Free Answer - District Court of Federal Claims - federal

Case 1:08-cv-00069-LSM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AVOCENT REDMOND CORP., Plaintiff, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) )

No. 08-69C Judge Lawrence S. Margolis

ANSWER TO PLAINTIFF'S COMPLAINT Defendant hereby answers Plaintiff's Complaint of January 31, 2008. Each of the paragraphs numbered 1 to 23, and 2nd 19 to 2nd 23, responds to the corresponding paragraph in the Complaint. (In the Complaint, 2nd 19 to 2nd 23 should be 24 to 28.) Upon current information and belief, all averments in the Complaint are denied except for those expressly admitted below. 1. Defendant lacks knowledge sufficient to form a belief as to the truth of the averments

in Paragraph 1 and, for that reason, denies the same. 2. Defendant admits, on information and belief, that the products sold, offered for sale,

and marketed by Plaintiff include Keyboard Video Mouse (KVM) switches. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 2 and, for that reason, denies the same. 3. Defendant admits that Rose Electronics is a Texas general partnership that has two

general partners, peter Macourek and Darioush Rahvar, and has a principal place of business in Houston, Texas. Defendant denies that Plaintiff's Complaint consistently uses "Rose" to refer to "Rose Electronics and the two partners of Rose Electronics." (emphasis added) For example,

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Paragraph 5 makes an allegation which includes the phrase "Rose and its two general partners." (emphasis added) Therefore, it is not clear what "Rose" means throughout Plaintiff's Complaint. In addition, Defendant lacks knowledge sufficient to form a belief as to the truth of each allegation made against "Rose" because Defendant has no knowledge regarding the collective or individual acts of Rose Electronics, Peter Macourek, and Darioush Rahvar. 4. Defendant admits that the products sold, offered for sale, and marketed by Rose

Electronics include Keyboard Video Mouse (KVM) switches. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 4 and, for that reason, denies the same. 5. 6. Admitted. Defendant admits that Rose Electronics has a General Services Administration supply

schedule contract, No. GS-35F-0345J. Defendant also admits that certain of the Rose Electronics Keyboard Video Mouse (KVM) switches that are accused in the Seattle action have been offered for sale to Defendant under the terms of this contract. Defendant further admits that Rose Electronics asserted 28 U.S.C. § 1498(a) as a defense in the Seattle action for any accused KVM switches which may have been obtained pursuant to purchase orders placed by Defendant under this contract. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 6 and, for that reason, denies the same. 7. Defendant admits that Plaintiff sued Raritan Computer, Inc. in the United States

District Court for the Southern District of New York, case number 01-CV-4435, and that the Raritan Computer case was appealed to the United States Court of Appeals for the Federal Circuit, reported at 325 F.3d 1364 (Fed. Cir. 2003). Defendant admits that a copy of Avocent Redmond Corp. v. -2-

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Raritan Computer, Inc., 2005 U.S. Dist. LEXIS 4017 (S.D. N.Y. 2005), is attached to the Complaint. Defendant lacks knowledge sufficient to form a belief as to any settlement of the Raritan Computer case and, for that reason, denies the same. As for the remaining averments of Paragraph 7, they are Plaintiff's characterizations of the determinations made in the Raritan Computer case, and Defendant objects to admitting or denying such characterizations. Notwithstanding the objection, Defendant denies those remaining averments. 8. 9. Admitted. Defendant incorporates by reference and re-asserts its responses to Paragraphs 1 to

8 above, as if more fully set out herein. 10. Defendant admits that the United States Patent and Trademark Office (USPTO)

issued United States Patent 5,884,096 (the `096 Patent) on March 16, 1999. Defendant denies that the patent was "duly" issued. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 10 and, for that reason, denies the same. 11. Defendant admits that Plaintiff attached a claim chart as Exhibit 3 to the Complaint.

