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`David C. Marcus (SBN: 158704)
`david.marcus@wilmerhale.com
`AARON THOMPSON (SBN: 272391)
`aaron.thompson@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`350 South Grand Avenue, Suite 2100
`Los Angeles, CA 90071
`Telephone: +1 213 443 5300
`Facsimile: +1 213 443 5400
`
`William G. McElwain (pro hac vice pending)
`william.mcelwain@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`1875 Pennsylvania Avenue NW
`Washington, DC 20006
`Telephone: +1 202 663 6388
`Facsimile: +1 202 663 6363
`
`Attorneys for Defendants and Counterclaim-Plaintiffs
`Hughes Communications Inc.,
`Hughes Network Systems LLC,
`DISH Network Corporation,
`DISH Network L.L.C., and
`dishNET Satellite Broadband L.L.C.
`
`
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`The CALIFORNIA INSTITUTE OF
`TECHNOLOGY,
`
`Plaintiff,
`
`vs.
`HUGHES COMMUNICATIONS INC.,
`HUGHES NETWORK SYSTEMS LLC,
`DISH NETWORK CORPORATION,
`DISH NETWORK L.L.C., and DISHNET
`SATELLITE BROADBAND L.L.C.,
`Defendants.
`
`HUGHES COMMUNICATIONS INC.,
`HUGHES NETWORK SYSTEMS LLC,
`DISH NETWORK CORPORATION,
`
`
`Case No. 2:13-cv-07245-MRP-JEM
`
`ANSWER, DEFENSES, AND
`COUNTERCLAIMS OF
`DEFENDANTS HUGHES
`COMMUNICATIONS, HUGHES
`NETWORK SYSTEMS, DISH
`NETWORK CORPORATION,
`DISH NETWORK L.L.C., AND
`DISHNET TO PLAINTIFF’S
`COMPLAINT
`
`JURY TRIAL DEMANDED
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`CALTECH - EXHIBIT 2005
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`DISH NETWORK L.L.C., and DISHNET
`SATELLITE BROADBAND L.L.C.,
`Counter-Plaintiffs,
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`vs.
`The CALIFORNIA INSTITUTE OF
`TECHNOLOGY,
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`Counter-
`Defendants.
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`Defendants Hughes Communications Inc. (“Hughes Communications”),
`Hughes Network Systems LLC (“Hughes Network Systems”),1 DISH Network
`Corporation, DISH Network L.L.C., and dishNET Satellite Broadband L.L.C.
`(“dishNET”) (collectively, “Defendants” or “Counterclaim-Plaintiffs”), by and
`through their undersigned attorneys, hereby answer the Complaint for Patent
`Infringement brought by the Plaintiff, the California Institute of Technology
`(“Caltech” or “Plaintiff”), as follows, with each paragraph of the Answer below
`responding to the corresponding numbered or lettered paragraph of the Complaint:
`ANSWER
`NATURE OF THE ACTION
`1.
`Defendants admit that Caltech’s Complaint purports to state a cause of
`action under the patent laws of the United States.
`2.
`Defendants deny the allegation that Defendants infringe or infringed,
`in any way, U.S. Patent No. 7,116,710, U.S. Patent No. 7,421,032, U.S. Patent No.
`7,916,781, or U.S. Patent No. 8,284,833 (collectively, “the Asserted Patents”).
`Defendants are without knowledge or information sufficient to form a belief as to
`whether Caltech is the legal owner of the Asserted Patents, or whether the Asserted
`Patents were duly and legally issued by the United States Patent and Trademark
`Office (“Patent Office”), and therefore deny them. Defendants admit that
`Caltech’s complaint purports to seek injunctive relief and monetary damages.
`THE PARTIES
`3.
`On information and belief, Defendants admit that Caltech is a non-
`profit private university organized under the laws of the State of California.
