Free Answer to Complaint - District Court of Delaware - Delaware

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ACCENTURE GLOBAL SERVICE GmbH ) and ACCENTURE LLP, ) ) Plaintiffs, ) ) ) v. ) GUIDEWIRE SOFTWARE INC., ) ) ) Defendant.

C.A. No. 07-826 (SLR)

ANSWER AND COUNTERCLAIMS Defendant Guidewire Software, Inc. ("Guidewire") responds as follows to the Complaint for Patent Infringement, Trade Secret Misappropriation, and Related State Law Claims filed against it by plaintiff Accenture Global Services GmbH and Accenture LLP (collectively "Accenture"). Specifically, Guidewire responds to Claim 1 of Accenture's Complaint. In accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure, Guidewire separately moves to dismiss Claims 2-5 of Accenture's Complaint because they fail to state claims upon which relief may be granted. ANSWER JURISDICTION 1. 2. 3. Guidewire admits the allegations of paragraph 1 of the Complaint. Guidewire admits the allegations of paragraph 2 of the Complaint. Guidewire denies the allegations of paragraph 3 of the Complaint. On

information and belief, Accenture's state-law trade secret misappropriation claims are neither so related to the federal patent law claims that they form part of the same case and/or controversy nor do they derive from a common nucleus of operative fact.

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PARTIES 4. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 4 of the Complaint, and on that basis denies these allegations. 5. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 5 of the Complaint, and on that basis denies these allegations. 6. Guidewire admits that Accenture provides, among other things, claims

management technology and services to the insurance industry. Guidewire lacks sufficient knowledge or information to form a belief as to the remaining allegations set forth in paragraph 6 of the Complaint, and on that basis denies those remaining allegations. 7. Guidewire admits the allegations of paragraph 7 of the Complaint. PARTIES 8. Guidewire admits the allegations of paragraph 8 of the Complaint. INSURANCE CLAIMS MANAGEMENT 9. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 9 of the Complaint, and on that basis denies these allegations. 10. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 10 of the Complaint, and on that basis denies these allegations. 11. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 11 of the Complaint, and on that basis denies these allegations. 12. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 12 of the Complaint, and on that basis denies these allegations. 13. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 13 of the Complaint, and on that basis denies these allegations.

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14.

Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 14 of the Complaint, and on that basis denies these allegations. 15. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 15 of the Complaint, and on that basis denies these allegations. 16. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 16 of the Complaint, and on that basis denies these allegations. 17. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 17 of the Complaint, and on that basis denies these allegations. 18. Guidewire admits that Accenture filed the application for what became U.S.

Patent 7,013,284 ("the '284 patent") on May 4, 1999. Guidewire lacks sufficient knowledge or information to form a belief as to the remaining allegations set forth in paragraph 18 of the Complaint, and on that basis denies those remaining allegations. 19. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 19 of the Complaint, and on that basis denies these allegations. 20. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 20 of the Complaint, and on that basis denies these allegations. 21. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 21 of the Complaint, and on that basis denies these allegations. 22. Guidewire lacks sufficient knowledge or information to form a belief as to the

allegations set forth in paragraph 22 of the Complaint, and on that basis denies these allegations. 23. Guidewire admits that, in 2003, Guidewire won a bid to do joint development

with CNA. Guidewire lacks sufficient knowledge or information to form a belief as to the remaining allegations set forth in paragraph 23 of the Complaint, and on that basis denies those remaining allegations.

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24.

Guidewire admits that it has emerged more and more frequently as a challenger to

Accenture. Guidewire denies the remaining allegations of paragraph 24 of the Complaint. 25. Guidewire denies the allegations of paragraph 25 of the Complaint. ANSWER TO CLAIMS FOR RELIEF CLAIM 1 - INFRINGEMENT OF ACCENTURE'S '284 PATENT 26. In response to paragraph 26 of the Complaint, Guidewire incorporates by

reference its responses to paragraphs 1 through 25 of the Complaint as though fully set forth herein. 27. 28. 29. Guidewire denies the allegations of paragraph 27 of the Complaint. Guidewire denies the allegations of paragraph 28 of the Complaint. Guidewire denies the allegations of paragraph 29 of the Complaint.1 AFFIRMATIVE DEFENSES First Affirmative Defense (Invalidity) 30. Guidewire incorporates by reference its responses to the allegations set forth in

paragraphs 1 through 29. 31. The claims of the asserted Accenture patents are invalid for failure to comply with

one or more of the requirements of Title 35 of the United States Code including, but not limited to, §§ 101, 102, 103, 111, 112, 115, 116, and 256. Second Affirmative Defense (Unenforceability) 32. Guidewire incorporates by reference its responses to the allegations set forth in

paragraphs 1 through 31. 33.
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Accenture's infringement claims are barred in whole or in part by its failure to

