`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO.: 3:14-CV-00274-RJC-DSC
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`LIFESCAN, INC. AND
`LIFESCAN SCOTLAND, LTD.,
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`v.
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`UNISTRIP TECHNOLOGIES, LLC,
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`Defendant and
`Counterclaimant.
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`Plaintiffs and
`Counterclaim-defendants,
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`LIFESCAN, INC. AND LIFESCAN
`SCOTLAND, LTD.S’ ANSWER TO
`COUNTERCLAIMS
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`(Jury Trial Demanded)
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`ANSWER TO COUNTERCLAIMS
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`Plaintiffs LifeScan, Inc. and LifeScan Scotland, Ltd. (collectively “LifeScan”) filed a
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`Complaint [Dkt-1] against defendant UniStrip Technologies, LLC (“UniStrip”) on May 28,
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`2014, and a Supplemental Complaint [Dkt-6] on July 21, 2014. On July 29, 2014, UniStrip filed
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`an Answer, Affirmative Defenses, and Counterclaims. [Dkt-9] This is LifeScan’s Answer to the
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`Counterclaims.
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`LifeScan denies each and every allegation in UniStrip’s counterclaims that is not
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`specifically admitted herein. LifeScan specifically responds as follows:
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`COUNTERCLAIMS
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`1.
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`Denies the allegations of paragraph 1, except admits that UniStrip seeks a
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`declaratory judgment under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, that
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 1 of 7
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`its products and the use of its products do not infringe LifeScan’s U.S. Patent Nos. 6,241,862 and
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`7,250,105.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Admitted.
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`Admitted.
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`Admitted.
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`Admitted.
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`Denies the allegations of paragraph 6, except admits that this Court has
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`jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 or 28 U.S.C.
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`§ 1338(a).
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`7.
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`8.
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`9.
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`Admitted.
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`Admitted.
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`Denies the allegations of paragraph 9, except admits that LifeScan Inc. sells
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`products in this State and in this District, and admits that LifeScan initiated the above-captioned
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`litigation and is subject to personal jurisdiction in this case.
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`10.
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`Denies the allegations of paragraph 10, except admits that LifeScan, Inc. offers
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`for sale and sells products in this State and in this District.
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`11.
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`Denies the allegations of paragraph 11, except admits that LifeScan Inc. sells
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`products in this State and in this District.
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`12.
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`Denies the allegations of paragraph 12, except admits that LifeScan Inc. sells
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`products in this State and in this District.
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`13.
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`14.
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`Admitted.
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`LifeScan realleges and incorporates by reference paragraphs 1–13, as if fully set
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`forth in this paragraph.
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 2 of 7
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`15.
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`16.
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`17.
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`18.
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`19.
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`20.
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`21.
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`Admitted.
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`Admitted.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`COUNT I
`DECLARATORY JUDGEMENT OF NON-INFRINGEMENT, INVALIDITY,
`UNENFORCEABILITY OF U.S. PATENT NO. 6,241,862
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`22.
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`LifeScan realleges and incorporates by reference paragraphs 1–21, as if fully set
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`forth in this paragraph.
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`23.
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`Denies the allegations of paragraph 23, except admits that LifeScan has accused
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`UniStrip in this action of infringing the ’862 patent.
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`24.
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`25.
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`26.
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`27.
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`Denied.
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`Denied.
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`Admitted.
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`Denied.
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`COUNT II
`DECLARATORY JUDGEMENT OF NON-INFRINGEMENT, INVALIDITY,
`UNENFORCEABILITY OF U.S. PATENT NO. 7,250,105
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`28.
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`LifeScan realleges and incorporates by reference paragraphs 1–27, as if fully set
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`forth in this paragraph.
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`29.
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`Denies the allegations of paragraph 29, except admits that LifeScan has accused
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`UniStrip in this action of infringing the ’105 patent.
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`30.
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`Denied.
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 3 of 7
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`31.
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`32.
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`33.
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`34.
