Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 1 of 7 PageID #: 11529
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 12-574-LPS
`(consolidated)
`
`JURY TRIAL DEMANDED
`
`)))))))))))))
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`))))))))))
`
`ROBERT BOSCH LLC,
`
`Plaintiff,
`
`v.
`
`ALBEREE PRODUCTS, INC., API KOREA
`CO., LTD., SAVER AUTOMOTIVE
`PRODUCTS, INC., and COSTCO
`WHOLESALE CORPORATION,
`
`Defendants.
`
`COSTCO WHOLESALE CORPORATION,
`
`Counter-Plaintiff,
`
`v.
`
`ROBERT BOSCH LLC and ROBERT
`BOSCH GMBH,
`
`Counter-Defendants.
`
`THIRD-PARTY DEFENDANT ROBERT BOSCH GMBH’S ANSWER AND DEFENSE
`TO COSTCO WHOLESALE CORPORATION’S COUNTERCLAIM
`
`Third-party Defendant Robert Bosch GmbH (“Bosch GmbH”), by its counsel, for its
`
`answer
`
`to Third-party Plaintiff Costco Wholesale Corporation’s (“Costco”) Answer and
`
`Counterclaims (“Counterclaims”) responds:
`
`Costco is a corporation organized and existing under the laws of the State of
`1.
`Washington, having its principal place of business in Issaquah, Washington.
`
`Response: Bosch GmbH lacks knowledge or information sufficient to form a belief about
`
`the truth of the allegations of paragraph 1 of the Counterclaims and accordingly denies the same.
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`

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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 2 of 7 PageID #: 11530
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`Upon information and belief, Bosch LLC is a limited liability company organized
`2.
`and existing under the laws of Delaware, having its principal place of business in Broadview,
`Illinois.
`
`Response: Bosch GmbH admits the allegations of paragraph 2 of the Counterclaims.
`
`Upon information and belief, Bosch GmbH is a corporation organized and existing
`3.
`under the laws of Germany, having its principal place of business in Gerlingern-Schillerhohe,
`Germany.
`
`Response: Bosch GmbH admits the allegations of paragraph 3 of the Counterclaims.
`
`4.
`
`Upon information and belief, Bosch LLC is a wholly-owned subsidiary of Bosch
`
`GmbH.
`
`Response: Bosch GmbH states that it is the ultimate parent company of Robert Bosch
`
`LLC; otherwise denied.
`
`least
`The Court has jurisdiction to hear Costco’s counterclaims under at
`5.
`28 U.S.C. §§ 1331, 1332(a), 1338(a), and 1367. The parties are of diverse citizenship, and the
`amount in controversy exceeds the sum or value of $75,000.00 exclusive of interest and costs.
`
`Response: Bosch GmbH admits the allegations of paragraph 5 of the Counterclaims.
`
`FIRST COUNTERCLAIM
`
`(VIOLATION OF WASH. REV. CODE § 19.86.020)
`
`The allegations contained in the preceding paragraphs 1 through 5 of these
`6.
`Counterclaims are incorporated and re-alleged as if fully set forth herein.
`
`Response: Bosch GmbH incorporates its responses to the allegations in paragraphs 1
`
`through 5 of the Counterclaims as if forth set fully herein.
`
`Costco operates membership-based warehouse stores in which Costco members
`7.
`can purchase high quality merchandise at low prices
`
`Response: Bosch GmbH lacks knowledge or information sufficient to form a belief about
`
`the truth of the allegations of paragraph 7 of the Counterclaims and accordingly denies the same.
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`-2-
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`

