Free Answer to Amended Complaint - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE VENETEC INTERNATIONAL, INC., Plaintiff, v. NEXUS MEDICAL, LLC, Defendant. Civil Action No. 07-CV-0057 ***

NEXUS MEDICAL, LLC 'S ANSWER TO VENETEC INTERNATIONAL, INC.'S FIRST SUPPLEMENTAL COMPLAINT AND COUNTERCLAIM Defendant Nexus Medical, LLC ("Nexus"), for its Answer to Venetec International, Inc.'s ("Venetec") First Supplemental Complaint, hereby states as follows, with each numbered answer corresponding to the numbered paragraph of the Complaint: Parties 1. Nexus lacks sufficient knowledge or information to form a belief as to the truth of

the allegations of this paragraph and, on that basis, denies them. 2. Admitted. Jurisdiction and Venue 3. Nexus admits this paragraph identifies the title and section of the United States

Code under which Plaintiff's claims are based and that this Court has subject matter jurisdiction. To the extent that any further response is required, Nexus denies that it has infringed any valid claim of the asserted patents. 4. Nexus denies that it sells products within this judicial district, but admits that this

paragraph accurately states the statutes on which Plaintiff's venue allegations are based and that venue is proper.

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Count I Patent Infringement ­ U.S. Patent No. 6,213,979 5. Nexus incorporates by reference its responses to paragraphs 1 through 4 above as

if fully set forth herein. 6. Nexus admits that the face of U.S. Patent No. 6,213,979 (the "'979 Patent")

indicates the '979 Patent is entitled "Medical Line Anchoring System," indicates it was issued on April 10, 2001, and that a copy of the '979 Patent is attached to the First Supplemental Complaint as Exhibit A. Nexus denies the '979 Patent was duly and legally issued and Nexus lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations of this paragraph and, on that basis, denies them. 7. 8. 9. Denied. Denied. Denied. Count II Patent Infringement ­ U.S. Patent No. 6,447,485 10. Nexus incorporates by reference its responses to paragraphs 1 through 9 above as

if fully set forth herein. 11. Nexus admits that the face of U.S. Patent No. 6,447,485 (the "'485 Patent")

indicates the '485 Patent is entitled "Medical Line Anchoring System," indicates it was issued on September 10, 2002, and that a copy of the '485 Patent is attached to the First Supplemental Complaint as Exhibit B. Nexus denies the '485 Patent was duly and legally issued and Nexus lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations of this paragraph and, on that basis, denies them. 12. Denied.

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13. 14.

Denied. Denied. Count III Patent Infringement ­ U.S. Patent No. 7,247,150

15.

Nexus incorporates by reference its responses to paragraphs 1 through 14 above

as if fully set forth herein. 16. Nexus admits that the face of U.S. Patent No. 7,247,150 (the "'150 Patent")

indicates the '150 Patent is entitled "Medical Line Anchoring System," indicates it was issued on July 24, 2007, and that a copy of the '150 Patent is attached to the First Supplemental Complaint as Exhibit C. Nexus denies the '150 Patent was duly and legally issued and Nexus lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations of this paragraph and, on that basis, denies them. 17. 18. 19. Denied. Denied. Denied.

Affirmative Defenses 1. be granted. 2. 3. Nexus has not infringed any valid claim of the Patents-in-Suit. One or more of the asserted claims of each of the Patents-in-Suit is invalid and Plaintiff's First Supplemental Complaint fails to state a claim for which relief may

void under 35 U.S.C. §§ 102, 103, and/or 112. 4. The '150 Patent is unenforceable for inequitable conduct, as more fully set forth

in Nexus's Count III of its counterclaim.

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WHEREFORE, Nexus prays that Plaintiff take nothing by way of its First Supplemental Complaint, that Plaintiff's claims be dismissed with prejudice, that Nexus be awarded its costs, expenses, and attorneys' fees in defending the matter, and such other and further relief as the Court deems just and proper.