`Defendants are without knowledge or information sufficient to form a belief as to
`
`
`1 Caltech has defined Hughes Communications and Hughes Network Systems as
`the “Hughes Defendants.” For purposes of clarity in responding to Caltech’s
`complaint only, Defendants use the same term.
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`the remainder of the allegations in paragraph 3 of the Complaint, and therefore
`deny them.
`4.
`Defendants admit the allegations in paragraph 4 of the Complaint.
`5.
`Defendants admit the allegations in paragraph 5 of the Complaint.
`6.
`Defendants admit the allegations in paragraph 6 of the Complaint.
`7.
`Defendants admit the allegations in paragraph 7 of the Complaint,
`except that DISH Network L.L.C is a wholly owned indirect subsidiary of DISH
`Network Corporation.
`8.
`Defendants admit the allegations in paragraph 8 of the Complaint,
`except that dishNET is a wholly owned indirect subsidiary of DISH Network
`Corporation.2
`9.
`Defendants admit that EchoStar and DISH Network Corporation were
`previously one company, and that in approximately January 2008, DISH
`completed the distribution of its technology and set-top box business and certain
`infrastructure assets (the “Spin-off”) into a separate publicly-traded company,
`EchoStar Corporation (“EchoStar”).
`10. Defendants admit that Charles W. Ergen serves as the Chairman of
`both DISH Network Corporation and EchoStar, and that the Chairman, or certain
`trusts established by the Chairman, beneficially owns a substantial majority of the
`voting power of the shares of both DISH Network Corporation and EchoStar.
`Defendants further admit that, in 2010, DISH Network Corporation accounted for
`82.5% of EchoStar’s total revenue and in 2012, DISH Network Corporation
`accounted for 49.5% of EchoStar’s total revenue. Defendants admit that in
`October 2012, dishNET and Hughes Network Systems entered into a distribution
`agreement relating to Hughes satellite internet service. Defendants are without
`
`
`2 Caltech has defined DISH Network Corporation, DISH Network L.L.C. and
`dishNet as the “Dish Defendants.” For purposes of clarity in responding to
`Caltech’s complaint only, Defendants use the same term.
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`knowledge or information sufficient to form a belief as to the remaining allegations
`of paragraph 10 of the Complaint, and therefore deny the same.
`JURISDICTION AND VENUE
`11. Defendants admit that this Court has subject matter jurisdiction of this
`action under 28 U.S.C. §§ 1331 and 1338(a).
`12. Paragraph 12 of the Complaint sets forth conclusions of law to which
`no response is required. To the extent a response is deemed to be required,
`however, Defendants deny the allegations of paragraph 12 of the Complaint,
`except that Defendants admit that Hughes Network Systems conducts business in
`the State of California, including in the Central District of California.
`13. Paragraph 13 of the Complaint sets forth conclusions of law to which
`no response is required. To the extent a response is deemed to be required,
`however, Defendants deny the allegations of paragraph 13 of the Complaint,
`except that Defendants admit that DISH Network L.L.C., and dishNET conduct
`business in the State of California, including in the Central District of California.
`14. Paragraph 14 of the Complaint sets forth conclusions of law to which
`no response is required. To the extent a response is deemed to be required,
`however, Defendants deny the allegations of paragraph 14 of the Complaint,
`except that Defendants admit, for purposes of this action only, that venue is proper
`in this Court under 28 U.S.C. §§ 1391 and 1400.
`CALTECH’S ASSERTED PATENTS
`15. Defendants admit that the Complaint purports to attach U.S. Patent No.
`7,116,710 (the “’710 Patent”) as Exhibit A. Defendants also admit that the ’710
`Patent states on its face that it is titled “Serial Concatenation of Interleaved
`Convolutional Codes Forming Turbo-Like Codes” and recites an issue date of
`October 3, 2006. Defendants are without knowledge or information sufficient to
`form a belief as to the remaining allegations in paragraph 15 of the Complaint, and
`therefore deny them.
`
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`16. Defendants admit that the Complaint purports to attach U.S. Patent No.