In light of Guidewire's motion to dismiss Claims 2-5 of Accenture's Complaint, Guidewire does not answer those allegations here. 4

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comply with the duty of candor before the PTO. Accenture misrepresented or omitted material information in prosecuting the '284 patent. Further, it did so with intent to deceive the United States Patent and Trademark Office ("USPTO"). The '284 patent is therefore unenforceable due to inequitable conduct. 34. First, on information and belief, Accenture intentionally failed to cite a known

and material piece of prior art to the USPTO before it issued the '284 patent. In prosecuting U.S. Patent Application No. 11/017,086 ("the '086 application"), which is a divisional application of the application that became the '284 patent, the patent examiner cited U.S. Patent No. 6,937,990 Walker et al in an Office Action mailed September 23, 2005. The Walker patent includes a series of figures that illustrate insurance databases. Those figures disclose a hierarchical

database with a plurality of levels. The Walker patent is therefore material to the multi-level claim folder limitation that resulted in allowance of the '284 patent. At the time that the examiner cited the Walker patent during prosecution of the '086 application, the '284 patent had been deemed allowed but had not yet issued. While Accenture remained obligated to disclose to the USPTO material prior art that it became aware of during this time period, it did not do so with respect to the Walker patent. Notably, the same attorney that handled the '284 patent application is handling U.S. Patent Application No. 11/017,086: Marc V. Richards. 35. Second, Accenture intentionally failed to cite other known and material pieces of

prior art to the USPTO before it issued the '284 patent. In an information disclosure statement (IDS) filed with the USPTO on March 21, 2005, in connection with the '086 application, Accenture cited both WO91/08543 and WO95/03569. Figure 4 of WO91/08543 discloses a hierarchical database. Fig. 3 of WO95/03569 discloses a process for handling an insurance claim; the process starts at a plan, goes to a patient , then gets to the patient's claim. Thus, WO95/03569 discloses information related to an insurance transaction decomposed into a

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plurality of levels, including a policy level, a participant level, and a claim level. Another IDS that Accenture filed with the USPTO on July 11, 2005, related to the '086 application lists U.S. Patent No. 5,839,112. Figure 3A of U.S. Patent No. 5,839,112 illustrates a claim administration page, which includes information regarding multiple different levels of an insurance transaction. It would have been obvious to one of skill in the art at the time Accenture filed the '284 patent to combine WO91/08543 with either WO95/03569 or U.S. Patent No. 5,839,112. Further, all of these references are material. They disclose what the examiner of the '284 patent deemed the "allowable feature" of the claims: the existence of an insurance transaction database that

contains information related to an insurance transaction decomposed into a plurality of levels from the group comprising a policy level, a claim level, a participant level, and a line level. Accenture remained obligated to disclose this prior art to the USPTO while the '284 patent claims awaited issuance. The '284 patent claims did not issue until March of 2006. Given that they were cited in IDSs submitted to the USPTO in March and July of 2005, these prior art references were clearly known to Accenture prior to March of 2006. On information and belief Accenture intentionally withheld WO91/08543, WO95/03569, and U.S. Patent No. 5,839,112 from the USPTO in connection with the application that ultimately issued as the '284 patent. 36. Third, Accenture failed to cross-reference different patent applications with

similar specifications. Specifically, Accenture filed five different patent applications on May 4, 1999: U.S. Patent Application Nos. 09/305,228; 09/305,234; 9/305,331; 9/305,816; and 9/305,817. Those applications all share a majority of the specification. Furthermore, three out of the five applications--09/305,234; 9/305,331; and 9/305,817--have similar originally filed claims. Under applicable Federal Circuit caselaw, as well as guidelines set forth in the USPTO's Manual of Patent Examining Procedure (MPEP), applications with similar specifications, and especially similar claims, should be cross-referenced. In contravention of this basic principle,

