Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 1 of 17 PageID #: 398
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`
`
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`
`
`
`CASE NO. 2:14-cv-04488-KAM-GRB
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`LEAD CASE
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`
`
`
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`CASE NO. 2:14-cv-04492-KAM-GRB
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`JURY TRIAL DEMANDED
`
`ANDREA ELECTRONICS CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`ACER INC.; and ACER AMERICA
`CORPORATION,
`
`Defendants.
`
`ANDREA ELECTRONICS CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`TOSHIBA CORPORATION, and TOSHIBA
`AMERICA INFORMATION SYSTEMS, INC.,
`
`
`
`TOSHIBA CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`Defendant Toshiba Corporation (“Toshiba”) hereby answers the First Amended
`
`Complaint (“Complaint”) filed on November 10, 2014, by Andrea Electronics Corporation
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`(“Andrea” or “Plaintiff”). Toshiba denies all allegations not expressly admitted below and
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`specifically denies that it has committed any acts of patent infringement with respect to U.S.
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`Patent Nos. 5,825,898 (“the ’898 Patent”), 6,049,607 (“the ’607 Patent”), 6,363,345 (“the ’345
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`Patent”), and 6,483,923 (“the ’923 Patent”) (collectively “the patents-in-suit”) in this district or
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`any other district. Toshiba further denies that Andrea is entitled to the requested relief or any
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`other relief.
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`
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`RTL345-1_1008-0001
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 2 of 17 PageID #: 399
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`
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`NATURE OF ACTION1
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`1.
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`Toshiba admits that the Complaint purports to state a claim arising under 35
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`U.S.C. §§ 271, et seq., but Toshiba specifically denies that it has committed any acts of patent
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`infringement with respect to the patents-in-suit in this district or any other district. Toshiba
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`further acknowledges that the Complaint purports to seek remedies for alleged infringement of
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`the patents-in-suit, but Toshiba denies that Andrea is entitled to the requested relief or any other
`
`relief. Toshiba denies the remaining allegations contained in paragraph 1 of the Complaint.
`
`2.
`
`Toshiba admits that the Complaint purports to state a claim for direct
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`infringement, but Toshiba denies that it has committed any acts of direct patent infringement
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`with respect to the patents-in-suit in this district or any other district. Toshiba denies the
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`remaining allegations contained in paragraph 2 of the Complaint.
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`3.
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`Toshiba admits that the Complaint purports to state a claim for indirect
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`infringement, but Toshiba denies that it has committed any acts of indirect patent infringement
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`with respect to the patents-in-suit in this district or any other district. Toshiba denies the
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`remaining allegations contained in paragraph 3 of the Complaint.
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`THE PARTIES
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`4.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraph 4 of the Complaint, and therefore denies those
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`allegations.
`
`
`1 Toshiba repeats the headings set forth in the Complaint for ease of reference, but makes no
`admissions regarding the substance of the headings or any other allegations in the Complaint. To
`the contrary, to the extent that a particular heading can be construed as an allegation, or
`otherwise contains factual and/or legal characterizations, Toshiba specifically denies all such
`allegations and/or characterizations.
`
`
`
`-2-
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`RTL345-1_1008-0002
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 3 of 17 PageID #: 400
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`
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`5.
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`Toshiba admits that it is a corporation organized and existing under the laws of
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`Japan, with its principal place of business in Tokyo, Japan.
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`6.
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`Toshiba admits that Toshiba America Information Systems, Inc. (“TAIS”), is
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`headquartered at 9740 Irvine Boulevard, Irvine, California 92618. Toshiba further admits that
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`TAIS is a subsidiary of Toshiba America, Inc. Toshiba denies that TAIS is a corporation
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`organized under the laws of the State of Delaware.
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`JURISDICTION AND VENUE
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`7.
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`Toshiba admits that the Complaint purports to state a claim for patent
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`infringement. Toshiba further admits that this Court has subject matter jurisdiction over actions
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`for patent infringement pursuant to 28 U.S.C. §§ 1331 and 1338(a), but Toshiba denies that it has
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`committed any acts of patent infringement with respect to the patents-in-suit in this district or
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`any other district.