Defendant denies the remaining averments of Paragraph 11. 12. 13. 14. Defendant denies the averments of Paragraph 12. Defendant denies the averments of Paragraph 13. Defendant incorporates by reference and re-asserts its responses to Paragraphs 1 to

8 above, as if more fully set out herein. 15. Defendant admits that the United States Patent and Trademark Office (USPTO)

issued United States Patent 6,112,264 (the `264 Patent) on August 29, 2000. Defendant denies that

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the patent was "duly" issued. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 15 and, for that reason, denies the same. 16. Defendant admits that Plaintiff attached a claim chart as Exhibit 4 to the Complaint.

Defendant denies the remaining averments of Paragraph 16. 17. 18. 19. Defendant denies the averments of Paragraph 17. Defendant denies the averments of Paragraph 18. Defendant incorporates by reference and re-asserts its responses to Paragraphs 1 to

8 above, as if more fully set out herein. 20. Defendant admits that the United States Patent and Trademark Office (USPTO)

issued United States Patent 7,113,978 (the `978 Patent) on September 26, 2006. Defendant denies that the patent was "duly" issued. Defendant lacks knowledge sufficient to form a belief as to the truth of the remaining averments in Paragraph 20 and, for that reason, denies the same. 21. Defendant admits that Plaintiff attached a claim chart as Exhibit 5 to the Complaint.

Defendant denies the remaining averments of Paragraph 21. 22. 23. Defendant denies the averments of Paragraph 22. Defendant denies the averments of Paragraph 23. Defendant incorporates by reference and re-asserts its responses

2nd 19 [sic, should be 24].

to Paragraphs 1 to 8 above, as if more fully set out herein. 2nd 20 [sic, should be 25]. Defendant admits that the United States Patent and Trademark

Office (USPTO) issued United States Patent 6,345,323 (the `323 Patent) on February 5, 2002. Defendant denies that the patent was "duly" issued. Defendant lacks knowledge sufficient to form

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a belief as to the truth of the remaining averments in 2nd Paragraph 20 and, for that reason, denies the same. 2nd 21 [sic, should be 26]. 2nd 22 [sic, should be 27]. 2nd 23 [sic, should be 28]. 29. Defendant denies the averments of 2nd Paragraph 21. Defendant denies the averments of 2nd Paragraph 22. Defendant denies the averments of 2nd Paragraph 23.

Defendant denies that Plaintiff is entitled to any of its prayers for relief.

Defendant further avers: 30. Defendant has not infringed and does not infringe any of the asserted claims of the

patents in suit either directly, indirectly, literally, or under the doctrine of equivalents. 31. All of the asserted claims of the four patents in suit are invalid for failure to comply

with provisions of 35 U.S.C. §§ 101, 102, 103, and/or 112. In support of the allegation that the asserted claims are invalid, Defendant refers to the prior art cited in Appendix A, attached hereto, and to other patents, publications, use, sales, prior inventors, reports and contracts, the names, dates, numbers and other particulars of which are currently unknown to Defendant and which, when ascertained, Defendant prays leave to add to this answer or otherwise give notice to Plaintiff. 32. Plaintiff's claim is barred in whole or in part by operation of 28 U.S.C. § 2501 and

35 U.S.C. § 286. 33. Plaintiff's claims are unenforceable, limited, or barred by the doctrines of laches,

estoppel, waiver, acquiescence, and/or unclean hands. 34. Answering further, Defendant asserts any and all other defenses which are presently

unknown to Defendant by which, when ascertained, Defendant prays leave to add to this Answer or otherwise give notice to Plaintiff. -5-

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Conclusion WHEREFORE, defendant prays that this court: (A) adjudge that the Defendant does not use the device or method covered by any of the

patents-in-suit; (B) (C) grant no relief to the plaintiff; adjudge every asserted claim of the patents-in-suit to be invalid, not infringed by or

for defendant with its authorization and consent, or unenforceable; and (D) grant defendant judgment for its costs, attorney's fees and such other and further relief

as the court deems proper.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JOHN FARGO Director

s/Robert G. Hilton ROBERT G. HILTON Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 307-0346 Telefax: (202) 307-0345 March 31, 2008

