Free Response to Motion - District Court of Delaware - Delaware

Case 1:06-cv-00751-MPT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER-HANNIFIN CORPORATION, and PARKER INTANGIBLES, LLC Plaintiff, v. ZIPPERTUBING (JAPAN), LTD., Defendant, Civil Action No. 06-751-***

ANSWER TO FIRST AMENDED COMPLAINT OF DEFENDANT ZIPPERTUBING (JAPAN), LTD. Defendant Zippertubing (Japan), Ltd. ("ZTJ") hereby answers the First Amended Complaint of Plaintiffs Parker-Hannifin Corporation ("Parker") and Parker Intangibles, LLC ("PIL") as follows: 1. ZTJ lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 1 of the Complaint. 2. ZTJ lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 2 of the Complaint. 3. ZTJ admits the allegations contained in Paragraph 3 of the Complaint. JURISDICTION AND VENUE 4. ZTJ admits subject matter jurisdiction of this Court as alleged in Paragraph 4 of

the Complaint and waives objection to personal jurisdiction. 5. Complaint. ZTJ waives objection to venue of this Court as alleged in Paragraph 5 of the

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THE PATENTS 6. ZTJ admits that U.S. Patent No. 6,387,523 (" the '523 patent" ) issued on May 14,

2002, but denies that it was duly and legally issued. ZTJ is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 6 of the Complaint. 7. ZTJ admits that U.S. Patent No. 6,521,348 (" the '348 patent" ) issued on February

18, 2003, but denies that it was duly and legally issued. ZTJ is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 7 of the Complaint. 8. ZTJ admits that U.S. Patent No. 6,716,536 (" the '536 patent" ) issued on April 6,

2004, but denies that it was duly and legally issued. ZTJ is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 8 of the Complaint. 9. ZTJ admits that U.S. Patent No. 6,777,095 (" the '095 patent" ) issued on August

17, 2004, but denies that it was duly and legally issued. ZTJ is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 9 of the Complaint. PATENT INFRINGEMENT 10. 11. ZTJ denies each and every allegation of Paragraph 10 of the Complaint. ZTJ denies each and every allegation of Paragraph 11 of the Complaint. AFFIRMATIVE DEFENSES 12. ZTJ has not infringed and is not infringing any claim of the '523 patent, the '348

patent, the '536 patent or the '095 patent, either directly or by inducing or contributing to their infringement by others.

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13.

ZJT is not liable for infringement by reason of any acts in the United States

because its activities in connection with the accused products take place outside the United States. 14. The claims of the ' 523 patent, the ' 348 patent, the ' 536 patent and the ' 095 patent

are each invalid because they fail to satisfy one or more of the conditions for patentability set forth in 35 U.S.C. §§ 101, 102, 103, and 112. 15. The ' 523 patent, the ' 348 patent, the ' 536 patent and the ' 095 patent are invalid as

a result of obviousness-type double patenting. 16. Parker and PIL are estopped by virtue of amendments and statements made during

the course of prosecution of the ' 523 patent, the ' 348 patent, the ' 536 patent and the ' 095 patent from obtaining any construction of the claims of the patents that could cover any of ZTJ' s products and the methods by which those products are made. 17. On information and belief, Parker and PIL have failed to comply with the

provisions of 35 U.S.C. § 287(a) and are therefore barred from recovery of any damages prior to service of the Complaint. RESERVATION OF RIGHTS 18. ZTJ is still investigating this matter and has not yet had an opportunity to conduct

any discovery, and therefore reserves the right to raise such additional defenses as may be appropriate upon further investigation and discovery. WHEREFORE, ZTJ prays as follows: A. That Parker and PIL take nothing by reason of their First Amended Complaint,

and that judgment be entered for ZTJ;

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B.

That the ' 523 patent, the ' 348 patent, the ' 536 patent and the ' 095 patent, and

each and every claim thereof be adjudged to be invalid, and that ZTJ be adjudged not to infringe such patent; C. That the Court declare this an exceptional case and award ZTJ its attorneys' fees

and costs pursuant to 35 U.S.C. § 285; and D. That the Court grant such other and further relief as is just and proper. FISH & RICHARDSON P.C.

Dated: January 28, 2008

By: /s/ William J. Marsden, Jr. William J. Marsden, Jr. (#2247) 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 (302) 652-5070 [email protected] Attorneys for Defendant ZIPPERTUBING (JAPAN), LTD. Of Counsel: John B. Pegram John D. Garretson David Loretto Michael Zoppo FISH & RICHARDSON P.C. Citigroup Center ­ 52nd Floor 153 East 53rd Street New York, NY 10022-4611 (212) 765-5070 mailto:[email protected]

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CERTIFICATE OF SERVICE I hereby certify that on January 28, 2008, I electronically filed with the Clerk of Court this ANSWER TO FIRST AMENDED COMPLAINT OF DEFENDANT ZIPPERTUBING (JAPAN), LTD. using CM/ECF which will send electronic notification of such filing(s) to the following Delaware counsel. In addition, the document was caused to be served on the attorneys of record, at the following addresses and in the manner indicated:: VIA EMAIL Rudolf E. Hutz, Esquire Francis DiGiovanni, Esquire Steven A. Nash, Esquire (pro hac vice) Connolly Bove Lodge & Hutz LLP The Nemours Building 1007 N. Orange Street Wilmington, DE 19801 [email protected] [email protected] [email protected] Attorneys for Plaintiffs PARKER-HANNIFIN CORPORATION and PARKER INTANGIBLES, LLC

/s/ William J. Marsden, Jr. William J. Marsden (#2247)

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