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

Filing 444

ANSWER to 438 Answer to Complaint, Counterclaim DietGoal Innovations LLC's Answer to Defendant WHole Foods Market, Inc.'s Counterclaims by DietGoal Innovations LLC.(Joe, Christopher)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DIETGOAL INNOVATIONS LLC,

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Plaintiff,
v.
ARBY’S RESTAURANTS GROUP,
INC., et al.,
Defendants.

C.A. No. 2:11-cv-00418-MHS-CMC
JURY TRIAL DEMANDED

DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS
Plaintiff DietGoal Innovations LLC (“DietGoal”) hereby answers the Counterclaims of
Defendant Whole Foods Market, Inc. (“Whole Foods”) filed on April 25, 2012, Dkt. No. 438, by
corresponding paragraph number as follows.
ANSWER TO COUNTERCLAIMS
Unless otherwise addressed herein with an admission, Plaintiff DietGoal generally denies
all allegations in the Counterclaims. Each specific allegation is addressed as follows:
PARTIES
122.

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

Texas corporation having its principal place of business in Austin, Texas.
ANSWER:

DietGoal does not have knowledge or information sufficient to form a

belief as to the truth of the allegations of Paragraph 122 of the Counterclaims and, therefore,
denies the same.
123.

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

limited liability company having its principal place of business in Austin, Texas.
DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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ANSWER:

Admitted.
JURISDICTION AND VENUE

124.

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 patentin-suit and the right of DietGoal to maintain suit for alleged infringement of the patent-in-suit.
ANSWER:

DietGoal acknowledges that this Court has subject matter jurisdiction, that

a controversy exists between the parties, and that Whole Foods purports to seek a declaration of
non-infringement and invalidity, but denies the remaining allegations of Paragraph 124.
DietGoal further denies that Whole Foods is entitled to any relief.
125.

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

has submitted to the personal jurisdiction of this Court by filing the Complaint here.
ANSWER:
126.

Admitted.

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

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

Admitted.

DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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FIRST COUNTERCLAIM
(Declaratory Judgment of Non-Infringement)
127.

Whole Foods has not directly or indirectly infringed, contributed to or 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.
ANSWER:
128.

Denied.

An actual controversy exists between Whole Foods and DietGoal based on

DietGoal having filed its Complaint against Whole Foods alleging infringement the patent-insuit.
ANSWER:

DietGoal admits that an actual controversy exists between the parties, but

denies that Whole Foods is entitled to any relief.
129.

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

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

Denied.

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 [sic] valid and
enforceable claim of the patent-in suit.
ANSWER:

DietGoal admits that Whole Foods purports to seek a declaration of non-

infringement, but denies that Whole Foods is entitled to any relief.
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.
ANSWER:

Denied.

DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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SECOND COUNTERCLAIM
(Declaratory Judgment of Invalidity)
132.

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.
ANSWER:
133.

Denied.

An actual controversy exists between Whole Foods and DietGoal based on

DietGoal having filed its Complaint against Whole Foods alleging infringement the patent-insuit.
ANSWER:

DietGoal admits that an actual controversy exists between the parties, but

denies that Whole Foods is entitled to any relief.
134.

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

asserting an invalid patent.
ANSWER:
135.

Denied.

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.
ANSWER:

DietGoal admits that Whole Foods purports to seek a declaration of

invalidity, but denies that Whole Foods is entitled to any relief.
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.
ANSWER:
137.

Denied.

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.

DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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ANSWER:

DietGoal admits that Whole Foods may amend its Answer and/or

Counterclaims in this matter, but denies that DietGoal is entitled to any relief herein.
WHOLE FOODS’ PRAYER FOR RELIEF
With respect to Whole Foods’ prayer for relief, DietGoal denies that Whole Foods is
entitled to any of the relief sought by its Counterclaims.
AFFIRMATIVE DEFENSES TO COUNTERCLAIMS
As affirmative defenses, DietGoal alleges as follows:
1.

Whole Foods failed to state a claim upon which relief can be granted with respect

to its counterclaims.
2.

Whole Foods failed to state facts or a legal basis sufficient to permit recovery of

its attorneys’ fees or expenses for defending this suit.
3.

DietGoal intends to rely upon any other defense that may become available in this

case and hereby reserves the right to amend this Answer to assert any such defense.

DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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Dated: May 21, 2012

Respectfully submitted,
BUETHER JOE & CARPENTER, LLC
By: /s/ Christopher M. Joe
Christopher M. Joe (Lead Counsel)
State Bar No. 00787770
[e-mail]
Eric W. Buether
State Bar No. 03316880
[e-mail]
Brian A. Carpenter
State Bar No. 03840600
[e-mail]
Monica Tavakoli
State Bar No. 24065822
[e-mail]
Mark D. Perantie
State Bar No. 24053647
[e-mail]
Niky Bukovcan
State Bar No. 24078287
[e-mail]
1700 Pacific Avenue
Suite 4750
Dallas, Texas 75201
Telephone: [phone]
Facsimile:
[phone]
ATTORNEYS FOR PLAINTIFF
DIETGOAL INNOVATIONS LLC

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) on this 21st day of May 2012. Any other counsel of
record will be served by facsimile transmission.
/s/ Christopher M. Joe
Christopher M. Joe
DIETGOAL INNOVATIONS LLC’S ANSWER TO DEFENDANT
WHOLE FOODS MARKET, INC.’S COUNTERCLAIMS

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