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Appendix A United States Patents Number 3,541,541 3,634,830 3,774,158 3,955,188 4,078,249 4,081,797 4,150,429 4,243,984 4,313,176 4,479,122 4,550,386 4,580,165 4,599,611 4,622,589 4,630,284 4,633,297 4,639,765 4,641,262 4,665,501 4,677,488 4,680,622 4,709,267 4,710,917 4,736,250 4,768,083 4,800,429 4,807,104 4,823,256 4,879,716 4,893,175 Inventor Engelbart Baskin Clark Viswanathan Lelke et. al. Olson Ying Ackley et. al. Cecil Redman et. al. Hirosawa et. al. Patton et. al. Bowker et. al. Bell Cooperman Skerlos et. al. D'Hont Bryan et. al. Saldin et. al. Zato Barnes et. al. Sendelweck Tompkins et. al. Blazzo Romesburg Perkins Floyd et. al. Bashop et. al. McNally et. al. Fukada Issue Date Nov. 17, 1970 Jan. 11, 1972 Nov. 20, 1973 May 4, 1976 Mar. 7, 1978 Mar. 28, 1978 Apr. 17, 1979 Jan. 6, 1981 Jan. 26, 1982 Oct. 23, 1984 Oct. 29, 1985 Apr. 1, 1986 July 8, 1986 Nov. 11, 1986 Dec. 16, 1986 Dec. 30, 1986 Jan. 27, 1987 Feb. 3, 1987 May 12, 1987 June 30, 1987 July 14, 1987 Nov. 24, 1987 Dec. 1, 1987 Apr. 5, 1988 Aug. 30, 1988 Jan. 24, 1989 Feb. 21, 1989 Apr. 18, 1989 Nov. 7, 1989 Jan. 9, 1990

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Number 4,907,079 4,907,146 4,939,507 4,941,087 4,949,169 4,949,248 4,953,027 4,953,159 4,962,427 5,029,111 5,036,315 5,036,484 5,043,866 5,051,720 5,117,225 5,121,486 5,128,766 5,166,674 5,214,785 5,220,380 5,222,212 5,229,850 5,230,066 5,247,364 5,247,615 5,257,390 5,260,788 5,261,079 5,268,676 5,280,583

Inventor Turner et. al. Caporali Beard et. al. Kap Lumelsky et. al. Caro Tong et. al. Hayden et. al. Lunn et. al. Mansell Gurley McCoy et. al. Myre, Jr. et. al. Kittirutsunetorn Wang Kurihara et. al. Choi Baum et. al. Fairweather Hirata et. al. Johary et. al. Toyoshima Morimi Banker et. al. Mori et. al. Asprey Tokano et. al. Celi., Jr. Asprey et. al. Nakayama et. al.

Issue Date Mar. 6, 1990 Mar. 6, 1990 July 3, 1990 July 10, 1990 Aug. 14, 1990 Aug. 14, 1990 Aug. 28, 1990 Aug. 28, 1990 Oct. 9, 1990 July 2, 1991 July 30, 1991 July 30, 1991 Aug. 27, 1991 Sep. 24, 2991 May 26, 1992 June 9, 1992 July 7, 1992 Nov. 24, 1992 May 25, 1993 June 15, 1993 June 22, 1993 July 20, 1993 July 20, 1993 Sep. 21, 1993 Sep. 21, 1993 Oct. 26, 1993 Nov. 9, 1993 Nov. 9, 1993 Dec. 7, 1993 Jan. 18, 1994

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Number 5,283,639 5,287,461 5,301,028 5,309,564 5,317,391 5,323,420 5,327,156 5,347,646 5,349,675 5,357,276 5,357,420 5,367,571 5,379,409 5,381,477 5,386,247 5,388,032 5,392,400 5,396,593 5,428,806 5,440,618 5,440,632 5,448,697 5,465,105 5,477,262 5,485,221 5,486,868 5,486,869 5,489,947 5,499,377 5,502,499

Inventor Esch et. al. Moore Banker et. al. Bradley et. al. Banker et. al. Asprey (Cybex) Masukane et. al. Hirosawa et. al. Fitzgerald et. al. Banker et. al. Gohi Bowen et. al. Ishikawa Beyers, II et. al. Shafer et. al. Gill et. al. Berkowitz et. al. Mori et. al. Pocrass Riegel et. al. Bacon et. al. Parks et. al. Shatas et. al. Banker et. al. Banker et. al. Shyu et. al. Cooper Cooper Lee Birch et. al.