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`8.
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`For purposes of this action only, Toshiba admits that this Court has specific
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`personal jurisdiction over it. Toshiba also admits that it acknowledged specific personal
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`jurisdiction for this action in its answer to the original Complaint, but Toshiba denies that it has
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`committed any acts of patent infringement with respect to the patents-in-suit in this district or
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`any other district. The remainder of paragraph 8 contains legal conclusions which do not require
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`a response from Toshiba. To the extent a response is required, Toshiba lacks knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations contained in
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`paragraph 8 of the Complaint, and therefore denies those allegations.
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`9.
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`For purposes of this action only, Toshiba admits that venue is proper in this
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`district, but Toshiba reserves its right to seek transfer to another venue under 28 U.S.C. § 1404 or
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`otherwise. Toshiba denies the remaining allegations contained in paragraph 9 of the Complaint,
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`
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`-3-
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`RTL345-1_1008-0003
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 4 of 17 PageID #: 401
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`
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`and specifically denies that it has committed any acts of patent infringement with respect to the
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`patents-in-suit in this district or any other district.
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`BACKGROUND AND FACTS RELATED TO THIS ACTION
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`10.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraph 10 of the Complaint, and therefore denies those
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`allegations.
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`11.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 11 of the Complaint, and therefore denies those
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`allegations.
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`12.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 12 of the Complaint, and therefore denies those
`
`allegations.
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`13.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraph 13 of the Complaint, and therefore denies those
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`allegations.
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`14.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 14 of the Complaint, and therefore denies those
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`allegations.
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`15.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 15 of the Complaint, and therefore denies those
`
`allegations.
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`
`
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`-4-
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`RTL345-1_1008-0004
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 5 of 17 PageID #: 402
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`16.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraph 16 of the Complaint, and therefore denies those
`
`allegations.
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`17.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 17 of the Complaint, and therefore denies those
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`allegations.
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`18.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 18 of the Complaint, and therefore denies those
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`allegations.
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`19.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 19 of the Complaint, and therefore denies those
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`allegations.
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`20.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 20 of the Complaint, and therefore denies those
`
`allegations.
`
`COUNT I
`
`(Alleged Infringement of the ’898 Patent)
`
`21.
`
`Toshiba hereby incorporates by reference its answers to paragraphs 1-20 of the
`
`Complaint.
`
`22.
`
`Toshiba admits that what Plaintiff purports to be a true and correct copy of
`
`the ’898 Patent is attached as Exhibit A to the Complaint and is entitled “System and Method for
`
`Adaptive Interference Cancelling.” Toshiba further admits that the document attached as Exhibit
`
`
`
`
`-5-
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`RTL345-1_1008-0005
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 6 of 17 PageID #: 403
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` A
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` indicates on its face that it was issued on October 20, 1998. Toshiba denies the remaining
`
`allegations in paragraph 22 of the Complaint.
`
`23.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 23 of the Complaint, and therefore denies those
`
`allegations.
`
`24.
`
`Toshiba asserts that paragraph 24 of the Complaint contains conclusions which do
`
`not require a response. To the extent a response is required, Toshiba admits that the specification
`
`of the ’898 patent appears to describe technology that may generally be characterized as falling
`
`within the field of signal processing, but Toshiba otherwise denies that paragraph 24 of the
`
`Complaint accurately and/or fully describes the ’898 patent and any alleged inventions described
`
`or claimed therein.
`
`25.
`
`26.
`
`Toshiba denies the allegations contained in paragraph 25 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 26 of the Complaint.
`
`COUNT II
`
`(Alleged Infringement of the ’607 Patent)
`
`27.
`
`Toshiba hereby incorporates by reference its answers to paragraphs 1-26 of the
`
`Complaint.
`
`28.
`
`Toshiba admits that what Plaintiff purports to be a true and correct copy of
`
`the ’607 Patent is attached as Exhibit B to the Complaint and is entitled “Interference Canceling
`
`Method and Apparatus.” Toshiba further admits that the document attached as Exhibit B
`
`indicates on its face that it was issued on April 11, 2000. Toshiba denies the remaining
`
`allegations in paragraph 28 of the Complaint.
