Case 2:21-cv-00203-DBB-JCB Document 24 Filed 04/22/21 PageID.2045 Page 1 of 31
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`J. Jeffrey Gunn (#10731)
`James C. Watson (#13395)
`W. James Wright (#16617)
`TRASKBRITT, P.C.
`230 South 500 East, Suite 300
`Salt Lake City, UT 84102
`Tel: (801) 532-1922
`jgunn@traskbritt.com
`jcwatson@traskbritt.com
`wjwright@traskbritt.com
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`
`Attorneys for Defendant Skullcandy, Inc.
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`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
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`
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`KOSS CORPORATION,
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`
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`v.
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`SKULLCANDY, INC.
`
`Plaintiff,
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`
`
`
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`Defendant.
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`
`
`DEFENDANT’S ANSWER,
`AFFIRMATIVE DEFENSES, AND
`COUNTERCLAIMS TO PLAINTIFF’S
`COMPLAINT
`
`
`
`Case No. 2:21-CV-00203 DBB
`
`Honorable David Barlow
`
`
`
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`Defendant Skullcandy, Inc. (“Defendant”), by and through its undersigned counsel, hereby
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`responds to the allegations set forth in the Plaintiff Koss Corporation’s (“Koss” or “Plaintiff”)
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`Original Complaint for Patent Infringement (“Complaint”). Defendant denies all allegations in the
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`Complaint, whether express or implied, that are not specifically admitted below. Any factual
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`allegation below is admitted only as to the specific admitted facts and not as to any purported
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`conclusions, characterizations, implications, or speculations that arguably follow from the
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`Case 2:21-cv-00203-DBB-JCB Document 24 Filed 04/22/21 PageID.2046 Page 2 of 31
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`admitted facts. Defendant further denies that Plaintiff is entitled to the relief requested or any other
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`relief. At this early stage of the case, investigation remains ongoing, and no claim terms have been
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`construed. Defendant has no obligation to respond to infringement allegations that incorporate
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`conclusions of law on claim construction. Each allegation that includes or paraphrases claim
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`language is also denied because Defendant lacks sufficient knowledge or information about how
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`the Court will rule on claim construction, and therefore cannot form a belief regarding such
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`allegations, and denies on that basis.
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`NATURE OF THE ACTION
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`1.
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`Defendant admits that Plaintiff’s Complaint purports to assert claims for patent
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`infringement under the patent laws of the United States, but denies that Defendant has committed,
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`contributed to, or induced any past or ongoing acts of patent infringement. Except as expressly
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`admitted, Defendant denies the remaining allegations in paragraph 1 of the Complaint.
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`THE PARTIES
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`2.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 2 of the Complaint and, on that basis, denies all such allegations.
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`3.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 3 of the Complaint and, on that basis, denies all such allegations.
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`4.
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`Defendant admits that Skullcandy, Inc. is a Delaware Corporation with a principal
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`place of business at 6301 N Landmark Dr. Park City, Utah 84098. Defendant further admits that
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`Skullcandy, Inc. may be served through its registered agent CT Corporation System at 1108 East
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`South Union Avenue, Midvale, Utah, 84047. Except as expressly admitted, Defendant denies the
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`remaining allegations in paragraph 4 of the Complaint.
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`2
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`5.
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`Defendant admits that Defendant has transacted business in the District of Utah but
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`denies that Defendant has committed any acts of direct or indirect infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 5 of the Complaint.
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`JURISDICTION AND VENUE
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`6.
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`Defendant admits that this Court has subject matter jurisdiction pursuant to 28
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`U.S.C. §§ 1331 and 1338(a) over actions arising under the patent laws of the United States. Except
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`as expressly admitted, Defendant denies the remaining allegations in paragraph 6 of the Complaint.
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`7.
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`This paragraph sets forth legal conclusions to which no response is required. To the
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`extent a response is required, Defendant does not contest that this Court has personal jurisdiction
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`over them for purposes of this action only. Defendant further admits that Defendant has a principal
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`place of business in the state of Utah. Defendant further admits that Defendant has an office in the
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`District of Utah and Utah-registered agent for service. Except as expressly admitted, Defendant
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`denies the remaining allegations in paragraph 7 of the Complaint.
