throbber
Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 1 of 13 PageID #: 57
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`PRAGMATUS MOBILE, LLC,
`
`
`
`C.A. No. 13-1762 (LPS)
`
`DEMAND FOR JURY TRIAL
`
`)))))))))))
`
`
`)
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`
`SONY MOBILE COMMUNICATIONS
`(USA), INC.; SONY MOBILE
`COMMUNICATIONS AB and SONY
`CORPORATION,
`
`
`
`
`
`Defendants.
`
`
`
`DEFENDANT SONY MOBILE COMMUNICATIONS (USA) INC.’S
`ANSWER AND COUNTERCLAIMS
`
`Defendant Sony Mobile Communications (USA) Inc. (“Sony Mobile”) hereby
`
`files its Answer, Counterclaims, and Jury Demand to Plaintiff Pragmatus Mobile, LLC’s
`
`(“Plaintiff”) Complaint (“Complaint”) in this action and responds on behalf of itself and no other
`
`party as set forth below. Each paragraph of this Answer corresponds to the same numbered
`
`paragraph in the Complaint, and anything in the Complaint that is not expressly admitted herein
`
`is hereby denied.
`
`PARTIES
`
`1.
`
`Sony Mobile lacks knowledge or information sufficient to form a belief
`
`about the truth of the allegations in this paragraph of the Complaint.
`
`2.
`
`Sony Mobile admits that Sony Corporation is a corporation organized
`
`under the laws of Japan and its principal place of business is 1-7-1 Konan, Minato-ku, Tokyo
`
`108-0075, Japan.
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 2 of 13 PageID #: 58
`
`3.
`
`Sony Mobile admits that Sony Mobile Communications AB is a
`
`corporation organized under the laws of Sweden and its principal place of business is located at
`
`Sölvegatan 51, 223 62 Lund, Sweden (delivery address) and Mobilvägen 4, 221 88 Lund,
`
`Sweden (visiting address), and that Sony Mobile Communications AB is a wholly owned
`
`subsidiary of Sony Corporation.
`
`4.
`
`Sony Mobile admits that it is a Delaware corporation having its principal
`
`place of business at 3333 Piedmont Road, Atlanta, Georgia, and that it is a wholly owned
`
`subsidiary of Sony Mobile Communications AB.
`
`JURISDICTION AND VENUE
`
`5.
`
`Sony Mobile admits that the Complaint purports to initiate an action for
`
`patent infringement arising under Title 35 of the United States Code, but Sony Mobile denies
`
`infringement. Sony Mobile admits that this Court has jurisdiction over the subject matter of the
`
`action under 28 U.S.C. § 1331 and § 1338(a) because it purports to be an action for patent
`
`infringement, but Sony Mobile denies that the asserted patents are valid and denies infringement.
`
`6.
`
`For the purpose of this action and all counterclaims set forth herein, and
`
`without waiving any defense of lack of personal jurisdiction in connection with any other cause
`
`of action or claim, Sony Mobile does not contest whether jurisdiction over it properly lies in this
`
`district but denies that Sony Mobile has committed any act that would give rise to any cause of
`
`action asserted in the Complaint or that it does substantial business in this forum.
`
`7.
`
`For the purpose of this action and any counterclaims set forth herein, and
`
`without waiving any defense of lack of venue or improper venue in connection with any other
`
`cause of action or claim, Sony Mobile does not contest whether venue properly lies in this
`
`2
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 3 of 13 PageID #: 59
`
`district but denies that this venue is more convenient than other venues. Sony Mobile denies that
`
`it has committed any act that would give rise to any cause of action asserted in the Complaint.
`
`THE PATENTS-IN-SUIT
`
`8.
`
`Sony Mobile admits that Exhibit A of the Complaint purports to be a copy
`
`of United States Patent No. 8,149,124 (the “’124 Patent”), and that it bears a title of “Personal
`
`Security And Tracking System,” but denies that it was duly and legally issued. Sony Mobile
`
`lacks knowledge or information sufficient to form a belief about the truth of the remaining
`
`allegations in this paragraph of the Complaint and therefore denies them.
`
`9.
`
`Sony Mobile admits that Exhibit B of the Complaint purports to be a copy
`
`of United States Patent No. 8,466,795 (the “’795 Patent”), and that it bears a title of “Personal
`
`Security And Tracking System,” but denies that it was duly and legally issued. Sony Mobile
`
`lacks knowledge or information sufficient to form a belief about the truth of the remaining
`
`allegations in this paragraph of the Complaint and therefore denies them.
`
`10.
`
`Denied.
`
`Count I - Alleged Infringement Of The ‘124 Patent
`
`11.