`
`
`
`
`-6-
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`RTL345-1_1008-0006
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 7 of 17 PageID #: 404
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`29.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 29 of the Complaint, and therefore denies those
`
`allegations.
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`30.
`
`Toshiba asserts that paragraph 30 of the Complaint contains conclusions which do
`
`not require a response. To the extent a response is required, Toshiba admits that the specification
`
`of the ’607 patent appears to describe technology that may generally be characterized as falling
`
`within the field of interference canceling, but Toshiba otherwise denies that paragraph 30 of the
`
`Complaint accurately and/or fully describes the ’607 patent and any alleged inventions described
`
`or claimed therein.
`
`31.
`
`32.
`
`33.
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`Toshiba denies the allegations contained in paragraph 31 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 32 of the Complaint
`
`Toshiba admits that it became aware of the ’607 patent sometime after the filing
`
`of the original Complaint in this Action. Toshiba lacks knowledge or information sufficient to
`
`form a belief as to the truth of the remaining allegations contained in paragraph 33 of the
`
`Complaint, and therefore denies those allegations.
`
`34.
`
`Toshiba admits that the document attached as Exhibit E is a copy of a webpage
`
`discussing certain features of a Toshiba-branded product, but Toshiba denies that it has
`
`committed any acts of induced infringement with respect to the ’607 patent in this district or any
`
`other district. Toshiba denies the remaining allegations contained in paragraph 34 of the
`
`Complaint.
`
`35.
`
`36.
`
`37.
`
`
`
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`Toshiba denies the allegations contained in paragraph 35 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 36 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 37 of the Complaint.
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`-7-
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`RTL345-1_1008-0007
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 8 of 17 PageID #: 405
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`
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`38.
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`Toshiba denies the allegations contained in paragraph 38 of the Complaint.
`
`COUNT III
`
`(Alleged Infringement of the ’345 Patent)
`
`39.
`
`Toshiba hereby incorporates by reference its answers to paragraphs 1-38 of the
`
`Complaint.
`
`40.
`
`Toshiba admits that what Plaintiff purports to be a true and correct copy of
`
`the ’345 Patent is attached as Exhibit C to the Complaint and is entitled “System, Method and
`
`Apparatus for Cancelling Noise.” Toshiba further admits that the document attached as Exhibit
`
`C indicates on its face that it was issued on March 26, 2002. Toshiba denies the remaining
`
`allegations in paragraph 40 of the Complaint.
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`41.
`
`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 41 of the Complaint, and therefore denies those
`
`allegations.
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`42.
`
`Toshiba asserts that paragraph 42 of the Complaint contains conclusions which do
`
`not require a response. To the extent a response is required, Toshiba admits that the specification
`
`of the ’345 patent appears to describe technology that may generally be characterized as falling
`
`within the field of noise cancellation and reduction, but Toshiba otherwise denies that paragraph
`
`42 of the Complaint accurately and/or fully describes the ’345 patent and any alleged inventions
`
`described or claimed therein.
`
`43.
`
`44.
`
`45.
`
`Toshiba denies the allegations contained in paragraph 43 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 44 of the Complaint.
`
`Toshiba admits that it became aware of the ’345 patent sometime after the filing
`
`of the original Complaint in this Action. Toshiba lacks knowledge or information sufficient to
`
`
`
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`-8-
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`RTL345-1_1008-0008
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 9 of 17 PageID #: 406
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`
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`form a belief as to the truth of the remaining allegations contained in paragraph 45 of the
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`Complaint, and therefore denies those allegations.
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`46.
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`Toshiba admits that the document attached as Exhibit E is a copy of a webpage
`
`discussing certain features of a Toshiba-branded product, but Toshiba denies that it has
`
`committed any acts of induced infringement with respect to the ’345 patent in this district or any
`
`other district. Toshiba denies the remaining allegations contained in paragraph 46 of the
`
`Complaint.
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`47.
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`48.
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`49.
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`50.
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`Toshiba denies the allegations contained in paragraph 47 of the Complaint.
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`Toshiba denies the allegations contained in paragraph 48 of the Complaint.
