Free Answer to Complaint - District Court of California - California

Case 5:07-cv-04507-JF

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Richard Wahng (SBN 225672) Law Offices of Richard C. J. Wahng 152 Anza Street, Suite 201 Fremont, CA 94539 (510) 490-4447 Telephone (510) 490-1102 Fax

Attorney for Defendants GORDON YU, CHIU FENG CHEN, ROBERT WU, TOMMY HO, and KUEI LU

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ACTICON TECHNOLOGIES LLC, Plaintiff, vs. DEFENDANT KUEI LU'S ANSWER TO PRETEC ELECTRONICS CORPORATION, a COMPLAINT dissolved California corporation; PTI GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an individual; KUEI LU, an individual; and DOES 1 through 20, Defendants. Defendant Kuei Lu ("Lu"), by and through his attorney Law Offices of Richard Wahng, states for his Answer and Affirmative Defenses to the Complaint of plaintiff Acticon Technologies LLC ("Acticon") as follows: INTRODUCTION 1. Lu admits that Acticon seeks to bring a causes of action based on alleged infringement of certain patents and for fraudulent transfer of corporate assets, but denies liability with respect to any such claims. Lu further denies that that Acticon is entitled to any relief. 2. Lu admits the patents referenced in Acticon's complaint are purportedly attached thereto, but denies that said patents were duly and legally issued. In all other respects, Lu is Case No. C07-4507JF

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without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 3. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 4. Lu denies that he was an officer, director, or shareholder of Pretec Electronics Corporation. 5. Lu denies liability for infringement of Acticon's patents as alleged in paragraph 5. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. 6. Lu denies liability for infringement of Acticon's patents as alleged in paragraph 6. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. JURISDICTION 7. Lu admits that this Court has subject matter jurisdiction pursuant to 28 U.S.C. sections 1331 and 1338(a). In all other respects, denied. 8. Denied to the extent that this paragraph alleges any tortious conduct committed by Lu. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to jurisdiction over other defendants, and on that basis denies. VENUE 9. Lu admits that PTI Global, Inc. has an office located in this District. In all other respects Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. INTRA-DISTRICT ASSIGNMENT 10. Lu admits the allegations in paragraph 10. PARTIES 11. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies.

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12. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 13. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 14. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 15. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 16. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 17. Lu admits that PTI Global, Inc. has a business location at 231 Whitney Place, Fremont, California. Lu admits that Pretec Technology, Inc. changed its name to PTI Global, Inc. 18. Lu admits that PTI Global, Inc. imports, offers for sale and sales certain PCMCIA, CompactFlash and Secure Digital I/O products that are sold under the brand name Pretec. In all other respects, denied. 19. Lu admits that Grace Yu served as president, secretary, and CEO of Pretec Technology, Inc. In all other respects, denied. 20. Lu admits the allegations of paragraph 20. 21. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 22. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 23. To the extent this paragraph alleges that Lu is liable under an agency theory, denied. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 24. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies.

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25. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. GENERAL ALLEGATIONS 26. Lu admits that Pretec Electronics Corporation was named as a defendant in the case of Acticon Technologies LLC v. Pretec Electronics Corp., et. al., United States District Court for the Northern District of California Case No. C06-4679JF. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 27. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 28. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 29. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 30. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 31. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 32. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 33. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 34. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 35. Lu denies that the Certificate of Amendment to Pretec Technology, Inc.'s Article of Incorporation changing its name to PTI Global was filed with the California Secretary of State on the date listed in the complaint.

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36. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 37. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 38. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 39. Lu denies liability for infringement of Acticon's patents as alleged in paragraph 39. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. 40. Lu denies liability for infringement of Acticon's patents as alleged in paragraph 40. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. 41. Lu denies liability for fraudulent transfer of assets to defendant PTI Global, Inc. as alleged in paragraph 40. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. GENERAL PATENT CLAIMS ALLEGATIONS 42. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 43. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 44. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 45. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 46. Lu admits that the Patents in Suit purportedly describe, in general terms, "various electronic connectors that convert signals between a computer and certain external devices in order to obtain a desired connecting configuration and/or function." In all other respects denied.

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47. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 48. Lu denies liability for continuing infringement of Acticon's patents as alleged in paragraph 48. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. 49. Lu denies liability for infringement of Acticon's patents as alleged in paragraph 49. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. 50. Lu admits that PTI Global, Inc. imports, offers for sale and sales certain PCMCIA, CompactFlash and Secure Digital I/O products that are sold under the brand name Pretec. In all other respects, denied. 51. Lu denies liability for continuing infringement of Acticon's patents as alleged in paragraph 51. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations pertaining to other defendants, and on that basis denies. COUNT I 52. Defendant Lu incorporates by reference responses to paragraphs 1-51. 53. Lu denies that PTI Global, Inc. is the instrument of Pretec Electronics Corp. 54. Denied. 55. To the extent that paragraph 55 alleges Lu is liable for fraudulent transfer of assets,

56. Denied. 57. Lu admits that PTI Global, Inc. imports, offers for sale and sales certain PCMCIA, CompactFlash and Secure Digital I/O products that are sold under the brand name Pretec. In all other respects, denied. 58. Lu admits that products branded with the Pretec name are sold at the website, www.ptiglobalusa.com, and that this website is owned by PTI Global, Inc. Lu denies that PTI Global, Inc.'s current home page contains the header "Flash Memory Innovation by PRETEC."