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`8.
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`This paragraph sets forth legal conclusions to which no response is required. To the
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`extent a response is required, Defendant admits that Defendant has a regular and established place
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`of business in the District of Utah. Defendant denies that Defendant has committed acts of
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`infringement in the District of Utah. Except as expressly admitted, Defendant denies the remaining
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`allegations in paragraph 8 of the Complaint.
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`9.
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`Defendant admits that Defendant has transacted business in the District of Utah but
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`denies that Defendant has committed any acts of direct or indirect infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 9 of the Complaint.
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`3
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`KOSS’S [ALLEGED] LEGACY OF AUDIO INNOVATION
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`10.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 10 of the Complaint and, on that basis, denies all such allegations.
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`11.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 11 of the Complaint and, on that basis, denies all such allegations.
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`12.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 12 of the Complaint and, on that basis, denies all such allegations.
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`13.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 13 of the Complaint and, on that basis, denies all such allegations.
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`14.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 14 of the Complaint and, on that basis, denies all such allegations.
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`15.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 15 of the Complaint and, on that basis, denies all such allegations.
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`16.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 16 of the Complaint and, on that basis, denies all such allegations.
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`17.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 17 of the Complaint and, on that basis, denies all such allegations.
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`18.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 18 of the Complaint and, on that basis, denies all such allegations.
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`19.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 19 of the Complaint and, on that basis, denies all such allegations.
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`4
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`20.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 20 of the Complaint and, on that basis, denies all such allegations.
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`21.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 21 of the Complaint and, on that basis, denies all such allegations.
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`22.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 22 of the Complaint and, on that basis, denies all such allegations.
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`23.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 23 of the Complaint and, on that basis, denies all such allegations.
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`24.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 24 of the Complaint and, on that basis, denies all such allegations.
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`25.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 25 of the Complaint and, on that basis, denies all such allegations.
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`26.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 26 of the Complaint and, on that basis, denies all such allegations.
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`27.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 27 of the Complaint and, on that basis, denies all such allegations.
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`28.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 28 of the Complaint and, on that basis, denies all such allegations.
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`29.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 29 of the Complaint and, on that basis, denies all such allegations.
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`5
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`KOSS [ALLEGES] DEVELOP[MENT OF]
`THE FIRST-EVER TRUE WIRELESS HEADPHONES
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`30.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 30 of the Complaint and, on that basis, denies all such allegations.
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`31.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 31 of the Complaint and, on that basis, denies all such allegations.
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`32.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 32 of the Complaint and, on that basis, denies all such allegations.
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`33.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 33 of the Complaint and, on that basis, denies all such allegations.
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`34.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 34 of the Complaint and, on that basis, denies all such allegations.
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`35.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 35 of the Complaint and, on that basis, denies all such allegations.
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`36.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 36 of the Complaint and, on that basis, denies all such allegations.
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`37.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 37 of the Complaint and, on that basis, denies all such allegations.
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`38.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 38 of the Complaint and, on that basis, denies all such allegations.
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`6
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`39.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 39 of the Complaint and, on that basis, denies all such allegations.
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`40.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 40 of the Complaint and, on that basis, denies all such allegations.
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`41.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 41 of the Complaint and, on that basis, denies all such allegations.
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`42.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 42 of the Complaint and, on that basis, denies all such allegations.
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`43.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 43 of the Complaint and, on that basis, denies all such allegations.
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`44.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 44 of the Complaint and, on that basis, denies all such allegations.
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`45.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 45 of the Complaint and, on that basis, denies all such allegations.
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`46.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 46 of the Complaint and, on that basis, denies all such allegations.
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`47.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 47 of the Complaint and, on that basis, denies all such allegations.
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`THE PATENTS-IN-SUIT
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`48.
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`Defendant admits that, according to the face of the document, U.S. Patent No.
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`10,206,025 (the “’025 Patent”) is titled “System with Wireless Earphones” and was issued on
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`7
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`February 12, 2019. Defendant admits that a document purporting to be a copy of the cover page
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`of ’025 Patent was attached as Exhibit F to Plaintiff’s Complaint. Except as expressly admitted,
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`Defendant denies the remaining allegations in paragraph 48 of the Complaint.
