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

Filing 335

WOMEN'S APPAREL GROUP, LLC'S ANSWER to #1 Complaint,,,,,,, AND, COUNTERCLAIM against Parallel Networks, LLC by Women's Apparel Group, LLC d/b/a Boston Apparel Group, LLC.(McNabnay, Neil)

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

Doc. 335

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

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

Paragraph 1 and therefore denies the same. 2­60. Paragraphs 2 through 60 do not require a response by WAG. To the

extent that Paragraphs 2 through 60 are deemed to require a response, WAG lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 61. WAG admits that it has a place of business in West Bridgewater,

Massachusetts. Except as expressly admitted herein, WAG denies each and every allegation of Paragraph 61. JURISDICTION AND VENUE 62. WAG 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
WAG'S ANSWER AND COUNTERCLAIM TO PARALLEL NETWORKS' ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT PAGE 1
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this action under 28 U.S.C. §§ 1331 and 1338(a). WAG admits that it is subject to this Court's specific and general jurisdiction but denies it is due to any alleged infringement. WAG further lacks knowledge sufficient to confirm or deny the allegations against the other defendants and therefore denies the same. Except as expressly admitted herein, WAG denies each and every allegation of Paragraph 62. 63. WAG admits that venue is proper under 28 U.S.C. §§ 1391(b), 1391(c)

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

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

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

Paragraph 66 and therefore denies the same. 67­298. Paragraphs 67 through 298 do not require a response by WAG. To the

extent that Paragraphs 67 through 298 are deemed to require a response, WAG lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. 299. WAG denies the allegations of Paragraph 299.

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300. 301. 302. 303.

WAG denies the allegations of Paragraph 300. WAG denies the allegations of Paragraph 301. WAG denies the allegations of Paragraph 302. WAG denies the allegations of Paragraph 303 directed at WAG. To the

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

extent that Paragraph 304 is deemed to require a response with respect to the other Defendants, WAG lacks knowledge sufficient to confirm or deny the allegations and therefore denies the same. Except as expressly admitted herein, WAG denies each and every allegation of Paragraph 304. COUNT II WILLFUL INFRINGEMENT 305. WAG denies the allegations of Paragraph 305 directed at WAG. WAG

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

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

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AFFIRMATIVE DEFENSES WAG's Affirmative Defenses are listed below. WAG 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. WAG 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 WAG's actions allegedly infringed the '111 Patent, WAG 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 WAG indirectly infringes,

either by contributory infringement or inducement of infringement, WAG is not liable to Parallel Networks for the acts alleged to have been performed before WAG knew that its actions would cause indirect infringement.

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FIFTH DEFENSE 311. Parallel Networks' attempted enforcement of the '111 Patent against

WAG 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 Women's Apparel Group, LLC ("WAG") is a

Delaware Limited Liability Company with its principal place of business located in 35 United Dr., West Bridgewater, MA 02379New 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. 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.

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Count I Declaratory Relief Regarding Non-infringement 317. Based on Parallel Networks' filing of this action and WAG's First

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

seq., WAG 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 WAG'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., WAG 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 WAG'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.

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322.

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

seq., WAG requests a declaration by the Court that the claims of the '111 Patent are unenforceable. PRAYER WAG 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 WAG 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 WAG; Dismissal of the Complaint with prejudice; An award to WAG of its costs and attorneys' fees incurred in this action; and Further relief as the Court may deem just and proper. JURY DEMAND WAG hereby demands trial by jury on all issues.

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Dated: November 29, 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 WOMEN'S APPAREL GROUP, LLC

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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 29, 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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