Issue Date Feb. 1, 1994 Feb. 15, 1994 Apr. 5, 1994 May 3, 1994 May 31, 1994 June 21, 1994 July 5, 1994 Sep. 13, 1994 (filed Sep. 26, 1989) Sep. 20, 1994 (filed Sep. 4, 1990) Oct. 18, 1994 (filed Dec. 1, 1992) Oct. 18, 1994 (filed Sep. 24, 1992) Nov. 22, 1994 (filed Dec. 2, 1990) Jan. 3, 1995 (filed Mar. 7, 1991) Jan. 10, 1995 (filed Feb. 16, 1993) Jan. 31, 1995 (filed Jan. 2, 1993) Feb. 7, 1995 (filed May 4, 1993) Feb. 21, 1995 (filed July 2, 1992) Mar. 7, 1995 (effective filing date Nov. 8, 1990) June 27, 1995 Aug. 8, 1995 (effective filing date Sep. 8, 1992) Aug. 8, 1995 (effective filing date Dec. 2, 1992) Sep. 5, 1995 (filed Sep. 10, 1993) Nov. 7, 1995 (filed sep. 10, 1993) Dec. 19, 1995 (filed Nov. 29, 1991) Jan. 16, 1996 (filed Apr. 19, 1994) Jan. 23, 1996 (filed May 19, 1995) Jan. 23, 1996 (filed Dec. 13, 1993) Feb. 6, 1996 (effective filing date June 17, 1994) Mar. 12, 1996 (filed May 3, 1993) Mar. 26, 1996 (effective filing date Dec. 3, 1993)

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Number 5,504,522 5,519,874 5,526,024 5,534,942 5,537,548 5,539,822 5,541,666 5,557,302 5,566,339 5,577,210 5,579,057 5,579,087 5,581,303 5,583,993 5,592,551 5,603,060 5,604,509 5,604,544 5,606,604 5,608,872 5,617,547 5,642,153 5,657,414 5,673,087 5,674,003 5,689,671 5,701,161 5,708,961 5,715,515 5,724,525 5,732,212 5,742,677 5,768,224 5,774,859 6,519,540

Inventor Setogawa Yamagishi et. al. Gaglianello et. al. Beyers, Jr. et. al. Fin et. al. Lett Zeidler et. al. Lvinthal et. al. Perholtz et. al. Abdous et. al. Banker et. al. Salgado Djabbari et. al. Foster et. al. Lett et. al. Weinberger et. al. Moore et. al. Bertram Rosenblatt et. al. Schwartz et. al. Feeney et. al. Chaney et. al. Lett et. al. Choi et. al. Andersen et. al. Stromberg Williams et. al. Hylton et. al. Atkins, III et. al. Beyers, II et. al. Perholtz et. al. Pinder et. al. Tanaka et. al. Houser et. al. Salandro