Counter Claim COMES NOW Nexus Medical, LLC ("Nexus"), and for its Counterclaim against Plaintiff, alleges as follows: Parties 1. Nexus is a Delaware limited liability company with its principal place of business

at 11315 Strang Line Road, Lenexa, Kansas 66215. 2. Upon information and belief, Venetec International, Inc. ("Venetec") is a

Delaware corporation with its principal place of business in San Diego, California, 66215. Jurisdiction and Venue 3. This is an action for Declaratory Judgment under 28 U.S.C. §§ 2201 and 2202

seeking adjudication that U.S. Patent No. 6,213,979 (the "'979 patent"), U.S. Patent No. 6,447,485 (the "'485 Patent"), and U.S. Patent No. 7,247,150 (the "'150 Patent") (collectively the "Patents-in-Suit") are not infringed and are invalid and void, and that the '150 Patent is unenforceable. 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1338 in that this action arises under the patent laws of the United States and an actual controversy exists between the parties.

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5. 1391(b).

Venue is proper in this judicial district and division pursuant to 28 U.S.C. §

Count I Noninfringement of the Patents-in-Suit 6. Nexus incorporates by reference and re-alleges paragraphs 1 through 5 of its

counterclaim as if fully set forth herein. 7. 8. Venetec has alleged that it is the owner of the Patents-in-Suit. Venetec has charged Nexus with infringement of the Patents-in-Suit, and Nexus

has denied that allegation. 9. 10. Nexus has not infringed any valid claim of the Patents-in-Suit. There is a substantial, justiciable, and continuing controversy between Nexus and

Venetec as to Venetec's suit for infringement of the Patents-in-Suit and whether Nexus has infringed or is infringing any valid claim of the Patents-in-Suit. 11. Nexus will be damaged in its business by the charges of infringement by Venetec

in its First Supplemental Complaint and will be irreparably harmed if the existing controversy between the parties is not promptly adjudicated. 12. Nexus. Count II Invalidity of the Patents-in-Suit 13. Nexus incorporates by reference and re-alleges paragraphs 1 through 12 of its As a result, Nexus seeks a declaration that the Patents-in-Suit are not infringed by

counterclaim as if fully set forth herein. 14. Venetec has alleged that it is the owner of the Patents-in-Suit.

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15.

Venetec has charged Nexus with infringement of the Patents-in-Suit, and Nexus

has denied that allegation. 16. Upon information and belief, one or more of the claims of the Patents-in-Suit are

invalid and void under 35 U.S.C. §§ 102, 103, and/or 112. 17. There is a substantial, justiciable, and continuing controversy between Nexus and

Venetec as to Venetec's suit for infringement of the Patents-in-Suit and the validity and scope of the Patents-in-Suit. 18. Nexus will be damaged in its business by the charges of infringement by Venetec

in its First Supplemental Complaint and will be irreparably harmed if the existing controversy between the parties is not promptly adjudicated. 19. void. Count III Unenforceability of the '150 Patent 20. Nexus incorporates by reference and re-alleges paragraphs 1 through 19 of its As a result, Nexus seeks a declaration that the Patents-in-Suit are invalid and

counterclaim as if fully set forth herein. 21. 22. Venetec has alleged that it is the owner of the '150 Patent. Venetec has charged Nexus with infringement of the '150 Patent and Nexus has

denied that allegation. 23. The '150 Patent is a continuation of the '485 Patent, and therefore, the '150 Patent

is related to and claims priority to the '485 Patent. 24. Nexus filed a Request for Reexamination of the '485 Patent (the "'485

Reexamination") with the U.S. Patent and Trademark Office ("Patent Office") on June 25, 2007, and a copy of the '485 Reexamination was provided to Venetec at or about that time.

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25.