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`49.
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`Defendant admits that, according to the face of the document, U.S. Patent No.
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`10,368,155 (the “’155 Patent”) is titled “System with Wireless Earphones” and was issued on July
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`30, 2019. Defendant admits that a document purporting to be a copy of the cover page of the ’155
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`Patent was attached as Exhibit G to Plaintiff’s Complaint. Except as expressly admitted, Defendant
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`denies the remaining allegations in paragraph 49 of the Complaint.
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`50.
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`Defendant admits that, according to the face of the document, U.S. Patent No.
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`10,469,934 (the “’934 Patent”) is titled “System with Wireless Earphones” and was issued on
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`November 5, 2019. Defendant admits that a document purporting to be a copy of the cover page
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`of the ’934 Patent was attached as Exhibit H to Plaintiff’s Complaint. Except as expressly admitted,
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`Defendant denies the remaining allegations in paragraph 50 of the Complaint.
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`51.
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`Defendant admits that, according to the face of the document, U.S. Patent No.
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`10,491,982 (the “’982 Patent”) is titled “System with Wireless Earphones” and was issued on
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`November 26, 2019. Defendant admits that a document purporting to be a copy of the cover page
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`of the ’982 Patent was attached as Exhibit I to Plaintiff’s Complaint. Except as expressly admitted,
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`Defendant denies the remaining allegations in paragraph 51 of the Complaint.
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`52.
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`Defendant admits that, according to the face of the document, U.S. Patent No.
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`10,506,325 (the “’325 Patent”) is titled “System with Wireless Earphones” and was issued on
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`December 10, 2019. Defendant admits that a document purporting to be a copy of the cover page
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`8
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`of the ’325 Patent was attached as Exhibit J to Plaintiff’s Complaint. Except as expressly admitted,
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`Defendant denies the remaining allegations in paragraph 52 of the Complaint.
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`53.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 53 of the Complaint and, on that basis, denies all such allegations.
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`DEFENDANT’S [ALLEGED] KNOWLEDGE FO THE PATENTS-IN-SUIT
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`54.
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`Defendant admits that Defendant received a letter from Plaintiff’s counsel on or
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`about July 10, 2020, but denies that Defendant has committed, contributed to, or induced any past
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`or ongoing acts of patent infringement. Except as expressly admitted, Defendant denies the
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`remaining allegations in paragraph 54 of the Complaint.
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`FIRST CAUSE OF ACTION
`[ALLEGED] INFRINGEMENT OF THE ’025 PATENT
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`55.
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`Defendant repeats and incorporates by reference the responses, as set forth above,
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`to the allegations of paragraphs 1-54 of the Complaint.
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`56.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 56 of the Complaint and, on that basis, denies all such allegations.
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`57.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 57 of the Complaint and, on that basis, denies all such allegations.
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`58.
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`Defendant denies the allegations in paragraph 58 of the Complaint.
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`59.
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`Defendant admits that Defendant has made, used, supplied, distributed, sold, and/or
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`offered for sale in the United States certain products, including Sesh headphones and others.
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`Except as expressly admitted, Defendant denies the remaining allegations in paragraph 59 of the
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`Complaint.
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`60.
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`Defendant denies the allegations in paragraph 60 of the Complaint.
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`61.
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`Defendant denies the allegations in paragraph 61 of the Complaint.
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`62.
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`Defendant denies the allegations in paragraph 62 of the Complaint.
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`63.
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`Defendant denies the allegations in paragraph 63 of the Complaint.
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`64.
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`Defendant denies the allegations in paragraph 64 of the Complaint.
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`65.
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`Defendant admits that Exhibit K purports to be a copy of a letter from Plaintiff’s
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`counsel that Defendant received on or about July 10, 2020. Defendant further admits that Plaintiff
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`filed suit in the Western District of Texas as Civil Action No. 6:20-cv-00664-ADA alleging
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`infringement by Skullcandy, Inc. of the patents-in-suit. Defendant denies that Defendant has
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`committed, contributed to, or induced any past or ongoing acts of patent infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 65 of the Complaint.
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`66.
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`Defendant denies the allegations in paragraph 66 of the Complaint.
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`67.
