throbber
Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 1 of 17 PageID #: 136
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`VARTA MICROBATTERY GMBH,
`
`Plaintiff,
`
` v.
`
`COSTCO WHOLESALE CORPORATION
`
`C.A. No. 2:20-cv-0051-JRG
`
`AMAZON.COM, INC.
`
`BEST BUY CO., INC
`
`LEAD CASE
`
`C.A. No. 2:20-cv-00052-JRG
`
`C.A. No. 2:20-cv-00054-JRG
`
`PEAG, LLC D/B/A JLAB AUDIO
`
`C.A. No. 2:20-cv-00071-JRG
`
`JURY TRIAL DEMANDED
`
`AUDIO PARTNERSHIP LLC, ET AL
`
`C.A. No. 2:20-cv-00138-JRG
`
`Defendants.
`
`DEFENDANT PEAG, LLC D/B/A JLAB AUDIO’S
`ANSWER TO COMPLAINT FOR PATENT INFRINGEMENT
`
`Defendant PEAG, LLC d/b/a JLab Audio (“JLab”) files this Answer to the Complaint for
`
`Patent Infringement (Dkt. No. 1) filed by Plaintiff VARTA Microbattery GmbH (“VARTA”).
`
`JLab denies the allegations and characterizations in VARTA’s Complaint unless expressly
`
`admitted in the following numbered Paragraphs, which correspond to the numbered Paragraphs in
`
`the Complaint. Indeed, JLab denies it has committed any unlawful act alleged by VARTA. And,
`
`to the extent that an allegation states a legal conclusion, JLab asserts no response is required.
`
`1
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`VARTA Ex. 2010 Page 1 of 17
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
`
`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 2 of 17 PageID #: 137
`
`PARTIES
`
`1.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 1 of the Complaint and therefore denies them.
`
`2.
`
`JLab admits that it is a corporation organized under the laws of the State of
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`Delaware with a place of business at 17950 Preston Road, Suite 360, Dallas, TX 75252.
`
`3.
`
`JLab admits that PEAG, LLC acquired the assets of JLab Audio and that PEAG,
`
`LLC does business as JLab Audio. JLab denies any remaining allegations in Paragraph 3 of the
`
`Complaint.
`
`JURISDICTION AND VENUE
`
`4.
`
`JLab admits that the Complaint purports to allege claims arising under 35 U.S.C.
`
`§ § 1 et seq. over which this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1338(a). JLab
`
`denies that VARTA is entitled to any relief for its allegations of patent infringement, whether by
`
`award of damages, injunction, or otherwise. JLab denies any allegations of infringement.
`
`5.
`
`JLab does not contest, solely for the purpose of the present action, whether personal
`
`jurisdiction over it properly lies in this District. However, JLab denies that it has committed any
`
`acts of infringement in this District or elsewhere, or that it has committed any act, directly or
`
`indirectly, that would give rise to any cause of action under the Complaint. JLab denies any
`
`remaining allegations in Paragraph 5 of the Complaint.
`
`6.
`
`JLab admits that it engages in offering and selling products to customers in the State
`
`of Texas. JLab admits that it is registered to do business in the State of Texas and maintains an
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`agent for service of process in the State of Texas. JLab denies any remaining allegations in
`
`Paragraph 6 of the Complaint.
`
`2
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`VARTA Ex. 2010 Page 2 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 3 of 17 PageID #: 138
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`7.
`
`JLab admits that it maintains a place of business at 17950 Preston Road, Suite 360,
`
`Dallas, TX 75252. JLab also admits that it engages in offering and selling products to customers
`
`in the State of Texas. JLab denies any remaining allegations in Paragraph 7 of the Complaint.
`
`8.
`
`JLab does not contest, solely for the purpose of the present action, whether venue
`
`over it properly lies in this District. JLab admits that it maintains a place of business at 17950
`
`Preston Road, Suite 360, Dallas, TX 75252. JLab denies that it has committed any acts of
`
`infringement within this District or elsewhere, or that it has committed any act, directly or
`
`indirectly, that would give rise to any cause of action under the Complaint. JLab denies any
`
`remaining allegations in Paragraph 8 of the Complaint.