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Accenture failed to cross-reference the application that resulted in the '284 patent--Application No. 9/305,331--and the other similar applications filed on the same day. Accenture's failure to do so is all the more surprising given that Marc Richards, the prosecuting attorney on all five of the applications filed on May 4, 1999, did submit a statement of related cases in prosecuting U.S. Patent Application No. 09/305,817, but not in any of the other cases. In that statement, he acknowledges that all of the applications have the same filing date, a common assignee, and "have in common a large part of the specification and Figs. 1-15." In sum, by failing to crossreference similar concurrent applications with the '284 patent application, Accenture materially and intentionally breached its duty of candor to the USPTO. 37. Fourth, Accenture failed to file a supplemental declaration in the patent

application that matured into to the '284 patent. The independent claims that issued as part of the '284 patent, claims 1 and 8, are much narrower than the narrowest independent claim as originally filed on May 4, 1999. During the prosecution history, the claims morphed from a focus on the software client, to the existence of a separate task library, and finally to the use of a multi-level claim folder. Indeed, the originally filed claims were all cancelled and a new set added. Yet Accenture filed no supplemental declaration for the independent claims that

ultimately issued. And while the originally filed declaration operates as to the originally filed claims, the '284 patent claims changed so dramatically during the prosecution that the originally filed declaration is not operable as to the issued claims. Thus, because Accenture failed to file a supplemental declaration, there is no assertion on file at the USPTO by the inventors that the issued claims actually describe their invention. 38. Fifth, on information and belief, the '284 patent does not list the correct inventors.

Although the specifications for the five different applications filed on May 4, 1999, are similar, and some of the applications have similar originally filed claims, those applications list a variety

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of different inventors. Specifically, U.S. Patent Application No. 9/305,331 lists Guyan and Pish as inventors; U.S. Patent Application No 9/305,816 lists Balon, Malik, Wargin, Jackowski, Kennedy, and Navickas as inventors; U.S. Patent Application No. 09/305,234 lists Guyan, Pish, and Muntada as inventors; U.S. Patent Application No. 09/305,228 lists Pish as the sole inventor; and U.S. Patent Application No. 9/305,817 list Guyan as the sole inventor. The claims first filed in all of these applications have changed during prosecution. On information and belief, either the '284 patent should list one or more of the inventors listed on U.S. Patent Application Nos. 9/305,816; 09/305,234; 09/305,228; and 9/305,817, or the '284 patent should not list Guyan and/or Pish as inventors. Further, on information and belief, the failure to list the correct inventors was done with deceptive intent. The same law firm was prosecuting all five concurrent applications, which shared a similar specification and even claims, yet listed different inventors for each application. Third Affirmative Defense (Failure to Mark) 39. Guidewire incorporates by reference its responses to the allegations set forth in

paragraphs 1 through 38. 40. Accenture's claims are barred in whole or in part by its failure to provide

adequate notice under 35 U.S.C. § 287. Fourth Affirmative Defense (Unclean Hands) 41. Guidewire incorporates by reference its responses to the allegations set forth in

paragraphs 1 through 40. 42. hands. Accenture's requested relief is barred in whole or in part by its own unclean

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Fifth Affirmative Defense (Patent Misuse) 43. Guidewire incorporates by reference its responses to the allegations set forth in

paragraphs 1 through 42. 44. Accenture has misused the '284 patent by the commencement and maintenance of

this action in bad faith, when it should have known that it had no valid claim of patent infringement against Guidewire. COUNTERCLAIMS Defendant-Counterclaim Plaintiff Guidewire hereby pleads the following counterclaims against Plaintiffs-Counterclaim Defendants Accenture Global Services GmbH and Accenture LLP: JURISDICTION AND VENUE 45. Guidewire Software, Inc. is a corporation incorporated under the laws of the State

of Delaware, having its principal place of business in San Mateo, California. 46. On information and belief, Accenture Global Services GmbH is a Swiss limited

liability company. 47. On information and belief, Accenture LLP is a limited liability partnership

organized and existing under the laws of the State of Illinois and with a principal place of business in Chicago, Illinois. 48. In its Counterclaims, Guidewire seeks declarations of invalidity, non-

infringement, and unenforceability of the '284 patent. As such, jurisdiction is proper pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, under federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a), and as arising under the Patent Laws of the United States, Title 35, United States Code.

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49.

