Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 1 of 9 PageID 61
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`B.E. TECHNOLOGY, LLC,
`
`
`Plaintiff,
`
`v.
`
`
`TWITTER, INC.,
`
`
`Defendant.
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`
`
`
`
`
`
`
`Case No. 2:12-cv-02783-JPM-cgc
`
`JURY DEMAND
`
`)))))))))))
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`
`
`ANSWER TO COMPLAINT AND
`COUNTERCLAIMS OF TWITTER, INC.
`
`
`Defendant Twitter, Inc. (“Twitter”), by and through its undersigned counsel, hereby an-
`
`swers the Complaint for Patent Infringement of Plaintiff B.E. Technology, L.L.C. (“B.E.”) as fol-
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`lows:
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`NATURE OF THE ACTION AND PARTIES
`
`1.
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`Twitter admits that the Complaint purports to state a cause of action for alleged
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`patent infringement under the patent laws of the United States.
`
`2.
`
`Twitter lacks sufficient knowledge or information to form a belief as to the truth
`
`or falsity of the allegations in paragraph 2 of the Complaint and on that basis denies them.
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`3.
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`Twitter admits that it is a Delaware corporation with its principal place of busi-
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`ness in San Francisco, California.
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`JURISDICTION
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`4.
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`Twitter admits that this Court has subject matter jurisdiction over this action pur-
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`suant to 28 U.S.C. §§ 1331 and 1338(a) and that the Complaint purports to state that this action
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`B.E. TECHNOLOGY, LLC,
`
`
`Plaintiff,
`
`v.
`
`
`TWITTER, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`
`Case No. 2:12-cv-02783-JPM-cgc
`
`JURY DEMAND
`
`)))))))))))
`
`
`
`ANSWER TO COMPLAINT AND
`COUNTERCLAIMS OF TWITTER, INC.
`
`
`Defendant Twitter, Inc. (“Twitter”), by and through its undersigned counsel, hereby an-
`
`swers the Complaint for Patent Infringement of Plaintiff B.E. Technology, L.L.C. (“B.E.”) as fol-
`
`lows:
`
`NATURE OF THE ACTION AND PARTIES
`
`1.
`
`Twitter admits that the Complaint purports to state a cause of action for alleged
`
`patent infringement under the patent laws of the United States.
`
`2.
`
`Twitter lacks sufficient knowledge or information to form a belief as to the truth
`
`or falsity of the allegations in paragraph 2 of the Complaint and on that basis denies them.
`
`3.
`
`Twitter admits that it is a Delaware corporation with its principal place of busi-
`
`ness in San Francisco, California.
`
`JURISDICTION
`
`4.
`
`Twitter admits that this Court has subject matter jurisdiction over this action pur-
`
`suant to 28 U.S.C. §§ 1331 and 1338(a) and that the Complaint purports to state that this action
`
`
`
`
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 2 of 9 PageID 62
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`arises under the Patent Act, 35 U.S.C. § 1 et seq. Twitter denies any allegation of infringement
`
`of the patent identified in the Complaint.
`
`VENUE
`
`5.
`
`Twitter does not contend in this action that 28 U.S.C. §§ 1391(b), 1391(c),
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`1391(c), and 1400(b) preclude B.E. from bringing this action in this venue, but denies that the
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`Court is the proper venue or a convenient one for B.E.’s claims against Twitter.
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`FACTUAL BACKGROUND
`
`6.
`
`Twitter admits that Exhibit A to the Complaint on its face appears to be U.S. Pat-
`
`ent No. 6,628,314 (“the ‘314 Patent”) that bears a title of “Computer Interface Method And Ap-
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`paratus With Targeted Advertising.” Except as expressly admitted, Twitter denies the remaining
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`allegations of paragraph 6.
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`7.
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`Twitter admits that the ‘314 patent states that “[t]his invention relates in general
`
`to user interfaces for accessing computer applications and information resources and, in particu-
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`lar, to user interfaces that provide advertising obtained over a global computer network such as
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`the Internet.” Twitter denies the remaining allegations of paragraph 7.
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`8.
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`Twitter admits that the ‘314 patent on its face bears a filing date of October 30,
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`2000 and an issue date of September 30, 2003 as well as a priority claim to U.S. Patent Applica-
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`tion No. 09/118,351 that on its face bears a filing date of July 17, 1998. Except as expressly ad-
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`mitted, Twitter denies the remaining allegations of paragraph 8.
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`COUNT ONE – ALLEGED INFRINGEMENT OF U.S. PATENT NO. 6,628,314
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`9.
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`Paragraph 9 of the Complaint requires no answer. To the extent it is found other-
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`wise, Twitter denies the allegations of paragraph 9 of the Complaint.
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`10.
`
`Twitter lacks sufficient knowledge or information to form a belief as to the truth
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`or falsity of the allegations of paragraph 10 of the Complaint and on that basis denies them.
