Antor Media Corporation v. Metacafe, Inc.

Filing 63

ANSWER to Amended Complaint and, COUNTERCLAIM against Antor Media Corporation by GoTult Media Corp..(Gardner, Allen)

Antor Media Corporation v. Metacafe, Inc.

Doc. 63

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

ANTOR MEDIA CORPORATION,

) ) Plaintiff, ) ) vs. ) ) (1) METACAFE, INC., ) (2) GOOGLE, INC., ) (3) YOUTUBE, INC., ) (4) SONY PICTURES ENTERTAINMENT, ) INC., ) (5) SONY ELECTRONICS, INC., ) (6) SONY COMPUTER ENTERTAINMENT ) AMERICA, INC., ) (7) SONY BMG MUSIC ENTERTAINMENT ) GP, ) (8) SONY CORPORATION, ) (9) SONY CORPORATION OF AMERICA, ) (10) GROUPER NETWORKS, INC., ) (11) GOTUIT MEDIA CORP., ) (12) DISCOVERY COMMUNICATIONS, INC., ) (13) MACMILLAN PUBLISHERS, INC., ) (14) MACMILLAN PUBLISHER, LTD., ) (15) PURE VIDEO NETWORKS, INC., ) (16) DIGITAL PLAYGROUND, INC., ) (17) NEW FRONTIER MEDIA, INC., ) (18) SBO PICTURES, INC., ) (19) VIVID ENTERTAINMENT, LLC, ) (20) SUN MICROSYSTEMS, INC., ) (21) MLB ADVANCED MEDIA, L.P. ) ) Defendants. )

Civil Action No. 2:07-cv-102 Judge David Folsom

Jury Demand

ANSWER AND COUNTERCLAIMS OF DEFENDANT GOTUIT MEDIA CORPORATION TO THE SECOND AMENDED COMPLAINT Defendant Gotuit Media Corporation ("Gotuit"), by its undersigned attorneys, upon knowledge as to itself and its own acts, and otherwise upon information and belief, responds to

{A48\7799\0001\W0328352.1 }

Dockets.Justia.com

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 2 of 11

the allegations in the Second Amended Complaint for Patent Infringement ("Second Amended Complaint") of Plaintiff Antor Media Corporation ("Antor") as follows: PARTIES 1. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 1 of the Second Amended Complaint and accordingly denies all such allegations. 2. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 2 of the Second Amended Complaint and accordingly denies all such allegations. 3. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 3 of the Second Amended Complaint and accordingly denies all such allegations. 4. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 4 of the Second Amended Complaint and accordingly denies all such allegations. 5. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 5 of the Second Amended Complaint and accordingly denies all such allegations. 6. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 6 of the Second Amended Complaint and accordingly denies all such allegations.

{A48\7799\0001\W0328352.1 } 10567273_1

-2-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 3 of 11

7.

Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 7 of the Second Amended Complaint and accordingly denies all such allegations. 8. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 8 of the Second Amended Complaint and accordingly denies all such allegations. 9. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 9 of the Second Amended Complaint and accordingly denies all such allegations. 10. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 10 of the Second Amended Complaint and accordingly denies all such allegations. 11. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 11 of the Second Amended Complaint and accordingly denies all such allegations. 12. Gotuit admits that it is a Delaware Corporation with its principal place of business

at 15 Constitution Way, Woburn, MA 01801, and that its statutory agent is Corporation Service Company, 84 State Street, Boston, MA 02109. 13. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 13 of the Second Amended Complaint and accordingly denies all such allegations.

{A48\7799\0001\W0328352.1 } 10567273_1

-3-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 4 of 11

14.

Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 14 of the Second Amended Complaint and accordingly denies all such allegations. 15. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 15 of the Second Amended Complaint and accordingly denies all such allegations. 16. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 16 of the Second Amended Complaint and accordingly denies all such allegations. 17. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 17 of the Second Amended Complaint and accordingly denies all such allegations. 18. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 18 of the Second Amended Complaint and accordingly denies all such allegations. 19. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 19 of the Second Amended Complaint and accordingly denies all such allegations. 20. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 20 of the Second Amended Complaint and accordingly denies all such allegations.

{A48\7799\0001\W0328352.1 } 10567273_1

-4-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 5 of 11

21.

Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 21 of the Second Amended Complaint and accordingly denies all such allegations. 22. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 22 of the Second Amended Complaint and accordingly denies all such allegations. JURISDICTION 23. Gotuit admits that the Second Amended Complaint purports to bring an action for

patent infringement arising under the laws of the United States, 35 U.S.C. § 1, et seq. Answering further, Gotuit admits that the Second Amended Complaint purports that jurisdiction is based on provisions 28 U.S.C. §§ 1331 and 1338(a). Gotuit otherwise denies the averments contained in Paragraph 23 of the Second Amended Complaint. VENUE 24. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained the first sentence of Paragraph 24 of the Second Amended Complaint and accordingly denies all such allegations. Further answering, Gotuit lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in the second and third sentences of Paragraph 24 of the Second Amended Complaint to the extent that they relate to defendants other than Gotuit and accordingly denies all such allegations. Further answering, Gotuit denies that it has done and continues to do business in this Judicial District and that venue is proper in this District.

{A48\7799\0001\W0328352.1 } 10567273_1

-5-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 6 of 11

INFRINGEMENT OF U.S. PATENT NO. 5,734,961 25. Gotuit admits that, on its face, United States Patent No. 5,734,961 ("the '961

Patent"), entitled "Method and Apparatus for Transmitting Information Recorded on Information Storage Means from a Central Server to Subscribers via a High Data Rate Digital Telecommunications Network," was issued on March 31, 1998 and that a copy of the '961 Patent is attached to the Second Amended Complaint as Exhibit 1. Gotuit lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 25 of the Second Amended Complaint and accordingly denies all such allegations. 26. Gotuit denies the allegations contained in Paragraph 26 of the Second Amended

Complaint to the extent that those allegations concern Gotuit. Further answering, Gotuit lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 26 of the Second Amended Complaint to the extent that they relate to defendants other than Gotuit and accordingly denies all such allegations.. 27. Gotuit denies the allegations contained in Paragraph 27 of the Second Amended

Complaint to the extent that those allegations concern Gotuit. Further answering, Gotuit lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 27 of the Second Amended Complaint to the extent that they relate to defendants other than Gotuit and accordingly denies all such allegations.. 28. Gotuit denies the allegations contained in Paragraph 28 of the Second Amended

Complaint to the extent that those allegations concern Gotuit. Further answering, Gotuit lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 28 of the Second Amended Complaint to the extent that they relate to defendants other than Gotuit and accordingly denies all such allegations..
{A48\7799\0001\W0328352.1 } 10567273_1

-6-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 7 of 11

AFFIRMATIVE DEFENSES Without assuming any burden that it would not otherwise have, Gotuit asserts the following defenses: First Affirmative Defense 29. Gotuit has not infringed, directly, literally, by equivalence, by inducement,

contributorily, or otherwise, any valid claim of the '961 Patent. Second Affirmative Defense 30. One or more of the claims of the '961 Patent is invalid for failure to comply with

the conditions for patentability specified in 35 U.S.C. § 101, et seq., including without limitation the requirements in 35 U.S.C. §§ 101, 102, 103, and 112. Third Affirmative Defense 31. Antor's claims for patent infringement and/or damages are barred by laches,

estoppel, and/or acquiescence. Fourth Affirmative Defense 32. Antor has failed to state a claim upon which relief may be granted. GOTUIT'S COUNTERCLAIM 33. Pursuant to Fed. R. Civ. P. 13, Defendant Gotuit, for its counterclaims against

Antor, alleges as follows: THE PARTIES 34. Gotuit is a Delaware Corporation with its principal place of business at 15

Constitution Way, Woburn, MA 01801. 35. Upon information and belief, Antor is a Texas Corporation with its principal place

of business in Plano, Texas.

