Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 1 of 6 PageID 213
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Case No. 2:12-cv-02832-JPM-tmp
`
`JURY TRIAL DEMANDED
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`SPARK NETWORKS, INC.
`
`Defendant.
`
`
`
`
`
`ANSWER OF DEFENDANT
`
`Spark Networks, Inc. (“Spark”), for its Answer to the Complaint of B.E.
`
`Technology, L.L.C. (“B.E.”), avers as follows:
`
`NATURE OF THE ACTION AND PARTIES
`
`1.
`
`Admits that the Complaint purports to state a cause of action for patent
`
`infringement under the patent laws of the United States; and otherwise denies the allegations of
`
`paragraph 1 of the Complaint.
`
`2.
`
`Upon information and belief, admits that B.E. is a limited liability
`
`company organized and existing under the laws of the State of Delaware; is without knowledge
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`or information sufficient to form a belief as to the truth of the allegation regarding B.E.’s
`
`principal place of business (if any); and otherwise denies the allegations of paragraph 2 of the
`
`3.
`
`Admits the allegations of paragraph 3 of the Complaint.
`
`Complaint.
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Case No. 2:12-cv-02832-JPM-tmp
`
`JURY TRIAL DEMANDED
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`SPARK NETWORKS, INC.
`
`Defendant.
`
`
`
`
`
`ANSWER OF DEFENDANT
`
`Spark Networks, Inc. (“Spark”), for its Answer to the Complaint of B.E.
`
`Technology, L.L.C. (“B.E.”), avers as follows:
`
`NATURE OF THE ACTION AND PARTIES
`
`1.
`
`Admits that the Complaint purports to state a cause of action for patent
`
`infringement under the patent laws of the United States; and otherwise denies the allegations of
`
`paragraph 1 of the Complaint.
`
`2.
`
`Upon information and belief, admits that B.E. is a limited liability
`
`company organized and existing under the laws of the State of Delaware; is without knowledge
`
`or information sufficient to form a belief as to the truth of the allegation regarding B.E.’s
`
`principal place of business (if any); and otherwise denies the allegations of paragraph 2 of the
`
`3.
`
`Admits the allegations of paragraph 3 of the Complaint.
`
`Complaint.
`
`
`
`
`
`Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 2 of 6 PageID 214
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`JURISDICTION
`
`4.
`
`Admits that the Complaint purports that subject matter jurisdiction is
`
`proper under 28 U.S.C. §§ 1331 and 1338(a), and that the action arises under the Patent Act, 35
`
`U.S.C. §§ 1 et seq.; and otherwise denies the allegations of paragraph 4 of the Complaint.
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`VENUE
`
`5.
`
`Admits that the Complaint purports that venue is proper in this Judicial
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`District under 28 U.S.C. §§ 1391(b), 1391(c), 1391(d), and 1400(b), but states that for the
`
`convenience of the parties and witnesses, and in the interest of justice, this case should be
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`transferred to the Central District of California, where the action could have been brought,
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`pursuant to 28 U.S.C. § 1404(a); and otherwise denies the allegations of paragraph 5 of the
`
`Complaint.
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`FACTUAL BACKGROUND
`
`6.
`
`Admits that U.S. Patent 6,628,314 (hereafter, the “‘314 patent”) is entitled
`
`“Computer Interface Method and Apparatus with Targeted Advertising,” and that a copy of the
`
`patent was attached to the Complaint as Exhibit A; and otherwise denies the allegations of
`
`paragraph 6 of the Complaint.
`
`7.
`
`8.
`
`Denies the allegations of paragraph 7 of the Complaint.
`
`Admits that the ‘314 patent, on its face, states that the application for the
`
`patent was filed on October 30, 2000, that the patent issued on September 30, 2003, and that the
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`patent’s application is a division of application No. 09/118,351 filed on July 17, 1998, but is
`
`without knowledge or information sufficient to form a belief as to the truth of such allegations;
`
`denies that the ‘314 patent was duly and legally issued; and otherwise denies the allegations of
`
`paragraph 8 of the Complaint.