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`Defendant denies the allegations in paragraph 67 of the Complaint.
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`SECOND CAUSE OF ACTION
`[ALLEGED] INFRINGEMENT OF THE ’155 PATENT
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`68.
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`Defendant repeats and incorporates by reference the responses, as set forth above,
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`to the allegations of paragraphs 1-67 of the Complaint.
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`69.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 69 of the Complaint and, on that basis, denies all such allegations.
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`70.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 70 of the Complaint and, on that basis, denies all such allegations.
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`10
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`71.
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`Defendant denies the allegations in paragraph 71 of the Complaint.
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`72.
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`Defendant admits that Defendant has made, used, supplied, distributed, sold, and/or
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`offered for sale in the United States certain products, including Crusher headphones and others.
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`Except as expressly admitted, Defendant denies the remaining allegations in paragraph 72 of the
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`Complaint.
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`73.
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`Defendant denies the allegations in paragraph 73 of the Complaint.
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`74.
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`Defendant denies the allegations in paragraph 74 of the Complaint.
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`75.
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`Defendant denies the allegations in paragraph 75 of the Complaint.
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`76.
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`Defendant denies the allegations in paragraph 76 of the Complaint.
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`77.
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`Defendant denies the allegations in paragraph 77 of the Complaint.
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`78.
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`Defendant admits that Exhibit K purports to be a copy of a letter from Plaintiff’s
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`counsel that Defendant received on or about July 10, 2020. Defendant further admits that Plaintiff
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`filed suit in the Western District of Texas as Civil Action No. 6:20-cv-00664-ADA alleging
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`infringement by Skullcandy, Inc. of the patents-in-suit. Defendant denies that Defendant has
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`committed, contributed to, or induced any past or ongoing acts of patent infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 78 of the Complaint.
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`79.
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`Defendant denies the allegations in paragraph 79 of the Complaint.
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`80.
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`Defendant denies the allegations in paragraph 80 of the Complaint.
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`THIRD CAUSE OF ACTION
`[ALLEGED] INFRINGEMENT OF THE ’982 PATENT
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`81.
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`Defendant repeats and incorporates by reference the responses, as set forth above,
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`to the allegations of paragraphs 1-80 of the Complaint.
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`82.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 82 of the Complaint and, on that basis, denies all such allegations.
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`83.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 83 of the Complaint and, on that basis, denies all such allegations.
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`84.
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`Defendant denies the allegations in paragraph 84 of the Complaint.
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`85.
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`Defendant admits that Defendant has made, used, supplied, distributed, sold, and/or
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`offered for sale in the United States certain products, including Indy Fuel headphones and others.
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`Except as expressly admitted, Defendant denies the remaining allegations in paragraph 85 of the
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`Complaint.
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`86.
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`Defendant denies the allegations in paragraph 86 of the Complaint.
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`87.
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`Defendant denies the allegations in paragraph 87 of the Complaint.
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`88.
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`Defendant denies the allegations in paragraph 88 of the Complaint.
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`89.
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`Defendant denies the allegations in paragraph 89 of the Complaint.
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`90.
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`Defendant denies the allegations in paragraph 90 of the Complaint.
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`91.
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`Defendant admits that Exhibit K purports to be a copy of a letter from Plaintiff’s
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`counsel that Defendant received on or about July 10, 2020. Defendant further admits that Plaintiff
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`filed suit in the Western District of Texas as Civil Action No. 6:20-cv-00664-ADA alleging
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`12
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`infringement by Skullcandy, Inc. of the patents-in-suit. Defendant denies that Defendant has
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`committed, contributed to, or induced any past or ongoing acts of patent infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 91 of the Complaint.
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`92.
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`Defendant denies the allegations in paragraph 92 of the Complaint.
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`93.
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`Defendant denies the allegations in paragraph 93 of the Complaint.
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`FOURTH CAUSE OF ACTION
`[ALLEGED] INFRINGEMENT OF THE ’934 PATENT
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`94.
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`Defendant repeats and incorporates by reference the responses, as set forth above,
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`to the allegations of paragraphs 1-93 of the Complaint.
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`95.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 95 of the Complaint and, on that basis, denies all such allegations.
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`96.
