Beneficial Innovations, Inc. v. Careerbuilder, LLC et al

Filing 105

RESPONSE to 74 Answer to Amended Complaint, Counterclaim by NBC Universal, Inc. by Beneficial Innovations, Inc.. (Adams, Julien)

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

BENEFICIAL INNOVATIONS, INC., Plaintiff, vs. CAREERBUILDER, LLC., a Delaware corporation; CNET NETWORKS, INC., a Delaware corporation; THE DALLAS MORNING NEWS, INC., a Delaware corporation; DIGG, INC., a Delaware corporation; EBAUM'S WORLD, INC., a New York corporation; GOOGLE INC., a Delaware corporation; JABEZ NETWORKS, INC., a Tennessee corporation; MORRIS COMMUNICATIONS COMPANY, LLC, a Georgia limited liability company; THE NEW YORK TIMES COMPANY, a New York corporation; YAHOO! INC., a Delaware corporation; and YOUTUBE, LLC, a Delaware limited liability company, Defendants. PLAINTIFF AND COUNTERDEFENDANT BENEFICIAL INNOVATIONS, INC.'S REPLY TO COUNTERCLAIMS OF DEFENDANT NBC UNIVERSAL, INC.
Plaintiff and Counterdefendant Beneficial Innovations, Inc. ("Beneficial Innovations") hereby answers the counterclaims of Defendant and Counterclaimant NBC Universal, Inc. ("NBCU"). All of the allegations of NBCU's Counterclaims not specifically admitted are hereby denied.

CASE NO. 2:09-CV-175-TJW Jury Trial Demanded

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PARTIES 1. Upon information and belief, Plaintiff and Counterdefendant Beneficial Innovations

admits that NBCU is a corporation organized and existing under the laws of the state of Delaware with its principal place of business in New York, New York. 2. Plaintiff and Counterdefendant Beneficial Innovations admits it is a corporation

existing under and by virtue of the laws of the State of Nevada and denies all other allegations contained in paragraph 2 of NBCU's Counterclaims. JURISDICTION AND VENUE 3. Plaintiff and Counterdefendant Beneficial Innovations admits the allegations of

subject matter jurisdiction in paragraph 3 of NBCU's Counterclaims. 4. Plaintiff and Counterdefendant Beneficial Innovations admits that venue is proper.

Beneficial Innovations denies all other allegations contained in paragraph 4 of NBCU's Counterclaims. COUNTERCLAIMS 5. Plaintiff and Counterdefendant Beneficial Innovations admits that the `943 patent

was issued by the United States Patent and Trademark Office on February 4, 2009, and that it is the owner of all rights and title to the `943 patent. Beneficial Innovations denies all other allegations contained in paragraph 5 of NBCU's Counterclaims. 6. Plaintiff and Counterdefendant Beneficial Innovations admits that it has alleged that

certain acts by NBCU infringe the `943 patent, which allegations NBCU denies. 7. Plaintiff and Counterdefendant Beneficial Innovations admits that an actual

controversy exists between Beneficial Innovations and NBCU regarding the validity, enforceability, and infringement of the `943 patent. FIRST CAUSE OF ACTION Declaratory Judgment of Non-Infringement

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8.

Paragraph 8 of NBCU's Counterclaims re-alleges and incorporates by reference the

allegations of paragraphs 1 through 7 of NBCU's Counterclaims. Beneficial Innovations incorporates by reference its response to the allegations of paragraphs 1 through 7 of NBCU's Counterclaims. Except as expressly admitted, Beneficial Innovations denies each of the allegations of paragraph 8. 9. Plaintiff and Counterdefendant Beneficial Innovations denies the allegations

contained in paragraph 9 of NBCU's Counterclaims. SECOND CAUSE OF ACTION Declaratory Judgment of Invalidity and/or Unenforceability 10. Paragraph 10 of NBCU's Counterclaims re-alleges and incorporates by reference the

allegations of paragraphs 1 through 22 of NBCU's Answer, paragraphs 1 through 8 of its Affirmative Defenses, and paragraphs 1 through 9 of its Counterclaims. Beneficial Innovations incorporates by reference its response to the allegations of paragraphs 1 through 9 of NBCU's Counterclaims. Except as expressly admitted, Beneficial Innovations denies each of the allegations of paragraph 10. 11. Plaintiff and Counterdefendant Beneficial Innovations denies the allegations

contained in paragraph 11 of NBCU's Counterclaims. EXCEPTIONAL CASE 12. Plaintiff and Counterdefendant Beneficial Innovations denies the allegations

contained in paragraph 12 of NBCU's Counterclaims. RELIEF REQUESTED Plaintiff and Counterdefendant Beneficial Innovations denies that NBCU is entitled to the relief it seeks or any relief for the allegations made in their Answer and Counterclaims. Plaintiff and Counterdefendant Beneficial Innovations requests that judgment be entered in its favor on all issues and it be awarded the appropriate damages, exceptional damages, costs, and attorneys' fees.

DEMAND FOR JURY TRIAL
Plaintiff and Counterdefendant Beneficial Innovations demands trial by jury of all issues.

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Dated: December 10, 2009

Respectfully submitted, By: /s/ Julien A. Adams S. Calvin Capshaw State Bar No. 03783900 Elizabeth L. DeRieux State Bar No. 05770585 Capshaw DeRieux, LLP Energy Centre 1127 Judson Road, Suite 220 P. O. Box 3999 (75606-3999) Longview, Texas 75601-5157 Email: [e-mail] Email: [e-mail] Robert Christopher Bunt State Bar No. 00787165 Email: [e-mail] Robert M Parker State Bar No. 15498000 Email: [e-mail] Parker & Bunt, P.C. 100 East Ferguson, Ste. 1114 Tyler, TX 75702 Telephone: [phone] Facsimile: 903/533-9687

Of Counsel: Gregory S. Dovel CA State Bar No. 135387 Julien Adams CA State Bar No. 156135 Dovel & Luner, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Telephone: [phone] Facsimile: 310-657-7069 email: [e-mail] email: [e-mail]

ATTORNEYS FOR PLAINTIFF BENEFICIAL INNOVATIONS, LLC

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CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service are being served this 10th day of December 2009, with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date.

/s/ Julien A. Adams Julien A. Adams

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