`
`BACKGROUND
`
`9.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 9 of the Complaint and therefore denies them.
`
`10.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 10 of the Complaint and therefore denies them.
`
`11.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 11 of the Complaint and therefore denies them.
`
`12.
`
`JLab answers that United States Patent Nos. 9,153,835; 9,496,581; 9,799,858; and
`
`9,799,913 (collectively “the Patents-in-Suit”) speak for themselves and no response is required.
`
`To the extent a response is required, JLab denies the allegations of Paragraph 12 of the Complaint.
`
`13.
`
`JLab answers that the Patents-in-Suit speak for themselves and no response is
`
`required. To the extent a response is required, JLab denies the allegations of Paragraph 13 of the
`
`Complaint.
`
`3
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`VARTA Ex. 2010 Page 3 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 4 of 17 PageID #: 139
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`14.
`
`JLab answers that the Patents-in-Suit speak for themselves and no response is
`
`required. To the extent a response is required, JLab denies the allegations of Paragraph 14 of the
`
`Complaint.
`
`15.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 15 of the Complaint and therefore denies them.
`
`THE PATENTS IN SUIT
`
`16.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 16 of the Complaint and therefore denies them.
`
`17.
`
`JLab admits that, on its face, U.S. Patent No. 9,153,835 (“the ’835 Patent”) is
`
`entitled “Button Cells and Method for Producing Same.” JLab admits that, on its face, the ’835
`
`Patent was issued on October 6, 2015 to listed inventors Eduard Pytlik, Jürgen Lindner, Ulrich
`
`Barenthin, and Winfried Gaugler, all of Ellwangen, Germany. JLab admits that what purports to
`
`be a copy of the ’835 Patent was attached to the Complaint as Exhibit A. JLab denies that the ’835
`
`Patent was duly and legally issued. JLab denies any remaining allegations in Paragraph 17 of the
`
`Complaint.
`
`18.
`
`JLab admits that, on its face, U.S. Patent No. 9,496,581 (“the ’581 Patent”) is
`
`entitled “Button Cells and Method of Producing Same.” JLab admits that, on its face, the ’581
`
`Patent was issued on November 15, 2016 to listed inventors Eduard Pytlik, Jürgen Lindner, Ulrich
`
`Barenthin, and Winfried Gaugler, all of Ellwangen, Germany. JLab admits that what purports to
`
`be a copy of the ’581 Patent was attached to the Complaint as Exhibit B. JLab denies that the ’581
`
`Patent was duly and legally issued. JLab denies any remaining allegations in Paragraph 18 of the
`
`Complaint.
`
`
`
`4
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`VARTA Ex. 2010 Page 4 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 5 of 17 PageID #: 140
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`19.
`
`JLab admits that, on its face, U.S. Patent No. 9,799,913 (“the ’913 Patent”) is
`
`entitled “Button Cells and Method of Producing Same.” JLab admits that, on its face, the ’913
`
`Patent was issued on October 24, 2017 to listed inventors Eduard Pytlik, Jürgen Lindner, Ulrich
`
`Barenthin, and Winfried Gaugler, all of Ellwangen, Germany. JLab admits that what purports to
`
`be a copy of the ’913 Patent was attached to the Complaint as Exhibit C. JLab denies that the ’913
`
`Patent was duly and legally issued. JLab denies any remaining allegations in Paragraph 19 of the
`
`Complaint.
`
`20.
`
`JLab admits that, on their faces, the ’835 Patent, the ’581 Patent, and the ’931
`
`Patents claim priority to International Patent Application PCT/EP2010/000787 filed on February
`
`9, 2010, which in turn claims priority to three applications filed in Germany: Application No. DE
`
`10 2009 008 859 filed February 9, 2009, Application No. DE 10 2009 030 359 filed June 18, 2009,
`
`and Application No. DE 10 2009 060 788 filed December 22, 2009.