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`Toshiba denies the allegations contained in paragraph 49 of the Complaint.
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`Toshiba denies the allegations contained in paragraph 50 of the Complaint
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`COUNT IV
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`(Alleged Infringement of the ’923 Patent)
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`51.
`
`Toshiba hereby incorporates by reference its answers to paragraphs 1-50 of the
`
`Complaint.
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`52.
`
`Toshiba admits that what Plaintiff purports to be a true and correct copy of
`
`the ’923 Patent is attached as Exhibit D to the Complaint and is entitled “System and Method for
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`Adaptive Interference Cancelling.” Toshiba further admits that the document attached as Exhibit
`
`D indicates on its face that it was issued on November 19, 2002. Toshiba denies the remaining
`
`allegations in paragraph 52 of the Complaint.
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`53.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 53 of the Complaint, and therefore denies those
`
`allegations.
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`
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`-9-
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`RTL345-1_1008-0009
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 10 of 17 PageID #: 407
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`54.
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`Toshiba asserts that paragraph 54 of the Complaint contains conclusions which do
`
`not require a response. To the extent a response is required, Toshiba admits that the specification
`
`of the ’923 patent appears to describe technology that may generally be characterized as falling
`
`within the field of signal processing, but Toshiba otherwise denies that paragraph 54 of the
`
`Complaint accurately and/or fully describes the ’923 patent and any alleged inventions described
`
`or claimed therein.
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`55.
`
`56.
`
`57.
`
`Toshiba denies the allegations contained in paragraph 55 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 56 of the Complaint.
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`Toshiba admits that it became aware of the ’923 patent sometime after the filing
`
`of the original Complaint in this Action. Toshiba lacks knowledge or information sufficient to
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`form a belief as to the truth of the remaining allegations contained in paragraph 57 of the
`
`Complaint, and therefore denies those allegations.
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`58.
`
`Toshiba admits that the document attached as Exhibit E is a copy of a webpage
`
`discussing certain features of a Toshiba-branded product, but Toshiba denies that it has
`
`committed any acts of induced infringement with respect to the ’923 patent in this district or any
`
`other district. Toshiba denies the remaining allegations contained in paragraph 58 of the
`
`Complaint.
`
`59.
`
`60.
`
`61.
`
`62.
`
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`
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`Toshiba denies the allegations contained in paragraph 59 of the Complaint.
`
`Toshiba denies the allegations contained in paragraph 60 of the Complaint.
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`Toshiba denies the allegations contained in paragraph 61 of the Complaint.
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`Toshiba denies the allegations contained in paragraph 62 of the Complaint.
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`-10-
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`RTL345-1_1008-0010
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 11 of 17 PageID #: 408
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`COUNT V
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`(Alleged Notice of the Asserted Patents Under 35 U.S.C. § 287)
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`63.
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`Toshiba hereby incorporates by reference its answers to paragraphs 1-62 of the
`
`Complaint
`
`64.
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`Toshiba lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 64 of the Complaint, and therefore denies those
`
`allegations
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`65.
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`Toshiba admits that it became aware of the patents-in-suit sometime after the
`
`filing of the original Complaint in this Action. Toshiba denies the remaining allegations in
`
`paragraph 65 of the Complaint.
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`JURY DEMAND
`
`Plaintiff’s demand for jury trial contains no factual allegations requiring a response from
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`Toshiba. To the extent a response is required, Toshiba also demands a jury trial on all issues so
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`triable.
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`PRAYER FOR RELIEF
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`Toshiba denies that Plaintiff is entitled to any relief, whether enumerated as (a)-(e) in the
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`Complaint or otherwise requested. Toshiba has not infringed any valid and enforceable claim
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`of the patents-in-suit, and Plaintiff is not entitled to any remedy, relief, or recovery.
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`Accordingly, Plaintiff’s prayer for relief should be denied in its entirety with prejudice, and
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`Plaintiff should take nothing.
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`AFFIRMATIVE DEFENSES
`
`Further answering Plaintiff’s Complaint, Toshiba asserts the following defenses without
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`assuming any burden that it would not otherwise have, including without admitting or
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`
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`-11-
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`RTL345-1_1008-0011
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 12 of 17 PageID #: 409
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`
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`acknowledging that it bears the burden of proof as to any of the defenses denominated herein.
