Datatreasury Corporation v. Wells Fargo & Company et al

Filing 407

Defendant First-Citizens Bank & Trust Company's Original ANSWER to Amended Complaint, First COUNTERCLAIM and Jury Demand against Datatreasury Corporation by First Citizens Bank & Trust Company.(Carlson, Larry)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

DATATREASURY CORPORATION
Plaintiff
CIVIL ACTION NO. 2:06-CV -72JURY TRIAL DEMADED
WELLS FARGO & COMPANY , et al.
Defendants.

DEFENDANT FIRST -CITIZENS BANK & TRUST COMPANY' ORIGINAL ANSWER. COUNTERCLAIM. AND JURY DEMAND
Defendant First-Citizens Ban & Trust Company ("First-Citizens Ban"
files this

Original Answer, Counterclaim, and Jury Demand to plaintiff DataTreasury Corporation
Amended Complaint for Patent Infringement (" Complaint"
I.

s First

THE PARTIES

First- Citizens Ban is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

Dockets.Justia.co

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First-Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
10.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
11.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
12.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
13.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
14.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
15.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
16.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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17.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
18.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
19.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

20.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

21.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
22.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

23.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

24.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

25.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

26.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

27.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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28.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
29.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

30.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

31.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

32.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

33.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

34.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

35.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

36.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

37.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

38.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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39.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

40.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

41.

First- Citizens Ban admits that First Citizens

BancShares, Inc. is a

Delaware

corporation that maintains its principal place of business at 3128 Smoketree Cour, Raleigh

North Carolina 27604, and that it can be served with process through its Registered Agent for
Service , Lewis R. Holding, 239 Fayettevile Street,
Raleigh,

North Carolina 27601. First-

Citizens Ban denies the remaining allegations of this paragraph of the Complaint.
42.

First- Citizens Bank admits

that it is a wholly-owned banking subsidiar of

Defendant First Citizens BancShares, Inc. and that it can be served with process through its
Registered Agent for Service, James B. Hyler,
Jr. ,

239 Fayettevile Street, Raleigh,

North

Carolina 27601. First-Citizens Ban denies the remaining allegations of this paragraph of the

Complaint.
43.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

44.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

45.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

46.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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47.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

48.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

49.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

50.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

51.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

52.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

53.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations ofthis paragraph of the Complaint.
54.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

55.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

56.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

57.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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58.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

II. JURISDICTION AND VENUE
59.

First- Citizens Ban admits that this action arises under the patent laws of the

United States, Title 35 of the United States Code, and that this Cour' s subject matter jurisdiction

over this action is proper under 35 U.S.C.

271 et seq. and 28 U.

C.

1338. First-Citizens

Ban denies the remaining allegations of this paragraph of the Complaint.
60.

First- Citizens Ban denies the allegations of this paragraph of the Complaint with

respect to First-Citizens Ban and First Citizens BancShares, Inc. First-Citizens Bank is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
61.

First- Citizens Ban denies that venue is proper in this Court. First- Citizens Ban

denies the remaining allegations of this paragraph of the Complaint with respect to First- Citizens

Bank and First Citizens BancShares, Inc. First-Citizens Ban is without sufficient knowledge or

information either to admit or deny the remaining allegations of this paragraph of the Complaint
with respect to the other defendants.
62.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

63.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

64.

First- Citizens Ban admits that it owns a common limited liability company

membership interest in The Clearing House Payments Company, LLC. First- Citizens Ban

admits that it is a curent user of Small Value Payments Company, LLC. First- Citizens Ban

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denies that First Citizens BancShares, Inc. is an owner or current user of The Clearing House
Payments Company, LLC and/or Small Value Payments Company, LLC. First-Citizens Ban is
without sufficient knowledge or information either to admit or deny the allegations of this

paragraph of the Complaint with respect to the other defendants. First-Citizens Ban
remaining allegations of this paragraph ofthe Complaint.
65.

denies the

First- Citizens Ban denies the allegations of this paragraph of the Complaint with

respect to First-Citizens Ban and First Citizens BancShares, Inc. First-Citizens Ban admits

that this Cour determined in a previous Order that Small Value Payments Company was subject
to the specific jurisdiction of this Cour but was not subject
to the general jursdiction of this

Court. First-Citizens Ban is without sufficient knowledge or information either to admit or
deny the allegations of this paragraph of the Complaint with respect to the other defendants.