`
`21.
`
`JLab admits that, on its face, U.S. Patent No. 9,799,858 (“the ’858 Patent”) is
`
`entitled “Button Cells Having Winding Electrode and Method for the Production Thereof.” JLab
`
`admits that, on its face, the ’858 Patent was issued on October 24, 2017 to listed inventor Winfried
`
`Gaugler of Ellwangen, Germany. JLab admits that what purports to be a copy of the ’858 Patent
`
`was attached to the Complaint as Exhibit D. JLab denies that the ’858 Patent was duly and legally
`
`issued. JLab denies any remaining allegations in Paragraph 21 of the Complaint.
`
`22.
`
`JLab admits that, on its face, the ’858 Patent claims priority to International Patent
`
`Application PCT/EP2010/058637 filed on June 18, 2010, which in turn claims priority to two
`
`applications filed in Germany: Application No. DE 10 2009 030 359 filed June 18, 2009, and
`
`Application No. DE 10 2009 060 800 filed December 31, 2009.
`
`5
`
`VARTA Ex. 2010 Page 5 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 6 of 17 PageID #: 141
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`THE [ALLEGEDLY] INFRINGING PRODUCTS
`
`23.
`
`JLab admits that it sells and offers for sale wireless earphones marked under the
`
`tradenames JBuds Air Sport, JBuds Air Executive, and JBuds Air Icon, in the United States. JLab
`
`denies any remaining allegations contained in Paragraph 23 of the Complaint.
`
`24.
`
`JLab admits that, generally speaking, microbatteries provide a source of
`
`rechargeable power for the electronic devices in which they are included. The remaining
`
`allegations of Paragraph 24 of the Complaint lack context and are undefined and, therefore, are
`
`denied.
`
`25.
`
`JLab denies the allegations of Paragraph 25 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 25 of the
`
`Complaint and, therefore, denies them.
`
`26.
`
`JLab denies the allegations of Paragraph 26 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 26 of the
`
`Complaint and, therefore, denies them.
`
`27.
`
`JLab denies the allegations of Paragraph 27 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 27 of the
`
`Complaint and, therefore, denies them.
`
`28.
`
`29.
`
`Denied.
`
`Denied.
`
`
`
`6
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`VARTA Ex. 2010 Page 6 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 7 of 17 PageID #: 142
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`COUNT I: [ALLEGED] PATENT INFRINGEMENT OF THE ’835 PATENT
`
`30.
`
`Paragraph 30 of the Complaint realleges and incorporates by reference Paragraphs
`
`1-29 of the Complaint, to which no response is required. To the extent a response is required, JLab
`
`realleges and incorporates by reference its responses to Paragraphs 1-29 of the Complaint.
`
`31.
`
`32.
`
`Denied.
`
`JLab denies the allegations of Paragraph 32 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 32 of the
`
`Complaint and, therefore, denies them.
`
`33.
`
`JLab denies the allegations of Paragraph 33 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 33 of the
`
`Complaint and, therefore, denies them.
`
`34.
`
`JLab denies the allegations of Paragraph 34 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 34 of the
`
`Complaint and, therefore, denies them.
`
`35.
`
`JLab denies the allegations of Paragraph 35 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 35 of the
`
`Complaint and, therefore, denies them.
`
`36.
`
`JLab denies the allegations of Paragraph 36 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`7
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`VARTA Ex. 2010 Page 7 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 8 of 17 PageID #: 143
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`information sufficient to form a belief as to the truth of the allegations of Paragraph 36 of the
`
`Complaint and, therefore, denies them.
`
`37.
`
`38.
`
`Denied.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 38 of the Complaint and, therefore, denies them.
`
`39.
`
`40.
`
`41.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT II: [ALLEGED] PATENT INFRINGEMENT OF THE ’581 PATENT
`
`42.
