Wireless Ink Corporation v. Facebook, Inc. et al

Filing 11

ANSWER to Complaint with JURY DEMAND. Document filed by Facebook, Inc..(Chaudhury, Arastu)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

WIRELESS INK CORPORATION
LL-CV-1751 (PKC)

Plaintiff,

Jury Trial Demanded

v.

F ACEBOOK, INC.; GOOGLE, INC.,
YOÚTUBE, INC.; YOUTUBE, LLC;
and MYSP ACE, INC.

Defendants.

FACEBOOK, INC.'S ANSWER AND COUNTERCLAIMS TO
WIRELESS INK CORPORATION'S COMPLAINT
Defendant and Counterclaimant F ACEBOOK, INC. ("Facebook"), by and through the

undersigned counsel, hereby submits the following Answer and Counterclaims to the Second
Amended Complaint fied by Plaintiff

WIRELESS INK CORPORATION ("Wireless Ink"):

NATURE OF THE ACTION
1. Facebook admits that the Complaint purports to state a claim for patent

infringement. Facebook admits that the face of U.S. Patent No. 7,908,342 B2 ("the '342 patent"

or "patent-in-suit") is entitled "Method, Apparatus and System for Management of Information
Content for Enhanced Accessibility over Wireless Communication Networks" and states a date

of issuance of March 15, 2011. . Facebook denies that the '342 patent was duly and legally
issued. Facebook denies that it has infringed or is infringing, that it has contributed or is

contributing to the infringement of, or that it has induced or is inducing others to infringe the

herein, Facebook lacks sufficient

'342 patent. Except as expressly admitted or denied

information to form a belief as to the truth of the allegations recited in this paragraph, and on that
basis denies them.

2. Facebook denies the allegations set forth in this paragraph to the extent they apply.
to Facebook. With regard to those allegations that apply to other defendants, Facebook lacks
suffcient information to form a belief as to the truth of the remaining allegations recited in this
paragraph, and on that basis denies them.

3. Facebook admits that the face of the '342 patent bears an application number of

12/548,928 and a publication date of February 18, 2010. Facebook admits that the face of the
'342 patent lists "( c )ontinuation of application No. 10/464,526, fied on Jun. 18, 2003, now Pat.

No. 7,599,983" under the heading "Related U.S. Application Data." Facebook àdmits that the
face of the '342 patent lists "Provisional application No. 60/389,430, fied on Jun. 18, 2002"

under the heading "Related U.S. Application Data." Facebook denies all remaining allegations

contained in this paragraph to the extent they apply to Facebook. With regard to those
allegations that apply to other defendants, Facebook lacks sufficient information to form a belief

as to the truth of the remaining allegations recited in this paragraph, and on that basis denies
them.
4. Facebook admits that a letter dated February 23,2011 to Ted Ullyot from Jeremy

S. Pitcock is attached as par of Exhibit A, and that Facebook received this letter. Facebook
denies the remaining allegations of this paragraph to the extent they apply to Facebook. Except
as expressly admitted or denied herein, Facebook lacks sufficient information to form a belief as
to the truth of the allegations recited in this paragraph, and on that basis denies them.

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5. Facebook admits that it and defendant Google Inc., are engaged in a litigation
styled Wireless Ink Corp. v. Google Inc., et aI., No. 10-cv-1841 (the "'983 Litigation"), in which
the litigation, and that counsel

U.S. Patent No. 7,599,983 B2 ("the '983 patent,") is the subject of

for Facebook in the '983 Litigation received the Januar 21, 2011 letter attached as Exhibit B.
Facebook denies that the '342 patent is patentable over the prior ar disclosed by Wireless Ink to
the U.S. Patent and Trademark Office. Except as expressly admitted or denied herein, Facebook

lacks sufficient information to form a belief as to the truth of the allegations recited in this
paragraph, and on that basis denies them.

6. Facebook denies the allegations contained in this paragraph to the extent they
apply to Facebook. With regard to those allegations that apply to other defendants, Facebook
lacks suffcient information to form a belief as to the truth of the remaining allegations recited in
this paragraph, and on that basis denies them.

JURISDICTION AND VENUE
7. Facebook admits that this Cour has subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1338(a).

