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

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David P. Irmscher (Indiana State Bar No. 15026-02) John K. Henning (Indiana State Bar No. 25203-49) Baker & Daniels LLC 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 Ray Harris (Arizona State Bar No. 007408) Paul Moore (Arizona State Bar No. 019912) Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 Attorneys for Defendant Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, v. Verve L.L.C., and Omron Corporation, Defendants. CAUSE NO. CV04-0400 PHX PGR DEFENDANT OMRON CORPORATION' ANSWER TO S PLAINTIFF' FIRST AMENDED S COMPLAINT

Defendant Omron Corporation ("Omron") responds to Plaintiff' First Amended s Complaint ("Amended Complaint") filed by the plaintiff, Hypercom Corporation ("Hypercom"), as follows: ADMISSIONS AND DENIALS PARTIES 1. Omron is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 1. 2. Omron is without knowledge or information sufficient to form a belief as to

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the truth of the allegations in paragraph 2.
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3.

Omron admits the allegations in the first and last sentences of paragraph 3.

Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 3. JURISDICTION 4. Omron admits that Omron originally owned U.S. Patent Nos. 4,678,895

("the ` 895 Patent"), 4,562,340 ("the ` 340 Patent"), and 4,562,341 ("the ` 341 Patent"), and that Omron assigned all three patents to Verve. Omron is without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 4. 5. 6. Omron admits the allegations in paragraph 5. Omron denies the allegations in paragraph 6 as to Omron. Omron is without

knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 6. 7. Omron admits that it is an alien corporation. Omron denies the remaining

allegations in paragraph 7 as to Omron. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 7. BACKGROUND 8. Omron admits that Verve does not make or sell products. Omron is without

knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 8. 9. Omron states that Verve' website speaks for itself and, therefore, denies the s

allegations in paragraph 9. 10. Omron states that Verve' website speaks for itself and, therefore, denies the s

allegations in the second sentence of paragraph 10. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 10. 11. Omron states that Verve' website speaks for itself and, therefore, denies the s

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allegations in paragraph 11.
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12.

Omron states that Verve' website speaks for itself and, therefore, denies the s

allegations in the second sentence of paragraph 12. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 12. 13-14. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 13 and 14. 15. Omron admits the following: that Verve does not develop, manufacture, or

sell any products covered by the ` 895, ` 340, or ` 341 Patents; that Omron assigned certain patents to Verve; that Omron assigned the ` 895 Patent to Verve on August 15, 2003; and that Verve filed a lawsuit against Hypercom in a Michigan district court on September 11, 2003. Omron denies the remaining allegations in paragraph 15. 16. Omron admits that Omron assigned certain patents to Verve. Omron is

without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 16. CONSPIRACY 17. Omron denies the allegations in paragraph 17 as to Omron. Omron is

without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 17. 18. Omron denies the allegations in paragraph 18 as to Omron. Omron is

without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 18. 19. Omron admits that Omron assigned the ` 895 Patent to Verve on August 15,

2003, and that Verve filed a lawsuit for infringement of the ` 895 Patent against Hypercom, VeriFone, Inc., and Lipman USA, Inc., in the U.S. District Court for the Eastern District of Michigan on September 11, 2003. allegations in paragraph 19. 20. 21. Omron admits the allegations in paragraph 20. Omron is without knowledge or information sufficient to form a belief as to
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Omron denies the remaining

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the truth of the allegations in paragraph 21. 22. Omron admits that Verve filed its First Amended Complaint And Jury

Demand in the District Court for the Eastern District of Michigan on October 10, 2003, and added as defendants Ingenico Corp. USA, Thales e-Transactions, Inc., Telecheck Services, Inc., LinkPoint International, Inc., and Schlumberger Limited. Omron is

without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 22. 23. Omron admits that Omron assigned the ` 340 and ` 341 Patents to Verve on

October 14, 2003, and that Verve filed its Second Amended Complaint And Jury Demand ("Second Amended Complaint") in the District Court for the Eastern District of Michigan on October 16, 2003. Omron states that the October 21, 2003, Order from the District Court for the Eastern District of Michigan speaks for itself and, therefore, denies the allegations in the third sentence of the Amended Complaint. Omron denies the last sentence in paragraph 23 as to Omron. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 23. 24-25. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 24 and 25. 26. Omron admits that on February 4, 2004, Verve filed a complaint against

Hypercom in the U.S. District Court for the Western District of Texas, captioned Verve L.L.C. vs. Hypercom Corporation, VeriFone, Inc., Ingenico Corporation USA, Thales e-Transactions, Inc., First Data Corporation, Radiant Systems, Inc., CyberNet USA, Inc., and Mist Inc., USA, Case No. 04-CV-62. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 26. 27. Omron is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 27. 28. Omron states that the First Amended Complaint filed in the District Court

for the Eastern District of Michigan speaks for itself and, therefore, denies the allegations in the last sentence of paragraph 28.
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Omron is without knowledge or information
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sufficient to form a belief as to the truth of the remaining allegations in paragraph 28. 29. Omron states that the complaint in the District Court for the Western