`7,421,032 (the “’032 Patent”) as Exhibit B. Defendants also admit that the ’032
`Patent states on its face that it is titled “Serial Concatenation of Interleaved
`Convolutional Codes Forming Turbo-Like Codes” and recites an issue date of
`September 2, 2008. Defendants are without knowledge or information sufficient to
`form a belief as to the remaining allegations in paragraph 16 of the Complaint, and
`therefore deny them.
`17. Defendants admit that the Complaint purports to attach U.S. Patent No.
`7,916,781 (the “’781 Patent”) as Exhibit C. Defendants also admit that the ’781
`Patent states on its face that it is titled “Serial Concatenation of Interleaved
`Convolutional Codes Forming Turbo-Like Codes” and recites an issue date of
`March 29, 2011. Defendants are without knowledge or information sufficient to
`form a belief as to the remaining allegations in paragraph 17 of the Complaint, and
`therefore deny them.
`18. Defendants admit that the Complaint purports to attach U.S. Patent No.
`8,284,833 (the “’833 Patent”) as Exhibit D. Defendants also admit that the ’833
`Patent states on its face that it is titled “Serial Concatenation of Interleaved
`Convolutional Codes Forming Turbo-Like Codes” and recites an issue date of
`October 9, 2012. Defendants are without knowledge or information sufficient to
`form a belief as to the remaining allegations in paragraph 18 of the Complaint, and
`therefore deny them.
`19. Defendants admit that the Asserted Patents state on their faces that
`their inventors are Hui Jin, Aamond Khandekar, and Robert J. McEliece.
`20. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 20 of the Complaint, and therefore deny
`them.
`
`21. Defendants deny the allegations in paragraph 21 of the Complaint.
`
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`BACKGROUND TO THIS ACTION
`22. Defendants deny the allegations in paragraph 22 of the Complaint.
`23. Defendants admit that the Complaint purports to attach a paper titled
`“Irregular Repeat-Accumulate Codes” as Exhibit E. Defendants are without
`knowledge or information sufficient to form a belief as to the remaining allegations
`in paragraph 23 of the Complaint, and therefore deny them.
`24. Defendants admit that the Complaint purports to attach a paper titled
`“Design Methods for Irregular Repeat-Accumulate Codes” as Exhibit F.
`Defendants are without knowledge or information sufficient to form a belief as to
`the allegations in paragraph 24 of the Complaint, and therefore deny them.
`25. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 25 of the Complaint, and therefore deny
`them.
`
`26. Defendants admit that the Complaint purports to attach a paper titled
`“A Synthesizable IP Core for DVB-S2 LDPC Code Decoding” as Exhibit G.
`Defendants are without knowledge or information sufficient to form a belief as to
`the allegations in paragraph 26 of the Complaint, and therefore deny them.
`27. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 27 of the Complaint, and therefore deny
`them.
`
`28. Defendants admit that the Complaint purports to attach a paper titled
`“Factorizable Modulo M Parallel Architecture for DVB-S2 LDPC Decoding” as
`Exhibit H. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 28 of the Complaint, and therefore deny
`them.
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`29. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 29 of the Complaint, and therefore deny
`them.
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`30. Defendants admit that the Complaint purports to attach a paper titled
`“Design of LDPC Codes: A Survey and New Results” as Exhibit H. Defendants
`are without knowledge or information sufficient to form a belief as to the
`allegations in paragraph 30 of the Complaint, and therefore deny them.
`31. Defendants deny the allegations in paragraph 31 of the Complaint.
`32. Defendants deny the allegations in paragraph 32 of the Complaint
`except that, on information and belief, Hughes Network Systems manufactures,
`uses, imports, offers for sale, or sells products, methods, equipment, and /or
`services that implement the DVB-S2 standard.