8. Facebook admits that venue is proper in this district pursuant to 28 U.S.C. §§
1391(c) and 1400(b).

9. Facebook admits that it is doing business within the United States, including

within this Judicial District. Facebook denies that it has infringed or is infringing the '342
patent. Except as expressly admitted or denied herein, Facebook lacks suffcient information to
form a belief as to the truth of the allegations recited in this paragraph, and on that basis denies
them.

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PARTIES
10. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.
'II. Admitted.

12. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

13. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

14. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

15. Facebook denies the allegations contained in this paragraph to the extent they
apply to Facebook. With regard to those allegations that apply to other defendants, Facebook

lacks sufficient information to admit or deny the allegations contained in this paragraph and
therefore denies them.

FACTUAL ALLEGATIONS

A. INFRINGEMENT BY DEFENDANTS
16. Facebook denies the allegations contained in this paragraph to the extent they
apply to Facebook. With regard to those allegations that apply to other defendants, Facebook
lacks suffcient information to admit or deny the allegations contained in this paragraph and

therefore denies them.
I. Facebook's Alleged Direct Infringement

17. Facebook admits that it operates a website that can be found at

ww.facebook.com. Facebook denies all other allegations recited in this paragraph.

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18. Facebook admits that it operates websites that can be found at m.facebook.com
and touch.facebook.com. Facebook denies all other allegations recited in this paragraph.
19. Denied.
20. Facebook admits that users at ww.facebook.com have the ability to upload

certin content. Facebook denies all other allegations recited in this paragraph.
21. Facebook admits that ww.facebook.com has a feature known as the "Wall."

Facebook denies all other allegations recited in this paragraph.
22. Denied.
II. Google's Alleged Direct Infringement

23. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

24. Facebook lacks sufficient information to form a belief as to the truth of the
. allegations recited in this paragraph, and on that basis denies them.

25. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

26. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

27. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

28. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

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III. YouTube's Alleged Direct Infringement

29. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

30. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

31. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

32. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

33. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

34. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.
IV. MySpace's Alleged Direct Infringement

35. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

36. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

37. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

38. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

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39. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

40. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

B. DEFENDANTS' ALLEGED USE OF THE PATENTED TECHNOLOGY
41. . Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

42. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

43. Facebook lacks sufficient/information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

44. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

45. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

46. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

47. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies thein.

48. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

49. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

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50. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.
51. Facebook admits that Bret Taylor is the Chief Technology Offcer at Facebook.
Facebook admits that an article located at http://blogs.forbes.com/oliverchiang/2011/0l/25/
facebook-our-focus-in-2011-Is-on-mobile-htm15/ quotes Bret Taylor as saying "Mobile is our

primary focus for our platform this year" on Januar 25, 2011. Facebook admits that in
November 2010, Facebook stated that it had 200 milion monthly active mobile users. Facebook
denies the remainder of the allegations set forth in this paragraph.
52. Denied.

53. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

54. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

C. WIRELESS INK'S ALLEGED USE OF THE PATENTED TECHNOLOGY
55. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

56. Facebook lacks sufficient information to form a belief as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

57. Facebook lacks sufficient information to form a belìef as to the truth of the
allegations recited in this paragraph, and on that basis denies them.

58. Facebook lacks suffcient information to form a belief as to the truth of the
allegations recited in this paragraph, and 01) that basis denies them.

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66. Facebook denies all allegations that are contained in this paragraph and directed at
the remaining

Facebook. Facebook lacks sufficient information to form a belief as to the truth of

allegations as recited in this paragraph, and on that basis denies them.

67. Facebook denies all allegations that are contained in this paragraph and directed at
the remaining

Facebook. Facebook lacks suffcient information to form a belief as to the truth of

allegations as recited in this paragraph, and on that basis denies them.

FIRST CLAIM FOR RELIEF
(Alleged Infringement of the '342 patent)
68. Facebook incorporates by reference paragraphs 1 through 67 of this Answer as if

fully set forth herein.

69. Facebook denies all allegations that are contained in this paragraph and directed at
the remaining

Facebook. Facebook lacks sufficient information to form a belief as to the truth of

allegations as recited in this paragraph, and on that basis denies them.

70. Facebook denies all allegations that are contained in this paragraph and directed at
the remaining

Facebook. Facebook lacks suffcient information to form a belief as to the truth of

allegations as recited in this paragraph, and on that basis denies them.