This Court has personal jurisdiction over Accenture Global Services GmbH and

Accenture LLP because they have consented to jurisdiction by filing the instant case. 50. Venue in this district is proper under 28 U.S.C. §§ 1391 and 1400. GUIDEWIRE AND ACCENTURE IN THE MARKET 51. Guidewire is a leading global provider of technology solutions to property,

casualty, and workers' compensation insurers. Among other things, Guidewire delivers package software to run core operations, including billing, underwriting, policy, and claim management. 52. In the span of just seven years Guidewire has gone from being a new entrant to

the market leader in insurance software because it developed superior products by working closely with its clients and by attracting and retaining the best talent in the field. 53. Accenture and Guidewire Software have been competing directly for business for

approximately five years. Since the two companies began competing, more than 40 insurance carriers have selected Guidewire ClaimCenter to modernize their claims management operations. 54. In the 2007 "InsureTopTech: Voice of the Insurance Market" survey by Insurance

Network News and Financial Insights, Guidewire was named the "Overall Winner" and top vendor in four of nine award categories. Accenture was not placed in any award category in the 2007 Insure TopTech awards. 55. Guidewire attained a rating of "Strong Positive," the highest possible rating in

Gartner's 2007 report, "Marketscope: North American Property and Casualty Insurance Claims Administrations Systems, 2007." Accenture received a lower "Positive" rating in that same report. 56. Guidewire rated as best IT Vendor for Claims Processing & Management, in U.S.

Insurer Magazine's 2006 poll. This poll surveys technology officers in insurance firms in the U.S., asking that they identify their favorite IT Vendors in different categories.

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57.

Given Guidewire's repeated successes in industry surveys, polls, and rankings, it

should be no surprise that Guidewire has "emerged more and more frequently as a challenger to Accenture." (Compl. ¶ 24.) This is particularly true if Guidewire indeed submits bids far lower than those submitted by Accenture, as Accenture has alleged. GUIDEWIRE'S PRODUCTS AND DEVELOPMENT 58. The Guidewire Insurance SuiteTM consists of Guidewire ClaimCenter®,

Guidewire PolicyCenter®, and Guidewire BillingCenterTM, which together provide a modern, web-based platform for the property and casualty insurance industry. 59. On information and belief, Guidewire and Accenture used and continue to use

different development approaches in providing insurance claim management software to clients. Guidewire has a packaged software approach; it continually updates its software and makes new versions available to customers. Guidewire also works closely with customers to accelerate the design of its products, and uses an "agile development" methodology to speed product development. 60. Accenture's development approach is different. As a business practice, Accenture

separates its product into components that are then custom tailored for each individual customer. Because of Accenture's heavy customization, it is more difficult (and apparently expensive) for Accenture to provide its clients a standard upgrade path. 61. The software in the Guidewire Insurance SuiteTM, including Guidewire

ClaimCenter, is based on the Java programming language. In contrast, Accenture's claims processing platform is based on a different programming language, Microsoft's .NET Framework. 62. Given Guidewire's packaged software approach, it should be no surprise that

Guidewire's bids are lower. In contrast to Accenture's custom tailored software solutions,

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Guidewire's packaged software allows it to spread the development costs across a broader customer base. This principle also applies to software upgrades. Whereas Guidewire's standard upgrade path allows it to spread the development costs across numerous customers, Accenture's custom-tailored products do not. 63. commerce. NON-DISCLOSURE AGREEMENTS BETWEEN ACCENTURE AND GUIDEWIRE 64. Accenture and Guidewire have entered into at least three non-disclosure Both Guidewire's and Accenture's products are sold in the stream of interstate

agreements (NDAs). 65. Accenture and Guidewire entered into an NDA effective February 24, 2006.

Accenture and Guidewire signed that NDA to allow Guidewire to give Accenture confidential information for the purpose of a teaming opportunity related to Safeco Insurance. Under the terms of that NDA, Accenture had considerable access to Guidewire ClaimCenter at Safeco in the February-May 2006 timeframe. Safeco selected Guidewire as the technology vendor and hired Accenture to run the Proof-Of-Concept process. Accenture saw Guidewire demos,

technical documents, and had detailed discussions about Guidewire ClaimCenter while at Safeco. In addition, Accenture also worked on the implementation plan for Guidewire Finally, Accenture also spent considerable time working on the

ClaimCenter at Safeco.

functional Fit-Gap analysis for the Proof-of-Concept at Safeco. The NDA does not allow Accenture to use Guidewire's confidential information in any fashion, form, or manner other than in furtherance of the Safeco teaming opportunity. 66. Effective November 30, 2006, Accenture and Guidewire entered into another

NDA. That NDA related to discussions with Sentry, which wanted Guidewire to interface its PolicyCenter product to a data warehouse maintained by Accenture. In order to provide its