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59. Lu admits the website at the location http://www.amazon.com/shops/pti_global reads as indicated in the Complaint and is owned by PTI Global. 60. Lu admits that the address and telephone number on the website

www.ptiglobalusa.com are as described in the Complaint. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 61. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 62. Denied. 63. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 64. To the extent this paragraph alleges that Lu was in any manner responsible for infringement of Acticon's patents, denied. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. 65. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. COUNT II 66. Defendant Lu incorporates by reference responses to paragraphs 1-65. 67. Lu denies that he was an officer, director, or majority shareholder of Pretec Electronics Corporation. 68. Denied. 69. Denied. 70. Denied. 71. Denied. 72. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies.

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73. Lu denies liability for contributory infringement of Acticon's patents as alleged in paragraph 73. 74. To the extent this paragraph alleges that Lu was in any manner responsible for infringement of Acticon's patents, denied. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. 75. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 76. Lu denies liability for any alleged fraudulent transfer of assets. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. 77. To the extent this paragraph alleges that Lu is responsible for Acticon's damages, if any, denied. COUNT III 78. Defendant Lu incorporates by reference responses to paragraphs 1-77. 79. Lu denies liability for any alleged fraudulent transfer of assets. 80. Lu admits that he served as the sole officer, director, and shareholder of PTI Global,

81. To the extent this paragraph alleges that Lu was in any manner responsible for infringement of Acticon's patents, (whether willful, deliberate, or otherwise) denied. 82. Lu denies liability for any alleged fraudulent transfer of assets. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. 83. To the extent this paragraph alleges that Lu is responsible for Acticon's damages, if any, denied. COUNT IV 84. Defendant Lu incorporates by reference responses to paragraphs 1-83. 85. Lu denies liability for any alleged fraudulent transfer of assets.
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86. Lu denies liability for any alleged fraudulent transfer of assets. 87. Lu denies liability for fraudulent transfer of assets to defendant PTI Global, Inc. as alleged in paragraph 87. 88. Lu denies serving as an officer, a director, or majority shareholder of Pretec Electronics Corporation. 89. Lu admits that he served as the sole officer, director, and shareholder of PTI Global, Inc. Lu denies serving as an officer, a director, or majority shareholder of Pretec Electronics Corporation. 90. Lu denies that PTI Global, Inc. is an instrument of Pretec Electronics Corporation. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 91. Lu denies the allegation of paragraph 91 of the complaint that the only products PTI Global, Inc. sells are Pretec branded products. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 92. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 93. Denied. 94. Lu denies liability for any alleged fraudulent transfer of assets. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. 95. To the extent this paragraph alleges that Lu is responsible for Acticon's damages, if any, denied. COUNT V 96. Defendant Lu incorporates by reference responses to paragraphs 1-95. 97. Denied. 98. Denied. 99. Denied.

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100. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. COUNT VI 101. Defendant Lu incorporates by reference responses to paragraphs 1-100. 102. Lu denies that he was involved in Pretec Electronics Corporation's winding up process. In all other respects, Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 103. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 104. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 105. Lu is without knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 106. Lu denies liability for any alleged fraudulent transfer of assets. Lu further denies that PTI Global, Inc. is a mere instrument of Pretec Electronics Corporation. Lu is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations, and on that basis denies. 107. Lu denies liability for any alleged fraudulent transfer of assets. Lu is without knowledge or information sufficient to form a belief as to damages allegedly suffered by Acticon, if any, and on that basis denies the remaining allegations. Defendant denies that plaintiff is entitled to any of the relief for which plaintiff has prayed, including without limitation compensatory damages, punitive damages, costs and attorney's fees. Defendant hereby denies any and all allegations made by plaintiff unless specially admitted herein. Defendant asserts the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE The complaint fails to state any claim upon which relief can be granted.

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SECOND AFFIRMATIVE DEFENSE Some or all of plaintiff's claims are barred by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE The court lacks personal jurisdiction over the defendant. FOURTH AFFIRMATIVE DEFENSE The Patents in Suit are invalid for failure to satisfy one or more of the conditions of patentability specified in Parts II or III of Title 35 U.S.C., including, but not limited to, 35 U.S.C. §§ 101, 102, 103, and 112. FIFTH AFFIRMATIVE DEFENSE Defendant has not infringed, and is not infringing, any valid claim of the Patents in Suit either directly, contributorily, by inducement or otherwise. SIXTH AFFIRMATIVE DEFENSE Defendant has not willfully infringed the Patents in Suit. SEVENTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovery for alleged infringement of the Patents in Suit under the doctrine of laches, waiver, estoppel, and/or acquiescence. EIGHTH AFFIRMATIVE DEFENSE Plaintiff is estopped from asserting its infringement claims under the doctrines of prosecution disclaimer and/or prosecution history estoppel. NINTH AFFIRMATIVE DEFENSE Plaintiff is barred from enforcing the Patents in Suit on the basis of patent misuse. TENTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovery for alleged infringement of the Patents in Suit by reason of license of the technology claimed thereunder. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's remedy for patent infringement, if any, is limited to a reasonable royalty as plaintiff does not practice the Patents in Suit.

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WHEREFORE, defendant requests that the court enter judgment in his favor, and against plaintiff as follows: 1. That plaintiff takes nothing by way of its complaint; 2. For a judgment awarding defendant the cost of suit; 3. That the Court declare this case to be an exceptional case under the provisions of 35 U.S.C. § 285, and that defendant be awarded reasonable attorneys' fees; and 4. For such other and further relief as the Court may deem just and proper. CERTIFICATION OF INTERESTED ENTITIES OR PERSONS The undersigned certifies that the following listed persons, associations of persons, firms, partnerships, corporations (including parent corporations) or other entities (i) have a financial interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a nonfinancial interest in the subject matter or in a party that could be substantially affected by the outcome of this proceeding: None, other than the named parties in this action. Dated: March 18, 2008 Law Offices of Richard Wahng /s/ Richard Wahng Attorney for Defendants

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