`
`Paragraph 42 of the Complaint realleges and incorporates by reference Paragraphs
`
`1-41 of the Complaint, to which no response is required. To the extent a response is required, JLab
`
`realleges and incorporates by reference its responses to Paragraphs 1-41 of the Complaint.
`
`43.
`
`44.
`
`Denied.
`
`JLab denies the allegations of Paragraph 44 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 44 of the
`
`Complaint and, therefore, denies them.
`
`45.
`
`JLab denies the allegations of Paragraph 45 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 45 of the
`
`Complaint and, therefore, denies them.
`
`46.
`
`JLab denies the allegations of Paragraph 46 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`8
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`VARTA Ex. 2010 Page 8 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 9 of 17 PageID #: 144
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`information sufficient to form a belief as to the truth of the allegations of Paragraph 46 of the
`
`Complaint and, therefore, denies them.
`
`47.
`
`JLab denies the allegations of Paragraph 47 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 47 of the
`
`Complaint and, therefore, denies them.
`
`48.
`
`JLab denies the allegations of Paragraph 48 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 48 of the
`
`Complaint and, therefore, denies them.
`
`49.
`
`50.
`
`Denied.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 50 of the Complaint and, therefore, denies them.
`
`51.
`
`52.
`
`53.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT III: [ALLEGED] PATENT INFRINGEMENT OF THE ’913 PATENT
`
`Paragraph 54 of the Complaint realleges and incorporates by reference Paragraphs
`
`54.
`
`1-53 of the Complaint, to which no response is required. To the extent a response is required, JLab
`
`realleges and incorporates by reference its responses to Paragraphs 1-53 of the Complaint.
`
`55.
`
`56.
`
`Denied.
`
`JLab denies the allegations of Paragraph 56 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`
`
`9
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`VARTA Ex. 2010 Page 9 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 10 of 17 PageID #: 145
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`information sufficient to form a belief as to the truth of the allegations of Paragraph 56 of the
`
`Complaint and, therefore, denies them.
`
`57.
`
`JLab denies the allegations of Paragraph 57 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 57 of the
`
`Complaint and, therefore, denies them.
`
`58.
`
`JLab denies the allegations of Paragraph 58 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 58 of the
`
`Complaint and, therefore, denies them.
`
`59.
`
`JLab denies the allegations of Paragraph 59 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 59 of the
`
`Complaint and, therefore, denies them.
`
`60.
`
`JLab denies the allegations of Paragraph 60 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 60 of the
`
`Complaint and, therefore, denies them.
`
`61.
`
`JLab denies the allegations of Paragraph 61 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 61 of the
`
`Complaint and, therefore, denies them.
`
`
`
`10
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`VARTA Ex. 2010 Page 10 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 11 of 17 PageID #: 146
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`62.
`
`JLab denies the allegations of Paragraph 62 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 62 of the
`
`Complaint and, therefore, denies them.
`
`63.
`
`64.
`
`65.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT IV: [ALLEGED] PATENT INFRINGEMENT OF THE ’858 PATENT
`
`66.
`
`Paragraph 66 of the Complaint realleges and incorporates by reference Paragraphs
`
`1-65 of the Complaint, to which no response is required. To the extent a response is required, JLab
`
`realleges and incorporates by reference its responses to Paragraphs 1-65 of the Complaint.
`
`67.
`
`68.
`
`Denied.
`
`JLab denies the allegations of Paragraph 68 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 68 of the
`
`Complaint and, therefore, denies them.
`
`69.
`
`JLab denies the allegations of Paragraph 69 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 69 of the
`
`Complaint and, therefore, denies them.
`
`70.
`
`JLab denies the allegations of Paragraph 70 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`11
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`VARTA Ex. 2010 Page 11 of 17
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`

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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 12 of 17 PageID #: 147
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`information sufficient to form a belief as to the truth of the allegations of Paragraph 70 of the
`
`Complaint and, therefore, denies them.