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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 3 of 7 PageID #: 11531
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`Costco sells GOODYEAR® Hybrid windshield wipers at the everyday low retail
`8.
`price of $7.99 per pair.
`
`Response: Bosch GmbH lacks knowledge or information sufficient to form a belief about
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`the truth of the allegations of paragraph 8 of the Counterclaims and accordingly denies the same.
`
`GOODYEAR® Hybrid windshield wipers are made in U.S.A. and supplied to
`9.
`Costco by Saver Automotive Products, Inc. (“Saver”).
`
`Response: Bosch GmbH lacks knowledge or information sufficient to form a belief about
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`the truth of the allegations of paragraph 9 of the Counterclaims and accordingly denies the same.
`
`In September 2014, representatives of Bosch LLC and Bosch GmbH (collectively,
`10.
`“Bosch”) visited Costco headquarters in Issaquah, Washington.
`
`Response: Bosch GmbH denies the allegations of paragraph 10 of the Counterclaims.
`
`11. While visiting Costco headquarters in Issaquah, Washington in September 2014,
`Bosch representatives sought to persuade Costco to raise its retail prices for windshield wipers and
`to sell, in place of made-in-U.S.A. GOODYEAR® Hybrid windshield wipers, an inferior, flat
`spring windshield wiper product that Bosch proposed to import from China and sell to Costco at
`much higher prices than Costco was then paying for made-in-U.S.A. GOODYEAR® Hybrid
`windshield wiper products.
`
`Response: Bosch GmbH denies the allegations of paragraph 11 of the Counterclaims.
`
`12. When Costco declined to accede to Bosch’s commercial proposal described above,
`Bosch GmbH caused Bosch LLC to file objectively baseless lawsuit claims against Costco which
`alleged, among other things, that (a) Costco members purportedly did not have any right to use
`Bosch-supplied original equipment (OE) windshield wiper systems that came installed on various
`makes and models of new vehicles sold in the United States (e.g., 2010-2015 BMW X3 models),
`with the purported result that (b) Costco members purportedly infringed U.S. Patent No. 6,553,607
`(the “’607 Patent”) and U.S. Patent No. 8,272,096 (the “’096 Patent”) by installing GOODYEAR®
`Hybrid windshield wipers on their vehicles.
`
`Response: Bosch GmbH denies the allegations of paragraph 12 of the Counterclaims.
`
`In furtherance of the baseless lawsuit claims described in paragraph 12, above,
`13.
`Bosch GmbH acted to hinder any fair test of those claims by (i) transferring title to the ’607 and
`’096 Patents to a wholly-owned United States subsidiary, namely, Bosch LLC; (ii) causing Bosch
`LLC to assert, falsely, that Bosch LLC purportedly did not have access to documents recording
`the terms on which Bosch GmbH had supplied OE wiper systems to manufacturers of vehicles that
`Costco members might own; (iii) willfully withholding documents recording the terms on which
`Bosch GmbH had supplied OE wiper systems to manufacturers of vehicles that Costco members
`
`-3-
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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 4 of 7 PageID #: 11532
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`might own; and (iv) causing Bosch LLC to assert, falsely, that initial United States sales of OE
`wiper systems supplied by Bosch GmbH purportedly were never “authorized” by Bosch.
`
`Response: Bosch GmbH denies the allegations of paragraph 13 of the Counterclaims.
`
`On information and belief, Bosch authorized initial United States sales of all OE
`14.
`side lock wiper systems that Bosch GmbH supplied to new vehicle manufacturers and its contrary
`assertion, made through Bosch LLC, was false and known to be false when made.
`
`Response: Bosch GmbH denies the allegations of paragraph 14 of the Counterclaims.
`
`The conduct of Bosch described in paragraphs 10–14, above, had a capacity to
`15.
`deceive a substantial portion of the public as to their rights to use and repair windshield wiper
`systems that they own.
`
`Response: Bosch GmbH denies the allegations of paragraph 15 of the Counterclaims.
`
`The conduct of Bosch described in paragraphs 10–14, above, was targeted at
`16.
`Costco in the State of Washington.
`
`Response: Bosch GmbH denies the allegations of paragraph 16 of the Counterclaims.
`
`The conduct of Bosch described in paragraphs 10–14, above, occurred in trade or
`17.
`commerce, namely, an attempt by Bosch to exclude lawful competition in the sale of windshield
`wipers in the United States including in the State of Washington.
`
`Response: Bosch GmbH denies the allegations of paragraph 17 of the Counterclaims.
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`The conduct of Bosch described in paragraphs 10–14, above, was unfair and
`18.
`violated the public interest in being able to purchase windshield wipers at low prices.
`
`Response: Bosch GmbH denies the allegations of paragraph 18 of the Counterclaims.
`
`The conduct of Bosch described in paragraphs 10–14, above, had a capacity to
`19.
`deceive a substantial portion of the public as to their rights to purchase and use windshield wipers
`that meet manufacturer-prescribed specifications.
`
`Response: Bosch GmbH denies the allegations of paragraph 19 of the Counterclaims.
`
`The conduct of Bosch described in paragraphs 10–14, above, has caused injury to
`20.
`Costco’s business and property in the State of Washington, including increased operating costs
`and lost profits on sales of GOODYEAR® Hybrid windshield wipers.
`
`Response: Bosch GmbH denies the allegations of paragraph 20 of the Counterclaims.
`
`-4-
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`

