Parallel Networks, LLC v. Adidas America, Inc. et al

Filing 274

JONES RETAIL CORPORATION'S ANSWER to #1 Complaint,,,,,,, AND, COUNTERCLAIM against Parallel Networks, LLC by Jones Retail Corporation.(McNabnay, Neil)

Parallel Networks, LLC v. Adidas America, Inc. et al

Doc. 274

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION PARALLEL NETWORKS, LLC, Plaintiff, v. ADIDAS AMERICA, INC., et al., Defendants. JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Defendant Jones Retail Corporation1 ("JAGFAR") files this Answer and Counterclaim to Plaintiff Parallel Networks, LLC's ("Parallel Networks") Original Complaint for Patent Infringement ("Complaint"). JAGFAR denies the allegations and characterizations in Parallel Networks' Complaint unless expressly admitted in the following paragraphs: 1. JAGFAR lacks knowledge sufficient to confirm or deny the allegations of 6:10-CV-00491 JURY TRIAL DEMANDED

Paragraph 1 and therefore denies the same. 2­36. Paragraphs 2 through 36 do not require a response by JAGFAR. To the

extent that Paragraphs 2 through 36 are deemed to require a response, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 37. JAGFAR admits that Jones Retail Corporation, now known as JAG

Footwear, Accessories and Retail Corporation, is a corporation with a place of business in Bristol, Pennsylvania.

1

The correct name of Defendant Jones Retail Corporation is JAG Footwear, Accessories and Retail Corporation.
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JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

38­61.

Paragraphs 38 through 61 do not require a response by JAGFAR. To the

extent that Paragraphs 38 through 61 are deemed to require a response, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. JURISDICTION AND VENUE 62. JAGFAR admits that this action arises under the patent laws of the United

States, Title 35 of the United States Code and that this Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331 and 1338(a). JAGFAR admits that it is subject to this Court's specific and general jurisdiction but denies it is due to any alleged infringement. JAGFAR further lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 62. 63. JAGFAR admits that venue is proper under 28 U.S.C. §§ 1391(b), 1391(c)

and 1400(b), but denies that venue is convenient. JAGFAR admits that it is subject to personal jurisdiction in the Eastern District of Texas but denies it is due to any alleged infringement. JAGFAR lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 63. COUNT I INFRINGEMENT OF U.S. PATENT NO. 6,446,111 64. JAGFAR admits that U.S. Patent No. 6,446,111 (the "'111 Patent") issued

on September 3, 2002. JAGFAR denies that the '111 Patent was duly and legally issued. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 64.

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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65.

JAGFAR lacks knowledge sufficient to confirm or deny the allegations of

Paragraph 65 and therefore denies the same. 66. JAGFAR lacks knowledge sufficient to confirm or deny the allegations of

Paragraph 66 and therefore denies the same. 67­202. Paragraphs 67 through 202 do not require a response by JAGFAR. To the

extent that Paragraphs 67 through 202 are deemed to require a response, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 203. 204. 205. 206. 207­302. JAGFAR denies the allegations of Paragraph 203. JAGFAR denies the allegations of Paragraph 204. JAGFAR denies the allegations of Paragraph 205. JAGFAR denies the allegations of Paragraph 206. Paragraphs 207 through 302 do not require a response by JAGFAR. To

the extent that Paragraphs 207 through 302 are deemed to require a response, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 303. JAGFAR denies the allegations of Paragraph 303 directed at JAGFAR.

To the extent that Paragraph 303 is deemed to require a response with respect to the other Defendants, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 303. 304. JAGFAR denies the allegations of Paragraph 304 directed at JAGFAR.

To the extent that Paragraph 304 is deemed to require a response with respect to the other Defendants, JAGFAR lacks knowledge sufficient to confirm or deny the allegations and

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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therefore denies the same. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 304. COUNT II WILLFUL INFRINGEMENT 305. JAGFAR denies the allegations of Paragraph 305 directed at JAGFAR.

JAGFAR lacks knowledge sufficient to confirm or deny the allegations against the other Defendants and therefore denies the same. Except as expressly admitted herein, JAGFAR denies each and every allegation of Paragraph 305. 306. JAGFAR requests that the Court deny all relief to Parallel Networks,

including that requested by Parallel Networks in its Prayer for Relief.

AFFIRMATIVE DEFENSES JAGFAR's Affirmative Defenses are listed below. JAGFAR reserves the right to amend its Answer to add additional Affirmative Defenses, including instances of inequitable conduct, consistent with the facts discovered in the case. FIRST DEFENSE 307. JAGFAR does not infringe and has not infringed any claim of the '111

Patent under any theory (including directly (whether individually or jointly) or indirectly (whether contributorily or by inducement)). SECOND DEFENSE 308. The '111 Patent is invalid because the alleged invention fails to satisfy the

conditions for patentability specified in 35 U.S.C. § 100 et seq., including §§ 101, 102, 103, and 112.

