Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 1 of 13 PageID #: 362
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`JURY TRIAL DEMANDED
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` C.A. No. 2:14-cv-04488 (KAM-GRB)
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`
`
`ANDREA ELECTRONICS CORPORATION,
`
`
`ACER AMERICA CORPORATION AND
`ACER INC.,
`
`Defendants.
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`DEFENDANTS ACER INC. AND ACER AMERICA CORPORATION’S ANSWER AND
`DEFENSES TO PLAINTIFF ANDREA ELECTRONICS CORPORATION’S FIRST
`AMENDED COMPLAINT
`
`Defendants Acer Inc. and Acer America Corporation (“Defendants” or “Acer”) answer
`
`Plaintiff Andrea Electronics Corporation’s (“Plaintiff” or “Andrea”) First Amended Complaint
`
`(“Complaint”) dated November 10, 2014 as follows:
`
`NATURE OF ACTION
`
`1.
`
`Acer admits that the Complaint alleges patent infringement. Acer denies
`
`infringement, the legal sufficiency of Andrea’s complaint, and that Andrea has any viable claim
`
`for relief. Except as expressly admitted, Acer denies each and every allegation of paragraph 1.
`
`RTL345-1_1003-0001
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`JURY TRIAL DEMANDED
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` C.A. No. 2:14-cv-04488 (KAM-GRB)
`
`
`
`ANDREA ELECTRONICS CORPORATION,
`
`
`ACER AMERICA CORPORATION AND
`ACER INC.,
`
`Defendants.
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`DEFENDANTS ACER INC. AND ACER AMERICA CORPORATION’S ANSWER AND
`DEFENSES TO PLAINTIFF ANDREA ELECTRONICS CORPORATION’S FIRST
`AMENDED COMPLAINT
`
`Defendants Acer Inc. and Acer America Corporation (“Defendants” or “Acer”) answer
`
`Plaintiff Andrea Electronics Corporation’s (“Plaintiff” or “Andrea”) First Amended Complaint
`
`(“Complaint”) dated November 10, 2014 as follows:
`
`NATURE OF ACTION
`
`1.
`
`Acer admits that the Complaint alleges patent infringement. Acer denies
`
`infringement, the legal sufficiency of Andrea’s complaint, and that Andrea has any viable claim
`
`for relief. Except as expressly admitted, Acer denies each and every allegation of paragraph 1.
`
`RTL345-1_1003-0001
`
`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 2 of 13 PageID #: 363
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`2.
`
`Acer admits that the Complaint alleges direct infringement. Acer admits that
`
`Acer America has imported and sold computer products in the United States. Acer denies
`
`the remaining allegations in paragraph 2.
`
`3.
`
`Acer admits that the Complaint alleges indirect infringement. Acer denies the
`
`remaining allegations in paragraph 3.
`
`THE PARTIES
`
`4.
`
`Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 4 and on that basis denies each and every allegation of
`
`paragraph 4.
`
`5.
`
`Acer admits that Acer Inc. is a corporation organized and existing under the
`
`laws of Taiwan, with its principal place of business at 8F, 88, Sec. 1, Xintai 5th Rd. Xixhi,
`
`New Taipei City 221, Taiwan.
`
`6.
`
`Acer admits that Acer America Corporation is a corporation organized and
`
`existing under the laws of the state of California with its principal place of business at 333
`
`West San Carlos Street, 1500, San Jose, CA 95110. Acer admits that Acer America
`
`Corporation is a subsidiary of Acer Inc. Acer denies the remaining allegations in paragraph 6.
`
`JURISDICTION AND VENUE
`
`7.
`
`Acer admits that the Complaint alleges patent infringement and that Federal
`
`Question jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 1331 and
`
`§ 1338(a).
`
`8.
`
`For purposes of this action only, Acer admits that Acer is subject to personal
`
`jurisdiction in the Eastern District of New York. Except as expressly admitted, Acer denies
`
`each and every allegation set forth in paragraph 8.
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`
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`- 2 -
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`RTL345-1_1003-0002
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 3 of 13 PageID #: 364
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`9.
`
`Acer admits that venue is proper in this district. For the purposes of this
`
`action only, Acer admits that it is subject to personal jurisdiction in this district. Acer denies
`
`that it has committed acts of infringement in this district. Except as expressly admitted,
`
`Acer denies each and every allegation set forth in paragraph 9.
`
`BACKGROUND AND FACTS RELATED TO THIS ACTION
`
`10. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 10, and on that basis denies each and every allegation of
`
`paragraph 10.