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services to Sentry and also enable communication between the Guidewire PolicyCenter product and the data warehouse maintained by Accenture, Guidewire agreed to provide its confidential information to Accenture under the terms of the NDA. The NDA does not allow Accenture to use Guidewire's confidential information other than for purposes of providing services to Sentry. 67. Accenture and Guidewire entered into another NDA dated August 15, 2007,

related to the provision of services to CNA. In that instance, CNA wanted to use Accenture to provide end-user training on Guidewire products. Guidewire wanted an NDA in place because Accenture employees would be looking at the Guidewire PolicyCenter product to develop the end-user training for CNA. The NDA does not allow Accenture to use Guidewire's confidential information other than for purposes of providing services to CNA. THE '284 PATENT 68. Accenture filed the application for what become the '284 patent on May 4, 1999.

The USPTO repeatedly rejected the claims during the almost five-and-a-half year prosecution proceedings. Indeed, a patent Examiner rejected the pending claims under 35 U.S.C. § 102(b) over five times. 69. The first two office actions issued by the USPTO rejected the pending claims for,

among other things, being anticipated by TODD in Microsoft Exchange Server Unleashed, 1998. 70. The next three substantive office actions issued by the USPTO rejected the

pending claims for, among other things, being anticipated by U.S. Patent No. 5,557,515 to Abbruzzese. 71. The Examiner ultimately allowed the '284 patent claims based on the addition of

the claim limitation regarding an insurance transaction database with the insurance claim information organized into a plurality of levels in a structured format. However, prior art patents disclose this non-novel feature. For example, U.S. Patent No. 6,937,990 to Walker et al,

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contains a series of figures that illustrate an insurance databases with a plurality of levels. Further, the Examiner inherently applied patentability standards that the U.S. Supreme Court has since found erroneous in KSR International Co. v. Teleflex, Inc. 72. In allowing the claims of the '284 patent, the examiner did not explicitly address

any issues related to the predicate issue of patentable subject matter under 35 U.S.C. § 101. 73. The '284 patent claims relate to systems and methods for automating tasks to be

performed in an insurance organization. In effect, the claims relate to the use of a modern-day computer system to implement known insurance claim management practices. ACCENTURE'S FILING OF THE LAWSUIT 74. Accenture filed claims against Guidewire for patent infringement, trade secret

misappropriation, unfair competition, and tortious interference on December 18, 2007. 75. At no time prior to filing its claims did Accenture approach Guidewire to inform

it of the impending suit. Accenture never asked for an explanation as to how the accused Guidewire systems operate, it never told Guidewire that it believed any of Guidewire's products infringed Accenture's patents, and it never offered Guidewire a license to the '284 patent. Nor did Accenture ever express any concern to Guidewire that Guidewire may have obtained and used Accenture trade secrets in developing the Guidewire Insurance Suite and Guidewire ClaimCenter. 76. To the contrary, shortly before Accenture filed its lawsuit against Guidewire,

Guidewire and Accenture were collaborating on a project for CNA, a large commercial, property and casualty insurer based in Chicago, Illinois. Accenture's lawsuit against Guidewire thus came as a complete surprise. 77. Guidewire learned about the lawsuit from a press release issued by Accenture on That press release

December 18, 2007, rather than by being served with the Complaint.

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contained a number of materially false or misleading statements regarding Guidewire's products. Specifically, the press release falsely states that "Guidewire willfully and deliberately developed, manufactured, used and sold, or offered for sale, computer software and services used for insurance claims management that are covered by Accenture U.S. Patent 7,013,284 (the `284 patent)." The press release also falsely states that "Guidewire willfully and maliciously obtained and used or intends to use Accenture trade secrets without authorization in designing, developing, manufacturing and selling claims management software and services to assist it in its ongoing efforts to unfairly compete against Accenture in the claims management market." At the time it issued this press release, Accenture knew or should have known that at least its infringement claim was objectively baseless, as detailed below. Furthermore, the trade secret misappropriation claim is based on nothing more than Guidewire's speed of development. That speed can be attributed to Guidewire's use of agile development, which allows Guidewire to develop rapid designs, rapid prototypes, and work with its customers to rapidly accelerate Guidewire's product development. Thus, the statements regarding Accenture's trade secret misappropriation claim are also false and misleading. 78. In addition, John Del Santo of Accenture made similar false and misleading

statements to Insurance & Technology magazine, which published an article on Accenture's lawsuit on December 19, 2007. The article, titled "Accenture Sues Guidewire for Alleged Patent Infringement," quotes Del Santo as falsely stating that "We carefully compared our U.S. patent to the information available about the Guidewire system and concluded that they not only infringed the patent but that they must have gotten access to our trade secrets at a client somewhere." Del Santo also falsely stated that "We believe that their product development trajectory was just too fast to result in the kind of product that they have, which looks fairly similar to ours. From our view that's too much of a coincidence, so there has to be a trade secret