Issue Date Apr. 2, 1996 (filed June 28, 1995) May 21, 1996 (filed Mar. 12, 1991) June 11, 1996 (filed Aug. 12, 1994) July 9, 1996 (effective filing date June 17, 1994) July 16, 1996 (effective filing date Aug. 7, 1992) July 23, 1996 (filed apr. 19, 1994) July 30, 1996 (filed July 6, 1994) Sep. 17, 1996 (effective filing date Sep. 10, 1990) Oct. 15, 1996 (filed Oct. 23, 1992) Nov. 19, 1996 (effective filing date June 16, 1993) Nov. 26, 1996 (filed Jan. 5, 1995) Nov. 26, 1996 (effective filing date Aug. 9, 1994) Dec. 3, 1996 (filed Jan. 18, 1995) Dec. 10, 1996 (filed Jan. 31, 1994) Jan. 7, 1997 (filed Apr. 19, 1994) Feb. 11, 1997 (effective filing date Aug. 4, 1990) Feb. 18, 1997 (filed Apr. 14, 1995) Feb. 18, 1997 (filed May 31, 1995) Feb. 25, 1997 (filed Dec. 13, 1993) Mar. 4, 1997 (filed Mar. 19, 1993) Apr. 1, 1997 (effective filing date Oct. 28, 1993) June 24, 1997 (filed Dec. 23, 1994) Aug. 12, 1997 (filed Dec. 1, 1992) Sep. 30, 1997 (effective filing date Nov. 25, 1994) Oct. 7, 1997 (filed Apr. 28, 1995) Nov. 18, 1997 (effective filing date Nov. 27, 1992) Dec. 23, 1997 (filed dec. 14, 1994) Jan. 13, 1998 (filed Aug.18, 1995) Feb. 3, 1998 (filed Sep. 19, 1994) Mar. 3, 1998 (filed Mar. 28, 1995) Mar. 24, 1998 (filed Jan. 13, 1994) Apr. 21, 1998 (filed apr. 3, 1995) June 16, 1998 (effective filing date Jan. 25, 1995) June 30, 1998 (filed June 3, 1995) Feb. 11, 2003 (filed oct. 4, 1994)

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Publications "Add Text Overlay to Any Video Display," Houghton, 1992. Apex View point Brochure, http://www.apex.com/products/viewpoint.htm . ATEN Master View User Manual. ATEN product catalogs, 1993, 1994. Central Control of Multiple PC's Without Massive Cabling. DeKerf, T. And Davis, Gary D., "The Keyboard/Video Switch White Paper: A Close Look At Modern Keyboard/Video Switching," Tron International Inc. and the WorkCenter Corporation, 1995. "Goldstar Unveils 5 Upgraded VCRs" Guttag, Karl M., "Video Display Processor," IEEE Transactions on Consumer Electronics, Feb. 1981, pp. 27-34, Vol. CE-27, IEEE. Morganstern, D., "Boxes extend reach of peripherals, CPUs," MacWEEK, v. 9, n. 31, p. 14 (Cybex AutoBoot Commander 4XP). Motorola Semiconductor Technical Data, MC141543 Product Preview, Advanced Monitor OnScreen Display, Rev. 0. NEC Electron Device Data Sheet for MOS Integrated Circuit uPD6451A, Document No. IC2337A, September 1990. NEC Electron Device Data Sheet for MOS Integrated Circuit uPD6453, Document No. IC-2712, November 1990. Nguyen, H. N., "Switch lets IS span platforms," PC Week, August 7, 1995, p. 15 (Cybex AutoBoot Commander 4XP). Philips Semiconductor Microcontroller Products, Product Specification 87C054, Microcontroller for Television and Video, January 26, 1993. PolyCon Console Switching and Management System. PolyCon Data Systems-Polygon Management System.

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PolyCon GmbH Data Systems, "One For All and All On One" Product brochures, 1994. "The PolyCon Management System Ordering System," PolyCon GmbH Data Systems, 1994. ServeView Keyboard Controlled switch, Installation and Operation Manual, Part No. MANSVX2.1. "Sony Makes Bold Design Statement With the Launch Of the Trinitron XBR2 Line Of Consumer Televisions." "Video Display Processor," Guttag, 1981.

Products Offered for Sale, Publicy Used, and/or Made Known ATEN Master View product (Aten, 1994). Motorola 141543 Advanced Monitor On-Screen Display (Motorola, NLT January 1995). ServeView Keyboard Controlled Switch (Rose Electronics, 1991).

Other Prior Art European Patent 0 174 099 A2, Mar., 1986. Germany Patent 93 03 716.3, Nov. 1993. Japan Patent 406284118, Oct. 1994. Japan Patent 407075088, Mar. 1995. WIPO Patent WO 87/00317, Jan. 1987. WIPO Patent WO 94/19749, Sep. 1994. WIPO Patent WO 95/01055, Mullett et. al. (Amulet Electronics Ltd.), Jan. 5, 1995. Rose Electronics schematic, Part No. VMCON4, Revision F.

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