District of Texas speaks for itself and, therefore, denies the allegations in the last sentence of paragraph 29. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 29. 30. Omron admits that Yoshitsugu Shinohara and Kazuma Tateisi are named as

inventors on the ` 895, ` 340, and ` Patents. Omron is without knowledge or 341 information sufficient to form a belief as to the truth of the remaining allegations in paragraph 30. 31. Omron admits that the ` 895 Patent is entitled "System for making payments

for transactions," the ` 340 Patent is entitled "Terminal device for making payments for credit transactions," and the ` 341 Patent is entitled "Electronic cash register." Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 31. 32-33. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 32 and 33. 34. Omron admits that on April 12, 2004, Verve filed a Motion To Dismiss For Omron states that Verve' s

Lack Of Personal Jurisdiction Or Alternatively To Stay.

motion speaks for itself and, therefore, denies the remaining allegations in paragraph 34. 35. Omron admits that on May 11, 2004, the District Court for the Eastern

District of Michigan entered its "Opinion And Order Denying Defendant Hypercom' s Motion To Dismiss, Granting Defendant Hypercom' Motion To Sever And Transfer s Venue Of The Severed Claims To The District of Arizona And Ordering Plaintiff Verve To Show Cause On Or Before June 3, 2004 Why The Claims Alleged Against The Remaining Defendants Should Not Be Severed For Misjoinder." Omron states that the Court' order speaks for itself and, therefore, denies the remaining allegations in s paragraph 35. 36-37. Omron admits the allegations in paragraphs 36 and 37.
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38.

Omron admits that Verve filed a Notice Of Dismissal on June 8, 2004.

Omron denies the remaining allegations in paragraph 38 as to Omron. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 38. 39. Omron is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 39. First Count - Declaratory Judgment of Noninfringement and Invalidity of U.S. Patent No. 4,678,895 40. Omron incorporates its responses to paragraphs 1 through 39 of the

Amended Complaint. 41-43. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 41 through 43. 44. Omron denies the allegations in paragraph 44. Second Count - Declaratory Judgment of Noninfringement and Invalidity of U.S. Patent No. 4,562,340 45. Omron incorporates its responses to paragraphs 1 through 44 of the

Amended Complaint. 46-48. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 46 through 48. 49. Omron denies the allegations in paragraph 49. Third Count - Declaratory Judgment of Noninfringement and Invalidity of U.S. Patent No. 4,562,341 50. Omron incorporates its responses to paragraphs 1 through 49 of the

Amended Complaint. 51-53. Omron is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 51 through 53. 54. Omron denies the allegations in paragraph 54.

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Fourth Count - Civil Conspiracy 55. Omron incorporates its responses to paragraphs 1 through 54 of the

Amended Complaint. 56-60. Omron denies the allegations in paragraphs 56 through 60. Fifth Count - Declaratory Judgment Concerning Other Patents 61. Omron incorporates its responses to paragraphs 1 through 60 of the

Amended Complaint. 62. Omron denies the existence of any conspiracy with Verve and further denies

the allegations in paragraph 62 as to Omron. Omron is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 62. 63. Omron is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 63. 64. Omron denies the allegations in paragraph 64 as to Omron. Omron is

without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 64. AFFIRMATIVE DEFENSES 1. granted. 2. Hypercom' claims relate to the valid assignment of a patent and, therefore, s The Amended Complaint fails to state a claim upon which relief can be

are preempted by federal patent law. WHEREFORE, Omron demands judgment and the dismissal of Hypercom' s Amended Complaint, at Hypercom' cost, and all other relief, legal and equitable, to s which Omron is entitled.

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Respectfully submitted this 26th day of August, 2005. FENNEMORE CRAIG, P.C.

By:__s/Ray K. Harris_____________________ Ray Harris Paul Moore 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 BAKER & DANIELS LLC David P. Irmscher John K. Henning 111 East Wayne Street Suite 800 Fort Wayne, IN 46802 Attorneys for Defendant Omron Corporation

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CERTIFICATE OF SERVICE I hereby certify that on August 26, 2005, I electronically transmitted the attached documents to the Clerk' Office using the CM/ECF System for filing and transmittal f a s Notice of Electronic Filing to the following CM/ECF registrants: Michael K. Kelly Sid Leach SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 I hereby certify that on August 26, 2005, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Peter Henry Schelstraete SCHELSTRAETE LAW OFFICE 1949 East Broadway Suite 107 Tempe, AZ 85282-0001 Christopher S. Walton Gregory S. Donahue SIMON GALASSO & FRANTZ PLC 115 Wild Basin Road Suite 107 Austin, TX 78703

_s/Melody Tolliver_________________

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