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violation here, in our opinion." Del Santo's statement that Guidewire infringes the '284 patent was knowingly false and misleading given the objective baselessness of Accenture's infringement claim. Similarly, Del Santo's statements regarding claim secret misappropriation were also knowingly false; they misrepresent Guidewire's effective use of agile development methods to decrease product development time as an act of trade secret misappropriation. 79. On information and belief, Accenture has also made false or misleading

representations regarding whether Guidewire infringes the '284 patent to one or more Guidewire customers or potential customers, including at least CNA and Astra Buana. 80. Accenture's lawsuit is particularly surprising given the assertion of claims clearly

preempted by Delaware's Uniform Trade Secrets Act ("DUTSA"). Accenture's claims for "statutory unfair competition," "common law unfair competition," and "tortious interference with business relations," are based exclusively on Accenture's allegations of trade-secret misappropriation. But Delaware law explicitly requires that all claims relating to the alleged misappropriation of trade secrets be brought pursuant to DUTSA; all other tort claims are preempted. Accenture thus forced Guidewire to move to dismiss these erroneous claims, at significant but unnecessary expense. The inclusion of these erroneous claims demonstrates Accenture's bad faith in filing its litigation. 81. Accenture's lawsuit also falsely accuses Guidewire of infringing the '284 patent.

Either Accenture did not conduct any pre-filing investigation of its patent claims, their underlying prosecution history, the prior art, and Guidewire's accused infringing products, or Accenture has decided to turn a blind eye to the evidence of non-infringement, invalidity, and inequitable conduct. Given that evidence, Accenture can have no reasonable belief that it could succeed with its patent infringement claim.

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82.

Accenture has no basis for contending that Guidewire infringes any claims of the

'284 patent. In order to satisfy its Rule 11 obligations and evaluate whether the accused infringing Guidewire products infringe the '284 patent, Accenture would need to know specific details regarding the manner in which Guidewire's software maintains claims and task databases, how those databases are accessed via a client, and how a server facilitates that access. On information and belief, Guidewire has not publicly disclosed sufficient details regarding its software products to allow Accenture to perform such an evaluation. As such, unless Accenture obtained confidential Guidewire information, it can have no basis to assert that Guidewire's products infringe the '284 patent. Moreover, to the extent Accenture may have had detailed information regarding Guidewire's software, that detailed information would clearly show that Guidewire does not infringe the '284 patent. 83. The claims of the '284 patent are invalid. The claim elements are all found in the

prior art, either alone or in combination. For example, ¶¶ 34-35 list some prior art references that disclose what the examiner deemed the "allowable feature" of the claims of the '284 patent. Furthermore, the claims were allowed at a time when the USPTO was applying a patentability standard later deemed erroneous by the U.S. Supreme Court in the KSR case. Accordingly, the claims should not be entitled to any presumption of validity. Finally, the claims simply call for the use of a modern-day computer system to implement and automate known insurance claim management processes; as such, they are obvious. In sum, Accenture can have no reasonable expectation that the claims of the '284 patent are valid. 84. In addition, the '284 patent was procured by inequitable conduct before the

USPTO. Accenture, the inventors, and/or the prosecuting attorneys failed to comply with the duty of candor owed to the USPTO. On information and belief, Accenture made materially false or misleading statements or omissions with an intent to deceive the USPTO in prosecuting the

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'284 patent. The facts underlying Accenture's inequitable conduct are set forth in detail in ¶¶ 34-38, which Guidewire hereby incorporates by reference. 85. On information and belief, Accenture has brought its claims against Guidewire in

bad faith. Based on what Accenture knows or should know regarding the '284 patent claims, prosecution history, and prior art, as well as what it knows (or does not know) regarding Guidewire's products, Accenture can have no reasonable expectation that its patent infringement allegations can succeed on the merits. This is particularly true given the evidence of inequitable conduct before the USPTO, which renders the '284 patent unenforceable. Moreover, on

information and belief, Accenture filed its claims against Guidewire in an attempt to interfere directly with the business relationships of Guidewire through the use of the governmental process--as opposed to the outcome of that process--as an anticompetitive weapon. On