`
`71.
`
`JLab denies the allegations of Paragraph 71 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 71 of the
`
`Complaint and, therefore, denies them.
`
`72.
`
`JLab denies the allegations of Paragraph 72 of the Complaint to the extent they
`
`recite a legal conclusion, to which no response is required. JLab otherwise lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations of Paragraph 72 of the
`
`Complaint and, therefore, denies them.
`
`73.
`
`74.
`
`Denied.
`
`JLab lacks knowledge or information sufficient to form a belief as to the truth of
`
`the allegations of Paragraph 74 of the Complaint and, therefore, denies them.
`
`75.
`
`76.
`
`77.
`
`Denied.
`
`Denied.
`
`Denied.
`
`[VARTA’S] PRAYER FOR RELIEF
`
`JLab denies the underlying allegations of VARTA’s Prayer for Relief against JLab, denies
`
`that VARTA is entitled to any relief whatsoever, and requests that the Court deny all relief to
`
`VARTA, enter judgment in favor of JLab, and award JLab its attorneys’ fees as the prevailing
`
`party in the action.
`
`[VARTA’S] DEMAND FOR JURY TRIAL
`
`JLab is not required to provide a response to VARTA’s request for a trial by jury.
`
`
`
`12
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`VARTA Ex. 2010 Page 12 of 17
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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 13 of 17 PageID #: 148
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`To the extent that any allegations of the Complaint have not been previously specifically
`
`* * *
`
`admitted or denied, JLab denies them.
`
`AFFIRMATIVE DEFENSES
`
`JLab asserts the following defenses, without assuming the burden of proof on issues as to
`
`which VARTA bears such burden. JLab reserves all affirmative defenses permitted under the
`
`Federal Rules of Civil Procedure, the patent laws of the United States, and/or at law or equity,
`
`which may now exist or in the future be available based on discovery and further investigation in
`
`this case. Assertion of a defense is not a concession that JLab has the burden of proving the matter
`
`asserted.
`
`FIRST ADDITIONAL DEFENSE
`
`(NONINFRINGEMENT)
`
`JLab does not infringe and has not infringed, under any theory of infringement, including
`
`directly (whether individually or jointly) or indirectly (whether contributorily or by inducement),
`
`any valid, enforceable claim of the Patents-in-Suit.
`
`SECOND ADDITIONAL DEFENSE
`
`(INVALIDITY)
`
`Each asserted claim of the Patents-in-Suit is invalid for failure to comply with one or more
`
`of the requirements of United States Code, Title 35, including without limitation, 35 U.S.C. §§
`
`101, 102, 103, and 112, and the rules, regulations, and laws pertaining thereto. For example, each
`
`asserted claim of the Patents-in-Suit is invalid under 35 U.S.C. §§ 102 and/or 103 as anticipated
`
`by or obvious over U.S. Patent Application Publication No. 2005/0233212, International Patent
`
`Publication No. WO 2008/109025, and/or European Patent Publication No. EP 1 315 220. With
`
`
`
`13
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`VARTA Ex. 2010 Page 13 of 17
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`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 14 of 17 PageID #: 149
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`respect to examples of prior art, to the extent that VARTA asserts that any JLab products infringe
`
`any asserted claim of any Patent-in-Suit, then such claims are not valid in view of the prior art. In
`
`other words, no asserted claim of the Patents-in-Suit can be both valid and infringed.
`
`THIRD ADDITIONAL DEFENSE
`
`(FAILURE TO MARK)
`
`To the extent that VARTA, its alleged predecessors-in-interest, or VARTA’s licensees to
`
`the Patents-in-Suit failed to properly mark any of their relevant products as required by 35 U.S.C.
`
`§ 287 or otherwise give proper notice that JLab’s actions allegedly infringed the Patents-in-Suit,
`
`JLab is not liable to VARTA for the acts alleged to have been performed before it received actual
`
`notice that it was allegedly infringing the Patents-in-Suit.