`33. Defendants deny the allegations in paragraph 33 of the Complaint,
`except that, on information and belief, DISH Network L.L.C. and dishNET
`purchase and use certain equipment, and/or services that implement the DVB-S2
`standard, that DISH Network L.L.C. and dishNET markets, offers for sale, sells,
`and distributes, satellite internet service under the dishNet brand, and that a portion
`of that satellite internet service is offered pursuant to a distribution agreement
`entered into between dishNET and Hughes Network Systems in October 2012.
`34. Defendants deny the allegations in paragraph 34 of the Complaint,
`except that Defendants admit the Complaint purports to attach copies of Hughes
`Network System advertising material.
`35. Defendants deny the allegations in paragraph 35 of the Complaint,
`except that Defendants admit the Complaint purports to attach copies of Hughes
`Network System advertising material.
`36. Defendants deny the allegations in paragraph 36 of the Complaint,
`except that Defendants admit the Complaint purports to attach copies of Hughes
`Network System advertising material.
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`COUNT I
`INFRINGEMENT OF THE ’710 PATENT
`37. Defendants refer to and incorporate their responses set forth in
`paragraphs 1-36, above, as if set forth fully herein.
`38. Defendants deny each and every allegation in paragraph 38 of the
`Complaint.
`39. Defendants deny each and every allegation in paragraph 39 of the
`Complaint.
`40. Defendants deny each and every allegation in paragraph 40 of the
`Complaint.
`41. Defendants deny each and every allegation in paragraph 41 of the
`Complaint.
`42. Defendants deny each and every allegation in paragraph 42 of the
`Complaint.
`43. Defendants deny each and every allegation in paragraph 43 of the
`Complaint.
`44. Defendants deny each and every allegation in paragraph 44 of the
`Complaint.
`45. Defendants deny each and every allegation in paragraph 45 of the
`Complaint, except admit that Dish Network Corporation’s 2012 Annual Report
`(10-K) states that some customer premise equipment is leased to subscribers.
`46. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 46 of the Complaint, and therefore deny
`them.
`47. Defendants deny each and every allegation in paragraph 47 of the
`Complaint.
`48. Defendants deny each and every allegation in paragraph 48 of the
`Complaint.
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`49. Defendants deny each and every allegation in paragraph 49 of the
`Complaint.
`50. Defendants deny each and every allegation in paragraph 50 of the
`Complaint.
`51. Defendants deny each and every allegation in paragraph 51 of the
`Complaint.
`
`COUNT II
`INFRINGEMENT OF THE ’032 PATENT
`52. Defendants refer to and incorporate their responses set forth in
`paragraphs 1-51, above, as if set forth fully herein.
`53. Defendants deny each and every allegation in paragraph 53 of the
`Complaint.
`54. Defendants deny each and every allegation in paragraph 54 of the
`Complaint.
`55. Defendants deny each and every allegation in paragraph 55 of the
`Complaint.
`56. Defendants deny each and every allegation in paragraph 56 of the
`Complaint.
`57. Defendants deny each and every allegation in paragraph 57 of the
`Complaint.
`58. Defendants deny each and every allegation in paragraph 58 of the
`Complaint.
`59. Defendants deny each and every allegation in paragraph 59 of the
`Complaint.
`60. Defendants deny each and every allegation in paragraph 60 of the
`Complaint, except admit that Dish Network Corporation’s 2012 Annual Report
`(10-K) states that some customer premise equipment is leased to subscribers.
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`61. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 61 of the Complaint, and therefore deny
`them.
`62. Defendants deny each and every allegation in paragraph 62 of the
`Complaint.
`63. Defendants deny each and every allegation in paragraph 63 of the
`Complaint.
`64. Defendants deny each and every allegation in paragraph 64 of the
`Complaint.
`65. Defendants deny each and every allegation in paragraph 65 of the
`Complaint.
`66. Defendants deny each and every allegation in paragraph 66 of the
`Complaint.
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`COUNT III
`INFRINGEMENT OF THE ’781 PATENT
`67. Defendants refer to and incorporates their responses set forth in
`paragraphs 1-66, above, as if set forth fully herein.
