EMG Technology, LLC v. Apple, Inc.

Filing 211

EMG Technology, LLC's ANSWER to 198 Answer to Amended Complaint, Counterclaim filed by Hyatt 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., DELL INC., HYATT CORPORATION, MARRIOTT INTERNATIONAL, INC., & BARNES & NOBLE, INC., Defendants. PLAINTIFF EMG TECHNOLOGY, LLC'S ANSWER TO DEFENDANT HYATT CORPORATION'S COUNTERCLAIMS Plaintiff EMG Technology, LLC ("EMG") hereby responds as follows to the Counterclaims of Defendant Comcast Corporation ("Hyatt") (Docket No. 198) asserted in response to EMG's Fifth Amended Complaint for Patent Infringement. Except as expressly admitted herein, EMG generally denies all allegations in Hyatt's Counterclaims. EMG expressly denies that Hyatt is entitled to any relief whatsoever in connection with its Counterclaims, including, but not limited to, all relief requested in the Prayer for Relief in Hyatt's Counterclaims. Parties 1. 2. Responsive to Counterclaim Paragraph 1, EMG admits the allegations. Responsive to Counterclaim Paragraph 2, EMG admits the allegations. Jurisdiction and Venue 3. Responsive to Counterclaim Paragraph 3, EMG admits the allegations. CASE NO. 6:08-cv-447-LED JURY TRIAL DEMANDED

4.

Responsive to Counterclaim Paragraph 4, EMG admits that it has filed a

Complaint against Hyatt seeking, inter alia, a judgment that Hyatt has infringed the claims of the `196 patent and the `845 patent, and that Hyatt has denied those allegations. EMG admits that an actual controversy currently exists between EMG and Hyatt regarding the infringement and validity of the `196 patent and the `845 patent. Except as expressly admitted, EMG denies the remaining allegations contained in Counterclaim Paragraph 4. 5. Responsive to Counterclaim Paragraph 5, EMG admits that it is subject to

personal jurisdiction in this Court. Except as expressly admitted, EMG denies the remaining allegations. 6. Responsive to Counterclaim Paragraph 6, EMG admits the allegations.

COUNTERCLAIM I DECLARATORY JUDGMENT OF NONINFRINGEMENT OF THE `196 PATENT 7. Responsive to Counterclaim Paragraph 7, EMG incorporates by reference its

responses to Counterclaim Paragraphs 1-6 above as though fully set forth herein. 8. Responsive to Counterclaim Paragraph 8, EMG admits that an actual controversy

currently exists between EMG and Hyatt regarding Hyatt's infringement of the `196 Patent. Except as expressly admitted, the allegations are denied. 9. Responsive to Counterclaim Paragraph 9, EMG denies the allegations.

COUNTERCLAIM II DECLARATORY JUDGMENT OF NONINFRINGEMENT OF THE `845 PATENT 10. Responsive to Counterclaim Paragraph 10, EMG incorporates by reference its

responses to Counterclaim Paragraphs 1-9 above as though fully set forth herein.

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11.

Responsive to Counterclaim Paragraph 11, EMG admits that an actual

controversy currently exists between EMG and Hyatt regarding Hyatt's infringement of the `845 Patent. Except as expressly admitted, the allegations are denied. 12. 13. Responsive to Counterclaim Paragraph 12, EMG denies the allegations. Responsive to Counterclaim Paragraph 13, EMG denies the allegations.

COUNTERCLAIM III DECLARATORY JUDGMENT OF INVALIDITY OF THE `196 PATENT 14. Responsive to Counterclaim Paragraph 14, EMG incorporates by reference its

responses to Counterclaim Paragraphs 1-13 above as though fully set forth herein. 15. Responsive to Counterclaim Paragraph 15, EMG admits that an actual

controversy currently exists between EMG and Hyatt regarding the validity of the `196 Patent. Except as expressly admitted, the allegations are denied. 16. Responsive to Counterclaim Paragraph 16, EMG denies the allegations.

COUNTERCLAIM IV DECLARATORY JUDGMENT OF INVALIDITY OF THE `845 PATENT 17. Responsive to Counterclaim Paragraph 17, EMG incorporates by reference its

responses to Counterclaim Paragraphs 1-16 above as though fully set forth herein. 18. Responsive to Counterclaim Paragraph 18, EMG admits that an actual

controversy currently exists between EMG and Hyatt regarding the validity of the `845 Patent. Except as expressly admitted, the allegations are denied. 19. Responsive to Counterclaim Paragraph 19, EMG denies the allegations.

COUNTERCLAIM V DECLARATORY JUDGMENT OF UNENFORCEABILITY OF THE `196 PATENT 20. Responsive to Counterclaim Paragraph 20, EMG incorporates by reference its

responses to Counterclaim Paragraphs 1-19 above as though fully set forth herein.

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21.

Responsive to Counterclaim Paragraph 21, EMG admits that an actual

controversy currently exists between EMG and Hyatt regarding the enforceability of the `196 Patent. Except as expressly admitted, the allegations are denied. 22. Responsive to Counterclaim Paragraph 22, EMG denies the allegations.

EMG'S AFFIRMATIVE DEFENSES TO HYATT'S COUNTERCLAIM EMG asserts the following affirmative defenses to Hyatt's Counterclaim: First Affirmative Defense (Failure to State a Claim) 23. EMG. Second Affirmative Defense (Laches) 24. The claims asserted in the Counterclaim are barred by the doctrine of laches. Third Affirmative Defense (Waiver) 25. The claims asserted in the Counterclaim are barred by the doctrine of waiver. Fourth Affirmative Defense (Estoppel) 26. 27. The claims asserted in the Counterclaim are barred by the doctrine of estoppel. EMG reserves the rights to assert any other defenses to Hyatt's Counterclaim that The Counterclaim fails to state a claim upon which relief may be granted against

discovery may reveal. PRAYER FOR RELIEF WHEREFORE, EMG prays that this Court enter judgment against Hyatt on Hyatt's Counterclaims as follows: (a) Dismissing Hyatt's Counterclaims with prejudice and ordering that Hyatt is

entitled to no recovery whatsoever on its Counterclaims, including without limitation all relief sought in Hyatt's Prayer for Relief in its Counterclaims; (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 4

(c) appropriate.

Awarding EMG such other and further relief as this Court deems just and

JURY DEMAND EMG demands a jury trial on all issues so triable. Dated: January 11, 2010 OF COUNSEL: Robert D. Becker Cal. Bar No. 160648 Shawn G. Hansen Cal. Bar No. 197033 MANATT, PHELPS & PHILLIPS, LLP 1001 Page Mill Road, Building 2 Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Stanley M. Gibson Cal. Bar No. 162329 Joshua S. Hodas, Ph.D. Cal. Bar No. 250812 JEFFER, MANGELS, BUTLER AND MARMARO, LLP 1900 Avenue of the Stars, Seventh Floor Los Angeles, CA 90067 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Respectfully Submitted, By: /s/ Charles Ainsworth Robert M. Parker State Bar No. 15498000 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] E-mail: [e-mail] ATTORNEYS FOR PLAINTIFF EMG TECHNOLOGY, LLC _

CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service, are being served this 11th day of January, 2010, 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
300041969.1

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