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`- 2 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 3 of 9 PageID 63
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`11.
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`Twitter denies the allegations in paragraph 11 of the Complaint.
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`JURY DEMAND
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`An answer is not required, although Twitter also requests a trial by jury for all triable is-
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`sues.
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`PRAYER FOR RELIEF
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`Twitter denies that B.E. is entitled to the relief it seeks or any relief at all for the allega-
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`tions made in the Complaint. Twitter denies all allegations in the Complaint that have not been
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`specifically admitted in paragraphs 1 – 11 above.
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`ADDITIONAL DEFENSES
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`Twitter asserts the following Additional Defenses to the Complaint. In so doing, Twitter
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`does not assume any burden of proof on any issue that is B.E.’s burden as a matter of law. Twit-
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`ter also reserves the right to amend or supplement these defenses as additional facts become
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`known.
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`FIRST DEFENSE – NON-INFRINGEMENT
`
`1.
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`Twitter has not infringed, does not infringe, and is not liable for any infringement
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`of the ‘314 patent directly, jointly, contributorily, by inducement, or in any other manner.
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`SECOND DEFENSE – INVALIDITY
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`2.
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`The ‘314 patent is invalid for failure to meet one or more of the conditions for
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`patentability specified in Title 35, U.S.C., or the rules, regulations, and law related thereto, in-
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`cluding, without limitation, one or more of 35 U.S.C. §§ 101, 102, 103, and/or 112.
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`THIRD DEFENSE – DEDICATION TO THE PUBLIC
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`3.
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`The relief sought by B.E. is barred, in whole or in part, because B.E. dedicated to
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`the public all subject matter disclosed in the ‘314 patent but not literally claimed therein.
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`- 3 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 4 of 9 PageID 64
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`FOURTH DEFENSE – LACHES
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`4.
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`5.
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`The doctrine of laches bars B.E. from obtaining all, or part, of the relief it seeks.
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`FIFTH DEFENSE – FAILURE TO STATE A CLAIM
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`The Complaint, and each and every purported claim for relief thereof, fails to
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`state a claim for relief against Twitter.
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`SIXTH DEFENSE – ESTOPPEL
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`6.
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`The relief sought by B.E. is barred, in whole or in part, under the doctrine of pros-
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`ecution history estoppel due to amendments and/or statements made during prosecution of the
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`‘314 patent and its related applications and/or patents.
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`RESERVATION OF ADDITIONAL DEFENSES
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`7.
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`Twitter reserves the right to assert additional defenses in the event that discovery
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`or other analysis indicates that additional defenses are appropriate.
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`COUNTERCLAIMS
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`For its Counterclaims against Plaintiff B.E. Technology, L.L.C. (“B.E.”), Twitter, Inc.
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`(“Twitter”) alleges as follows:
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`1.
`
`Twitter counterclaims against Plaintiff B.E. pursuant to the patent laws of the
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`United States, Title 35 of the United States Code, and laws authorizing actions for declaratory
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`judgment in the courts of the United States, 28 U.S. C. §§ 2201 and 2202, and Federal Rule of
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`Civil Procedure 13.
`
`THE PARTIES
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`2.
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`Twitter is a Delaware corporation with its principal place of business at 1355
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`Market St, Suite 900, San Francisco, CA 94103.
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`3.
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`Plaintiff B.E. alleges that it is a Delaware corporation with its principal place of
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`business in Memphis, Tennessee.
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`- 4 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 5 of 9 PageID 65
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over these counterclaims pursuant to 28 U.S.C. §§
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`331, 1338(a), 2201(a), and 2202.
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`5.
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`This Court has personal jurisdiction over B.E. by virtue, inter alia, of its filing of
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`a complaint against Twitter in this Court.
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`6.
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`B.E. has consented to venue in this District by filing this action, which is cur-
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`rently pending in this District. Accordingly, these counterclaims may at this time be brought in
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`this District pursuant to 28 U.S.C. §§ 1391 and 1400.
`
`7.
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`By virtue of the allegations in B.E.’s Complaint and Twitter’s Answer thereto, an
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`actual controversy exists between Twitter and B.E. as to whether the ‘314 patent is invalid, unen-
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`forceable, and/or not infringed by Twitter.
`
`FIRST COUNTERCLAIM – DECLARATION OF NON-INFRINGEMENT
`OF THE ‘314 PATENT
`Twitter restates and incorporates by reference each of the allegations of para-
`
`8.
`
`graphs 1 through 7 of these Counterclaims.
`
`9.
`
`B.E. claims to have an ownership interest by assignment in the ‘314 patent and
`
`claims to have the right to enforce the ‘314 patent.
`
`10.
`
`11.
`
`B.E. alleges in this action that Twitter infringes the ‘314 patent.