`68. Defendants deny each and every allegation in paragraph 68 of the
`Complaint.
`69. Defendants deny each and every allegation in paragraph 69 of the
`Complaint.
`70. Defendants deny each and every allegation in paragraph 70 of the
`Complaint.
`71. Defendants deny each and every allegation in paragraph 71 of the
`Complaint.
`72. Defendants deny each and every allegation in paragraph 72 of the
`Complaint.
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`73. Defendants deny each and every allegation in paragraph 73 of the
`Complaint.
`74. Defendants deny each and every allegation in paragraph 74 of the
`Complaint.
`75. Defendants deny each and every allegation in paragraph 75 of the
`Complaint, except admit that Dish Network Corporation’s 2012 Annual Report
`(10-K) states that some customer premise equipment is leased to subscribers.
`76. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 76 of the Complaint, and therefore deny
`them.
`77. Defendants deny each and every allegation in paragraph 77 of the
`Complaint.
`78. Defendants deny each and every allegation in paragraph 78 of the
`Complaint.
`79. Defendants deny each and every allegation in paragraph 79 of the
`Complaint.
`80. Defendants deny each and every allegation in paragraph 80 of the
`Complaint.
`81. Defendants deny each and every allegation in paragraph 81 of the
`Complaint.
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`COUNT IV
`INFRINGEMENT OF THE ’833 PATENT
`82. Defendants refer to and incorporates their responses set forth in
`paragraphs 1-81, above, as if set forth fully herein.
`83. Defendants deny each and every allegation in paragraph 83 of the
`Complaint.
`84. Defendants deny each and every allegation in paragraph 84 of the
`Complaint.
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`85. Defendants deny each and every allegation in paragraph 85 of the
`Complaint.
`86. Defendants deny each and every allegation in paragraph 86 of the
`Complaint.
`87. Defendants deny each and every allegation in paragraph 87 of the
`Complaint.
`88. Defendants deny each and every allegation in paragraph 88 of the
`Complaint.
`89. Defendants deny each and every allegation in paragraph 89 of the
`Complaint.
`90. Defendants deny each and every allegation in paragraph 90 of the
`Complaint, except admit that Dish Network Corporation’s 2012 Annual Report
`(10-K) states that some customer premise equipment is leased to subscribers.
`91. Defendants are without knowledge or information sufficient to form a
`belief as to the allegations in paragraph 91 of the Complaint, and therefore deny
`them.
`92. Defendants deny each and every allegation in paragraph 92 of the
`Complaint.
`93. Defendants deny each and every allegation in paragraph 93 of the
`Complaint.
`94. Defendants deny each and every allegation in paragraph 94 of the
`Complaint.
`95. Defendants deny each and every allegation in paragraph 95 of the
`Complaint.
`96. Defendants deny each and every allegation in paragraph 96 of the
`Complaint.
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
`Case No. 2:13-cv-07245-MRP-JEM
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 14 of 30 Page ID #:199
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`PRAYER FOR RELIEF
`a)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (a).
`b)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (b).
`c)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (c).
`d)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (d).
`e)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (e).
`f)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (f).
`g)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (g).
`h)
`Defendants deny that Caltech is entitled to the relief requested in
`paragraph (h).
`
`GENERAL DENIAL
`Defendants deny all allegations of the Complaint not specifically admitted
`above.
`
`DEFENSES
`97. Without admitting or acknowledging that Defendants bear the burden
`of proof as to any of them, Defendants assert the following defenses:
`FIRST DEFENSE
`(Non-Infringement)
`98. Defendants have not and do not infringe, literally or under the
`doctrine of equivalents, any valid claim of the Asserted Patents.
`
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 15 of 30 Page ID #:200
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`SECOND DEFENSE
`(Invalidity)
`99. On information and belief, the claims of the Asserted Patents are
`invalid for failure to comply with the conditions of patentability, including but not
`limited to 35 U.S.C. §§ 101, 102, 103, and 112.