71. Facebook denies all allegations that are contained in this paragraph and directed at
the remaining

Facebook. Facebook lacks sufficient information to form a belief as to the truth of

allegations as recited in this paragraph, and on that basis denies them.

Wireless Ink's Prayer for Relief
this Answer as if

Facebook incorporates by reference all preceding paragraphs of

fully set

forth herein. Facebook denies that Wireless Ink is entitled to any relief sought in Wireless Ink's
Prayer for Relief against Facebook, or otherwise.

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FACEBOOK, INC.'S AFFIRMATIVE DEFENSES

First Affirmative Defense: Non-Infringement
72. Facebook is not infringing and has not infringed, directly, contributorily, or by
inducement any claims of

the '342 patent, either literally or under the doctrine of equivalents.

Second Affirmative Defense: Invalidity
73. One or more of the claims of the '342 patent are invalid for failure to satisfy the

conditions for patentability set forth in 35 U.S.C. §§ 101, 102, 103, and/or 112.

Third Affirmative Defense: Failure to State a Claim
74. The Second Amended Complaint fails to state a claim upon which relief can be
granted.

Fourth Affirmative Defense: No Injunctive Relief

75. Plaintiffs demand to enjoin Facebook is bared, as Plaintiff has suffered neither
harm nor irreparable harm from Facebook's actions.

Fifth Affirmative Defense: Unclean Hands
76. The claims alleged in the Second Amended Complaint are barred, in whole or in

par, by the doctrine of unclean hands.

Sixth Affirmative Defense: Prosecution History Estoppel
77. Wireless In is estopped from construing any valid claim of the '342 patent to

cover or include, either literally or by application of the doctrine of equivalents, any product or

service manufactured, used, imported, sold, or offered by Facebook because of admissions and

statements to the. United States Patent and Trademark Office in the specification of the '342
patent and during prosecution of

the application leading to the issuance of

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the '342 patent.

Seventh Affirmative Defense: No Wilful Infringement
78. Wireless Ink is not entitled to enhanced or increased damages for wilful

infringement because Facebook has not engaged in any conduct that meets the applicable

standard for willful infringement. Wireless Ink has also failed to adequately plead or state a
claim for relief for wilful infringement.
Other Affirmative Defenses

79. Facebook reserves all other affirmative defenses pursuant to Rule 8(c) of the

Federal Rules of Civil Procedure, the Patent Laws of the United States, and any other defenses,

at law or in equity, that now exist or in the future may be available based on discovery and
furher factual investigation in this case.

Relief Requested by Facebook
WHEREFORE, Facebook prays that this Cour enter judgment:
A. In favor of Facebook, and against Wireless Ink, thereby dismissing Wireless

Ink's Complaint in its entirety, with prejudice, with Wireless Ink taking nothing by way of

its

claims;

B. That Facebook has not infringed, contributorily infringed, or induced the
infringement of, and is not now infringing, contributorily infringing, or inducing the

infringement of any valid claim of U.S. Patent No. 7,908,342 B2, literally or under the
doctrine of

equivalents, under any subsection of35 U.S.C. § 271;
C. That all asserted claims of

the '342 patent are invalid and/or unenforceable;

D. That this is an exceptional case pursuant to 35 U.S.C. § 285 and ordering
Wireless Ink to pay Facebook's reasonable attorneys' fees incurred in this action;
E. That Wireless Ink pay all costs incured by Facebook in this action; and

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the Court deems just and proper.

F. Awarding Facebook all other relief

JURY

DEMAND

Facebook demands a trial by jury as to all issues so triable.

Date: April 25,2011

Respectfully submitted,

COOLEY LLP~) -/

By: ~ l
Jonat an Bach (JPB 9710)

Arast K. Chaudhury (AC 0101)

1 l\l4 Avenue of the Americas
Ne York, New York 10036
Phone: [phone]

Fax: [phone]

Heidi Keefe (CA 178960)
(Pro Hac Vice Pending)

Mark Weinstein (CA 193043)
(Pro Hac Vice Pending)

3175 Hanover Street
Palo Alto, California 94304-1130
Phone: [phone]

Fax: [phone]

Michael C. Rhodes (CA 116127)
(Pro Hac Vice Pending)

101 California Street
5th Floor
San Francisco, CA 94111-5800
Attorneys for Facebook, Inc.

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