Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 194

AOL's ANSWER to #191 Amended Complaint,, Affirmative Defenses, COUNTERCLAIM and Jury Demand against Bedrock Computer Technologies, LLC by AOL Inc.(Whitehurst, Alan)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION Bedrock Computer Technologies LLC, Plaintiff, v. Softlayer Technologies, Inc., CitiWare Technology Solutions, LLC, Google Inc., Yahoo! Inc., Myspace Inc., Amazon.com Inc., PayPal Inc., Match.com Inc., AOL Inc., and CME Group Inc., Defendants. Case No. 6:09-CV-269-LED JURY TRIAL DEMANDED

DEFENDANT AOL INC.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND JURY DEMAND Defendant AOL Inc. ("AOL") answers plaintiff Bedrock Computer Technologies LLC's ("Bedrock") Second Amended Complaint for Patent Infringement ("Complaint") as follows: PARTIES 1. AOL lacks sufficient knowledge or information to form a belief as to the truth of

the allegations in paragraph 1, and therefore denies them. 2. The allegations of paragraph 2 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 2, and therefore denies them. 3. The allegations of paragraph 3 are not directed to AOL, and therefore no answer

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is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 3, and therefore denies them. 4. The allegations of paragraph 4 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 4, and therefore denies them. 5. The allegations of paragraph 5 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 5, and therefore denies them. 6. The allegations of paragraph 6 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 6, and therefore denies them. 7. The allegations of paragraph 7 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 7, and therefore denies them. 8. The allegations of paragraph 8 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 8, and therefore denies them.

9.

The allegations of paragraph 9 are not directed to AOL, and therefore no answer

is required. To the extent a response is required, AOL is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 9, and therefore denies them. 10. AOL admits that it is a corporation organized under the laws of the state of

Delaware with its principle place of business at 770 Broadway, New York, New York 10003. AOL denies that it is infringing or has infringed any valid and enforceable patent claim and that Bedrock is entitled to any relief therefrom. AOL denies all remaining allegations of paragraph 10. JURISDICTION AND VENUE 12. AOL admits that the Complaint purports to constitute an action for patent

infringement arising under the patent laws of the United States, Title 35, United States Code, including 35 U.S.C. §§ 271 and 281-285 and that the Court has jurisdiction over patent actions pursuant to 28 U.S.C. §§ 1331 and 1338(a). AOL denies all remaining allegations contained in paragraph 12 of the Complaint. 13. To the extent the allegations in paragraph 13 relate to AOL, AOL admits that the

Complaint purports to assert that venue is proper in the Tyler Division of the Eastern District of Texas pursuant to 28 U.S.C. § 1391 and 28 U.S.C. § 1400(b). AOL denies all remaining allegations contained in paragraph 13 of the Complaint. 14. AOL admits that it operates a website that can be accessed by individuals residing

in the State of Texas. As to the remaining Defendants, AOL is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in paragraph 14 of the Complaint, and on that basis denies them. AOL denies the remaining allegations contained in paragraph 14 of the Complaint.

GENERAL ALLEGATIONS 15. AOL admits that U.S. Patent No. 5,893,120 (the "120 Patent") is entitled

"Methods and Apparatus for Information Storage and Retrieval Using a Hashing Technique with External Chaining and On-the-Fly Removal of Expired Data." AOL is without knowledge or information sufficient to form a belief as to whether Bedrock holds all right, title, and interest in and to the 120 Patent and therefore denies those allegations. AOL admits that a document that purports to be a true and correct copy of the 120 Patent is attached to Bedrock's Second Amended Complaint as Exhibit A. AOL denies any remaining allegations of paragraph 15. 16. AOL denies the allegations contained in paragraph 16 of the Complaint. To the

extent the allegations of paragraph 16 are directed to other defendants, AOL lacks sufficient information to admit or deny the allegations and therefore denies them. 17. AOL denies the allegations contained in paragraph 17 of the Complaint. To the

extent the allegations of paragraph 17 are directed to other defendants, AOL lacks sufficient information to admit or deny the allegations and therefore denies them. COUNT 1 Infringement of the 120 Patent 18. herein. 19. AOL denies the allegations contained in paragraph 19 of the Complaint. To the AOL incorporates its answers to paragraphs 1 through 17 as if set forth fully

extent the allegations of paragraph 19 are directed to other defendants, AOL lacks sufficient information to admit or deny the allegations and therefore denies them. 21. AOL denies the allegations contained in paragraph 21 of the Complaint. To the

extent the allegations of paragraph 21 are directed to other defendants, AOL lacks sufficient information to admit or deny the allegations and therefore denies them.

PRAYER FOR RELIEF 22. AOL denies that Bedrock is entitled to any of the requested relief and denies any

allegations in paragraphs 22-31 of its prayer for relief. ADDITIONAL DEFENSES 23. AOL alleges and asserts the following additional defenses in addition to its other

defenses. In addition to the additional defenses described below and subject to its responses above, AOL specifically reserves all rights to allege additional defenses that become known through the course of discovery. By pleading these defenses, AOL does not in any way agree or concede that it has the burden of proof or persuasion on any of these issues. FIRST ADDITIONAL DEFENSE 24. The claims of the 120 Patent are invalid and/or unenforceable for failure to satisfy

one or more of the requirements of 35 U.S.C. and 37 C.F.R., including without limitation 35 U.S.C. §§ 101, 102, 103, 112, 116 and/or 132. SECOND ADDITIONAL DEFENSE 25. Bedrock's claims of infringement under the 120 Patent are barred, in whole or in

part, by the doctrines of waiver, acquiescence, and/or consent. THIRD ADDITIONAL DEFENSE 26. Bedrock's claims of infringement under the 120 Patent are barred, in whole or in

part, by unclean hands. FOURTH ADDITIONAL DEFENSE 27. Bedrock's claims of infringement under the 120 Patent are barred, in whole or in

part, by laches. FIFTH ADDITIONAL DEFENSE 28. Bedrock's claims of infringement under the 120 Patent are barred, in whole or in

part, by the doctrines of equitable estoppel and/or prosecution history estoppel. SEVENTH ADDITIONAL DEFENSE 29. Bedrock's claim for damages are barred, in whole or in part, under 35 U.S.C. §

