DietGoal Innovations LLC v. Arby's Restaurant Group, Inc. et al

Filing 438

Whole Foods Market, Inc.'s ANSWER to Complaint Third Amended Complaint, COUNTERCLAIM against DietGoal Innovations LLC by Whole Foods Market, Inc..(Roth, Brendan)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DIETGOAL INNOVATIONS LLC
v.
ARBY’S RESTAURANTS GROUP,
INC., ET AL

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§
§
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CIVIL ACTION NO. 2:11-CV-418-DF

DEFENDANT WHOLE FOODS MARKET, INC.’S
ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS TO
PLAINTIFF DIETGOAL INNOVATIONS LLC’S
THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Defendant Whole Foods Market, Inc. (“Whole Foods”) files its Answer, Affirmative

Defenses and Counterclaims to Plaintiff DietGoal Innovations LLC’s (“DietGoal’s”) Third
Amended Complaint for Patent Infringement (“Complaint”) as follows:
PARTIES

1.

Whole Foods is without knowledge or information sufficient to form a belief

2.

The allegations of paragraph 2 are not directed to Whole Foods, and

as to the truth of the allegations contained in paragraph 1 of the Complaint and, therefore,
denies them.

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 2, and therefore
denies them.
3.

The allegations of paragraph 3 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

1

sufficient to form a belief as to the truth of the allegations of paragraph 3, and therefore
denies them.
4.

The allegations of paragraph 4 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 4, and therefore
denies them.
5.

The allegations of paragraph 5 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 5, and therefore
denies them.
6.

The allegations of paragraph 6 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 6, and therefore
denies them.
7.

The allegations of paragraph 7 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 7, and therefore
denies them.
8.

The allegations of paragraph 8 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 8, and therefore
denies them.

2

9.

The allegations of paragraph 9 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 9, and therefore
denies them.
10.

The allegations of paragraph 10 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 10, and therefore
denies them.
11.

The allegations of paragraph 11 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 11, and therefore
denies them.
12.

The allegations of paragraph 12 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 12, and therefore
denies them.
13.

The allegations of paragraph 13 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 13, and therefore
denies them.
14.

The allegations of paragraph 14 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

3

sufficient to form a belief as to the truth of the allegations of paragraph 14, and therefore
denies them.
15.

The allegations of paragraph 15 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 15, and therefore
denies them.
16.

The allegations of paragraph 16 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 16, and therefore
denies them.
17.

The allegations of paragraph 17 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 17, and therefore
denies them.
18.

The allegations of paragraph 18 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 18, and therefore
denies them.
19.

The allegations of paragraph 19 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 19, and therefore
denies them.

4

20.

The allegations of paragraph 20 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 20, and therefore
denies them.
21.

The allegations of paragraph 21 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 21, and therefore
denies them.
22.

The allegations of paragraph 22 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 22, and therefore
denies them.
23.

The allegations of paragraph 23 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 23, and therefore
denies them.
24.

The allegations of paragraph 24 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 24, and therefore
denies them.
25.

The allegations of paragraph 25 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

5

sufficient to form a belief as to the truth of the allegations of paragraph 25, and therefore
denies them.
26.

The allegations of paragraph 26 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 26, and therefore
denies them.
27.

The allegations of paragraph 27 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 27, and therefore
denies them.
28.

The allegations of paragraph 28 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 28, and therefore
denies them.
29.

The allegations of paragraph 29 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 29, and therefore
denies them.
30.

The allegations of paragraph 30 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 30, and therefore
denies them.

6

31.

The allegations of paragraph 31 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 31, and therefore
denies them.
32.

The allegations of paragraph 32 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 32, and therefore
denies them.
34.
33.

The allegations of paragraph 34 are not directed to Whole Foods, and
Whole Foods admits the allegations contained within paragraph 33.

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 34, and therefore
denies them.
35.

The allegations of paragraph 35 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 35, and therefore
denies them.
36.

The allegations of paragraph 36 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 36, and therefore
denies them.
37.

The allegations of paragraph 37 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

7

sufficient to form a belief as to the truth of the allegations of paragraph 37, and therefore
denies them.
38.

The allegations of paragraph 38 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 38, and therefore
denies them.
39.

The allegations of paragraph 39 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 39, and therefore
denies them.
40.

The allegations of paragraph 40 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 40, and therefore
denies them.
41.

The allegations of paragraph 41 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 41, and therefore
denies them.
42.

The allegations of paragraph 42 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 42, and therefore
denies them.

8

43.

The allegations of paragraph 43 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 43, and therefore
denies them.
44.

The allegations of paragraph 44 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 44, and therefore
denies them.
45.