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`Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 96 of the Complaint and, on that basis, denies all such allegations.
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`97.
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`Defendant denies the allegations in paragraph 97 of the Complaint.
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`98.
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`Defendant admits that Defendant has made, used, supplied, distributed, sold, and/or
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`offered for sale in the United States certain products, including Crusher headphones and others.
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`Except as expressly admitted, Defendant denies the remaining allegations in paragraph 98 of the
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`Complaint.
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`99.
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`Defendant denies the allegations in paragraph 99 of the Complaint.
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`100. Defendant denies the allegations in paragraph 100 of the Complaint.
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`101. Defendant denies the allegations in paragraph 101 of the Complaint.
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`102. Defendant denies the allegations in paragraph 102 of the Complaint.
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`103. Defendant denies the allegations in paragraph 103 of the Complaint.
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`104. Defendant admits that Exhibit K purports to be a copy of a letter from Plaintiff’s
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`counsel that Defendant received on or about July 10, 2020. Defendant further admits that Plaintiff
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`filed suit in the Western District of Texas as Civil Action No. 6:20-cv-00664-ADA alleging
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`infringement by Skullcandy, Inc. of the patents-in-suit. Defendant denies that Defendant
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`committed, contributed to, or induced any past or ongoing acts of patent infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 104 of the Complaint.
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`105. Defendant denies the allegations in paragraph 105 of the Complaint.
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`106. Defendant denies the allegations in paragraph 106 of the Complaint.
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`FIFTH CAUSE OF ACTION
`[ALLEGED] INFRINGEMENT OF THE ’325 PATENT
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`107. Defendant repeats and incorporates by reference the responses, as set forth above,
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`to the allegations of paragraphs 1-106 of the Complaint.
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`108. Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 108 of the Complaint and, on that basis, denies all such allegations.
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`109. Defendant lacks sufficient knowledge or information to form a belief as to the truth
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`of the allegations in paragraph 109 of the Complaint and, on that basis, denies all such allegations.
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`110. Defendant denies the allegations in paragraph 110 of the Complaint.
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`111. Defendant admits that Defendant has made, used, supplied, distributed, sold, and/or
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`offered for sale in the United States certain products, including Push Ultra headphones and others.
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`Except as expressly admitted, Defendant denies the remaining allegations in paragraph 111 of the
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`Complaint.
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`112. Defendant denies the allegations in paragraph 112 of the Complaint.
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`113. Defendant denies the allegations in paragraph 113 of the Complaint.
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`114. Defendant denies the allegations in paragraph 114 of the Complaint.
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`115. Defendant denies the allegations in paragraph 115 of the Complaint.
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`116. Defendant denies the allegations in paragraph 116 of the Complaint.
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`117. Defendant admits that Exhibit K purports to be a copy of a letter from Plaintiff’s
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`counsel that Defendant received on or about July 10, 2020. Defendant further admits that Plaintiff
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`filed suit in the Western District of Texas as Civil Action No. 6:20-cv-00664-ADA alleging
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`infringement by Skullcandy, Inc. of the patents-in-suit. Defendant denies that Defendant has
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`committed, contributed to, or induced any past or ongoing acts of patent infringement. Except as
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`expressly admitted, Defendant denies the remaining allegations in paragraph 117 of the Complaint.
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`118. Defendant denies the allegations in paragraph 118 of the Complaint.
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`119. Defendant denies the allegations in paragraph 119 of the Complaint.
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`JURY DEMAND
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`No response is necessary to Plaintiff’s request for trial by jury; however, to the extent that
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`a response is necessary, Defendant admits that the Complaint sets forth a request for trial by jury.
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`PRAYER FOR RELIEF
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`Defendant denies that Plaintiff is entitled to any of the relief requested in Paragraphs (A)–
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`(G) of Plaintiff’s Prayer for Relief, or any other relief of any kind. Defendant has not infringed,
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`directly or indirectly, any valid and enforceable claim of any of the patents-in-suit, and Plaintiff is
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`not entitled to any recovery. Plaintiff’s prayer for relief should be denied in its entirety, and the
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`Court should award Defendant its reasonable costs and attorneys’ fees pursuant to 35 U.S.C. § 285
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`and/or other applicable laws.
