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

Filing 308

DILLARD'S ANSWER to #1 Complaint,,,,,,, AND, COUNTERCLAIM against Parallel Networks, LLC by Dillard's, Inc..(McNabnay, Neil)

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

Doc. 308

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION PARALLEL NETWORKS, LLC, Plaintiff, v. ADIDAS AMERICA, INC., et al., Defendants. DILLARD'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Defendant Dillard's, Inc., ("Dillard's") files this Answer and Counterclaim to Plaintiff Parallel Networks, LLC's ("Parallel Networks") Original Complaint for Patent Infringement ("Complaint"). Dillard's denies the allegations and characterizations in Parallel Networks' 6:10-CV-00491 JURY TRIAL DEMANDED

Complaint unless expressly admitted in the following paragraphs: 1. Dillard's lacks knowledge sufficient to confirm or deny the allegations of

Paragraph 1 and therefore denies the same. 2­21. Paragraphs 2 through 21 do not require a response by Dillard's. To the

extent that Paragraphs 2 through 21 are deemed to require a response, Dillard's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 22. Rock, Arkansas. 23­61. Paragraphs 23 through 61 do not require a response by Dillard's. To the Dillard's admits that it is a corporation with a place of business in Little

extent that Paragraphs 23 through 61 are deemed to require a response, Dillard's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same.

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Dockets.Justia.com

JURISDICTION AND VENUE 62. Dillard's 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). Dillard's admits that it is subject to this Court's specific and general jurisdiction but denies it is due to any alleged infringement. Dillard's further lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, Dillard's denies each and every allegation of Paragraph 62. 63. Dillard's admits that venue is proper under 28 U.S.C. §§ 1391(b), 1391(c)

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

on September 3, 2002. Dillard's denies that the '111 Patent was duly and legally issued. Except as expressly admitted herein, Dillard's denies each and every allegation of Paragraph 64. 65. Dillard's lacks knowledge sufficient to confirm or deny the allegations of

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

Paragraph 66 and therefore denies the same.

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67­142.

Paragraphs 67 through 142 do not require a response by Dillard's. To the

extent that Paragraphs 67 through 142 are deemed to require a response, Dillard's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 143. 144. 145. 146. 147­302. Dillard's denies the allegations of Paragraph 143. Dillard's denies the allegations of Paragraph 144. Dillard's denies the allegations of Paragraph 145. Dillard's denies the allegations of Paragraph 146. Paragraphs 147 through 302 do not require a response by Dillard's. To the

extent that Paragraphs 147 through 302 are deemed to require a response, Dillard's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 303. Dillard's denies the allegations of Paragraph 303 directed at Dillard's. To

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

the extent that Paragraph 304 is deemed to require a response with respect to the other Defendants, Dillard's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. Except as expressly admitted herein, Dillard's denies each and every allegation of Paragraph 304. COUNT II WILLFUL INFRINGEMENT 305. Dillard's denies that it received pre-suit notice of the '111 Patent.

Dillard's denies that it has infringed or is infringing the '111 Patent. Dillard's further denies that
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it has willfully infringed or is willfully infringing the '111 Patent. Dillard's lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, Dillard's denies each and every allegation of

Paragraph 305. 306. Dillard's requests that the Court deny all relief to Parallel Networks,

including that requested by Parallel Networks in its Prayer for Relief. AFFIRMATIVE DEFENSES Dillard's Affirmative Defenses are listed below. Dillard's 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. Dillard's 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. 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 Dillard's actions allegedly infringed the '111 Patent,

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Dillard's 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 Dillard's indirectly

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

Dillard's 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. COUNTERCLAIMS The Parties 313. Counterclaim Plaintiff Dillard's, Inc., ("Dillard's") is a corporation with

its principal place of business located in Little Rock, Arkansas. 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.

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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 Dillard's First

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

seq., Dillard's 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 Dillard'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. 320. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 et

seq., and 35 U.S.C. § 100 et seq., Dillard's requests a declaration by the Court that the claims of the '111 Patent are invalid.

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Count III Declaratory Relief Regarding Unenforceability 321. Based on Parallel Networks' filing of this action and Dillard'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., Dillard's requests a declaration by the Court that the claims of the '111 Patent are unenforceable. PRAYER Dillard's 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 Dillard's 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 Dillard's; Dismissal of the Complaint with prejudice; An award to Dillard's of its costs and attorneys' fees incurred in this action; and Further relief as the Court may deem just and proper. JURY DEMAND Dillard's hereby demands trial by jury on all issues.

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Dated: November 24, 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 DILLARD'S, INC.

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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 24, 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

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