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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 5 of 7 PageID #: 11533
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`On information and belief, Bosch GmbH has directly employed or controlled one
`21.
`or more individuals who have participated in the unfair and deceptive conduct alleged in
`paragraphs 10–14, above.
`
`Response: Bosch GmbH denies the allegations of paragraph 21 of the Counterclaims.
`
`On information and belief, Bosch GmbH has actively participated and furthered the
`22.
`unfair and deceptive conduct alleged in paragraphs 10–14, above.
`
`Response: Bosch GmbH denies the allegations of paragraph 22 of the Counterclaims.
`
`the unfair and deceptive conduct alleged in
`On information and belief,
`23.
`paragraphs 10–15, was carried out as part of a common plan between Bosch GmbH and Bosch
`LLC to exclude lawful competition in the sale of replacement windshield wipers by unfair,
`deceptive, and anticompetitive means.
`
`Response: Bosch GmbH denies the allegations of paragraph 23 of the Counterclaims.
`
`On information and belief, Bosch GmbH has lent aid and encouragement to the
`24.
`actors which have engaged in the unfair and deceptive conduct alleged in paragraphs 10–14,
`above.
`
`Response: Bosch GmbH denies the allegations of paragraph 24 of the Counterclaims.
`
`On information and belief, Bosch GmbH has ratified the unfair and deceptive
`25.
`conduct alleged in paragraphs 10–14, above.
`
`Response: Bosch GmbH denies the allegations of paragraph 25 of the Counterclaims.
`
`the unfair and deceptive conduct alleged in
`On information and belief,
`26.
`paragraphs 10–14, above, was engaged in for Bosch GmbH’s ultimate benefit.
`
`Response: Bosch GmbH denies the allegations of paragraph 26 of the Counterclaims.
`
`On information and belief, Bosch GmbH had knowledge of the unfair and deceptive
`27.
`conduct alleged in paragraphs 10–14, above, at all relevant times.
`
`Response: Bosch GmbH denies the allegations of paragraph 27 of the Counterclaims.
`
`On information and belief, Bosch GmbH has given substantial assistance to the
`28.
`unfair and deceptive conduct alleged in paragraphs 10–14, above.
`
`Response: Bosch GmbH denies the allegations of paragraph 28 of the Counterclaims.
`
`Bosch LLC and Bosch GmbH are liable to Costco, jointly and severally, for
`29.
`violation of Wash. Rev. Code § 19.86.020.
`
`Response: Bosch GmbH denies the allegations of paragraph 29 of the Counterclaims.
`
`-5-
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`

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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 6 of 7 PageID #: 11534
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`SECOND COUNTERCLAIM
`
`30.
`
`Paragraphs 1–29, above, are re-alleged and incorporated by reference as if set forth
`
`in full.
`
`Response: Bosch GmbH incorporates its responses to the allegations in paragraphs 1
`
`through 29 of the Counterclaims as if forth set fully herein.
`
`On October 27, 2014, Bosch LLC accused Costco of
`31.
`eighteen (18) patents identified in the Complaint (the “Asserted Patents”).
`
`infringing the
`
`Response: Bosch GmbH admits the allegations of paragraph 31 of the Counterclaims.
`
`Costco denies that it has infringed any of the Asserted Patents and has, further,
`32.
`disputed the validity and enforceability of the Asserted Patents.
`
`Response: Bosch GmbH admits the allegations of paragraph 32 of the Counterclaims.
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`33.
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`Bosch GmbH holds a direct financial interest in the proceeds of this action.
`
`Response: Bosch GmbH admits the allegations of paragraph 33 of the Counterclaims.
`
`34.
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`Bosch GmbH has the power to control and direct Bosch LLC’s positions in this
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`action.
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`Response: Bosch GmbH denies the allegations of paragraph 34 of the Counterclaims.
`
`35.
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`Bosch GmbH is in privity with Bosch LLC with respect to this action.
`
`Response: Bosch GmbH lacks knowledge or information sufficient to form a belief about
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`the truth of the allegations of paragraph 35 of the Counterclaims and accordingly denies the same.
`
`An actual controversy exists between Costco and Bosch with respect to whether the
`36.
`Asserted Patents are unenforceable in this action,
`including by reason of Bosch’s willful
`suppression of evidence relevant to the exhaustion of the ’607, ’096, or other patents.
`
`Response: Bosch GmbH denies the allegations of paragraph 36 of the Counterclaims.
`
`An actual controversy exists between Costco and Bosch with respect to whether
`37.
`Costco has infringed any of the Asserted Patents.
`
`Response: Bosch GmbH denies the allegations of paragraph 37 of the Counterclaims.
`
`-6-
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`

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`Case 1:12-cv-00574-LPS Document 311 Filed 01/29/16 Page 7 of 7 PageID #: 11535
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`An actual controversy exists between Costco and Bosch with respect to whether
`38.
`one or more claims in the Asserted Patents is invalid.
`
`Response: Bosch GmbH denies the allegations of paragraph 38 of the Counterclaims.
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`PRAYER FOR RELIEF
`
`Bosch GmbH denies Costco is entitled to any of the relief recited in the PRAYER FOR
`
`RELIEF. Bosch GmbH denies all allegations not specifically admitted.
`
`DEFENSE
`
`(FAILURE TO STATE A CLAIM)
`
`Costco’s Counterclaims fail to state a claim upon which relief can be granted.
`
`OF COUNSEL:
`
`Mark A. Hannemann
`SHEARMAN & STERLING LLP
`599 Lexington Ave
`New York, NY 10022
`Tel.: (212) 848-4000
`
`Rose Cordero Prey
`Ksenia Takhistova
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`Tel.: (212) 425-7200
`
`Dated: January 29, 2016
`1215361 / 39026
`
`Respectfully submitted,
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Bindu A. Palapura
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Stephanie E. O’Byrne (#4446)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`sobyrne@potteranderson.com
`
`Attorneys for Third-Party Defendant Robert
`Bosch GmbH
`
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