Wireless Recognition Technologies LLC v. A9.com, Inc. et al

Filing 34

ANSWER to 1 Complaint,, COUNTERCLAIM against Wireless Recognition Technologies LLC by Amazon.com, Inc..(Shvodian, Daniel)

Wireless Recognition Technologies LLC v. A9.com, Inc. et al

Doc. 34

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION WIRELESS RECOGNITION TECHNOLOGIES LLC, Civil No. 2:10-CV-00364-TJW-CE Plaintiff, vs. A9.COM, INC., AMAZON.COM, INC., GOOGLE, INC., NOKIA, INC., and RICOH INNOVATIONS, INC., Defendants. JURY

AMAZON.COM, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PATENT INFRINGEMENT AND COUNTERCLAIMS Defendant Amazon.com, Inc. ("Amazon") submits this Answer to the complaint ("Complaint") of Plaintiff Wireless Recognition Technologies LLC ("WRT"). Amazon denies the allegations and characterizations in WRT's Complaint unless expressly admitted in the following paragraphs:

ANSWER
ALLEGED NATURE OF THE ACTION 1. infringement. THE PARTIES 2. The allegations of Paragraph 2 are not directed to Amazon, and therefore no Amazon admits that this Complaint purports to be an action for patent

answer is required. To the extent a response is required, Amazon is without knowledge or

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information sufficient to form a belief as to the truth of the allegations in Paragraph 2 and on that basis denies them. 3. The allegations of Paragraph 3 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 3 and on that basis denies them. 4. Amazon admits that it is incorporated under the laws of the State of Delaware and

may be served through its registered agent for service of process, Corporation Service Company d/b/a/ CSC, 6500 Harbour Heights Parkway, Mukilteo, Washington 98275. Amazon denies that its principal place of business is 1200 12th Avenue South, Seattle, Washington 98144. 5. The allegations of Paragraph 5 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 5 and on that basis denies them. 6. The allegations of Paragraph 6 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6 and on that basis denies them. 7. The allegations of Paragraph 7 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7 and on that basis denies them.

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JURISDICTION AND VENUE 8. 9. Amazon admits that this Court has subject matter jurisdiction over this action. Amazon admits that venue is proper in the Eastern District of Texas for purposes

of this particular action only, but denies that venue is convenient or in the interests of justice under 28 U.S.C. § 1404(a). Amazon admits that it offers items for sale through the website www.amazon.com to customers located throughout the world, including those located within the Eastern District of Texas, but denies that it has committed or induced acts of patent infringement in this District. Amazon is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 9 against the other Defendants and on that basis denies them. 10. Amazon admits that this Court has personal jurisdiction over Amazon in this

particular action only and that Amazon offers items for sale through the website www.amazon.com to customers located throughout the world, including those located within this District. Amazon denies that it has committed the tort of patent infringement within the State of Texas, including within this District. Amazon is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 10 against the other Defendants and on that basis denies them. COUNT ONE WRT's Allegation of Infringement of the `287 Patent Against A9 11. 12. Amazon hereby incorporates by reference its responses to Paragraphs 1-8 above. Amazon admits that a purported copy of the `287 patent is attached as Exhibit A

to the Complaint and that the `287 patent speaks for itself. The remaining allegations of Paragraph 12 are not directed to Amazon, and therefore no answer is required. To the extent a

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response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and otherwise denies the allegations of Paragraph 12. 13. Amazon denies the allegations of Paragraph 13 on the grounds that they do not

accurately or fully describe the `287 patent. 14. The allegations of Paragraph 14 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14 and on that basis denies them. 15. The allegations of Paragraph 15 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15 and on that basis denies them. 16. The allegations of Paragraph 16 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 16 and on that basis denies them. COUNT TWO WRT's Allegation of Infringement of the `287 Patent Against Amazon 17. 18. Amazon hereby incorporates by reference its responses to Paragraphs 1-15 above. Amazon admits that a purported copy of the `287 patent is attached as Exhibit A

to the Complaint and that the `287 patent speaks for itself, but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and otherwise denies the allegations of Paragraph 18.

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19.

Amazon denies the allegations of Paragraph 19 on the grounds that they do not

accurately or fully describe the `287 patent. 20. Amazon admits that it makes software applications that includes a feature referred

to by Amazon as "Amazon Remembers," and that the feature may be available as a mobile application. Amazon is without knowledge or information sufficient to form a belief as to the truth of any other allegations in Paragraph 20 and on that basis denies them. 21. 22. Amazon denies the allegations of Paragraph 21. Amazon denies the allegations of Paragraph 22. COUNT THREE WRT's Allegation of Infringement of the `287 Patent Against Google 23. 24. Amazon hereby incorporates by reference its responses to Paragraphs 1-15 above. Amazon admits that a purported copy of the `287 patent is attached as Exhibit A

to the Complaint and that the `287 patent speaks for itself, but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and otherwise denies the allegations of Paragraph 24. 25. Amazon denies the allegations of Paragraph 25 on the grounds that they do not

accurately or fully describe the `287 patent. 26. The allegations of Paragraph 26 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 26 and on that basis denies them. 27. The allegations of Paragraph 27 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or

