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

Filing 319

Bloomingdale's' ANSWER to #1 Complaint,,,,,,, and, COUNTERCLAIM against Parallel Networks, LLC by Bloomingdale's Inc.(McNabnay, Neil)

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Parallel Networks, LLC v. Adidas America, Inc. et al Doc. 319 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION PARALLEL NETWORKS, LLC, Plaintiff, v. ADIDAS AMERICA, INC., et al., Defendants. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Defendant Bloomingdale's, Inc. ("Bloomingdale's") files this Answer and Counterclaim to Plaintiff Parallel Networks, LLC's ("Parallel Networks") Original Complaint for Patent Infringement ("Complaint"). Bloomingdale's denies the allegations and characterizations in Parallel Networks' Complaint unless expressly admitted in the following paragraphs: 1. Bloomingdale's lacks knowledge sufficient to confirm or deny the 6:10-CV-00491 JURY TRIAL DEMANDED allegations of Paragraph 1 and therefore denies the same. 213. Paragraphs 2 through 13 do not require a response by Bloomingdale's. To the extent that Paragraphs 2 through 13 are deemed to require a response, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 14. Bloomingdale's admits that Bloomingdale's, Inc. is a corporation with a place of business in New York, New York. 1561. Paragraphs 15 through 61 do not require a response by Bloomingdale's. To the extent that Paragraphs 15 through 61 are deemed to require a response, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 1 Dockets.Justia.com JURISDICTION AND VENUE 62. Bloomingdale'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). Bloomingdale's admits that it is subject to this Court's specific and general jurisdiction but denies it is due to any alleged infringement. Bloomingdale'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, Bloomingdale's denies each and every allegation of Paragraph 62. 63. Bloomingdale's admits that venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400(b), but denies that venue is convenient. Bloomingdale's admits that it is subject to personal jurisdiction in the Eastern District of Texas but denies it is due to any alleged infringement. Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, Bloomingdale's denies each and every allegation of Paragraph 63. COUNT I INFRINGEMENT OF U.S. PATENT NO. 6,446,111 64. Bloomingdale's admits that U.S. Patent No. 6,446,111 (the "'111 Patent") issued on September 3, 2002. Bloomingdale's denies that the '111 Patent was duly and legally issued. Except as expressly admitted herein, Bloomingdale's denies each and every allegation of Paragraph 64. 65. Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations of Paragraph 65 and therefore denies the same. 66. Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations of Paragraph 66 and therefore denies the same. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 2 67114. Paragraphs 67 through 114 do not require a response by Bloomingdale's. To the extent that Paragraphs 67 through 114 are deemed to require a response, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 115. 116. 117. 118. 119302. Bloomingdale's denies the allegations of Paragraph 115. Bloomingdale's denies the allegations of Paragraph 116. Bloomingdale's denies the allegations of Paragraph 117. Bloomingdale's denies the allegations of Paragraph 118. Paragraphs 119 through 302 do not require a response by Bloomingdale's. To the extent that Paragraphs 119 through 302 are deemed to require a response, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 303. Bloomingdale's denies the allegations of Paragraph 303 directed at Bloomingdale's. To the extent that Paragraph 303 is deemed to require a response with respect to the other Defendants, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. Except as expressly admitted herein, Bloomingdale's denies each and every allegation of Paragraph 303. 304. Bloomingdale's denies the allegations of Paragraph 304 directed at Bloomingdale's. To the extent that Paragraph 304 is deemed to require a response with respect to the other Defendants, Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. Except as expressly admitted herein, Bloomingdale's denies each and every allegation of Paragraph 304. COUNT II WILLFUL INFRINGEMENT 305. Bloomingdale's denies the allegations of Paragraph 305 directed at Bloomingdale's. Bloomingdale's lacks knowledge sufficient to confirm or deny the allegations BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 3 against the other defendants and therefore denies the same. Except as expressly admitted herein, Bloomingdale's denies each and every allegation of Paragraph 305. 306. Bloomingdale's requests that the Court deny all relief to Parallel Networks, including that requested by Parallel Networks in its Prayer for Relief. AFFIRMATIVE DEFENSES Bloomingdale's' Affirmative Defenses are listed below. Bloomingdale'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. Bloomingdale'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 Bloomingdale's' actions allegedly infringed the '111 Patent, Bloomingdale'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. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 4 FOURTH DEFENSE 310. To the extent that Parallel Networks asserts that Bloomingdale's indirectly infringes, either by contributory infringement or inducement of infringement, Bloomingdale's is not liable to Parallel Networks for the acts alleged to have been performed before Bloomingdale's knew that its actions would cause indirect infringement. FIFTH DEFENSE 311. Parallel Networks' attempted enforcement of the '111 Patent against Bloomingdale'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. COUNTERCLAIM The Parties 313. Counterclaim Plaintiff Bloomingdale's, Inc. ("Bloomingdale's") is a corporation with its principal place of business located in New York, New York. 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. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 5 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 Bloomingdale's' First Defense, an actual controversy has arisen and now exists between the parties as to whether Bloomingdale's infringes the '111 Patent. 318. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq., Bloomingdale'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 Bloomingdale'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., Bloomingdale's requests a declaration by the Court that the claims of the '111 Patent are invalid. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 6 Count III Declaratory Relief Regarding Unenforceability 321. Based on Parallel Networks' filing of this action and Bloomingdale'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., Bloomingdale's requests a declaration by the Court that the claims of the '111 Patent are unenforceable. PRAYER Bloomingdale's respectfully requests a judgment against Parallel Networks as follows: A. B. A declaration that the '111 Patent is unenforceable; A declaration that the asserted claims of the '111 Patent are invalid; C. A declaration that Bloomingdale's does not infringe, under any theory, any valid claim of the '111 Patent that may be enforceable; D. A declaration that Parallel Networks take nothing by its Complaint; E. Judgment against Parallel Networks and in favor of Bloomingdale's; F. Dismissal of the Complaint with prejudice; G. An award to Bloomingdale's of its costs and attorneys' fees incurred in this action; and H. Further relief as the Court may deem just and proper. JURY DEMAND Bloomingdale's hereby demands trial by jury on all issues. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 7 Dated: November 24, 2010 Respectfully submitted, FISH & RICHARDSON P.C. By: /s/ Neil J. McNabnay Thomas M. Melsheimer Texas Bar No. 13922550 txm@fr.com Neil J. McNabnay Texas Bar No. 24002583 njm@fr.com Britnee M. Reamy Texas Bar No. 24053439 bmr@fr.com David B. Conrad Texas Bar No. 24049042 dbc@fr.com 1717 Main Street, Suite 5000 Dallas, Texas 75201 (214) 747-5070 Telephone (214) 747-2091 Facsimile Counsel for Defendant BLOOMINGDALE'S, INC. BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 8 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 BLOOMINGDALE'S' ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 9

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