`
`FOURTH ADDITIONAL DEFENSE
`
`(NO INJUNCTIVE RELIEF)
`
`VARTA’s claim for injunctive relief is barred because there exists an adequate remedy at
`
`law and VARTA’s claims otherwise fail to meet the requirements for such relief.
`
`FIFTH ADDITIONAL DEFENSE
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`(IMPLIED LICENSE AND EXHAUSTION)
`
`VARTA’s claims are barred, in whole or in part, by the defense of express or implied
`
`license, and/or exhaustion to the extent any suppliers of components of any accused products retain
`
`rights to any of the Patents-in-Suit.
`
`SIXTH ADDITIONAL DEFENSE
`
`(PROSECUTION HISTORY ESTOPPEL AND/OR DISCLAIMER)
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`VARTA is estopped from construing certain of the asserted claims of the Patents-in-Suit
`
`to cover or include, either literally or by application of the doctrine of equivalents, methods used
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`14
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`VARTA Ex. 2010 Page 14 of 17
`
`

`

`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 15 of 17 PageID #: 150
`
`or devices manufactured, used, imported, sold, or offered for sale by JLab because of admissions,
`
`amendments, and statements to the United States Patent and Trademark Office (“USPTO”) during
`
`prosecution of the applications leading to the issuance of the Patents-in-Suit or any related family
`
`members.
`
`SEVENTH ADDITIONAL DEFENSE
`
`(FAILURE TO STATE A CLAIM)
`
`VARTA’s Complaint fails to state a claim upon which relief can be granted.
`
`
`
`EIGHTH ADDITIONAL DEFENSE
`
`(BARRING CLAIMS UNDER § 1498)
`
`To the extent that VARTA’s claims relate to the sale and/or use by the United States
`
`government of the accused products, VARTA’s sole remedy is an action for damages filed with
`
`the United States Court of Federal Claims pursuant to 28 U.S.C. § 1498.
`
`NINTH ADDITIONAL DEFENSE
`
`(LIMITATION ON DAMAGES)
`
`VARTA’s claims for damages are statutorily limited or barred by 35 U.S.C. § 286.
`
`TENTH ADDITIONAL DEFENSE
`
`(NO ATTORNEYS’ FEES)
`
`VARTA cannot prove that this is an exceptional case justifying an award of attorneys’ fees
`
`against JLab under 35 U.S.C. § 285 or otherwise.
`
`RESERVATION OF ADDITIONAL AFFIRMATIVE DEFENSES
`
`JLab reserves the right to amend, supplement, and/or assert additional affirmative defenses
`
`which may be developed through discovery in this action.
`
`
`
`15
`
`VARTA Ex. 2010 Page 15 of 17
`
`

`

`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 16 of 17 PageID #: 151
`
`JURY DEMAND
`
`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, JLab demands a jury trial on
`
`all issues so triable.
`
`Date: May 13, 2020
`
`Respectfully submitted,
`
`/s/ Paul A. Ragusa
`
`
`
`Paul Ragusa
`NY Bar No. 2591162
`paul.ragusa@bakerbotts.com
`Jennifer Tempesta
`NY Bar No. 4397089
`jennifer.tempesta@bakerbotts.com
`BAKER BOTTS L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112
`(212) 408-2500
`
`Counsel for Defendant
`PEAG, LLC d/b/a JLab Audio
`
`16
`
`VARTA Ex. 2010 Page 16 of 17
`
`

`

`Case 2:20-cv-00051-JRG Document 26 Filed 05/13/20 Page 17 of 17 PageID #: 152
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that a true and correct copy of the above and foregoing
`
`document has been served on May 13, 2020 to all counsel of record who are deemed to have
`
`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`
`
`
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` /s/ Paul A. Ragusa
`
`Paul A. Ragusa
`
`_________________
`
`
`
`
`17
`
`VARTA Ex. 2010 Page 17 of 17
`
`

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