The allegations of paragraph 45 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 45, and therefore
denies them.
46.

The allegations of paragraph 46 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 46, and therefore
denies them.
47.

The allegations of paragraph 47 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 47, and therefore
denies them.
48.

The allegations of paragraph 48 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

9

sufficient to form a belief as to the truth of the allegations of paragraph 48, and therefore
denies them.
49.

The allegations of paragraph 49 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 49, and therefore
denies them.
50.

The allegations of paragraph 50 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 50, and therefore
denies them.
51.

The allegations of paragraph 51 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 51, and therefore
denies them.
52.

The allegations of paragraph 52 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 52, and therefore
denies them.
53.

The allegations of paragraph 53 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 53, and therefore
denies them.

10

54.

JURISDICTION AND VENUE

Whole Foods admits that this action arises under the patent laws of the

United States, Title 35 of the United States Code.
55.

Whole Foods admits that this Court has subject matter jurisdiction over this

action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
56.

Solely with respect to Whole Foods, Whole Foods admits that this Court has

personal jurisdiction over Whole Foods. Whole Foods denies the remaining allegations
contained in paragraph 56.
57.

Solely with respect to Whole Foods, Whole Foods admits that venue is proper

under 28 U.S.C. §§ 1391 and 1400(b). Whole Foods denies that is has committed and/or
induced acts of patent infringement in this district.
58.

THE PATENT-IN-SUIT

Whole Foods admits that, on its face, Exhibit A appears to be U.S. Patent No.

6,585,516 (“the ‘516 patent”), entitled “Method and System for Computerized Visual

Behavior Analysis, Training, and Planning”, issued on July 1, 2003. Whole Foods is without

knowledge or information sufficient to form a belief as to the truth of the remaining
allegations of paragraph 58, and therefore denies them.
59.

Whole Foods is without knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 59, and therefore denies them.
60.

The allegations of paragraph 60 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 60, and therefore
denies them.

11

61.

The allegations of paragraph 61 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 61, and therefore
denies them.
62.

The allegations of paragraph 62 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 62, and therefore
denies them.
63.

The allegations of paragraph 63 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 63, and therefore
denies them.
64.

The allegations of paragraph 64 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 64, and therefore
denies them.
65.

The allegations of paragraph 65 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 65, and therefore
denies them.
66.

The allegations of paragraph 66 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

12

sufficient to form a belief as to the truth of the allegations of paragraph 66, and therefore
denies them.
67.

The allegations of paragraph 67 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 67, and therefore
denies them.
68.

The allegations of paragraph 68 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 68, and therefore
denies them..
69.

The allegations of paragraph 69 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 69, and therefore
denies them.
70.

The allegations of paragraph 70 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 70, and therefore
denies them.
71.

The allegations of paragraph 71 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 71, and therefore
denies them.

13

72.

The allegations of paragraph 72 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 72, and therefore
denies them.
73.

The allegations of paragraph 73 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 73, and therefore
denies them.
74.

The allegations of paragraph 74 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 74, and therefore
denies them.
75.

The allegations of paragraph 75 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 75, and therefore
denies them.
76.

The allegations of paragraph 76 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 76, and therefore
denies them.
77.

The allegations of paragraph 77 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

14

sufficient to form a belief as to the truth of the allegations of paragraph 77, and therefore
denies them.
78.

The allegations of paragraph 78 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 78, and therefore
denies them.
79.

The allegations of paragraph 79 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 79, and therefore
denies them.
80.

The allegations of paragraph 80 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 80, and therefore
denies them.
81.

The allegations of paragraph 81 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 81, and therefore
denies them.
82.

The allegations of paragraph 82 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 82, and therefore
denies them.

15

83.

The allegations of paragraph 83 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 83, and therefore
denies them.
84.

The allegations of paragraph 84 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 84, and therefore
denies them.
85.

The allegations of paragraph 85 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 85, and therefore
denies them.
86.

The allegations of paragraph 86 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 86, and therefore
denies them.
87.

The allegations of paragraph 87 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 87, and therefore
denies them.
88.

The allegations of paragraph 88 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

16

sufficient to form a belief as to the truth of the allegations of paragraph 88, and therefore
denies them.
89.

The allegations of paragraph 89 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 89, and therefore
denies them.
90.

The allegations of paragraph 90 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 90, and therefore
denies them.
91.

Whole Foods admits that it has a website www.wholefoodsmarket.com.

92.

The allegations of paragraph 92 are not directed to Whole Foods, and

Whole Foods denies the remaining allegations contained paragraph 91 and denies that it
has been or now is directly infringing one or more claims of the ‘516 patent.
therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 92, and therefore
denies them.
93.