information and belief, rather than file the infringement cause of action with an honest intent to enforce its patent rights, Accenture intended to interfere with Guidewire's business interests by intimidating Guidewire customers or potential customers not to do business with Guidewire because of the existence of the lawsuit. FIRST COUNTERCLAIM FOR RELIEF Declaratory Judgment of Non-Infringement of the '284 Patent 86. 87. Guidewire realleges and incorporates by reference the foregoing paragraphs. As a result of the charges of infringement against Guidewire, an actual

controversy exists as to infringement of the '284 patent. 88. 89. Guidewire has not infringed, and is not now infringing, the '284 patent. Guidewire has not caused others to infringe, and is not now causing others to

infringe, the Accenture patent, either willfully, recklessly, or otherwise.

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SECOND COUNTERCLAIM FOR RELIEF Declaratory Judgment of Invalidity of the '284 Patent 90. 91. Guidewire realleges and incorporates by reference the foregoing paragraphs. As a result of the charges of infringement against Guidewire, an actual

controversy exists as to the validity of the '284 patent. 92. The '284 patent is invalid for failure to comply with one or more of the

requirements of Title 35 of the United States Code including, but not limited to, §§ 101, 102, 103, 111, 112, 115, 116, and 256. THIRD COUNTERCLAIM FOR RELIEF Declaratory Judgment of Unenforceability of the '284 Patent 93. 94. Guidewire realleges and incorporates by reference the foregoing paragraphs. As a result of the charges of infringement against Guidewire, an actual

controversy exists as to the enforceability of the '284 patent. 95. The '284 patent is unenforceable due to inequitable conduct before the USPTO.

Accenture misrepresented or omitted material information in prosecuting the '284 patent, and did so with intent to deceive the USPTO. FOURTH COUNTERCLAIM FOR RELIEF Breach of Contract 96. 97. 98. 99. Guidewire realleges and incorporates by reference the foregoing paragraphs. Guidewire and Accenture entered into at least three NDAs that remain in force. Guidewire has complied with all of the terms of the Guidewire-Accenture NDAs. As a matter of practice, Guidewire does not disclose confidential information

regarding its products other than under NDAs. 100. On information and belief, Accenture would need to know more than what is

publicly available regarding Guidewire's products to have a basis to allege infringement. In other words, in order to evaluate whether or not Guidewire's accused infringing products meet

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the limitations of the '284 patent claims, Accenture would need to have had access to Guidewire confidential information. 101. On information and belief, and presuming Accenture indeed satisfied its Rule 11

obligations prior to filing its infringement suit, Accenture breached the terms of at least one NDA entered into with Guidewire, if not all, and has used Guidewire confidential information to evaluate whether Guidewire's products infringe the '284 patent. 102. Guidewire has been damaged by Accenture's breach because, among other things,

it has to defend against Accenture's patent infringement claims and has lost or may lose potential customers for the Guidewire Insurance Suite and/or Guidewire ClaimCenter on account of Accenture's lawsuit. FIFTH COUNTERCLAIM FOR RELIEF Violation of Section 43(a) of the Lanham Act Due to Bad Faith Litigation 103. 104. Guidewire realleges and incorporates by reference the foregoing paragraphs. Guidewire seized a market leadership position with a solution that meets the

needs of an underserved market. On information and belief, Accenture found itself being left behind by a market entrant that was more focused on creating core systems for the insurance industry with truly innovative software development techniques, and therefore filed its patent infringement and other claims in bad faith. 105. On information and belief, Accenture knew or should have known that its

infringement claims are objectively baseless, particularly given the evidence of inequitable conduct. 106. On information and belief, Accenture made false or misleading representations

about Guidewire's alleged infringement and trade secret misappropriation in its December 18, 2007 press release. On information and belief, Accenture has also made similar false or

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misleading representations to companies that have purchased or are considering purchasing Guidewire products. 107. Accenture's false or misleading representations relate to a product in interstate

commerce. The Guidewire Insurance Suite and Guidewire ClaimCenter are sold throughout the United States, as are Accenture's competing products and services. Furthermore, Accenture's statements were made in a national press release. 108. Accenture's false or misleading representations were made in the context of

commercial advertising or promotion because they were made in a press release distributed on the newswires. 109. Accenture's false or misleading representations deceive or are likely to deceive

customers regarding whether the Guidewire Insurance Suite and Guidewire ClaimCenter infringe the '284 patent. 110. Accenture's false or misleading representations are material because they are

likely to influence a customer's decision to purchase the Guidewire Insurance Suite and/or Guidewire ClaimCenter, particularly if the customer becomes concerned about the continued availability of Guidewire's products and/or software updates. 111. Accenture's false or misleading representations have injured or are likely to injure

