Free Reply Brief - District Court of Delaware - Delaware

Case 1 :07-cv—00680-IVIPT Document 23 Filed 01/24/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Innovative Patents, L.L.C. and )
Forcefield, LLC, ) ,
Plaintiffs, g
v. g Civil Action No. 07-680-***
Brain-Pad, Inc., g
Defendant. g
REPLY TO COUNTERCLAIMS
Plaintiffs Innovative Patents, L.L.C., and Forceiield, LLC ("Plaintiffs"), by way of reply
to the counterclaims of defendant Brain-Pad, Inc. ("Brain-Pad"), say:
1. Plaintiffs deny the allegations of paragraph 1 of the Counterclaims except to admit
that the Counterclaims appear to be based upon patent laws of the United States, Title 35, United
States Code.
2. Plaintiffs deny the allegations of paragraph 2 of the Counterclaims except to admit
that the Counterclaims appear to, in part, seek declaratory judgment under 28 U.S.C. § 2201.
3. Plaintiffs deny the allegations of Paragraph 3 of the Counterclaims. ,
4. Plaintiffs admit that venue over this litigation is proper but otherwise deny the
allegations of Paragraph 4. I
AS TO COUNT I
5. Plaintiffs repeat, re-allege and incorporate by reference the responses to
Paragraphs 1-4 of the Counterclaims as though fully set forth herein. In response to Paragraph 5
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Case 1:07-cv—OO680-IVIPT Document 23 Filed O1/24/2008 Page 2 of 4
of the Counterclaims, Plaintiffs admit that Brain-Pad has incorporated by reference paragraphs l-
3 of Plaintiffs’ Complaint. Plaintiffs state that, in so doing, Brain-Pad has admitted the
allegations of Paragraphs 1-3 of Plaintiffs' Complaint.
6. Plaintiffs admit that in Paragraph 6 of the Counterclaims Brain-Pad incorporates
by reference paragraphs 9-ll of Plaintiffs’ Complaint. Plaintiffs state that, in so doing, Brain-
Pad has admitted the allegations of Paragraphs 9-11 of Plaintiffs’ Complaint, including that U.S.
Patent 7,234,174 (the "‘ 174 Patent") was legally and duly granted.
7. In answering Paragraph 7 of the Counterclaims, Plaintiffs admit that the
Complaint alleges that Brain-Pad has infringed, and continues to infringe, the ‘ 174 Patent.
Plaintiffs admit that Brain-Pad has denied infringement of the ‘ 174 Patent. Further, Plaintiffs
deny that Brain-Pad has denied that the ‘l74 Patent is valid and enforceable.
8. To the extent that Brain-Pad alleges in Paragraph 8 of the Counterclaims that an
actual and justiciable controversy exists between Plaintiffs and Brain-Pad with respect to Brain-
Pad’s infringement of the ‘ 174 Patent, Plaintiffs admit these allegations. Plaintiffs deny any
other allegations of Paragraph 8 of the Counterclaims.
9. Plaintiffs deny the allegations of Paragraph 9 ofthe Cotmterclaims.
10. Plaintiffs deny the allegations of Paragraph 10 of the Counterclaims.
11. ln answering Paragraph 11 of the Counterclaims, Plaintiffs admit that Plaintiffs
filed a complaint alleging infringement of the ‘174 Patent by Brain-Pad. Plaintiffs deny any
other allegations of Paragraph 11 of the Cotmterclaims.
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Case 1:07-cv—OO680-IVIPT Document 23 Filed O1/24/2008 Page 3 of 4
AS TO COUNT II
Plaintiff moves to dismiss the allegations of Paragraphs 12 through 19 of the
Counterclaims for the reasons stated in Plaintiffs' Motion to Dismiss Count II of Defendant's
Counterclaim Pursuant to F.R.C.P. 12(b)(6) filed January 24, 2008 and the brief filed in support
thereof.
FIRST AF FIRMATIVE DEFENSE
Brain-Pad’s Counterclaims fail to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs have not conducted anticompetitive actions with respect to this lawsuit and/or
the ‘ 174 Patent.
THIRD AF F IRMATIVE DEFENSE
Plaintiffs have not violated the anti-trust laws.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs have not taken any action, violatedany laws or participated in any willful
conduct that would entitle Brain-Pad to any special damages, treble damages or punitive damages
or exemplary damages, or costs of suit or reasonable attorney fees.
FIFTH AFFIRMATIVE DEFENSE
Brain-Pad filed a claim for a declaratory judgment of invalidity and unenforceability of
the ‘ 174 Patent to harass Plaintiffs, to deter Plaintiffs and others from competing with Brain-Pad,
and to cause Plaintiffs needless litigation expense, regardless of the outcome of the action.
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Case 1:07-cv—OO680-IVIPT Document 23 Filed O1/24/2008 Page 4 of 4
WHEREFORE, Plaintiffs demand judgment in their favor dismissing Brain-Pad’s
Counterclaims, denying all relief request by Brain-Pad, granting Plaintiffs the relief requested in
the Complaint, and granting such other and further relief as this Court deems just and proper.
DATED: January 24, 2008
PRICKETT, JONES & ELLIOTT, P.A.
By: K,
Eliz eth M. Geeve #2057
J. layton Athey (#4378)
1310 King Street, P.O. Box 1328
Wilmington, DE 19899-1328
[email protected]
[email protected]
Ph: (302) 888-6500
Attorneys for Plaintwfv
Innovative Patents, L.L.C. and Forcefielal
LLC
OF COUNSEL:
Joseph J. Fleischman
William R. Robinson
Mark A. Montana
NORRIS McLAUGHLIN & MARCUS, P.A
P.O. Box 1018
Somerville, New Jersey 08876-1018
Ph: (908) 722-0700
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