The allegations of paragraph 93 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 93, and therefore
denies them.
94.

The allegations of paragraph 94 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

17

sufficient to form a belief as to the truth of the allegations of paragraph 94, and therefore
denies them.
95.

The allegations of paragraph 95 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 95, and therefore
denies them.
96.

The allegations of paragraph 96 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 96, and therefore
denies them.
97.

The allegations of paragraph 97 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 97, and therefore
denies them.
98.

The allegations of paragraph 98 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 98, and therefore
denies them.
99.

The allegations of paragraph 99 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 99, and therefore
denies them.

18

100.

The allegations of paragraph 100 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 100, and therefore
denies them.
101.

The allegations of paragraph 101 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 101, and therefore
denies them.
102.

The allegations of paragraph 102 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 102, and therefore
denies them.
103.

The allegations of paragraph 103 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 103, and therefore
denies them.
104.

The allegations of paragraph 104 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 104, and therefore
denies them.
105.

The allegations of paragraph 105 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

19

sufficient to form a belief as to the truth of the allegations of paragraph 105, and therefore
denies them.
106.

The allegations of paragraph 106 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 106, and therefore
denies them.
107.

The allegations of paragraph 107 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 107, and therefore
denies them.
108.

The allegations of paragraph 108 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 108, and therefore
denies them.
109.

The allegations of paragraph 109 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 109, and therefore
denies them.
110.

The allegations of paragraph 110 are not directed to Whole Foods, and

therefore no answer is required.

Whole Foods is without knowledge or information

sufficient to form a belief as to the truth of the allegations of paragraph 110, and therefore
denies them.
111.

Whole Foods denies the allegations contained in paragraph 111.

20

112.

Whole Foods denies the allegations contained in paragraph 112.

114.

DEMAND FOR JURY TRIAL

113.

Whole Foods denies the allegations contained in paragraph 113.
Paragraph 114 does not require a response by Whole Foods.
PLAINTIFF’S PRAYER FOR RELIEF

Whole Foods denies that Plaintiff is entitled to any of its requests for relief against

Whole Foods.

AFFIRMATIVE DEFENSES

Whole Foods’ Affirmative Defenses are provided below. Whole Foods reserves the

right to amend its Answer to add additional Affirmative Defenses, including instances of
inequitable conduct, consistent with the facts discovered in the case.
115.

FIRST DEFENSE

Whole Foods does not infringe and has not infringed any claim of U.S. Patent

No. 6,585,516 (“the ‘516 patent”) under any theory, including directly (whether

individually or jointly), indirectly (whether contributorily or by inducement), literally, or
under the doctrine of equivalents.
116.

SECOND DEFENSE

The ‘516 patent is invalid and/or unenforceable for failure to satisfy one or

more of the conditions of patentability specified in 35 U.S.C. § 100 et seq., including, but not
limited to §§ 101, 102, 103, and 112.
117.

THIRD DEFENSE

Any claim by DietGoal for damages are limited under 35 U.S.C. §§ 286 or 287.

DietGoal is barred under 35 U.S.C. § 287 from recovering damages prior to the date of the

21

filing of the Original Complaint. DietGoal is barred by 35 U.S.C. § 288 from recovering costs
associated with their action.
118.

FOURTH DEFENSE

To the extent that DietGoal asserts that Whole Foods indirectly infringes,

either by contributory infringement or inducement of infringement, Whole Foods is not

liable to DietGoal for the acts performed before Red Robin allegedly knew that its actions

would cause direct infringement.

FIFTH DEFENSE

equitable estoppels and/or waiver.

SIXTH DEFENSE

119.
120.

DietGoal’s claims are barred, in whole or in part, by the doctrine of laches,
DietGoal is estopped from construing any valid claim of the ‘516 patent to be

infringed literally or by the Doctrine of Equivalents due to prosecution history estoppel,

including but not limited to admissions or statements made to the United States Patent and
Trademark Office (“USPTO”) during prosecution of the patent in suit or because of the

disclosure or language of the specification or claims thereof.
121.

SEVENTH DEFENSE

DietGoal’s claims for patent infringement are precluded in whole or in part

(i) to the extent that any allegedly infringing products or components thereof are supplied,

directly or indirectly, to Whole Foods or are imported, sold by, offered for sale by, made by,

or made for, any entity or entities having express or implied licenses to the patent-in-suit
and/or (ii) under the doctrine of patent exhaustion.

COUNTERCLAIMS
22

Whole Foods asserts the following declaratory relief counterclaims against DietGoal:
122.