`
`Twitter is not infringing, has not infringed, and is not liable for any infringement
`
`of any valid and enforceable claim of the ‘314 patent, and B.E. is entitled to no relief of any
`
`claim in the Complaint for, inter alia, the reasons stated in paragraphs 1 through 11 of Twitter’s
`
`Answer and paragraphs 1 through 7 of Twitter’s Additional Defenses.
`
`12.
`
`Accordingly, there is an actual case or controversy over Twitter’s non-
`
`infringement of the ‘314 patent and Twitter seeks a judgment holding that it does not infringe,
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`- 5 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 6 of 9 PageID 66
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`has not infringed and is not liable for any infringement of the ‘314 patent, under any theory or
`
`basis.
`
`SECOND COUNTERCLAIM – DECLARATION OF INVALIDITY
`OF THE ‘314 PATENT
`Twitter restates and incorporates by reference each of the allegations of para-
`
`13.
`
`graphs 1 through 7 of these Counterclaims.
`
`14.
`
`B.E. claims to have an ownership interest by assignment in the ‘314 patent and
`
`claims to have the right to enforce the ‘314 patent.
`
`15.
`
`B.E. alleges in this action that Twitter infringes the ‘314 patent that B.E. alleges
`
`was duly and legally issued by the United States Patent and Trademark Office.
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`16.
`
`The ‘314 patent is invalid for failure to meet one or more of the conditions for
`
`patentability specified in Title 35, U.S.C., or the rules, regulations, and law related thereto, in-
`
`cluding, without limitation, one or more of 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`17.
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`Accordingly, there is an actual case or controversy over the invalidity of the ‘314
`
`patent and Twitter seeks a judgment holding that the ‘314 patent is invalid for failure to meet one
`
`or more of the conditions for patentability specified in Title 35, U.S.C., or the rules, regulations,
`
`and law related thereto, including, without limitation, one or more of 35 U.S.C. §§ 101, 102, 103,
`
`and/or 112.
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`PRAYER FOR RELIEF
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`WHEREFORE, Twitter prays for relief with respect to B.E.’s Complaint and Twitter’s
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`Defenses and the above Counterclaims as follows:
`
`A.
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`A judgment in favor of Twitter denying B.E. all relief requested in its Complaint
`
`in this action and dismissing B.E.’s Complaint with prejudice;
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`B.
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`A declaration that Twitter has not infringed and is not infringing, either literally or
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`by virtue of the doctrine of equivalents, any valid and enforceable claim of the ‘314 patent, that
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`- 6 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 7 of 9 PageID 67
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`Twitter has not contributed to or induced, and is not contributing to or inducing, infringement of
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`the ‘314 patent, and that Twitter is not liable for any infringement;
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`C.
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`D.
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`A declaration that the claims of the ‘314 patent are invalid;
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`A finding that this is an exceptional case within the meaning of 35 U.S.C. § 285
`
`and that Twitter be awarded its attorneys’ fees;
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`E.
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`F.
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`An award of costs to Twitter; and
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`Any and all other relief to which Twitter may be entitled or which this Court
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`deems just and proper.
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`DEMAND FOR JURY TRIAL
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`Twitter demands trial by jury on all issues so triable, including specifically on B.E.’s
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`claims, Twitter’s defenses thereto, and Twitter’s counterclaims.
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`- 7 -
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 8 of 9 PageID 68
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`Respectfully submitted,
`
`
`
`
`
`s/Glen G. Reid, Jr. (#8184)
`Glen G. Reid, Jr.
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`greid@wyattfirm.com
`
`s/Mark Vorder-Bruegge, Jr.
`
`Mark Vorder-Bruegge, Jr.(#06389)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`mvorder-bruegge@wyattfirm.com
`
`-and-
`
`J. David Hadden*
`Email: dhadden@fenwick.com
`Darren F. Donnelly*
`Email: ddonnelly@fenwick.com
`Saina S. Shamilov*
`Email: sshamilov@fenwick.com
`Ryan J. Marton*
`Email: rmarton@fenwick.com
`Clifford Webb*
`Email: cwebb@fenwick.com
`Justin G. Hulse*
`Email: jhulse@fenwick.com
`FENWICK & WEST LLP
`801 California Street, 6th Floor
`Mountain View, CA 94041
`Ph: 650.988-8500; Fax: 650.938.5200
`*Admitted Pro Hac Vice
`
`Counsel for Defendant
`TWITTER, INC.
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`Case 2:12-cv-02783-JPM-cgc Document 19 Filed 12/31/12 Page 9 of 9 PageID 69
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically ef-
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`fecting service on counsel of record for all other parties who have appeared in this action on the
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`date of such service.
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`/s/ Glen G. Reid, Jr.
`Glen G. Reid, Jr.
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`
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`60305866.1
`12/31/2012 9:14 am
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`- 9 -
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