EMG Technology, LLC v. Apple, Inc.

Filing 103

Plaintiff and CounterDefendant's ANSWER to 93 Answer to Amended Complaint, Counterclaim of Apple, Inc. by EMG Technology, LLC.(Ainsworth, Charles)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION CASE NO. 6:08-CV-447-LED JURY TRIAL DEMANDED

EMG TECHNOLOGY, LLC, Plaintiff, v. APPLE, INC., AMERICAN AIRLINES, INC., BLOOMBERG, L.P., CONTINENTAL AIRLINES, INC., UNITED PARCEL SERVICE, INC., Defendants.

PLAINTIFF AND COUNTERDEFENDANT EMG TECHNOLOGY LLC'S ANSWER TO COUNTERCLAIM OF APPLE, INC. Pursuant to Fed . R. Civ. P. 8(b), EMG Technology, LLC ("EMG") hereby responds to the Counterclaim of Apple, Inc. ("Apple") as follows. Unless specifically admitted, EMG generally denies all allegations in the Counterclaim. EMG expressly denies that Apple is entitled to any relief whatsoever in connection with its Counterclaim, including, but not limited to, all relief requested in Apple's Prayer for Relief.

JURISDICTION AND VENUE 30. 31. 32. 33. EMG admits the allegations contained in Paragraph 30. EMG admits the allegations contained in Paragraph 31. EMG admits the allegations contained in Paragraph 32. EMG admits the allegations contained in Paragraph 33.

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FACTS CONCERNING THE '196 PATENT 34. EMG admits that it is the owner by assignment of United States Patent No.

7,441,196 (the "'196 Patent"), which, on its face, is entitled "Apparatus and Method of Manipulating a Region on a Wireless Device Screen for Viewing, Zooming and Scrolling Internet Content" filed on March 13, 2006, and issued on October 21,2008. EMG admits that Elliot A. Gottfurcht, Grant E. Gottfurcht, and Albert-Michel C. Long are the inventors of the '196 Patent and that a copy of the '196 Patent was attached as Exhibit A to EMG's Third Amended Complaint. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 34. FACTS CONCERNING THE '845 PATENT 35. EMG admits that it is the owner by assignment of United States Patent No.

7,020,845 (the "'845 Patent"), which, on its face, is entitled "Navigating Internet Content on a Television Using a Simplified Interface and a Remote Control." filed on March 3, 2000, and issued on March 28, 2006. EMG admits that Elliot A. Gottfurcht, Grant E. Gottfurcht, and Albert-Michel C. Long are the inventors of the '845 Patent and that a copy of the '845 Patent was attached as Exhibit B to EMG's Third Amended Complaint. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 35. COUNT ONE - UNITED STATES PATENT NO. 7,441,196 DECLARATION OF NONINFRINGEMENT 36. EMG incorporates by reference its responses to Paragraphs 30-35 above as though

fully set forth herein. 37. EMG admits that an actual controversy currently exists between EMG and Apple

with respect to infringement of the '196 patent and that EMG brought this action against Apple and others alleging that Apple infringes the '196 Patent and Apple denies that allegation. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 37. 38. 39. EMG denies the allegations contained in Paragraph 38. EMG denies the allegations contained in Paragraph 39.

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COUNT TWO - UNITED STATES PATENT NO. 7,020,845 DECLARATION OF NONINFRINGEMENT 40. EMG incorporates by reference its responses to Paragraphs 30-39 above as though

fully set forth herein. 41. EMG admits that an actual controversy currently exists between EMG and Apple

with respect to infringement of the '845 patent and that EMG brought this action against Apple and others alleging that Apple infringes the '845 Patent and Apple denies that allegation. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 41. 42. 43. EMG denies the allegations contained in Paragraph 42. EMG denies the allegations contained in Paragraph 43. COUNT THREE - UNITED STATES PATENT NO. 7,441,196 DECLARATION OF INVALIDITY 44. EMG incorporates by reference its responses to Paragraphs 30-43 above as though

fully set forth herein. 45. EMG admits that an actual controversy currently exists between EMG and Apple

regarding the validity of the '196 patent and that EMG brought this action against Apple and others alleging that Apple infringes the '196 Patent and that Apple denies that allegation. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 45. 46. 47. EMG denies the allegations contained in Paragraph 46. EMG denies the allegations contained in Paragraph 47. COUNT FOUR - UNITED STATES PATENT NO. 7,020,845 DECLARATION OF INVALIDITY 48. EMG incorporates by reference its responses to Paragraphs 30-47 above as though

fully set forth herein.

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49.

EMG admits that an actual controversy currently exists between EMG and Apple

regarding the validity of the '845 patent and that EMG brought this action against Apple and others alleging that Apple infringes the '845 Patent and that Apple denies that allegation. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 49. 50. 51. EMG denies the allegations contained in Paragraph 50. EMG denies the allegations contained in Paragraph 51. PRAYER FOR RELIEF WHEREFORE, EMG prays that this Court enter judgment against Apple as follows: (a) Dismissing Apple's Counterclaim with prejudice and ordering that Apple is entitled

to no recovery on the Counterclaim; (b) Ordering that this is an exceptional case pursuant to 35 U.S.C. § 285, and awarding

EMG its attorney fees and full costs of suit; and (c) appropriate. Dated: July 23, 2009 OF COUNSEL: Jeffer, Mangels, Butler and Marmaro, LLP Stanley M. Gibson (Cal. Bar No. 162329) [e-mail] Joshua S. Hodas, Ph.D. (Cal. Bar No. 250812) [e-mail] 1900 Avenue of the Stars, Seventh Floor Los Angeles, CA 90067 Telephone: [phone] Facsimile: [phone] Manatt, Phelps & Phillips, LLP Robert D. Becker (Cal. Bar No. 160648) [e-mail] Respectfully Submitted, By: /s/ Charles Ainsworth Charles Ainsworth State Bar No. 00783521 Robert Christopher Bunt State Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, TX 75702 903/531-3535 903/533-9687 E-mail: [e-mail] E-mail: [e-mail] ATTORNEYS FOR PLAINTIFF, EMG TECHNOLOGY, LLC Awarding EMG such other and further relief as this Court deems just and

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Shawn G. Hansen (Cal. Bar No. 197033) [e-mail] 1001 Page Mill Road, Building 2 Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone]

CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service, are being served this 23th day of July, 2009, with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). /s/ Charles Ainsworth CHARLES AINSWORTH

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