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IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO.: 3:14-CV-00274-RJC-DSC
`
`
`LIFESCAN, INC. AND
`LIFESCAN SCOTLAND, LTD.,
`
`
`
`v.
`
`UNISTRIP TECHNOLOGIES, LLC,
`
`
`
`
`Defendant and
`Counterclaimant.
`
`
`
`
`
`
`
`
`
`
`Plaintiffs and
`Counterclaim-defendants,
`
`LIFESCAN, INC. AND LIFESCAN
`SCOTLAND, LTD.S’ ANSWER TO
`COUNTERCLAIMS
`
`(Jury Trial Demanded)
`
`
`
`ANSWER TO COUNTERCLAIMS
`
`Plaintiffs LifeScan, Inc. and LifeScan Scotland, Ltd. (collectively “LifeScan”) filed a
`
`Complaint [Dkt-1] against defendant UniStrip Technologies, LLC (“UniStrip”) on May 28,
`
`2014, and a Supplemental Complaint [Dkt-6] on July 21, 2014. On July 29, 2014, UniStrip filed
`
`an Answer, Affirmative Defenses, and Counterclaims. [Dkt-9] This is LifeScan’s Answer to the
`
`Counterclaims.
`
`LifeScan denies each and every allegation in UniStrip’s counterclaims that is not
`
`specifically admitted herein. LifeScan specifically responds as follows:
`
`COUNTERCLAIMS
`
`1.
`
`Denies the allegations of paragraph 1, except admits that UniStrip seeks a
`
`declaratory judgment under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, that
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 1 of 7
`
`1
`
`

`
`its products and the use of its products do not infringe LifeScan’s U.S. Patent Nos. 6,241,862 and
`
`7,250,105.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`Admitted.
`
`Admitted.
`
`Admitted.
`
`Admitted.
`
`Denies the allegations of paragraph 6, except admits that this Court has
`
`jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 or 28 U.S.C.
`
`§ 1338(a).
`
`7.
`
`8.
`
`9.
`
`Admitted.
`
`Admitted.
`
`Denies the allegations of paragraph 9, except admits that LifeScan Inc. sells
`
`products in this State and in this District, and admits that LifeScan initiated the above-captioned
`
`litigation and is subject to personal jurisdiction in this case.
`
`10.
`
`Denies the allegations of paragraph 10, except admits that LifeScan, Inc. offers
`
`for sale and sells products in this State and in this District.
`
`11.
`
`Denies the allegations of paragraph 11, except admits that LifeScan Inc. sells
`
`products in this State and in this District.
`
`12.
`
`Denies the allegations of paragraph 12, except admits that LifeScan Inc. sells
`
`products in this State and in this District.
`
`13.
`
`14.
`
`Admitted.
`
`LifeScan realleges and incorporates by reference paragraphs 1–13, as if fully set
`
`forth in this paragraph.
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 2 of 7
`
`2
`
`

`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`20.
`
`21.
`
`Admitted.
`
`Admitted.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT I
`DECLARATORY JUDGEMENT OF NON-INFRINGEMENT, INVALIDITY,
`UNENFORCEABILITY OF U.S. PATENT NO. 6,241,862
`
`22.
`
`LifeScan realleges and incorporates by reference paragraphs 1–21, as if fully set
`
`forth in this paragraph.
`
`23.
`
`Denies the allegations of paragraph 23, except admits that LifeScan has accused
`
`UniStrip in this action of infringing the ’862 patent.
`
`24.
`
`25.
`
`26.
`
`27.
`
`Denied.
`
`Denied.
`
`Admitted.
`
`Denied.
`
`COUNT II
`DECLARATORY JUDGEMENT OF NON-INFRINGEMENT, INVALIDITY,
`UNENFORCEABILITY OF U.S. PATENT NO. 7,250,105
`
`28.
`
`LifeScan realleges and incorporates by reference paragraphs 1–27, as if fully set
`
`forth in this paragraph.
`
`29.
`
`Denies the allegations of paragraph 29, except admits that LifeScan has accused
`
`UniStrip in this action of infringing the ’105 patent.
`
`30.
`
`Denied.
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 3 of 7
`
`3
`
`

`
`31.
`
`32.
`
`33.
`
`34.
`
`35.
`
`Denied.
`
`Admitted.
`
`Denied.
`
`Denied.
`
`Denied.
`
`ADDITIONAL DEFENSES
`
`FIRST ADDITIONAL DEFENSE
`
`36.
`
`Defendant’s counterclaims fail to state a claim against LifeScan upon which relief
`
`can be granted.
`
`OTHER ADDITIONAL DEFENSES
`
`37.
`
`LifeScan reserves the right to add to its additional defenses as additional
`
`information becomes available in the course of this litigation.
`
`PRAYER FOR RELIEF
`
`LifeScan prays that this Court grant LifeScan the following relief against UniStrip:
`
`a.)
`
`judgment declaring that the ’862 and ’105 patents are valid and
`
`enforceable;
`
`b.)
`
`judgment declaring that UniStrip’s manufacture, importation, offer to sell,
`
`sale and use of the accused infringement product infringes, either directly
`
`or indirectly, the claims of the ’862 and ’105 patents;
`
`c.)
`
`an injunction barring UniStrip Technologies and its officers, agents,
`
`employees, and all others in concert or participation with them from
`
`importing, making, using, selling or offering to sell UniStrip1 test strips
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 4 of 7
`
`4
`
`

`
`and colorable variations thereof, and from otherwise infringing the
`
`patents-in-suit;
`
`d.)
`
`damages for UniStrip Technologies’ infringement, with interest and
`
`trebled, pursuant to 35 U.S.C. § 284;
`
`an order decreeing that this case is exceptional;
`
`an order awarding LifeScan its reasonable attorneys’ fees and expert fees
`
`for bringing and prosecuting this action;
`
`and order awarding LifeScan the costs and expenses of this action;
`
`such other relief that the Court deems just and proper; and
`
`all issues of fact be determined by a jury.
`
`e.)
`
`f.)
`
`g.)
`
`h.)
`
`i.)
`
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 5 of 7
`
`5
`
`

`
`This the 19th day of August, 2014.
`
`
`
`
`
`
`/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
`
`
`
`
`
`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
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 6 of 7
`
`6
`
`
`
`
`
`
`
`

`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 19, 2014, I electronically filed the foregoing with the
`
`Clerk of Court using the CM/ECF system, which will send notification of such filing to the
`
`following:
`
`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
`
`
`
`
`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
`
`
`
`
`
`Case 3:14-cv-00274-RJC-DSC Document 11 Filed 08/19/14 Page 7 of 7
`
`7

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