III. PATENT INFRINGEMENT
66.

First- Citizens Ban admits that on its face U. S. Patent No. 5,910 988 (the ''' 988

Patent" ) identifies that it issued on June 8, 1999, identifies Claudio R. Ballard as the sole named

inventor ,
Storage. "

and

includes the title "Remote

Image Capture with Centralized Processing and

First- Citizens Bank denies

the remaining

allegations of this paragraph of the

Complaint.
67.

First- Citizens Ban admits that on its face U. S. Patent No. 6 032 137 (the ''' 137

Patent" ) identifies that it issued on February 29, 2000, identifies Claudio R. Ballard as the sole
named inventor, and includes the title "Remote Image Capture with Centralized Processing and

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Storage.
Complaint. I

First- Citizens Ban

denies the

remammg allegations of this paragraph of the

68.

First- Citizens Ban admits that on its face U. S. Patent No. 5 265 007 (the ''' 007

Patent") identifies that it issued on November 23, 1993 , identifies John L. Barhhard, Jr., Thomas

K. Bowen, Terry L. Geer, and John W. Liebersbach as named joint inventors, and includes the

title "Central Check Clearing System. "
this paragraph of the Complaint.
69.

First-Citizens

Ban denies the remaining allegations of

First- Citizens Ban admits that on its face U. S. Patent No. 5 583 759 (the ''' 759
1996,

Patent" ) identifies that it issued on December 10,

identifies Terry L. Geer as the sole

named inventor, and includes the title "Mechanism for Expediting the Deposit, Transport and
Submission of Checks into the Payment System. " First-Citizens

Ban denies the remaining

allegations of this paragraph of the Complaint.

70.

First- Citizens Ban admits that on its face U. S. Patent No. 5 717 868 (the ''' 868
10, 1998 ,

Patent" ) identifies that it issued on February

identifies David L. James as the sole
First-

named inventor, and includes the title "Electronic Payment Interchange Concentrator.

Citizens Ban denies the remaining allegations of this paragraph of the Complaint.
71.

First- Citizens Ban admits that on its face U. S. Patent No. 5 930 778 (the "' 778

Patent" ) identifies that it issued on July 27, 1999, identifies Terry L. Geer as the sole named
inventor , and includes the title "System for Expediting the Clearing of Financial Instruments and

Coordinating the Same with Invoice Processing at the Point of Receipt." First- Citizens Ban
denies the remaining allegations of this paragraph of the Complaint.
72.
I First-

First- Citizens Ban denies the allegations of this paragraph of the Complaint.

Citizens Bank submits its answer as to allegations regarding the ' 988 and' 137 Patents , for which the Court has entered a stay as to First-Citizens Bank and First Citizens BancShares. (See Docket No. 397). By submitting this answer, First-Citizens Bank does not waive its rights under the stay and seeks no relief from the stay.

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IV. COUNT ONE - THE
73.

988

DEFENDANTS
Inc. has

First- Citizens Ban denies that either it or First Citizens BancShares,

been or is infringing the ' 988 Patent by making, using, sellng, offering for sale, and/or importing
in or into the United States ,

directly, contributorily, and/or by inducement,

without authority,

products and services that fall within the scope of the claims of the ' 988 Patent. First-Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of
this paragraph of the Complaint with respect to the other defendants. First-Citizens Ban denies
the remaining allegations of this paragraph of the Complaint.

74.

First- Citizens Bank denies that either it or First Citizens BancShares, Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 988 Patent among the

defendants and by others. First-Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
75.