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`Toshiba reserves the right to amend its answer with additional defenses as further information is
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`obtained through discovery.
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`FIRST AFFIRMATIVE DEFENSE
`
`(Non-infringement of the ’898 Patent)
`
`66.
`
`Toshiba does not infringe and has not infringed any claim of the ’898 Patent
`
`under any theory, including directly (whether individually or jointly), indirectly (whether
`
`contributorily or by inducement), literally, or under the doctrine of equivalents.
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`SECOND AFFIRMATIVE DEFENSE
`
`(Non-infringement of the ’607 Patent)
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`67.
`
`Toshiba does not infringe and has not infringed any claim of the ’607 Patent
`
`under any theory, including directly (whether individually or jointly), indirectly (whether
`
`contributorily or by inducement), literally, or under the doctrine of equivalents.
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`THIRD AFFIRMATIVE DEFENSE
`
`(Non-infringement of the ’345 Patent)
`
`68.
`
`Toshiba does not infringe and has not infringed any claim of the ’345 Patent
`
`under any theory, including directly (whether individually or jointly), indirectly (whether
`
`contributorily or by inducement), literally, or under the doctrine of equivalents.
`
`FOURTH AFFIRMATIVE DEFENSE
`
`(Non-infringement of the ’923 Patent)
`
`69.
`
`Toshiba does not infringe and has not infringed any claim of the ’923 Patent
`
`under any theory, including directly (whether individually or jointly), indirectly (whether
`
`contributorily or by inducement), literally, or under the doctrine of equivalents.
`
`
`
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`-12-
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`RTL345-1_1008-0012
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 13 of 17 PageID #: 410
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`
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`FIFTH AFFIRMATIVE DEFENSE
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`(Invalidity of the ’898 Patent)
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`70.
`
`One or more claims of the ’898 Patent are invalid for failure to comply with one
`
`or more of the requirements of Title 35, United States Code, including without limitation §§ 101,
`
`102, 103, and/or 112.
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`SIXTH AFFIRMATIVE DEFENSE
`
`(Invalidity of the ’607 Patent)
`
`71.
`
`One or more claims of the ’607 Patent are invalid for failure to comply with one
`
`or more of the requirements of Title 35, United States Code, including without limitation §§ 101,
`
`102, 103, and/or 112.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`(Invalidity of the ’345 Patent)
`
`72.
`
`One or more claims of the ’345 Patent are invalid for failure to comply with one
`
`or more of the requirements of Title 35, United States Code, including without limitation §§ 101,
`
`102, 103, and/or 112.
`
`EIGHT AFFIRMATIVE DEFENSE
`
`(Invalidity of the ’923 Patent)
`
`73.
`
`One or more claims of the ’923 Patent are invalid for failure to comply with one
`
`or more of the requirements of Title 35, United States Code, including without limitation §§ 101,
`
`102, 103, and/or 112.
`
`NINTH AFFIRMATIVE DEFENSE
`
`(Prosecution History Estoppel)
`
`74.
`
`Plaintiff is estopped from construing any valid claim of the patents-in-suit to be
`
`infringed or to have been infringed, either literally or by application of the doctrine of
`
`
`
`
`-13-
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`RTL345-1_1008-0013
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 14 of 17 PageID #: 411
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`equivalents, by any product made, used, imported, sold, or offered for sale by Toshiba in view of
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`prior art and/or because of admissions, representations, and/or statements made to the Patent and
`
`Trademark Office during prosecution of any application leading to the issuance of the patents-in-
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`suit or any related patents, because of disclosure or language in the specification of the patents-
`
`in-suit, and/or because of limitations in the claims of the patents-in-suit.
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`TENTH AFFIRMATIVE DEFENSE
`
`(Equitable Defenses)
`
`75.
`
`The relief sought by Plaintiff is barred, in whole or in part, under principles of
`
`equity including, without limitation, laches, equitable estoppel, waiver, unclean hands, and/or
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`acquiescence.