286 (six year limitation), and/or 35 U.S.C. § 287 (marking). EIGHTH ADDITIONAL DEFENSE 30. exhaustion. NINTH ADDITIONAL DEFENSE 31. Bedrock fails to state a claim on which relief can be granted. TENTH ADDITIONAL DEFENSE 32. AOL does not and has not infringed any valid and enforceable claim of the 120 Bedrock's claims for relief are barred by license and/or the doctrine of patent

Patent literally, directly, indirectly, contributorily, by way of inducement, and/or under the doctrine of equivalents. ELEVENTH ADDITIONAL DEFENSE 33. 120 Patent. TWELFTH ADDITIONAL DEFENSE 34. U.S.C. § 288. THIRTEENTH ADDITIONAL DEFENSE 35. Upon information and belief, Bedrock lacks standing to assert infringement of the Bedrock is barred from recovering costs in connection with this action under 35 AOL is not willfully infringing and has not willfully infringed any claim of the

120 Patent because it did not have sufficient rights in the 120 Patent at the time the suit was filed.

AOL'S COUNTERCLAIMS Pursuant to Rule 13 of the Federal Rules of Civil Procedure, AOL asserts the following Counterclaims against Bedrock: PARTIES 1. Counterclaim-Plaintiff AOL is a corporation organized and existing under the

laws of the State of Delaware with its principal place of business at 770 Broadway, New York, New York 10003. 2. Counterclaim-Defendant Bedrock purports to be a Texas corporation with its

principal place of business at 100 E. Ferguson Street, Suite 712, Tyler, TX 75702. JURISDICTION AND VENUE 3. Subject to AOL's affirmative defenses and denials, AOL alleges that this Court

has jurisdiction over the subject matter of these Counterclaims under, without limitation, §§ 1331, 1367, 1338(a), 2201, and 2202. 4. This Court has personal jurisdiction over Bedrock because, inter alia, Bedrock is

the plaintiff in the underlying action. 5. Venue is proper in this judicial district for AOL's counterclaim against Bedrock's

underlying action pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(c). FACTUAL BACKGROUND 6. In its Second Amended Complaint for Patent Infringement ("Complaint"),

Bedrock asserts that AOL has infringed U.S. Patent No. 5,893,120 (the "120 Patent"). AOL denies Bedrock's allegations of infringement and further denies that the 120 Patent is valid. Consequently, there is an actual case or controversy between the parties over the noninfringement and/or invalidity of the 120 Patent.

COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Patent No. 5,893,120 7. AOL restates and incorporates by references it allegations in paragraphs 1 through

6 of its Counterclaims. 8. An actual case or controversy exists between AOL and Bedrock as to whether the

120 Patent is infringed by AOL. 9. AOL seeks a judicial declaration finding that AOL has not infringed and does not

infringe any claim of the 120 Patent. COUNT TWO Declaratory Judgment of Invalidity of U.S. Patent No. 5,893,120 10. AOL restates and incorporates by reference its allegations in paragraphs 1 through

9 of its Counterclaims. 11. An actual case or controversy exists between AOL and Bedrock as to whether the

120 Patent is invalid. 12. AOL seeks a judicial declaration finding that the 120 Patent is invalid for failure

to meet the conditions of patentability and/or otherwise comply with the requirements of Title 35, including but not limited to, §§ 101, 102, 103, 112 and/or 116. PRAYER FOR RELIEF Wherefore, AOL prays for judgment as follows: a. A judgment in favor of AOL denying Bedrock all relief requested in its Complaint in this action and dismissing Bedrock's Second Amended Complaint for patent infringement with prejudice; b. c. A Judgment in favor of AOL on all its Counterclaims; A declaration that AOL has not infringed any valid claims of the 120 Patent;

d. e.

A declaration that the 120 Patent is invalid; A declaration that this case is exceptional under 35 U.S.C. § 285 and an award to AOL of its reasonable costs and expenses of litigation, including attorneys' fees and expert witness fees;

f.

Such other and further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL

In accordance with Rule 38 of the Federal Rules of Civil Procedure and Local Rule CV38, AOL respectfully demands a jury trial of all issues triable to a jury in this action.

Dated: April 30, 2010

Respectfully submitted, /s/ Alan L. Whitehurst Frank G. Smith [e-mail] ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 Telephone: [phone] Facsimile: [phone] Alan L. Whitehurst [e-mail] Marissa R. Ducca [e-mail] ALSTON & BIRD LLP The Atlantic Building 950 F Street, N.W. Washington, DC 20004 Telephone: [phone] Facsimile: [phone] Michael J. Newton (SBN 24003844) [e-mail] ALSTON & BIRD LLP Chase Tower 2200 Ross Avenue, Suite 3601 Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Louis A. Karasik (pro hac vice) [e-mail] ALSTON & BIRD LLP 333 South Hope Street 16th Floor Los Angeles, CA 90071 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants AOL Inc.

CERTIFICATE OF SERVICE The undersigned certifies that on this 30th of April, 2010, all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document through the Court's CM/ECF system under Local Rule Cv-5(a)(3). Any other counsel of record will be served via first class mail and/or facsimile. /s/ Alan L. Whitehurst Alan L. Whitehurst