`
`Sony Mobile incorporates by reference its answers to the allegations set
`
`forth in Paragraphs 1-10 as if fully set forth herein.
`
`12.
`
`13.
`
`14.
`
`15.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Sony Mobile admits that, by virtue of the service of the Complaint, Sony
`
`Mobile is aware that Plaintiff is claiming infringement by Sony Mobile, but Sony Mobile denies
`
`3
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 4 of 13 PageID #: 60
`
`that there is infringement. Sony Mobile denies the remaining allegations of this paragraph of the
`
`Complaint.
`
`16.
`
`17.
`
`Denied.
`
`Denied.
`
`Count II - Alleged Infringement of the ‘795 Patent
`
`18.
`
`Sony Mobile incorporates by reference its answers to the allegations set
`
`forth in Paragraphs 1-10 as if fully set forth herein.
`
`19.
`
`20.
`
`21.
`
`22.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Sony Mobile admits that, by virtue of the service of the Complaint, Sony
`
`Mobile is aware that Plaintiff is claiming infringement by Sony Mobile, but Sony Mobile denies
`
`that there is infringement. Sony Mobile denies the remaining allegations of this paragraph of the
`
`Complaint.
`
`23.
`
`24.
`
`Denied.
`
`Denied.
`
`Plaintiff’s Prayer For Relief
`
`To the extent a response to Plaintiff’s Prayer for Relief is required; Sony Mobile
`
`denies that Plaintiff is entitled to any of the prayed-for relief. Sony Mobile further states that
`
`Plaintiff has failed to plead any facts to support a declaration by the Court that this case is
`
`exceptional under the terms of 35 U.S.C. § 285 or that the alleged infringement was willful.
`
`4
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 5 of 13 PageID #: 61
`
`DEFENSES
`
`Sony Mobile incorporates by reference the foregoing paragraphs in their entirety
`
`and asserts the following Defenses. By asserting these defenses, Sony Mobile does not admit
`
`that it bears the burden of proof on any issue and does not accept any burden it would not
`
`otherwise bear. Sony Mobile reserves the right to amend this Answer with additional defenses as
`
`further information becomes available.
`
`First Defense
`(No Infringement of the ’124 Patent)
`
`Sony Mobile does not
`
`infringe and has not
`
`infringed, either directly,
`
`contributorily, by inducement, and/or literally any valid and enforceable claim of the ’124 Patent.
`
`Further, the accused devices are staple articles or commodities of commerce suitable for
`
`substantial noninfringing uses, foreclosing liability for contributory infringement.
`
`Second Defense
`(No Infringement of the ’795 Patent)
`
`Sony Mobile does not
`
`infringe and has not
`
`infringed, either directly,
`
`contributorily, by inducement, and/or literally, any valid and enforceable claim of the
`
`’795 Patent. Further, the accused devices are staple articles or commodities of commerce
`
`suitable for substantial noninfringing uses, foreclosing liability for contributory infringement.
`
`Third Defense
`(Invalidity of the ’124 Patent)
`
`Each and every claim of the ’124 Patent is invalid for failing to satisfy the
`
`conditions for patentability set forth in Title 35 of the United States Code, including, without
`
`limitation, the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`5
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 6 of 13 PageID #: 62
`
`Fourth Defense
`(Invalidity of the ’795 Patent)
`
`Each and every claim of the ’795 Patent is invalid for failing to satisfy the
`
`conditions for patentability set forth in Title 35 of the United States Code, including, without
`
`limitation, the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`Fifth Defense
`(Failure to State a Claim Upon Which Relief Can be Granted)
`
`One or more of the claims in Plaintiff’s Complaint fails to state a claim upon
`
`which relief can be granted.
`
`Sixth Defense
`(No Immediate or Irreparable Harm)
`
`Plaintiff is not entitled to injunctive relief because any alleged injury to Plaintiff is
`
`not immediate or irreparable and Plaintiff has an adequate remedy at law.
`
`Seventh Defense
`(Equitable Defenses)
`
`Plaintiff’s claims for relief are barred in whole or in part by laches, estoppel,
`
`and/or unclean hands.
`
`Eighth Defense
`(Time Limitations on Damages)
`
`To the extent that Plaintiff makes any claim for recovery for alleged infringement
`
`committed more than six years prior to the filing of the Complaint, such claim is barred under
`
`35 U.S.C. § 286.
`
`6
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 7 of 13 PageID #: 63
`
`Ninth Defense
`(Failure to Mark)
`
`Plaintiff is not entitled to damages for any activities occurring before the filing of
`
`the present suit in the event that it or any of its predecessors-in-interest, and/or of its or their
`
`licensees failed to mark patented articles pursuant to 35 U.S.C. § 287.