`THIRD DEFENSE
`(Laches, Prosecution Laches, Waiver, Estoppel, Unclean Hands)
`100. On information and belief, Caltech’s claims are barred in whole or in
`part by laches, prosecution laches, waiver, estoppel, and/or unclean hands.
`101. On information and belief, Caltech and/or its predecessors’
`unreasonable and inexcusable delay in filing suit and prosecuting the asserted
`patents has caused material prejudice to Defendants.
`FOURTH DEFENSE
`(Injunctive Relief Unavailable)
`102. On information and belief, Caltech is not entitled to injunctive relief
`because it does not make, use, or sell any product that practices any claim of the
`asserted patents. Any alleged injury to Caltech is neither immediate nor
`irreparable, and Caltech has an adequate remedy at law.
`FIFTH DEFENSE
`(Limitation on Damages)
`103. The relief sought by Caltech based on Defendant’s alleged
`infringement of the Asserted Patents is limited by 35 U.S.C. § 286, which prohibits
`recovery for any alleged infringement committed more than six years before the
`filing of the Complaint.
`
`SIXTH DEFENSE
`(28 U.S.C. §1498)
`104. On information and belief, Defendants may sell and/or offer for sale
`in the United States the accused products to the United States government or to
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 16 of 30 Page ID #:201
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`third parties who sell the accused products to the United States government, with
`the authorization or consent of the United States government for any alleged acts
`of infringement with respect to the manufacture and sale of the accused products to
`the United States government. Defendants are therefore entitled to assert 28 U.S.C.
`§ 1498 as a defense to Caltech’s claims of patent infringement.
`
`COUNTERCLAIMS
`Counterclaim-Plaintiffs Hughes Communications Inc. (“Hughes
`Communications”), Hughes Network Systems LLC (“Hughes Network Systems”),3
`DISH Network Corporation, DISH Network L.L.C., and dishNET Satellite
`Broadband L.L.C. (“dishNET”), on personal knowledge as to their own acts, and
`on information and belief as to all others based on their own and their attorneys’
`investigation, alleges Counterclaims against Caltech as follows:
`PARTIES AND JURISDICTION
`1.
`Hughes Communications is a corporation organized under the laws of
`the State of Delaware, with its principal place of business located at 1171
`Exploration Lane, Germantown, Maryland 20876.
`2.
`Hughes Network Systems is a limited liability company organized
`under the laws of the State of Delaware, with its principal place of business located
`at 1171 Exploration Lane, Germantown, Maryland 20876.
`3.
`DISH Network Corporation is a corporation organized under the laws
`of the State of Nevada, with its principal place of business located at 9601 South
`Meridian Boulevard, Englewood, Colorado 80112.
`
`
`3 Caltech has defined Hughes Communications and Hughes Network Systems as
`the “Hughes Defendants.” For purposes of clarity in responding to Caltech’s
`complaint and counterclaiming only, Defendants use the same term.
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 17 of 30 Page ID #:202
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`4.
`DISH Network L.L.C. is a limited liability company organized under
`the laws of the State of Colorado, with its principal place of business located at
`9601 South Meridian Boulevard, Englewood, Colorado 80112.
`5.
`dishNET is a limited liability company organized under the laws of
`the State of Colorado, with its principal place of business located at 9601 South
`Meridian Boulevard, Englewood, Colorado 80112.
`6.
`Caltech is a non-profit private university organized under the laws of
`the State of California, with its principal place of business at 1200 East California
`Boulevard, Pasadena, California, 91125.
`7.
`This Court has jurisdiction over these Counterclaims under 28 U.S.C.
`§§ 1331, 1338, and 2201-02.
`8.