Guidewire by intimidating consumers into not purchasing the Guidewire Insurance Suite and/or Guidewire ClaimCenter, or at least delaying any purchase until some later date. SIXTH COUNTERCLAIM FOR RELIEF Violation of Delaware Uniform Deceptive Trade Practices Act Due to Bad Faith Litigation 112. 113. Guidewire realleges and incorporates by reference the foregoing paragraphs. Accenture's actions described above constitute unfair competition and deceptive

trade practices in violation of the Delaware Uniform Deceptive Trade Practices Act, 6 Del. C. §§

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2531 et seq. Specifically, Accenture's knowingly false and misleading representations violate §§ 2532(a)(5), (8), & (12). SEVENTH COUNTERCLAIM FOR RELIEF Common Law Unfair Competition Due to Bad Faith Litigation 114. 115. Guidewire realleges and incorporates by reference the foregoing paragraphs. Accenture's actions described above constitute unfair competition and product Specifically, Accenture's actions

disparagement in violation of Delaware common law.

constitute an unreasonable interference with Guidewire's promotion and conduct of its business. REQUEST FOR RELIEF 116. WHEREFORE, Guidewire requests the following relief: a. b. A judgment that Accenture recover nothing by its Complaint; A judgment that Accenture's Complaint be dismissed with prejudice and

that each request for relief therein be denied; c. A declaratory judgment that Guidewire has not willfully, recklessly, or

otherwise infringed the '284 patent and is not infringing the '284 patent; d. A declaratory judgment that Guidewire has not willfully, recklessly, or

otherwise contributed to or inducted others to infringe the '284 patent, and is not contributing to or inducting others to infringe the '284 patent; e. invalid ; f. g. A declaratory judgment that the '284 patent is unenforceable; An order, pursuant to 35 U.S.C. § 285, finding that this is an "exceptional" A declaratory judgment that the '284 patent, and all claims thereof, are

case and awarding Guidewire its reasonable attorneys fees, expenses, and costs incurred in this action;

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h. i. j.

An order entering judgment in favor of Guidewire on its Counterclaims; A judgment that Accenture breached one or more NDAs with Guidewire; A judgment that Accenture's claims were brought in bad faith (i.e., that

they are objectively baseless and subjectively intended to interfere with Guidewire's business relationships); k. A judgment that Accenture's false and misleading statements regarding

Guidewire's alleged infringement and trade secret misappropriation violated the Lanham Act, the Delaware Uniform Deceptive Trade Practices Act, and Delaware common law; l. That Guidewire be awarded damages for breach of contract and/or

violations of the Lanham Act, the Delaware Uniform Deceptive Trade Practices Act, and Delaware common law in an amount to be proven at trial; m. That Guidewire be awarded its attorneys fees and costs of suit to the

fullest extent allowed by law; n. An order awarding Guidewire such other and further relief as this Court

deems just and proper. JURY TRIAL DEMANDED Pursuant to Fed. R. Civ. P. 38(b), Guidewire demands a trial by jury on all counts of the Complaint and the Answer and Counterclaims so triable. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Julia Heaney
Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 North Market Street, P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected] [email protected] Attorneys for Defendant Guidewire Software Inc.

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OF COUNSEL: Daralyn J. Durie Clement S. Roberts Matthias Kamber JuNelle Harris KEKER & VAN NEST LLP 710 Sansome Street San Francisco, CA 94111 (415) 391-5400 February 6, 2008

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CERTIFICATE OF SERVICE I hereby certify that on February 6, 2008 I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing to:. Richard L. Horwitz David E. Moore POTTER ANDERSON & CORROON LLP I further certify that I caused to be served copies of the foregoing document on February 6, 2008 upon the following in the manner indicated: Richard L. Horwitz, Esquire David E. Moore, Esquire POTTER ANDERSON & CORROON LLP 1313 North Market Street Wilmington, DE 19801 James Pooley, Esquire L. Scott Oliver, Esquire MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304 VIA ELECTRONIC MAIL and HAND DELIVERY

VIA ELECTRONIC MAIL

/s/ Julia Heaney
Julia Heaney (#3052)