`
`11. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 11, and on that basis denies each and every allegation of
`
`paragraph 11.
`
`12. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 12, and on that basis denies each and every allegation of
`
`paragraph 12.
`
`13. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 13, and on that basis denies each and every allegation of
`
`paragraph 13.
`
`14. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 14, and on that basis denies each and every allegation of
`
`paragraph 14.
`
`15. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 15, and on that basis denies each and every allegation of
`
`paragraph 15.
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`
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`- 3 -
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`RTL345-1_1003-0003
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 4 of 13 PageID #: 365
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`16. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 16, and on that basis denies each and every allegation of
`
`paragraph 16.
`
`17. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 17, and on that basis denies each and every allegation of
`
`paragraph 17.
`
`18. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 18, and on that basis denies each and every allegation of
`
`paragraph 18.
`
`19. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 19, and on that basis denies each and every allegation of
`
`paragraph 19.
`
`20. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 20, and on that basis denies each and every allegation of
`
`paragraph 20.
`
`COUNT I
`
`21. Acer incorporates by reference paragraphs 1 through 20 as if fully restated
`
`herein.
`
`22. Acer admits that on its face, United States Patent No. 5,825,898 (the “’898
`
`Patent”) is entitled “System and Method for Adaptive Interference Cancelling,” and states that it
`
`was issued on October 20, 1998. Acer lacks knowledge or information sufficient to form a belief
`
`as to the truth of each of the remaining allegations set forth in Paragraph 22, including but not
`
`
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`- 4 -
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`RTL345-1_1003-0004
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 5 of 13 PageID #: 366
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`limited to the allegations that the ’898 Patent “was duly and legally issued” and “is in full force
`
`and effect,” and on that basis denies them.
`
`23. Acer lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations set forth in Paragraph 23, and on that basis denies each and every allegation of
`
`paragraph 23.
`
`24.
`
`The allegations of paragraph 24 are too vague and ambiguous to permit a
`
`reasonable response. As currently alleged, Acer lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations of paragraph 24, and on that basis denies
`
`each and every allegation of paragraph 24.
`
`25. Denied.
`
`26. Denied.
`
`COUNT II
`
`27. Acer incorporates by reference paragraphs 1 through 26 as if fully restated
`
`herein.
`
`28. Acer admits that on its face, United States Patent No. 6,049,607 (the “’607
`
`Patent”) is entitled “Interference Canceling Method and Apparatus,” and states that it was issued
`
`on April 11, 2000. Acer lacks knowledge or information sufficient to form a belief as to the truth
`
`of each of the remaining allegations set forth in Paragraph 28, including but not limited to the
`
`allegations that the ’607 Patent “was duly and legally issued” and “is in full force and effect,”
`
`and on that basis denies them.
`
`29. Acer lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations set forth in Paragraph 29, and on that basis denies each and every allegation of
`
`paragraph 29.
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`- 5 -
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`RTL345-1_1003-0005
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 6 of 13 PageID #: 367
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`30.
`
`The allegations of paragraph 30 are too vague and ambiguous to permit a
`
`reasonable response. As currently alleged, Acer lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations of paragraph 30, and on that basis denies
`
`each and every allegation of paragraph 30.
`
`31. Denied.
`
`32. Denied.
`
`33. Acer admits that no earlier than July 25, 2014, Acer became aware of the ’607
`
`Patent and Andrea’s allegations of infringement. Acer denies the remaining allegations in
`
`paragraph 33.
`
`34. Denied.
`
`35. Denied.
`
`36. Denied.
`
`37. Denied.
`
`38. Denied.
`
`39. Acer incorporates by reference paragraphs 1 through 38 as if fully restated
`
`COUNT III
`
`herein.
`
`40. Acer admits that on its face, United States Patent No. 6,363,345 (the “’345
`
`Patent”) is entitled “System, Method and Apparatus for Cancelling Noise,” and states that it was
`
`issued on March 26, 2002. Acer lacks knowledge or information sufficient to form a belief as to
`
`the truth of each of the remaining allegations set forth in Paragraph 40, including but not limited
`
`to the allegations that the ’345 Patent “was duly and legally issued” and “is in full force and
`
`effect,” and on that basis denies them.
`
`
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`- 6 -
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`RTL345-1_1003-0006
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 7 of 13 PageID #: 368
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`41. Acer lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations set forth in Paragraph 41, and on that basis denies each and every allegation of
`
`paragraph 41.
`
`42.
