Visual Interactive Phone Concepts, Inc. v. Google, Inc.

Filing 27

ANSWER to 22 Amended Answer to Complaint, Counterclaim,,,, and Affirmative Defenses by Visual Interactive Phone Concepts, Inc.. (Frey, Brendan)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VISUAL INTERACTIVE PHONE
CONCEPTS, INC., a Nevada
Corporation,
Case No. 11-cv-12348
Plaintiff,
vs.

Hon. Lawrence P. Zatkoff

GOOGLE, INC., a Delaware
Corporation,

Mag. Judge Laurie Michelson

Defendant.

VIPC’S ANSWER AND AFFIRMATIVE
DEFENSES TO GOOGLE’S FIRST
AMENDED COUNTERCLAIMS
JURY TRIAL DEMANDED

MANTESE HONIGMAN ROSSMAN
and WILLIAMSON, P.C.
Attorneys for Plaintiff
Gerard V. Mantese (P34424)
[e-mail]
Ian M. Williamson (P65056)
[e-mail]
Brendan H. Frey (P70893)
[e-mail]
1361 E. Big Beaver Road
Troy, MI 48083
[phone] (telephone)
[phone] (facsimile)
KOHN & ASSOCIATES, PLLC
Attorneys for Plaintiff
Kenneth I. Kohn (P35170)
[e-mail]
Barbara Mandell (P36437)
[e-mail]
30500 Northwestern Hwy, Suite 410
Farmington Hills, MI 48334
[phone] (telephone)
[phone] (facsimile)

DICKINSON WRIGHT PLLC
Attorneys for Defendant
Michelle L. Alamo (P60684)
[e-mail]
500 Woodward Ave, Suite 4000
Detroit, MI 48226
[phone] (telephone)
[phone] (facsimile)

VISUAL INTERACTIVE PHONE CONCEPTS, INC.’S
ANSWER AND AFFIRMATIVE DEFENSES TO GOOGLE, INC.’S
FIRST AMENDED COUNTERCLAIMS; JURY TRIAL DEMANDED
Visual Interactive Phone Concepts, Inc. (“VIPC”), by its attorneys Mantese Honigman
Rossman and Williamson, P.C. and Kohn and Associates, PLLC, and for its Answer to Google,
Inc.’s (“Google’s”) First Amended Counterclaims, states as follows:
THE PARTIES
1.

Upon information and belief, VIPC admits the allegations in paragraph 1 of the

Counterclaims.
2.

VIPC admits the allegations in paragraph 2 of the Counterclaims.
JURISDICTION AND VENUE

3.

VIPC admits that venue is proper in this District.

4.

VIPC admits that this Court has personal jurisdiction over VIPC for purposes of

this action.
5.

VIPC admits that this Court has subject matter jurisdiction over the patent law

claims asserted in this case.
ALLEGED FACTS GIVING RISE TO THE COUNTERCLAIMS
6.

VIPC admits the allegations in paragraph 6 of the Counterclaims.

7.

VIPC admits that Google has denied infringement of the patents-in-suit and has

alleged that the patents are invalid. VIPC relies on the allegations of infringement contained in
its First Amended Complaint and denies that the patents are invalid. Therefore, VIPC admits
there is an actual and justiciable case and controversy.
8.

VIPC denies the allegations contained in paragraph 8 of the Counterclaims and

relies on the allegations of infringement contained in its First Amended Complaint.
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COUNT ONE – Declaratory Judgment of Non-Infringement of ‘361 Patent
9.

VIPC repeats and realleges each answer set forth above as though fully set forth

10.

VIPC admits that Google has denied infringing the patents-in-suit and, therefore,

herein.

an actual case or controversy exists between Google and VIPC as to whether the ‘361 patent is
infringed by Google.
11.

VIPC admits that a judicial declaration of infringement by Google is appropriate

and denies that a judicial declaration of non-infringement is necessary or appropriate.
12.

VIPC denies the allegations contained in paragraph 12 of the Counterclaims and

relies on the allegations of infringement asserted in the First Amended Complaint.
COUNT TWO – Declaratory Judgment of Non-Infringement of ‘092 Patent
13.

VIPC repeats and realleges each answer set forth above as though fully set forth

14.

VIPC admits that Google has denied infringing the patents-in-suit and, therefore,

herein.

an actual case or controversy exists between Google and VIPC as to whether the ‘092 patent is
infringed by Google.
15.

VIPC admits that a judicial declaration of infringement by Google is appropriate

and denies that a judicial declaration of non-infringement is necessary or appropriate.
16.