First- Citizens Bank denies that either it or First Citizens BancShares, Inc. has

infringed or is infrnging the ' 988 Patent willfully or otherwise. First-Citizens Ban is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
76.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
V. COUNT TWO - THE 137

DEFENDANTS
Inc. has

77.

First- Citizens Ban denies that either it or First Citizens BancShares,

been or is infringing the ' 137 Patent by makng, using, selling, offering for sale, and/or importing
in or into the United States,

directly, contributorily, and/or by inducement,

without authority,

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products and services that fall within the scope of the claims of the ' 137 Patent. First- Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of
this paragraph of the Complaint with respect to the other defendants. First-Citizens Ban denies
the remaining allegations of this paragraph of the Complaint.

78.

First- Citizens Ban denies that either it or First Citizens BancShares, Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 137 Patent among the

defendants and by others. First-Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
79.

First- Citizens Ban denies that either it or First Citizens BancShares,

Inc. has

infringed or is infringing the ' 137 Patent wilfully or otherwise. First-Citizens Ban is without

suffcient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
80.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

VI. COUNT THREE - THE ' 007 DEFENDANTS
81.

First- Citizens Ban denies that either it or First Citizens BancShares,

Inc. has

been or is infringing the ' 007 Patent by making, using, selling, offering for sale , and/or importing
in or into the United States,

directly, contributorily, and/or by inducement, without authority,

products and services that fall within the scope of the claims of the ' 007 Patent. First-Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of
this paragraph of the Complaint with respect to the other defendants. First-Citizens Ban denies
the remaining allegations of this paragraph of the Complaint.

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82.

First- Citizens Ban denies that either it or First Citizens BancShares,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 007 Patent among the

defendants and by others. First-Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
83.

First- Citizens Ban denies that either it or First Citizens BancShares, Inc. has

infringed or is infringing the ' 007 Patent wilfully or otherwise. First-Citizens Ban is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.

VII. COUNT FOUR - THE
84.

759

DEFENDANTS

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
85.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
86.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

VIII.
87.

COUNT FIVE - THE

868

DEFENDANTS
Inc. has

First- Citizens Ban denies that either it or First Citizens BancShares,

been or is infringing the ' 868 Patent by makng, using, selling, offering for sale, and/or importing
in or into the United States,

directly, contributorily, and/or by inducement,

without authority,

products and services that fall within the scope of the claims of the ' 868 Patent. First-Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of

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this paragraph of the Complaint with respect to the other defendants. First-Citizens Ban denies

the remaining allegations of this paragraph of the Complaint.
88.

First- Citizens Bank denies that either it or First Citizens BancShares,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 868 Patent among the

defendants and by others. First-Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
89.

First- Citizens Ban denies that either it or First Citizens BancShares, Inc. has

infinged or is infringing the ' 868 Patent wilfully or otherwise. First-Citizens Ban is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
IX. COUNT SIX THE

778 DEFENDANTS

90.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
91.

First- Citizens Ban is without sufficient knowledge or information either to admit
Complaint.

or deny the allegations ofthis paragraph ofthe
92.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

93.

First- Citizens Ban denies that plaintiff is entitled to any of the relief requested in

paragraphs A.-H. of the Relief section of the Complaint.

AFFIRMATIVE DEFENSES
First Defense
94.

This Court lacks personal jurisdiction over First- Citizens Ban.

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Second Defense

95.

Venue in the Eastern District of Texas is improper.
Third

Defense

96.

First- Citizens Ban has not infinged any valid claim of the ' 007 Patent or the

868 Patent (collectively, the "Asserted Patents
Fourth

Defense

97.

The claims of the Asserted Patents are invalid for failure to comply with the

requirements of Title 35 of the United States Code.
Fifth

Defense

98.

The Asserted

Patents are unenforceable by reason

of inequitable

conduct

committed at the

United States Patent and Trademark

Offce during prosecution of the

applications that eventually matured into the Asserted Patents.

Sixth Defense
99.

On information and belief,

First-

Citizens Bank enjoys actual and/or implied

licenses to the Asserted Patents.
Seventh Defense

100.