`
`The allegations of paragraph 42 are too vague and ambiguous to permit a
`
`reasonable response. As currently alleged, Acer lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations of paragraph 42, and on that basis denies
`
`each and every allegation of paragraph 42.
`
`43. Denied.
`
`44. Denied.
`
`45. Acer admits that no earlier than July 25, 2014, Acer became aware of the ’345
`
`Patent and Andrea’s allegations of infringement. Acer denies the remaining allegations in
`
`paragraph 45.
`
`46. Denied.
`
`47. Denied.
`
`48. Denied.
`
`49. Denied
`
`50. Denied.
`
`51. Acer incorporates by reference paragraphs 1 through 50 as if fully restated
`
`COUNT IV
`
`herein.
`
`52. Acer admits that on its face, United States Patent No. 6,483,923 (the “’923
`
`Patent”) is entitled “System and Method for Adaptive Interference Cancelling,” and states
`
`that it was issued on November 19, 2002. Acer lacks knowledge or information sufficient to
`
`
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`- 7 -
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`
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`RTL345-1_1003-0007
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 8 of 13 PageID #: 369
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`form a belief as to the truth of each of the remaining allegations set forth in Paragraph 52,
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`including but not limited to the allegations that the ’923 Patent “was duly and legally
`
`issued” and “is in full force and effect,” and on that basis denies them.
`
`53. Acer lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations set forth in Paragraph 53, and on that basis denies each and every allegation of
`
`paragraph 53.
`
`54.
`
`The allegations of paragraph 54 are too vague and ambiguous to permit a
`
`reasonable response. As currently alleged, Acer lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations of paragraph 54, and on that basis denies
`
`each and every allegation of paragraph 54.
`
`55. Denied.
`
`56. Denied.
`
`57.
`
`Acer admits that no earlier than July 25, 2014, Acer became aware of the ’923
`
`Patent and Andrea’s allegations of infringement. Acer denies the remaining allegations in
`
`paragraph 57.
`
`58.
`
`59.
`
`60.
`
`61.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`62. Denied.
`
`63.
`
`Acer incorporates by reference paragraphs 1 through 62 as if fully restated herein.
`
`COUNT V
`
`
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`- 8 -
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`RTL345-1_1003-0008
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 9 of 13 PageID #: 370
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`64.
`
`Acer lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations set forth in Paragraph 64, and on that basis denies each and every allegation of
`
`paragraph 64.
`
`65. Acer admits that it received actual notice of the Asserted Patents when Acer
`
`America was served with the Original Complaint in this Action. Acer denies the remaining
`
`allegations in paragraph 65.
`
`DENIAL OF PLAINTIFF’S PRAYER FOR RELIEF
`
`Acer denies that Plaintiff is entitled to any relief whatsoever, let alone the relief
`
`requested by Plaintiff in its Complaint, and therefore denies all allegations and relief
`
`requested in Plaintiff’s Prayer for Relief.
`
`DEFENSES
`
`Subject to the responses above, Acer alleges and asserts the following defenses in
`
`response to the allegations, undertaking the burden of proof only as to those defenses deemed
`
`affirmative defenses by law, regardless of how such defenses are denominated herein. Acer
`
`reserves the right to amend its answer with additional defenses as further information is obtained.
`
`FIRST DEFENSE:
`FAILURE TO STATE A CLAIM
`
`Plaintiff has failed to state a claim upon which relief can be granted.
`
`SECOND DEFENSE:
`NON- INFRINGEMENT
`
`Acer has not infringed and does not infringe any valid and enforceable claim of the ’898
`
`
`
`
`
`Patent, the ’607 Patent, the ’345 Patent, or the ’923 Patent (collectively, “Asserted Patents”),
`
`either directly, indirectly, literally, or under the doctrine of equivalents.
`
`
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`- 9 -
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`RTL345-1_1003-0009
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 10 of 13 PageID #: 371
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`THIRD DEFENSE:
`INVALIDITY
`
`
`
`The Asserted Patents are invalid for failing to satisfy the requirements of patentability
`
`contained in 35 U.S.C. §§ 101, 102, 103 and 112.
`
`FOURTH DEFENSE:
`FAILURE TO MARK
`
`
`
`On information and belief, Plaintiff has failed to plead and meet the requirements of 35
`
`U.S.C. § 287, and has otherwise failed to show that it is entitled to any damages for acts
`
`occurring before this action was filed. Plaintiff’s claims for damages predating the filing of this
`
`action are barred by 35 U.S.C. § 287. Acer received no constructive notice of infringement via
`
`products adequately marked under 35 U.S.C. § 287 that are or were sold by one of Plaintiff or
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`any predecessors-in-interest to the Asserted Patents, or parties licensed to the Asserted Patents,
`
`to manufacture, sell or distribute products that practice the Asserted Patents. Neither did Acer
`
`receive actual notice of infringement prior to the filing of the original Complaint in this action.