PARTIES

Defendant and Counterclaimant Whole Foods Market, Inc. (“Whole Foods”) is

a Texas corporation having its principal place of business in Austin, Texas.
123.

On information and belief DietGoal Innovations LLC (“DietGoal”) is a Texas

limited liability company having its principal place of business in Austin, Texas.
124.

JURISDICTION AND VENUE

This Court has jurisdiction over Whole Food’s Declaratory Judgment claims

pursuant to 28 U.S.C. §§ 2201-2202 and subject matter jurisdiction over patent
infringement and validity pursuant to 28 U.S.C. §§ 1331 and 1338(a).

An actual,

substantial, and continuing justiciable controversy exists between Whole Foods and
DietGoal based on DietGoal having filed a Complaint against Whole Foods alleging

infringement of U.S. Patent No. 6,585,516 (“the ‘516 patent”), with respect to which Whole

Foods requires a declaration of its rights by this Court. Specifically, the controversy
concerns the invalidity and noninfringement of the patent-in-suit and the right of DietGoal
to maintain suit for alleged infringement of the patent-in-suit.
125.

The Court has personal jurisdiction over DietGoal, inter alia, because

126.

Venue is proper in this District pursuant to 28 U.S.C. §§1391(b) and 1400(b),

DietGoal has submitted to the personal jurisdiction of this Court by filing the Complaint
here.

inter alia, because DietGoal has submitted to the venue of this Court by filing its Complaint
here.

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FIRST COUNTERCLAIM
(Declaratory Judgment of Non-Infringement)

127.

Whole Foods has not directly or indirectly infringed, contributed to or

128.

An actual controversy exists between Whole Foods and DietGoal based on

129.

Whole Foods has been injured and damaged by DietGoal filing its Complaint

induced infringement of any valid or enforceable claim of the patent-in-suit, and has not
otherwise committed any acts in violation of 35 U.S.C. §271.

DietGoal having filed its Complaint against Whole Foods alleging infringement the patentin-suit.

asserting a patent that Whole Foods does not infringe.
130.

Whole Foods therefore seeks a declaration that it has not infringed, and does

not infringe, literally or under the doctrine of equivalents, directly or indirectly, and valid
and enforceable claim of the patent-in-suit.
131.

This is an exceptional case entitling Whole Foods to an award of its

attorney’s fees incurred in connection with this action pursuant to 35 U.S.C. §285.
132.

SECOND COUNTERCLAIM
(DECLARATORY JUDGMENT OF INVALIDITY)

The patent-in-suit is invalid for failing to meet the conditions for

patentability as set forth in 35 U.S.C. §§ 100, 101, 102, 103 and 112.
133.

An actual controversy exists between Whole Foods and DietGoal based on

DietGoal having filed its Complaint against Whole Foods alleging infringement the patentin-suit.

134.

Whole Foods has been injured and damaged by DietGoal filing its Complaint

asserting an invalid patent.

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135.

Whole Foods therefore seeks a declaration that the patent-in-suit are invalid

for failing to meet the conditions for patentability as set forth in 35 U.S.C. § 1 et seq.
136.

This is an exceptional case entitling Whole Foods to an award of its

attorney’s fees incurred in connection with this action pursuant to 35 U.S.C. §285.
137.

Whole Foods continues to investigate this matter and reserves the right to

amend its Answer and/or Counterclaims to assert any additional defenses or counterclaims
that come to light upon further investigation and discovery.
PRAYER FOR RELIEF

WHEREFORE Whole Foods prays that:
138.

the Court dismiss the Complaint against Whole Foods with prejudice;

140.

the Court declare that U.S. Patent No. 6,585,516 is invalid;

139.

the Court declare that Whole Foods has not infringed and does not infringe

U.S. Patent No. 6,585,516;
141.

the Court declare that DietGoal is not entitled to any remedy or relief

whatsoever against Whole Foods;
142.

the Court award Whole Foods its costs, together with reasonable attorneys

fees and all of its expenses for this suit because this is an exceptional case under 35 U.S.C.
§285; and

143.

and proper.

the Court award Whole Foods such other relief as this Court may deem just

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Dated: April 25, 2012

Respectfully submitted,

_________________________________
Carl R. Roth
[e-mail]
Brendan C. Roth
[e-mail]
Amanda A. Abraham
[e-mail]
THE ROTH LAW FIRM, P.C.
115 N. Wellington, Suite 200
Marshall, Texas 75670
Telephone: [phone]
Facsimile: [phone]

ATTORNEYS FOR DEFENDANT
WHOLE FOODS MARKET, INC.

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) this 25th day of April, 2012. Any other
counsel of record will be served by facsimile transmission and/or first class mail.
________________________________
Brendan C. Roth

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