`
`Tenth Defense
`(License and/or Exhaustion)
`
`To the extent Plaintiff’s accusations relate to products or services that were
`
`provided by or for any licensee of the patents-in suit and/or provided to Sony Mobile by or
`
`through a licensee of the patents-in-suit or under a covenant not to sue, and/or are otherwise
`
`subject to the doctrine of patent exhaustion, Plaintiff’s claims are barred.
`
`SONY MOBILE’S COUNTERCLAIMS
`
`Defendant/Counterclaim Plaintiff Sony Mobile Communications (USA) Inc.
`
`(“Sony Mobile”), for its counterclaims against Plaintiff/Counterclaim Defendant Pragmatus
`
`Mobile, LLC (“Plaintiff” or “Pragmatus”), states as follows:
`
`Nature of Action
`
`1.
`
`This is a Declaratory Judgment action for a declaration of non-
`
`infringement, invalidity, and unenforceability of U.S. Patent Nos. 8,149,124 (the “‘124 Patent”)
`
`and 8,466,795 (the “‘795 Patent”).
`
`2.
`
`Sony Mobile is a corporation organized under, and existing by virtue of,
`
`the laws of the state of Delaware, with its principal place of business located in Atlanta, Georgia.
`
`3.
`
`Pragmatus claims to be a Virginia company with a principal place of
`
`business at 601 North King Street, Alexandria, Virginia 22314.
`
`7
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 8 of 13 PageID #: 64
`
`Jurisdiction and Venue
`
`4.
`
`On October 28, 2013, Pragmatus filed its Complaint alleging that Sony
`
`Mobile infringes the ’124 and ’795 Patents.
`
`5.
`
`Sony Mobile denies
`
`infringement, and disputes
`
`the validity and
`
`enforceability of one or more claims of each of the ’124 and ’795 Patents
`
`6.
`
`Thus, there is an actual and justiciable controversy between Pragmatus
`
`and Sony Mobile concerning the infringement, validity and enforceability of the ’124 and ’795
`
`Patents.
`
`7.
`
`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331
`
`and 1338 as an action arising under the Patent Laws, Title 35 of the United States Code, and also
`
`under 28 U.S.C. §§ 2201 and 2202 as a declaratory judgment action.
`
`8.
`
`This Court has personal jurisdiction over Pragmatus at least for the reason
`
`that Pragmatus subjected itself to the jurisdiction of this Court through the filing of its Complaint
`
`for patent infringement.
`
`9.
`
`To the extent venue over Pragmatus’ claim(s) are proper, venue over these
`
`Counterclaims are proper in this judicial district under 28 U.S.C. §§ 1391(b) and (c).
`
`Counterclaim I
`(Declaration of Non-Infringement of the ’124 Patent)
`
`10.
`
`Sony Mobile hereby realleges and incorporates by reference paragraphs 1
`
`through 9 of its Counterclaims as though fully set forth herein.
`
`11.
`
`The ’124 Patent was issued by the United States Patent and Trademark
`
`Office. Plaintiff claims to own all rights in and to this patent.
`
`8
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 9 of 13 PageID #: 65
`
`12.
`
`Plaintiff has asserted that Sony Mobile infringes the ’124 Patent. Thus, an
`
`actual, justiciable controversy exists between Plaintiff and Sony Mobile concerning the
`
`infringement of this patent.
`
`13.
`
`Sony Mobile is not now infringing and has not infringed any valid claim
`
`of the ’124 Patent literally, directly, contributorily, by way of inducement.
`
`14.
`
`Pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201 et seq., Sony Mobile
`
`is entitled to a declaratory judgment that it does not infringe and has not infringed the ’124
`
`Patent.
`
`Counterclaim II
`(Declaration of Non-Infringement of the ’795 Patent)
`
`15.
`
`Sony Mobile hereby realleges and incorporates by reference paragraphs 1
`
`through 9 of its Counterclaims as though fully set forth herein.
`
`16.
`
`The ’795 Patent was issued by the United States Patent and Trademark
`
`Office. Plaintiff claims to own all rights in and to this patent.
`
`17.
`
`Plaintiff has asserted that Sony Mobile infringes the ’795 Patent. Thus, an
`
`actual, justiciable controversy exists between Plaintiff and Sony Mobile concerning the
`
`infringement of this patent.
`
`18.
`
`Sony Mobile is not now infringing and has not infringed any valid claim
`
`of the ’795 Patent literally, directly, contributorily, by way of inducement.
`
`19.
`
`Pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201 et seq., Sony Mobile
`
`is entitled to a declaratory judgment that it does not infringe and has not infringed the ’795
`
`Patent.
`
`9
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 10 of 13 PageID #: 66
`
`Counterclaim III
`(Declaration of Invalidity of ‘124 Patent)
`
`20.