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information sufficient to form a belief as to the truth of the allegations in Paragraph 27 and on that basis denies them. 28. The allegations of Paragraph 28 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 28 and on that basis denies them. COUNT FOUR WRT's Allegation of Infringement of the `287 Patent Against Nokia 29. 30. Amazon hereby incorporates by reference its responses to Paragraphs 1-15 above. Amazon admits that a purported copy of the `287 patent is attached as Exhibit A

to the Complaint and that the `287 patent speaks for itself, but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and otherwise denies the allegations of Paragraph 30. 31. Amazon denies the allegations of Paragraph 31 on the grounds that they do not

accurately or fully describe the `287 patent. 32. The allegations of Paragraph 32 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 32 and on that basis denies them. 33. The allegations of Paragraph 33 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 33 and on that basis denies them.

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34.

The allegations of Paragraph 34 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 34 and on that basis denies them. COUNT FIVE WRT's Allegation of Infringement of the `287 Patent Against Ricoh 35. 36. Amazon hereby incorporates by reference its responses to Paragraphs 1-15 above. Amazon admits that a purported copy of the `287 patent is attached as Exhibit A

to the Complaint and that the `287 patent speaks for itself, but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and otherwise denies the allegations of Paragraph 36. 37. Amazon denies the allegations of Paragraph 37 on the grounds that they do not

accurately or fully describe the `287 patent. 38. The allegations of Paragraph 38 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 38 and on that basis denies them. 39. The allegations of Paragraph 39 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 39 and on that basis denies them. 40. The allegations of Paragraph 40 are not directed to Amazon, and therefore no

answer is required. To the extent a response is required, Amazon is without knowledge or

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information sufficient to form a belief as to the truth of the allegations in Paragraph 40 and on that basis denies them. Response to WRT's Prayer for Relief 41. Amazon denies that WRT is entitled to any relief whatsoever in this action from

Amazon as prayed for in the Complaint. Amazon is without knowledge or information sufficient to form a belief as to the allegations that WRT is entitled to relief from the other Defendants and on that basis denies them. AFFIRMATIVE DEFENSES Without admitting any allegations of the Complaint not otherwise admitted, Amazon asserts the following affirmative defenses to all counts asserted against Amazon: FIRST AFFIRMATIVE DEFENSE 42. The claims of the `287 patent are invalid for failure to satisfy one or more of the

conditions of patentability, including without limitation those set forth in 35 U.S.C. §§ 101, 102, 103, and/or 112. SECOND AFFIRMATIVE DEFENSE 43. Amazon does not make, use, sell, offer for sale, or import into the United States,

and has not made, used, sold, offered for sale, or imported into the United States products that infringe any valid claims of the `287 patent, either directly, indirectly, contributorily, or otherwise, and has not induced others to infringe this patent.

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THIRD AFFIRMATIVE DEFENSE 44. WRT is barred in whole or in part under principles of equity, including laches,

prosecution laches, waiver, estoppel, and/or unclean hands. FOURTH AFFIRMATIVE DEFENSE 45. On information and belief, WRT lacks standing to assert the `287 patent. FIFTH AFFIRMATIVE DEFENSE 46. By reason of proceedings in the United States Patent and Trademark Office

during the prosecution of the applications that ultimately led to the issuance of the `287 patent, WRT is estopped from asserting that Amazon infringes or has infringed any claim of the `287 patent. SIXTH AFFIRMATIVE DEFENSE 47. On information and belief, a reasonable opportunity for discovery is likely to

show that products which embody the `287 patent have with WRT's authority been sold or imported into the United States without such products having been marked with the relevant patent number as required by 35 U.S.C. § 287. SEVENTH AFFIRMATIVE DEFENSE 48. WRT's claim for damages for infringement of the `287 patent should be denied

under 35 U.S.C. § 287 with respect to any claim for damages occurring before Amazon received notice of infringement. WRT is also barred by 35 U.S.C. § 288 from recovering costs associated with this action.

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EIGHTH AFFIRMATIVE DEFENSE 49. Any claim by WRT for damages in this patent infringement action is limited by

35 U.S.C. § 286 to damages incurred within six years prior to the filing of the Complaint. NINTH AFFIRMATIVE DEFENSE 50. WRT's claims for patent infringement are precluded in whole or in part (i) to the

extent that any allegedly infringing products are supplied, directly or indirectly, to Amazon by an entity or entities having express or implied licenses to the `287 patent and/or (ii) under the doctrine of patent exhaustion. TENTH AFFIRMATIVE DEFENSE 51. To the extent that certain products accused of infringing the `287 patent are used

by the United States Government, WRT's claims are subject to other limitations under 35 U.S.C. § 1498. ELEVENTH AFFIRMATIVE DEFENSE 52. WRT is not entitled to injunctive relief because any alleged remedy is not

immediate or irreparable, because legal remedies are sufficient to compensate WRT for any alleged injury, and because WRT cannot satisfy the requirements for demonstrating the propriety of injunctive relief. TWELFTH AFFIRMATIVE DEFENSE 53. WRT's complaint fails to state a claim on which relief can be granted.