VIPC denies the allegations contained in paragraph 16 of the Counterclaims and

relies on the allegations of infringement asserted in the First Amended Complaint.
COUNT THREE – Declaratory Judgment of Invalidity of ‘361 Patent
17.

VIPC repeats and realleges each answer set forth above as though fully set forth

herein.
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18.

VIPC denies the allegations contained in paragraph 18 of the Counterclaims.

19.

VIPC denies the allegations contained in paragraph 19 of the Counterclaims.
COUNT FOUR – Declaratory Judgment of Invalidity of ‘092 Patent

20.

VIPC repeats and realleges each answer set forth above as though fully set forth

21.

VIPC denies the allegations contained in paragraph 21 of the Counterclaims.

22.

VIPC denies the allegations contained in paragraph 22 of the Counterclaims.

herein.

EXCEPTIONAL CASE
23.

VIPC denies the allegations contained in paragraph 23 of the Counterclaims.
VIPC’S AFFIRMATIVE DEFENSES TO GOOGLE’S COUNTERCLAIMS

VIPC asserts the following affirmative defenses without undertaking or otherwise
shifting any applicable burdens of proof:
1.

VIPC relies on the allegations contained in its First Amended Complaint and

asserts that Google infringes the ‘361 and ‘092 patents.
2.

VIPC asserts that the patents are valid, as confirmed in the USPTO’s re-

examination of the ‘361 and ‘092 patents.
3.

VIPC reserves the right to amend these affirmative defenses, and to allege any

further defenses to the Counterclaims that become necessary or appropriate during the course
of discovery.
PRAYER FOR RELIEF
WHEREFORE, VIPC respectfully requests judgment denying the relief requested by
Google and granting the following relief:
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A.

That Google be adjudged to have infringed United States Patent No. 5,724,092

and Patent No. 5,606,361;
B.

That Google be adjudged to have induced infringement of United States Patent

No. 5,724,092 and Patent No. 5,606,361;
C.

That Google be adjudged to have contributed to the infringement of United

States Patent No. 5,724,092 and Patent No. 5,606,361;
D.

That Google, its officers, agents, servants, employees, and attorneys, and those

persons in active concert or participation with them who receive actual notice of the Order, be
permanently enjoined and restrained from infringing the United States Patent No. 5,724,092
and Patent No. 5,606,361;
E.

That Google account for damages caused by the infringement of the United

States Patent No. 5,724,092 and Patent No. 5,606,361;
F.

That a judgment be entered against Google awarding VIPC all damages necessary

to compensate VIPC pursuant to 35 U.S.C. § 284, and in no event less than a reasonable royalty,
for infringement of the United States Patent No. 5,724,092 and Patent No. 5,606,361.
G.

That the damages in this judgment be trebled pursuant to 35 U.S.C. § 284 for

Google’s knowing, intentional and willful infringement of United States Patent No. 5,724,092
and Patent No. 5,606,361.
H.

That VIPC be awarded all pre-judgment and post-judgment interest and costs in

accordance with 35 U.S.C. § 284.
I.

That this case be judged an “exceptional” case within the meaning of 35 U.S.C. §

285 and VIPC awarded its reasonable attorneys’ fees.
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J.

That VIPC receives such other and further relief as the Court may deem just,

proper, and equitable under the circumstances.
DEMAND FOR JURY
Plaintiff respectfully demands a trial by jury on all claims and issues so triable.
Respectfully submitted,
MANTESE HONIGMAN ROSSMAN
and WILLIAMSON, P.C.
Attorneys for VIPC
___s/ Brendan H. Frey_____________
Gerard V. Mantese
[e-mail]
Ian M. Williamson
[e-mail]
Brendan H. Frey
[e-mail]
1361 E. Big Beaver Road
Troy, MI 48083
[phone] (telephone)
[phone] (facsimile)
KOHN & ASSOCIATES, PLLC
Attorneys for Plaintiff
Kenneth I. Kohn
[e-mail]
Barbara Mandell
[e-mail]
30500 Northwestern Hwy, Suite 410
Farmington Hills, MI 48334
[phone] (telephone)
[phone] (facsimile)

Dated: October 31, 2011

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CERTIFICATE OF SERVICE
I, Sherri Sikorski, hereby certify that on October 31, 2011, I electronically filed VIPC’s
Answer and Affirmative Defenses to Google’s Counterclaims with the Clerk of the Court using
the ECF system which will send notification of such filing to counsel of record.

_____s/Sherri Sikorski______________
Sherri Sikorski

Dated: October 31, 2011

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