No. 0784736 - Admitted Pro Hac Vice) HEIM, PAYNE & CHORUSH, L.L.P. 600 Travis Street, Suite 6710 Houston, TX 77002 (713) 221-2000 Tel. (713) 221.2021 Fax ROBERT J. YORIO (CA Bar No. 93178) V. RANDALL GARD (CA Bar No. 151677) COLBY B. SPRINGER (CA Bar No. 214868) CARR & FERRELL LLP 2200 Geng Road Palo Alto, CA 94303 (650) 812-3400 Tel. (650) 812-3444 Fax ATTORNEYS FOR DEFENDANT BURST.COM, INC. 5 CASE NO. C-06-00019 MHP Case 3:06-cv-00019-MHP Document 179 Filed 10/09/2007 Page 6 of 6 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 I hereby certify that on the date written above, that I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system. The Court or the CM/ECF system will send notification of such filings to all CM/ECF participants. I further certify that a true and correct copy of this document was sent via U.S. first-class mail, postage pre-paid to all non-CM/ECF participants. /s/ Ian B. Crosby Ian B. Crosby ANSWER TO AMENDED COUNTERCLAIM FOR DECLARATORY JUDGMENT CASE NO. C-06-00019 MHP

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