`
`FIFTH DEFENSE:
`LACHES
`
`
`
`
`
`Plaintiff’s claims for relief are barred, in whole or in part, by the doctrine of laches.
`
`SIXTH DEFENSE:
`UNAVAILABILITY OF INJUNCTIVE RELIEF
`
`Claims by Plaintiff for injunctive relief are barred as a matter of law because Plaintiff has
`
`an adequate remedy at law for any claims included in the Complaint that Plaintiff may ultimately
`
`prevail on.
`
`RESERVATION OF ADDITIONAL DEFENSES
`
`Acer’s investigation of its defenses is continuing, and Acer expressly reserves the right to
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`- 10 -
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`RTL345-1_1003-0010
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 11 of 13 PageID #: 372
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`allege and assert any additional defenses under Rule 8 of the Federal Rules of Civil Procedure,
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`the patent laws of the United States, and any other defense, at law or in equity, that may now
`
`exist or in the future be available based upon discovery and further investigation in this case.
`
`ACER’S DEMAND FOR A JURY TRIAL
`
`Acer requests a trial by jury, under Rule 38 of the Federal Rules of Civil Procedure, for
`
`all issues triable of right by a jury.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Acer prays for relief as follows:
`
`A.
`
`B.
`
`That the Court enter judgment in favor of Acer, and against Plaintiff;
`
`That the Court find Acer has not infringed and is not infringing, directly,
`
`indirectly, literally, or under the doctrine of equivalents, any valid and enforceable claim of the
`
`Asserted Patents;
`
`C.
`
`D.
`
`E.
`
`F.
`
`That the Court find the Asserted Patents invalid;
`
`That the Court find the Asserted Patents unenforceable;
`
`That Plaintiff take nothing by its Complaint against Acer;
`
`That the Court find this case exceptional under 35 U.S.C. § 285, and award Acer
`
`its costs and fees in this action, including reasonable attorneys fees and pre-judgment interest
`
`thereon; and
`
`G.
`
`
`
`That the Court grant Acer such other and further relief as it deems just and proper.
`
`
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`- 11 -
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`RTL345-1_1003-0011
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 12 of 13 PageID #: 373
`
`By: /s/Craig R. Kaufman
`Craig R. Kaufman (admitted pro hac vice)
`David V. Sack
`TECHKNOWLEDGE LAW GROUP LLP
`100 Marine Parkway, Suite 200
`Redwood City, CA 94065
`ckaufman@tklg-llp.com
`dsack@tklg-llp.com
`Telephone: (650) 517-5220
`Facsimile:
`(650) 226-3133
`
`Attorneys for Defendants
`ACER INC. and ACER AMERICA
`CORPORATION
`
`
`
`- 12 -
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`
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`Dated:
`
`
`November 24, 2014
`
`
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`RTL345-1_1003-0012
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`
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`Case 2:14-cv-04488-JG-GRB Document 32 Filed 11/24/14 Page 13 of 13 PageID #: 374
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 24, 2014 the foregoing document was filed with the
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`Clerk of the Court and served in accordance with the Federal Rules of Civil Procedure, and/or
`
`the Eastern District's Local Rules, and/or the Eastern District's Rules on Electronic Service upon
`
`the following parties and participants:
`
`Frank David Liu
`William D. Belanger
`Suparna Datta
`PEPPER HAMILTON LLP
`19th Floor, High Street Tower
`125 High Street
`Boston, MA 02110
`Tel: 617 204 5110
`liuf@pepperlaw.com
`belangerw@pepperlaw.com
`dattas@pepperlaw.com
`
`
`
`Goutam Patnaik
`Tuhin Ganguly
`Kelly E. Rose
`PEPPER HAMILTON LLP
`600 Fourteenth Street, N.W.
`Washington, DC 20005
`Tel: 202 220 1200
`patnaikg@pepperlaw.com
`gangulyt@pepperlaw.com
`rosek@pepperlaw.com
`
`
`
`Counsel for Plaintiff
`ANDREA ELECTRONICS CORPORATION
`
`
`
`
`/s/ Craig R. Kaufman
`Craig R. Kaufman
`
`
`
`
`
`- 13 -
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`
`
`RTL345-1_1003-0013
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