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`DEFENDANT’S DEFENSES, INCLUDING AFFIRMATIVE DEFENSES
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`Subject to the responses above, and upon information and belief, Defendant alleges and
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`asserts the following defenses in response to the allegations in the Complaint, undertaking the
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`burden of proof only as to those defenses deemed affirmative defenses by law, regardless of how
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`such defenses are denominated herein. In addition to the defenses described below, subject to the
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`responses above, Defendant specifically reserves all rights to allege additional defenses pursuant
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`to any scheduling order, that become known through the course of discovery, or otherwise.
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`FIRST DEFENSE – FAILURE TO STATE A CLAIM
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`Plaintiff has failed to plead its claims of direct, induced, and contributory patent
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`infringement with sufficient specificity or factual support to place Defendant on notice of the
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`claims Plaintiff is asserting against them, such that Plaintiff has failed to state a claim upon which
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`relief can be granted.
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`Plaintiff has failed to state a claim for willful infringement and failed to plausibly allege
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`facts sufficient to show that this is an egregious case of culpable behavior warranting enhanced
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`damages.
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`SECOND DEFENSE – NON-INFRINGEMENT
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`Defendant does not infringe and has not infringed, either literally or under the doctrine of
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`equivalents, directly, contributorily, by inducement, or jointly, any valid and enforceable claim of
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`any of the patents-in-suit, willfully or otherwise.
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`THIRD DEFENSE – INVALIDITY
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`One or more claims of the patents-in-suit are invalid for failure to satisfy one or more
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`conditions for patentability set forth in 35 U.S.C. § 101 et seq., including but not limited to sections
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`101, 102, 103, and 112, the applicable provisions of Title 37 of the Code of Federal Regulations,
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`and judicially-created bases for invalidation, such as double patenting.
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`One or more claims of the patents-in-suit are invalid under 35 U.S.C. § 101 because they
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`claim non-statutory subject matter and/or are directed to abstract ideas and fail to recite an
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`inventive concept that could transform the unpatentable abstract ideas to which they are directed.
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`One or more claims of the patents-in-suit are invalid under 35 U.S.C. §§ 102 and 103
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`because one or more prior art references, including those references listed on the face of the
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`patents-in-suit, either alone or in combination, disclose one or more claims of the patents-in-
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`suit and/or the alleged invention(s) claimed therein would have been obvious to one having
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`ordinary skill in the art in view of the prior art, including but not limited to the prior art listed on
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`the face of the patents-in-suit. Additional prior art that invalidates the asserted claims will be set
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`forth in Defendant’s invalidity contentions, amendments, and proposed amendments thereto.
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`One or more claims of the patents-in-suit are invalid under 35 U.S.C. § 112 because they
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`lack an adequate written description, are not enabled, and/or are indefinite.
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`FOURTH DEFENSE – PROSECUTION HISTORY ESTOPPEL
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`To the extent that Plaintiff alleges infringement under the doctrine of equivalents,
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`Plaintiff’s alleged cause of action is barred, including, without limitation, by way of example,
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`under the doctrine of prosecution history estoppel, disclaimer, disavowal, claim vitiation, and/or
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`recapture. By virtue of statements made, amendments made, and/or positions taken during the
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`prosecution of the applications for the patents-in-suit, Plaintiff is estopped from asserting that the
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`patents-in-suit cover or include any of Defendant’s products.
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`FIFTH DEFENSE – EQUITABLE DEFENSES
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`Plaintiff’s claims for relief, in whole or in part, are barred by the equitable doctrines of
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`laches, prosecution laches, waiver, equitable estoppel, disclaimer, acquiescence, patent misuse,
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`and/or unclean hands.
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`SIXTH DEFENSE – 35 U.S.C. § 286
`STATUTE OF LIMITATIONS ON DAMAGES
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`Plaintiff’s recovery for any infringement of the patents-in-suit, if any, is limited to any
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`established infringement occurring no more than six years prior to the filing of this lawsuit,
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`pursuant to 35 U.S.C. § 286.
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`SEVENTH DEFENSE – 35 U.S.C. § 287
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`Plaintiff’s recovery for alleged infringement of the patents-in-suit, if any, is limited to
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`alleged infringement committed af