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`ELEVENTH AFFIRMATIVE DEFENSE
`
`(Limitation on Damages)
`
`76.
`
`Pursuant to 35 U.S.C. § 286, Plaintiff may not recover damages for any alleged
`
`infringement committed more than six years prior to the filing of Plaintiff’s Complaint.
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`(Failure to Mark)
`
`77.
`
`To the extent that Plaintiff, or any predecessors-in-interest to the patents-in-suit,
`
`failed to properly mark any of their relevant products, the monetary damages sought by Plaintiff
`
`are barred in whole or in part for failure to comply with 35 U.S.C. § 287 by Plaintiff, any prior
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`owners of the patents-in-suit, and/or their licensees. Any claim for damages for patent
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`infringement by Plaintiff is limited by 35 U.S.C. § 287 to those damages occurring only after the
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`notice of infringement.
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`THIRTEENTH AFFIRMATIVE DEFENSE
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`(No Recovery of Costs)
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`-14-
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`RTL345-1_1008-0014
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 15 of 17 PageID #: 412
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`78.
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`Plaintiff is barred by 35 U.S.C. § 288 from recovering costs associated with this
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`action.
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`FOURTEENTH AFFIRMATIVE DEFENSE
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`(Barring of Claims for Injunctive Relief)
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`79.
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`Plaintiff is not entitled to injunctive relief against Toshiba at least because
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`Plaintiff does not compete with Toshiba, Plaintiff does not practice any claim of the patents-in-
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`suit, Plaintiff has not suffered irreparable harm, Plaintiff has an adequate remedy at law (to the
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`extent it is entitled to any remedy, which Toshiba denies), and/or the public interest would not be
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`served by an injunction.
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`FIFTEENTH AFFIRMATIVE DEFENSE
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`(Failure to State a Claim)
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`80.
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`The Complaint fails to state a claim upon which relief can be granted.
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`RESERVATION OF RIGHTS
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`Toshiba reserves the right to revise, supplement, or amend its Answer and Affirmative
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`Defenses, including reserving all defenses permitted under the Federal Rules of Civil Procedure,
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`the patent laws of the United States, and/or at law or in equity, that may now exist or may in the
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`future be available based on discovery and/or further investigation in this case.
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`PRAYER FOR RELIEF
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`WHEREFORE, Toshiba respectfully prays for an Order and Judgment:
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`(a)
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`(b)
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`Denying all relief sought by Andrea;
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`Dismissing all of Andrea’s claims against Toshiba with prejudice and entering
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`judgment in favor of Toshiba on all counts;
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`(c)
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`Finding this case exceptional pursuant to 35 U.S.C. § 285 and awarding Toshiba
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`its costs and reasonable attorneys’ fees; and
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`-15-
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`RTL345-1_1008-0015
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 16 of 17 PageID #: 413
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`
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`(d)
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`Granting Toshiba such other and further relief as this Court may deem just and
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`equitable.
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`DATED: November 24, 2014
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`Respectfully submitted,
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`/s/ Douglas F. Stewart
`Douglas F. Stewart
`Washington State Bar No. 34068
`Jared Schuettenhelm
`Washington State Bar No. 46181
`BRACEWELL & GIULIANI, LLP
`701 Fifth Avenue, Suite 6200
`Seattle, WA 98104
`(206) 204-6200
`doug.stewart@bgllp.com
`jared.schuettenhelm@bgllp.com
`
`David J. Ball
`BRACEWELL & GIULIANI, LLP
`1251 Avenue of the Americas
`49th Floor
`New York, NY 10020-1100
`(212) 508-6133
`david.ball@bgllp.com
`
`Attorneys for Defendant Toshiba
`Corporation
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`-16-
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`RTL345-1_1008-0016
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`

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`Case 2:14-cv-04492-JG-GRB Document 38 Filed 11/24/14 Page 17 of 17 PageID #: 414
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`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served and filed on November 24, 2014 by electronic means, via the Court’s
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`CM/ECF system, in accordance with the procedures promulgated by the Court.
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`/s/ Douglas F. Stewart
`Douglas F. Stewart
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`-17-
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`RTL345-1_1008-0017