{A48\7799\0001\W0328352.1 } 10567273_1

-7-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 8 of 11

JURISDICTION AND VENUE 36. This action arises under the patent laws of the United States, 35 U.S.C. § 100, et

seq., and the Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202, based on an actual justiciable controversy between Antor and Gotuit. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1338(a) and 2201. 37. 1400(b). FIRST COUNTERCLAIM (Noninfringement of the `961 Patent) 38. Gotuit repeats, reiterates and realleges each and every allegation in paragraphs 29 Venue is proper in this Judicial District under 28 U.S.C. §§ 1391(b), 1391(c) and

through 37 of the Answer And Counterclaims Of Defendant Gotuit Media Corporation To The Second Amended Complaint as if set forth fully herein. 39. There is an actual case or controversy between Gotuit and Antor concerning the

alleged infringement of the `961 Patent by virtue of the allegations of the Second Amended Complaint and the Answer And Counterclaims Of Defendant Gotuit Media Corporation To The Second Amended Complaint in this action. 40. Gotuit has not and does not infringe, contribute to the infringement of, or actively

induce others to infringe, any valid claim of the`961 patents. 41. Gotuit requests a judgment declaring that Gotuit does not infringe any valid claim

of the `961 Patent. 42. Antor conduct renders this an exceptional case within the provisions of 35 U.S.C.

§ 285, entitling Gotuit to an award of costs, expenses and reasonable attorneys' fees.

{A48\7799\0001\W0328352.1 } 10567273_1

-8-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 9 of 11

SECOND COUNTERCLAIM (Invalidity of the `961 Patent) 43. Gotuit repeats, reiterates and realleges each and every allegation in paragraphs 29

through 42 of the Second Amended Complaint and the Answer And Counterclaims Of Defendant Gotuit Media Corporation To The Second Amended Complaint. 44. There is an actual case or controversy between Gotuit and Antor concerning the

alleged infringement of the `961 Patent by virtue of the allegations of the Second Amended Complaint and the Answer And Counterclaims Of Defendant Gotuit Media Corporation To The Second Amended Complaint in this action. 45. Each claim of the `961 Patent is invalid for failure to meet one or more of the

provisions governing patentability specified in 35 U.S.C. §§ 102, 103, and/or 112. 46. 47. Gotuit requests a judgment declaring that the `961 Patent is invalid. Antor's conduct renders this an exceptional case within the provisions of 35

U.S.C. § 285, entitling Gotuit to an award of costs, expenses and reasonable attorneys' fees. JURY DEMANDED Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Gotuit respectfully demands a trial by jury of all issues triable of right by a jury.

PRAYER FOR RELIEF WHEREFORE, Gotuit respectfully prays that judgment be entered in its favor, including: A. B. Adjudging that the `961 Patent is invalid; Adjudging that the `961 Patent is not infringed by the Gotuit;

{A48\7799\0001\W0328352.1 } 10567273_1

-9-

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 10 of 11

C.

Dismissing Antor's claims in their entirety with prejudice and adjudging

that Antor take nothing from its Second Amended Complaint; E. Preliminarily and permanently enjoining Antor, its respective officers,

agents, servants, employees, attorneys, all parent and subsidiary corporations, their assigns and successors in interest, and those persons in active concert or participation with them, from directly or indirectly charging or instituting an action for infringement of the `961 Patent against Gotuit or any person or entity in privity with Gotuit, including without limitation Gotuit's successors, assigns, agents, suppliers, and customers; F. Adjudging this to be an exceptional case and awarding Gotuit its costs,

expenses, and reasonable attorneys' fees pursuant to 35 U.S.C. § 285; and G. just and proper. Dated: June 11,2007 Respectfully submitted, /s/ Allen F. Gardner Michael E. Jones State Bar No. 10929400 [e-mail] John F. Bufe State Bar No. 03316930 [e-mail] Allen F. Gardner [e-mail] POTTER MINTON, PC 110 N. College, 500 Plaza Tower Tyler, TX 75702 Telephone: [phone] Facsimile: [phone] Attorneys for DEFENDANT GOTUIT & SONS COMPANY Awarding to Gotuit such other and further relief as the Court may deem

Of Counsel:
{A48\7799\0001\W0328352.1 } 10567273_1

- 10 -

Case 2:07-cv-00102-DF

Document 63

Filed 06/08/2007

Page 11 of 11

Edward J. Kelly [e-mail] ROPES & GRAY LLP One International Place Boston, MA 02110-2624 [phone] Dalila Argaez Wendlandt [e-mail] ROPES & GRAY LLP One International Place Boston, MA 02110-2624 [phone] CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3) on June 8, 2007. Any other counsel of record will be served by first class U.S. mail on this same date. /s/ Allen F. Gardner Allen F. Gardner

{A48\7799\0001\W0328352.1 } 10567273_1

- 11 -