Plaintiff s claims of alleged infringement of the Asserted Patents are bared, in

whole or in part, under the doctrine of laches and/or the statute of limitations.

COUNTERCLAIM
Subject to and without waiving the defenses of lack of personal jurisdiction and improper
venue , Defendant First-Citizens Ban counterclaims against plaintiff for declaratory judgment

and alleges the following:

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First-Citizens Ban incorporates by reference

all of the allegations of the

preceding Answer from paragraphs 1 to 100.

This counterclaim arises under the Federal Declaratory Judgment Act, 28 U.
~ 2201-

, and the patent laws of the United States set forth in Title 35 of the United States

Code and in Title 37 ofthe Code of Federal Regulations.

This Cour has jurisdiction over this counterclaim pursuant to 28 U.S.C.
1338(a), and 2201(a). Venue is based on 28 U.S. C.
personal jurisdiction over plaintiff.

~

1331

~ 1391(b), (c) and 1400(b). This Cour has

Plaintiff fied the Complaint against First-Citizens Ban and other defendants for
infringement of the Asserted Patents. Accordingly, an actual justiciable case or controversy

exists between plaintiff and defendants.
First- Citizens Ban has not infringed any valid claim of the Asserted Patents.

The claims of the Asserted Patents are invalid for failure to comply with the
requirements of Title 35 of the United States Code.

The Asserted Patents are unenforceable by reason of inequitable
committed at the

conduct

United States Patent and Trademark Office during prosecution

of the

applications that eventually matued into the Asserted Patents.

On information and belief,
licenses to the Asserted Patents.

First-

Citizens Bank enJoys

actual and/or implied

Plaintiffs claims of alleged infringement of the Asserted Patents are bared , in
whole or in part,.under the doctrine oflaches and/or the statute of limitations.

PRAYER FOR RELIEF
WHEREFORE , First-Citizens Ban respectfully prays that this Cour:

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Dismiss the Complaint with prejudice;
Adjudge , declare, and decree that the claims of the Asserted Patents are invalid

and not infringed by First-Citizens Ban;

Permanently enjoin plaintiff,

its successors , and assigns ,

and anyone acting in

concert therewith or on its behalf, from attempting to enforce the Asserted Patents against First-

Citizens Ban or any parent,

affiliate

, or subsidiar of First-Citizens Ban,

or its respective

officers , agents, employees, successors, and assigns;

Find this case exceptional and award reasonable attorneys'

fees to First- Citizens

Ban pursuant to 35 U.

C. g 285;

Award the costs of this case to First-Citizens Ban; and
Award to First-Citizens Bank any fuher relief to which First-Citizens Ban is
entitled.

JURY DEMAND
First- Citizens Ban demands a trial by jury of all issues so triable pursuant
to Federal

Rule of Civil Procedure 38.

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Dated: January 11 ,

2007.

Respectfully submitted

/s/ Lar D. Carlson Lar D. Carlson, Attorney-in-Charge
Texas State Bar No. 03814500 Mail: lar.carlson bakerbotts. com Fernando Rodrguez, Jr. Texas State Bar No. 24005048 Mail: fernando.rodriguez bakerbotts. com David O. Taylor Texas State Bar No. 24042010 Mail: david.taylor bakerbotts. com BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, Texas 75201
Telephone: [phone] Facsimile: (214) 953- 6503

Donalt 1. Eglinton Mail: die wardandsmith. com WARD AND SMITH, P. Post Office Box 867 New Bern, North Carolina 28563
Telephone: [phone]
Facsimile: [phone]

ATTORNEYS FOR DEFENDANTS FIRSTCITIZENS BANK & TRUST COMPANY AND

FIRST CITIZENS BANCSHAS, INC.

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CERTIFICATE OF SERVICE
I certify that on Januar 2007, all counsel who are deemed to have consented to electronic service are being served with a copy of this document by the Cour' s Electronic Filing System , pursuant to Local Rule CV - 5(a)(3)(A).

/s/ Lar D. Carlson Larry D. Carlson