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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THIRD DEFENSE 309. To the extent that Parallel Networks, and alleged predecessors-in-interest

to the '111 Patent, failed to properly mark any of their relevant products as required by 35 U.S.C. § 287 or otherwise give proper notice that JAGFAR's actions allegedly infringed the '111 Patent, JAGFAR is not liable to Parallel Networks for the acts alleged to have been performed before it received actual notice that it was allegedly infringing the '111 Patent. FOURTH DEFENSE 310. To the extent that Parallel Networks asserts that JAGFAR indirectly

infringes, either by contributory infringement or inducement of infringement, JAGFAR is not liable to Parallel Networks for the acts alleged to have been performed before JAGFAR knew that its actions would cause indirect infringement. FIFTH DEFENSE 311. Parallel Networks' attempted enforcement of the '111 Patent against

JAGFAR is barred by laches and estoppel. SIXTH DEFENSE 312. Parallel Networks' claims directed to indirect infringement, either by

contributory infringement or inducement of infringement, and willful infringement fail to state a claim for which relief may be granted. COUNTERCLAIM The Parties 313. Counterclaim Plaintiff Jones Retail Corporation, now known as JAG

Footwear, Accessories and Retail Corporation, ("JAGFAR") is a corporation with its principal place of business located in Bristol, Pennsylvania.

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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314.

On information and belief based solely on Paragraph 1 of the Complaint as

pled by Parallel Networks, Parallel Networks is a Texas Limited Liability Company with its principal place of business located in Tyler, Texas. Jurisdiction 315. This counterclaim arises under the patent laws of the United States, Title

35, United States Code. The jurisdiction of this Court is proper under at least 35 U.S.C. § 271 et seq. and 28 U.S.C. §§ 1331, 1338, 1367, and 2201 et seq. 316. Venue is proper in this District pursuant to at least 28 U.S.C. §§ 1391 and

1400. Venue is further proper in the Tyler Division. Count I Declaratory Relief Regarding Non-infringement 317. Based on Parallel Networks' filing of this action and JAGFAR's First

Defense, an actual controversy has arisen and now exists between the parties as to whether JAGFAR infringes the '111 Patent. 318. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 et

seq., JAGFAR requests a declaration by the Court that it does not infringe any claim of the '111 Patent under any theory (including directly (whether individually or jointly) or indirectly (whether contributorily or by inducement)). Count II Declaratory Relief Regarding Invalidity 319. Based on Parallel Networks' filing of this action and JAGFAR's Second

Defense, an actual controversy has arisen and now exists between the parties as to the validity of the claims of the '111 Patent.

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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320.

Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 et

seq., and 35 U.S.C. § 100 et seq., JAGFAR requests a declaration by the Court that the claims of the '111 Patent are invalid. Count III Declaratory Relief Regarding Unenforceability 321. Based on Parallel Networks' filing of this action and JAGFAR's Third,

Fourth, and Fifth Defenses, an actual controversy has arisen and now exists between the parties as to the enforceability of the '111 Patent. 322. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 et

seq., JAGFAR requests a declaration by the Court that the claims of the '111 Patent are unenforceable. PRAYER JAGFAR respectfully requests a judgment against Parallel Networks as follows: A. B. C. A declaration that the '111 Patent is unenforceable; A declaration that the asserted claims of the '111 Patent are invalid; A declaration that JAGFAR does not infringe, under any theory, any valid claim of the '111 Patent that may be enforceable; D. E. F. G. H. A declaration that Parallel Networks take nothing by its Complaint; Judgment against Parallel Networks and in favor of JAGFAR; Dismissal of the Complaint with prejudice; An award to JAGFAR of its costs and attorneys' fees incurred in this action; and Further relief as the Court may deem just and proper.

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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JURY DEMAND JAGFAR hereby demands trial by jury on all issues. Dated: November 22, 2010 Respectfully submitted, FISH & RICHARDSON P.C.

By: /s/ Neil J. McNabnay Thomas M. Melsheimer Texas Bar No. 13922550 [e-mail] Neil J. McNabnay Texas Bar No. 24002583 [e-mail] Britnee M. Reamy Texas Bar No. 24053439 [e-mail] David B. Conrad Texas Bar No. 24049042 [e-mail] 1717 Main Street, Suite 5000 Dallas, Texas 75201 [phone] Telephone [phone] Facsimile Counsel for Defendant JONES RETAIL CORPORATION (now known as JAG Footwear, Accessories and Retail Corporation)

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on November 22, 2010, to all counsel of record who are deemed to have consented to electronic service via the Court's CM/ECF system per Local Rule CV-5(a)(3). /s/ Neil J. McNabnay Neil J. McNabnay

JONES RETAIL CORPORATION'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

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