The '485 Reexamination sets forth four prior art references that invalidate claims

1-3, 5-8, 11-13, 15-18, and 21-22 ("the Reexamined Claims") of the '485 Patent. 26. The '485 Reexamination contains no less than twenty-four arguments for

invalidity (the "Reexamination Invalidity Contentions") of the Reexamined Claims that are detailed in no less than twenty-four claim charts. 27. The Reexamination Invalidity Contentions include, but are not limited to,

assertions that the Reexamined Claims of the '485 Patent are invalid as anticipated and/or obvious in view of, and in combination with, certain prior art references. 28. Because the '485 Patent is related to the '150 Patent, the Reexamination

Invalidity Contentions in the '485 Reexamination are material to patentability of the '150 Patent application. 29. The claim charts and Reexamination Invalidity Contentions set forth in the '485

Reexamination were neither cited by Venetec in the '150 Patent application nor considered by the Patent Office during prosecution of the '150 Patent. 30. In response to Venetec's First Set of Interrogatories in this litigation, Nexus

served Venetec with invalidity contentions of the '485 Patent (the "Interrogatory Invalidity Contentions") on May 30, 2007, including invalidity claim charts. 31. Venetec cited the Interrogatory Invalidity Contentions to the Patent Office in an

Information Disclosure Statement ("IDS"), attached hereto as Exhibit A, on June 20, 2007. 32. On June 25, 2007, the Patent Office responded to Venetec's filing of the IDS

("PTO Response"), attached hereto as Exhibit B.

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33.

The PTO Response explains that the Interrogatory Invalidity Contentions cited in

the IDS were not considered by the Patent Examiner of the '150 patent in the prosecution of the '150 Patent because the issue fee had already been paid. 34. The PTO Response advises Venetec to file a petition to withdraw the '150 Patent

application from issue to have the IDS considered by the Patent Office. 35. Although Venetec had the opportunity to petition the PTO to withdraw the '150

application from issuance and therefore allow consideration of Nexus's Interrogatory Invalidity Contentions, Venetec failed to do so. 36. The PTO did not consider the Interrogatory Invalidity Contentions in determining

patentability of the '150 Patent. 37. Upon information and belief, Venetec's failure to cite for consideration by the

Patent Office the Reexamination Invalidity Contentions and/or the Interrogatory Invalidity Contentions was with bad faith and an intent to deceive the Patent Office and thus, breached Venetec's duty of candor before the Patent Office, as prescribed in 37 C.F.R. § 1.56, and resulted in inequitable conduct. 38. There is a substantial, justiciable, and continuing controversy between Nexus and

Venetec as to Venetec's suit for infringement of the '150 Patent and whether the '150 Patent is unenforceable. 39. Nexus will be damaged in its business by the charges of infringement by Venetec

in its First Supplemental Complaint and will be irreparably harmed if the existing controversy between the parties is not promptly adjudicated. 40. As a result, Nexus seeks a declaration that the '150 Patent is unenforceable.

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Prayer for Relief WHEREFORE, Nexus prays for the following relief: 1. 2. 3. 4. That the Patents-in-Suit be declared not infringed by Nexus; That the Patents-in-Suit be declared invalid and void; That the '150 Patent be declared unenforceable; That judgment on Plaintiff's First Supplemental Complaint be rendered for

Nexus, with costs of litigation awarded to Nexus; 5. That the Court find this case to be exceptional and award Nexus its reasonable

attorneys' fees and costs pursuant to 35 U.S.C. § 285; and 6. That the Court grant to Nexus such other, further, and different relief as the Court

may deem just and proper.

Dated: August 8, 2007

/s/ Mary B. Matterer Richard K. Herrmann #405 Mary B. Matterer #2696 MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, Delaware 19801-1494 T: (302) 888-6800 F: (302) 571-1750 [email protected] Of Counsel: Scott R. Brown Andrew G. Colombo HOVEY WILLIAMS LLP 2405 Grand Boulevard, Suite 400 Kansas City, Missouri 64108 T: 816-474-9050 F: 816-474-9057 Attorneys for Defendant and Counterclaimant Nexus Medical, LLC

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