`
`Sony Mobile hereby realleges and incorporates by reference paragraphs 1
`
`through 9 of the Counterclaims as though fully set forth herein.
`
`21.
`
`Plaintiff has asserted that Sony Mobile infringes the ’124 Patent. Thus, an
`
`actual, justiciable controversy exists between Plaintiff and Sony Mobile concerning the validity
`
`of this patent.
`
`22.
`
`One or more claims of the ’124 Patent that is allegedly infringed by Sony
`
`Mobile is invalid for failure to comply with one or more of the conditions of patentability set
`
`forth in Part II of Title 35 of the United States Code including, for example, Sections 101, 102,
`
`103 and/or 112.
`
`23.
`
`Pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201 et seq., Sony Mobile
`
`is entitled to a declaratory judgment that one or more claims of the ’124 Patent are invalid.
`
`Counterclaim IV
`(Declaration of Invalidity of ’795 Patent)
`
`24.
`
`Sony Mobile hereby realleges and incorporates by reference paragraphs 1
`
`through 9 of the Counterclaims as though fully set forth herein.
`
`25.
`
`Plaintiff has asserted that Sony Mobile infringes the ’795 Patent. Thus, an
`
`actual, justiciable controversy exists between Plaintiff and Sony Mobile concerning the validity
`
`of this patent.
`
`26.
`
`One or more claims of the ’795 Patent that is allegedly infringed by Sony
`
`Mobile is invalid for failure to comply with one or more of the conditions of patentability set
`
`forth in Part II of Title 35 of the United States Code including, for example, Sections 101, 102,
`
`103 and/or 112.
`
`10
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 11 of 13 PageID #: 67
`
`27.
`
`Pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201 et seq., Sony Mobile
`
`is entitled to a declaratory judgment that one or more claims of the ‘795 Patent are invalid.
`
`Exceptional Case
`
`28.
`
`This is an exceptional case entitling Sony Mobile to an award of attorneys’
`
`fees incurred in connection with this action pursuant to 35 U.S.C. § 285.
`
`Demand for Jury Trial
`
`29.
`
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, defendant
`
`and counter-claimant demands a trial by jury of this action.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Sony Mobile respectfully requests a judgment against Plaintiff as
`
`follows:
`
`prejudice;
`
`A.
`
`B.
`
`That Plaintiff take nothing by its Complaint in this action;
`
`Plaintiff’s Complaint in this action be dismissed in its entirety with
`
`C.
`
`That the Court enter a declaratory judgment that Sony Mobile does not
`
`infringe and has never infringed the ‘124 Patent;
`
`D.
`
`That the Court enter a declaratory judgment that the asserted claims of the
`
`‘124 Patent are invalid and void;
`
`E.
`
`That the Court enter a declaratory judgment that Sony Mobile does not
`
`infringe and has never infringed the ‘795 Patent;
`
`F.
`
`That the Court enter a declaratory judgment that the asserted claims of the
`
`‘795 Patent are invalid and void;
`
`11
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 12 of 13 PageID #: 68
`
`G.
`
`That the Court declare this an exceptional case and award Sony Mobile its
`
`costs, expenses, and reasonable attorneys’ fees pursuant to 35 U.S.C. § 285 and all other
`
`applicable statutes, rules, and common law; and
`
`H.
`
`That the Court award Sony Mobile any and all other relief to which it may
`
`be entitled, or which the Court deems just and proper.
`
`
`
`
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Rodger D. Smith II
`
`
`
`
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`rsmith@mnat.com
`
`Attorneys for Defendant Sony Mobile
`Communications (USA), Inc.
`
`
`
`OF COUNSEL:
`
`James V. Mahon
`ANDREWS KURTH LLP
`4819 Emperor Blvd., Suite 400
`Durham, NC 27703
`(919) 313-4827
`
`John H. McDowell, Jr.
`Ben Setnick
`ANDREWS KURTH LLP
`1717 Main Street, Suite 3700
`Dallas, TX 75201
`(214) 659-4400
`
`November 26, 2013
`7808250.1
`
`12
`
`

`
`Case 1:13-cv-01762-LPS Document 6 Filed 11/26/13 Page 13 of 13 PageID #: 69
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 26, 2013, I caused the foregoing to be
`
`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
`
`such filing to all registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on
`
`November 26, 2013, upon the following in the manner indicated:
`
`Brian E. Farnan, Esquire
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Anthony Grillo, Esquire
`MARINO AND GRILLO
`437 Midland Avenue
`Wayne, PA 19087
`Attorneys for Plaintiff
`
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
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`
`/s/ Rodger S. Smith II
`
`
`
`
`Rodger D. Smith II (#3778)

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