`This is an action for declaratory judgment of non-infringement and
`invalidity arising under the patent laws of the United States, 35 U.S.C. § 1, et. seq.,
`and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. Thus, this Court has
`subject matter jurisdiction over these Counterclaims under 28 U.S.C. §§ 1331 and
`1338(a), in combination with 28 U.S.C. §§ 2201-02. An actual controversy exists
`under the Declaratory Judgment Act because Caltech has asserted and is asserting
`infringement of U.S. Patent No. 7,116,710 (“the ’710 Patent”), U.S. Patent No.
`7,421,032 (“the ’032 Patent”), U.S. Patent No. 7,916,781 (“the ’781 Patent”), and
`U.S. Patent No. 8,284,833 (“the ’833 Patent”) (collectively, “the Asserted Patents”)
`by Counterclaim-Plaintiffs and Counterclaim-Plaintiffs deny those assertions.
`COUNT I
`NON-INFRINGEMENT OF THE ’710 PATENT
`9.
`Counterclaim-Plaintiffs repeat and re-allege the allegations contained
`in the immediately preceding paragraphs 1 through 8 as if fully set forth herein.
`10. Caltech claims that it is the assignee of the ’710 Patent and that it is
`the owner of all rights, title and interest in and to the ’710 Patent. Caltech has
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
`Case No. 2:13-cv-07245-MRP-JEM
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 18 of 30 Page ID #:203
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`expressly charged Counterclaim-Plaintiffs with infringement of the ’710 Patent by
`filing the Complaint against Counterclaim-Plaintiffs on October 1, 2013.
`11. Counterclaim-Plaintiffs have not been and are not now infringing any
`claim of the ’710 Patent. In light of Caltech’s Complaint, there exists an actual
`controversy between Caltech and Counterclaim-Plaintiffs regarding this patent.
`12. Accordingly, a valid and justiciable controversy has arisen and exists
`between Caltech and Counterclaim-Plaintiffs. Counterclaim-Plaintiffs desire a
`judicial determination and declaration of the respective rights and duties of the
`parties herein. Such a determination and declaration is necessary and appropriate
`at this time so that the parties may ascertain their respective rights and duties.
`13. Counterclaim-Plaintiffs are entitled to a declaratory judgment that
`they have not infringed and is not infringing the ’710 Patent.
`COUNT II
`INVALIDITY OF THE ’710 PATENT
`14. Counterclaim-Plaintiffs repeat and re-allege the allegations contained
`in the immediately preceding paragraphs 1 through 13 as if fully set forth herein.
`15. Counterclaim-Plaintiffs contend that the claims of the ’710 Patent are
`invalid for failure to comply with the conditions for patentability, including, but
`not limited to 35 U.S.C. §§ 101, 102, 103, and 112.
`16. Counterclaim-Plaintiffs are informed and believe, and on that basis
`allege, that Caltech contends that the ’710 Patent is valid and enforceable.
`17. Accordingly, a valid and justiciable controversy has arisen and exists
`between Caltech and Counterclaim-Plaintiffs. Counterclaim-Plaintiffs desire a
`judicial determination and declaration of the respective rights and duties of the
`parties herein. Such a determination and declaration is necessary and appropriate
`at this time so that the parties may ascertain their respective rights and duties.
`18. Counterclaim-Plaintiffs are entitled to a declaratory judgment that the
`claims of the ’710 Patent are invalid.
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`ANSWER AND COUNTERCLAIMS OF DEFENDANTS
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`Case 2:13-cv-07245-MRP-JEM Document 17 Filed 02/10/14 Page 19 of 30 Page ID #:204
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`COUNT III
`UNENFORCEABILITY OF THE ’710 PATENT
`19. Counterclaim-Plaintiffs repeat and re-allege the allegations contained
`in the immediately preceding paragraphs 1 through 18 as if fully set forth herein.
`20. Counterclaim-Plaintiffs contend that the ’710 Patent is unenforceable
`because of estoppel, waiver, laches, and/or unclean hands.
`21. The application for the ’710 Patent was filed on May 18, 2001, a