EMG Technology, LLC v. Apple, Inc.

Filing 147

Plaintiff and CounterDefendant EMG's ANSWER to 130 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 EMG TECHNOLOGY, LLC, Plaintiff, v. APPLE, INC., AMERICAN AIRLINES, INC., BLOOMBERG, L.P., UNITED PARCEL SERVICE, INC., & DELL, INC., Defendants. CASE NO. 6:08-cv-447-LED

JURY TRIAL DEMANDED

PLAINTIFF AND COUNTER-DEFENDANT EMG TECHNOLOGY, LLC'S ANSWER TO APPLE, INC.'s COUNTERCLAIMS IN RESPONSE TO EMG TECHNOLOGY, LLC'S FOURTH AMENDED COMPLAINT FOR PATENT INFRINGEMENT Pursuant to Federal Rule of Civil Procedure 8(b), EMG Technology, LLC ("EMG") hereby responds as follows to the Counterclaims of Apple, Inc. ("Apple") (Docket No. 130) asserted in response to EMG's Fourth Amended Complaint for Patent Infringement. Except as expressly admitted, EMG generally denies all allegations in Apple's Counterclaims. EMG expressly denies that Apple is entitled to any relief whatsoever in connection with its Counterclaims, including, but not limited to, all relief requested in Apple's the request for Relief in Apple's Counterclaims. JURISDICTION AND VENUE 1. Responsive to Counterclaim Paragraph 30, EMG admits the allegations contained

in Counterclaim Paragraph 30. 2. Responsive to Counterclaim Paragraph 31, EMG admits the allegations contained

in Counterclaim Paragraph 31.

300000195.1

3.

Responsive to Counterclaim Paragraph 32, EMG admits the allegations contained

in Counterclaim Paragraph 32. 4. Responsive to Counterclaim Paragraph 33, EMG admits the allegations contained

in Counterclaim Paragraph 33. FACTS CONCERNING THE `196 PATENT 5. Responsive to Counterclaim Paragraph 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 AlbertMichel 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 Fourth Amended Complaint. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 34. FACTS CONCERNING THE `845 PATENT 6. Responsive to Counterclaim Paragraph 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 Counterclaim Paragraph 35. COUNT ONE - UNITED STATES PATENT NO. 7,441,196 DECLARATION OF NONINFRINGEMENT 7. Responsive to Counterclaim Paragraph 36, EMG incorporates by reference its

responses to Counterclaim Paragraphs 30-35 above as though fully set forth herein.

300000195.1

-2-

8.

Responsive to Counterclaim Paragraph 37, EMG admits that an actual

controversy currently exists between EMG and Apple with respect to liability for infringement of the `196 patent, that EMG brought this action against Apple and others alleging that Apple infringes the `196 Patent, and that Apple denies the allegations against it. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 37. 9. Responsive to Counterclaim Paragraph 38, EMG denies the allegations contained

in Counterclaim Paragraph 38. 10. Responsive to Counterclaim Paragraph 39, EMG denies the allegations contained

in Counterclaim Paragraph 39. COUNT TWO - UNITED STATES PATENT NO. 7,020,845 DECLARATION OF NONINFRINGEMENT 11. Responsive to Counterclaim Paragraph 40, EMG incorporates by reference its

responses to Counterclaim Paragraphs 30-39 above as though fully set forth herein. 12. Responsive to Counterclaim Paragraph 41, EMG admits that an actual

controversy currently exists between EMG and Apple with respect to infringement of the `845 patent, that EMG brought this action against Apple and others alleging that Apple infringes the `845 Patent, and that Apple denies the allegations against it. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 41. 13. Responsive to Counterclaim Paragraph 42, EMG denies the allegations contained

in Counterclaim Paragraph 42. 14. Responsive to Counterclaim Paragraph 43, EMG denies the allegations contained

in Counterclaim Paragraph 43. COUNT THREE - UNITED STATES PATENT NO. 7,441,196 DECLARATION OF INVALIDITY 15. Responsive to Counterclaim Paragraph 44, EMG incorporates by reference its

responses to Counterclaim Paragraphs 30-43 above as though fully set forth herein. 16. Responsive to Counterclaim Paragraph 45, EMG admits that an actual

controversy currently exists between EMG and Apple regarding the validity of the `196 patent,
300000195.1

-3-

that EMG brought this action against Apple and others alleging that Apple infringes the `196 Patent, and that Apple denies the allegations against it. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 45. 17. Responsive to Counterclaim Paragraph 46, EMG denies the allegations contained

in Counterclaim Paragraph 46. 18. Responsive to Counterclaim Paragraph 47, EMG denies the allegations contained

in Counterclaim Paragraph 47. COUNT FOUR - UNITED STATES PATENT NO. 7,020,845 DECLARATION OF INVALIDITY 19. Responsive to Counterclaim Paragraph 48, EMG incorporates by reference its

responses to Counterclaim Paragraphs 30-47 above as though fully set forth herein. 20. Responsive to Counterclaim Paragraph 49, EMG admits that an actual

controversy currently exists between EMG and Apple regarding the validity of the `845 patent, that EMG brought this action against Apple and others alleging that Apple infringes the `845 Patent, and that Apple denies the allegations against it. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 49. 21. Responsive to Counterclaim Paragraph 50, EMG denies the allegations contained

in Counterclaim Paragraph 50. 22. Responsive to Counterclaim Paragraph 51, EMG denies the allegations contained

in Counterclaim Paragraph 51. PRAYER FOR RELIEF WHEREFORE, EMG prays that this Court enter judgment against Apple on Apple's Counterclaims as follows: (a) Dismissing Apple's Counterclaim with prejudice and ordering that Apple is

entitled to no recovery whatsoever on its Counterclaims, including with out limitation all relief sought in Apple's request for relief in its Counterclaims;

300000195.1

-4-

(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. JURY DEMAND EMG demands a jury trial on all issues in Apple's Counterclaims so triable. DATED: October 5, 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] Shawn G. Hansen (Cal. Bar No. 197033) [e-mail] 1001 Page Mill Road, Building 2 Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] 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

300000195.1

-5-

CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service are being served this 5th day of October, 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

300000195.1

-6-