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THIRTEENTH AFFIRMATIVE DEFENSE 54. Venue in the Eastern District of Texas is not convenient or in the interests of

justice under 28 U.S.C. § 1404(a).

COUNTERCLAIMS OF AMAZON
Amazon brings the following counterclaims against WRT: 55. Amazon is a Delaware corporation with its principal place of business at 410

Terry Avenue North, Seattle, Washington 98109. 56. WRT alleges in the Complaint that it is a Texas limited liability corporation with

its principal place of business in this District. JURISDICTION AND VENUE 57. This Court has subject matter jurisdiction over Amazon's counterclaims under

28 U.S.C. §§ 1331, 1338, 2201, and 2202. 58. By filing this proceeding, WRT has consented to personal jurisdiction and venue

in the Eastern District of the Texas. BACKGROUND 59. patent. 60. Amazon has denied that it infringes or has infringed any valid claim of the `287 WRT has filed suit alleging that Amazon infringes or has infringed the `287

patent. Amazon also has asserted that the `287 patent is invalid. 61. Based on the foregoing, there is an actual, immediate, and justiciable controversy

between Amazon and WRT as to the validity and infringement of the `287 patent.

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COUNT ONE (Declaratory Judgment ­ Invalidity of the `287 Patent) 62. 63. Amazon repeats and realleges Paragraphs 1-61 as if fully set forth herein. The claims of the `287 patent are invalid for failure to satisfy one or more of the

conditions of patentability, including without limitation those set forth in 35 U.S.C. §§ 101, 102, 103, and/or 112. COUNT TWO (Declaratory Judgment ­ No Infringement of the `287 Patent) 64. 65. Amazon repeats and realleges Paragraphs 1-63 as if fully set forth herein. The `287 patent is not infringed by Amazon because Amazon does not make, use,

sell, offer for sale, or import into the United States, and has not made, used, sold, offered for sale, or imported into the United States products that infringe any valid claim of the `287 patent, either directly, indirectly, contributorily, or otherwise, and have not induced others to infringe the `287 patent. COUNT THREE (Declaratory Judgment ­ Unenforceability of the `287 Patent) 66. 67. Amazon repeats and realleges Paragraphs 1-65 as if fully set forth herein. On information and belief, WRT is barred from recovering for any alleged

infringement of the `287 patent against Amazon under principles of equity, including laches, prosecution laches, waiver, estoppel, and/or unclean hands. 68. Amazon has not yet pleaded inequitable conduct as an affirmative defense, nor

has it pleaded at this time an affirmative counterclaim based on violation of the antitrust and/or

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unfair competition laws.

If, as Amazon's investigation of the relevant facts progresses, it

becomes apparent that such affirmative defenses and/or counterclaims exist, Amazon reserves the right to seek leave to amend its Answer and Counterclaims appropriately. PRAYER FOR RELIEF Wherefore, Amazon requests the following relief: (a) (b) (c) (d) that WRT's Complaint be dismissed with prejudice; that the `287 patent be declared invalid; that Amazon be declared not to infringe the `287 patent, directly or indirectly; that the Court declare this to be an exceptional case and award Amazon its

reasonable costs and attorneys' fees pursuant to 35 U.S.C. § 285; and (e) that this Court grant such other and further relief to Amazon as this Court may

deem just and equitable and as this Court deems appropriate and necessary. Respectfully submitted,

Dated: November 17, 2010

By:

/s/ Daniel T. Shvodian James F. Valentine (admitted pro hac vice) California State Bar No. 149269 Daniel T. Shvodian (admitted pro hac vice) California State Bar No. 184576 Aaron R. Hand California State Bar No. 245755 (Registered in E.D. Tex.) HOWREY LLP 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 Telephone: [phone] Facsimile: 650.798.3600 E-mail: [e-mail] E-mail: [e-mail] E-mail: [e-mail]

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Michael C. Smith Texas State Bar No. 18650410 SIEBMAN, BURG, PHILLIPS & SMITH, LLP 111 East Austin Street Marshall, TX 75671-1556 Telephone: [phone] Facsimile: 972.767.4620 E-mail: [e-mail] Attorneys for Defendant and Counterclaimant AMAZON.COM, INC.

23534906

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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 17th day of November, 2010, with a copy of this document via the Court's CM/ECF system. /s/ Daniel T. Shvodian Daniel T. Shvodian

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