EMG Technology, LLC v. Apple, Inc.

Filing 68

Plaintiff EMG's ANSWER to 56 Answer to Amended Complaint, Counterclaim by UPS 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., CONTINENTAL AIRLINES, INC., UNITED PARCEL SERVICE, INC., Defendants.

CASE NO. 08-CV-00447-LED JURY TRIAL DEMANDED

PLAINTIFF AND COUNTERDEFENDANT EMG TECHNOLOGY LLC'S ANSWER TO COUNTERCLAIM OF UNITED PARCEL SERVICE, INC. Pursuant to Fed . R. Civ. P. 8(b), EMG Technology, LLC ("EMG") hereby responds to the Counterclaim of United Parcel Service, Inc. ("UPS") as follows. Unless specifically admitted, EMG generally denies all allegations in the Counterclaim. EMG expressly denies that UPS is entitled to any relief whatsoever in connection with its Counterclaim, including, but not limited to, all relief requested by UPS in its Prayer for Relief. NATURE AND BASIS OF ACTION 1. EMG admits the allegations contained in Paragraph 1. PARTIES, JURISDICTION AND VENUE 2. 3. 4. 5.
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EMG admits the allegations contained in Paragraph 2. EMG admits the allegations contained in Paragraph 3. EMG admits the allegations contained in Paragraph 4. EMG admits the allegations contained in Paragraph 5.
EMG TECHNOLOGY'S ANSWER TO UNITED PARCEL SERVICE'S COUNTERCLAIM

COUNT I DECLARATION OF NON-INFRINGEMENT OF THE '196 AND '845 PATENTS 6. EMG incorporates by reference its responses to Paragraphs 1-5 above as though

fully set forth herein. 7. EMG admits that an actual controversy currently exists between EMG and UPS

regarding the infringement of the `196 and '845 patents. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 7. 8. EMG denies the allegations contained in Paragraph 8. COUNT I DECLARATION OF INVALIDITY OF THE '196 AND '845 PATENTS 9. EMG incorporates by reference its responses to Paragraphs 1-8 above as though

fully set forth herein. 10. EMG admits that an actual controversy currently exists between EMG and UPS

regarding the validity of the `196 and '845 patents. Except as expressly admitted, EMG denies the remaining allegations contained in Paragraph 10. 11. EMG denies the allegations contained in Paragraph 11.

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EMG TECHNOLOGY'S ANSWER TO UNITED PARCEL SERVICE'S COUNTERCLAIM

PRAYER FOR RELIEF WHEREFORE, EMG prays that this Court enter judgment against UPS as follows: (a) Dismissing UPS's Counterclaim with prejudice and ordering that UPS 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. Awarding EMG such other and further relief as this Court deems just and

DATED: April 17, 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]

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EMG TECHNOLOGY'S ANSWER TO UNITED PARCEL SERVICE'S COUNTERCLAIM

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EMG TECHNOLOGY'S ANSWER TO UNITED PARCEL SERVICE'S COUNTERCLAIM

CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service are being served this 17th day of April, 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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EMG TECHNOLOGY'S ANSWER TO UNITED PARCEL SERVICE'S COUNTERCLAIM