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`35.
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`Denied.
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`Admitted.
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`Denied.
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`Denied.
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`Denied.
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`ADDITIONAL DEFENSES
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`FIRST ADDITIONAL DEFENSE
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`36.
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`Defendant’s counterclaims fail to state a claim against LifeScan upon which relief
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`can be granted.
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`OTHER ADDITIONAL DEFENSES
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`37.
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`LifeScan reserves the right to add to its additional defenses as additional
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`information becomes available in the course of this litigation.
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`PRAYER FOR RELIEF
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`LifeScan prays that this Court grant LifeScan the following relief against UniStrip:
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`a.)
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`judgment declaring that the ’862 and ’105 patents are valid and
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`enforceable;
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`b.)
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`judgment declaring that UniStrip’s manufacture, importation, offer to sell,
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`sale and use of the accused infringement product infringes, either directly
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`or indirectly, the claims of the ’862 and ’105 patents;
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`c.)
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`an injunction barring UniStrip Technologies and its officers, agents,
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`employees, and all others in concert or participation with them from
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`importing, making, using, selling or offering to sell UniStrip1 test strips
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 4 of 7
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`and colorable variations thereof, and from otherwise infringing the
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`patents-in-suit;
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`d.)
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`damages for UniStrip Technologies’ infringement, with interest and
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`trebled, pursuant to 35 U.S.C. § 284;
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`an order decreeing that this case is exceptional;
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`an order awarding LifeScan its reasonable attorneys’ fees and expert fees
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`for bringing and prosecuting this action;
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`and order awarding LifeScan the costs and expenses of this action;
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`such other relief that the Court deems just and proper; and
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`all issues of fact be determined by a jury.
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`e.)
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`f.)
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`g.)
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`h.)
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`i.)
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 5 of 7
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`This the 19th day of August, 2014.
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`/s/DAVID N. ALLEN
`NC State Bar No. 9095
`/S/J. DOUGLAS GRIMES
`NC State Bar No. 32699
`Hedrick Gardner Kincheloe &
`Garofalo, LLP
`PO Box 30397
`Charlotte, NC 28230
`PH:
`(704) 366-1101
`FAX: (704) 366-6181
`dallen@hedrickgardner.com
`dgrimes@hedrickgardner.com
` Attorneys for Plaintiffs and
`Counterclaim Defendants
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`Of Counsel:
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`Gregory L. Diskant
`Eugene M. Gelernter
`Anthony C. DeCinque
`PATTERSON BELKNAP WEBB & TYLER LLP
`1133 Avenue of the Americas
`New York, NY 10036
`(212) 336-2000
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`
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 6 of 7
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 19, 2014, I electronically filed the foregoing with the
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`Clerk of Court using the CM/ECF system, which will send notification of such filing to the
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`following:
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`Lawrence A. Baratta , Jr.
`Christopher L. Bernard
`Clements Bernard Miller
`1901 Roxborough Road, Suite 250
`Charlotte, NC 28211
`lbaratta@worldpatents.com
`cbernard@worldpatents.com
`Attorneys for Defendant and Counterclaimant
`
`
`/s/DAVID N. ALLEN
`NC State Bar No. 9095
`/S/J. DOUGLAS GRIMES
`NC State Bar No. 32699
`Hedrick Gardner Kincheloe & Garofalo,
`LLP
`PO Box 30397
`Charlotte, NC 28230
`PH:
`(704) 366-1101
`FAX: (704) 366-6181
`dallen@hedrickgardner.com
`dgrimes@hedrickgardner.com
` Attorneys for Plaintiffs and Counterclaim
`Defendants
`
`
`
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`Of Counsel:
`
`Gregory L. Diskant
`Eugene M. Gelernter
`Anthony C. DeCinque
`PATTERSON BELKNAP WEBB & TYLER LLP
`1133 Avenue of the Americas
`New York, NY 10036
`(212) 336-2000
`
`
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`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 7 of 7
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