`
`
`
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`-2-
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`
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`Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 3 of 6 PageID 215
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`
`COUNT I
`
`9.
`
`Spark incorporates and re-alleges its responses, above, to the allegations
`
`set forth in Paragraphs 1-8 of the Complaint as if fully set forth herein.
`
`10.
`
`Spark is without 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.
`
`Spark denies the allegations of Paragraph 11 of the Complaint.
`
`
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`FIRST AFFIRMATIVE DEFENSE
`(Noninfringement)
`
`12.
`
`Spark has not infringed and is not infringing any valid and enforceable
`
`claim of the ‘314 patent, either literally or under the doctrine of equivalents.
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`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
`
`13.
`
`The claims of the ‘314 patent are invalid for failure to comply with the
`
`conditions for patentability of, inter alia, 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`THIRD AFFIRMATIVE DEFENSE
`(Laches, Estoppel, Acquiescence)
`
`14.
`
`B.E.’s claims are barred by reason of the doctrines of laches, equitable
`
`estoppel, and/or acquiescence, and thus B.E. is precluded from recovering any damages from
`
`Spark for allegedly infringing activities and from obtaining injunctive relief.
`
`FOURTH AFFIRMATIVE DEFENSE
`(Injunctive Relief)
`
`15.
`
`B.E. is not entitled to injunctive relief, as a matter of law.
`
`
`
`-3-
`
`
`
`
`
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`Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 4 of 6 PageID 216
`
`
`FIFTH AFFIRMATIVE DEFENSE
`(Prosecution History Estoppel)
`
`16.
`
`By virtue of statements or amendments made, or positions taken during
`
`the prosecution of the application for the ‘314 patent and related applications, B.E. is estopped
`
`from construing any allegedly infringed claim of the ‘314 patent to cover or include, either
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`literally or by application of the Doctrine of Equivalents, any Spark product or any method
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`performed by Spark.
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`SIXTH AFFIRMATIVE DEFENSE
`(Limitation On Damages)
`
`17.
`
`B.E.’s claim for damages is limited by 35 U.S.C. §§ 286, 287 and/or 288.
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`SEVENTH AFFIRMATIVE DEFENSE
`(Failure To State A Claim)
`
`18.
`
`B.E.’s Complaint fails to state a claim upon which relief may be granted.
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`PRAYER FOR RELIEF
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`WHEREFORE, having fully answered the Complaint, Spark prays for entry of
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`
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`judgment:
`
`A.
`
`B.
`
`C.
`
`D.
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`Dismissing B.E.’s Complaint with prejudice;
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`Adjudging the ‘314 patent is not, and has not been infringed by Spark;
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`Adjudging the ‘314 patent is invalid;
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`Adjudging any claims for relief sought by B.E. for infringement of the
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`‘314 patent are barred by the doctrines of laches, equitable estoppel, and/or acquiescence;
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`E.
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`Permanently enjoining B.E., its officers, employees, agents and those in
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`privity with any of them from directly or indirectly charging or instituting any action for
`
`
`
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`-4-
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`
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`Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 5 of 6 PageID 217
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`infringement of the ‘314 patent against Spark or any other person or entity in privity with Spark,
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`including without limitation Spark’s successors, assigns, agents, suppliers and customers;
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`F.
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`Declaring that this case is exceptional and awarding Spark its attorneys’
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`fees and costs under 35 U.S.C. § 285 and any other damages as may be proved;
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`G.
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`Awarding to Spark its costs and disbursements, including pre-judgment
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`and post-judgment interest, incurred in this action; and
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`H.
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`Awarding to Spark such other and further relief as the Court may deem
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`JURY DEMAND
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`Spark demands a trial by jury of all issues so triable.
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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. (#06389)
`Mark Vorder-Bruegge, Jr.
`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
`
`Attorneys for Defendant
`SPARK NETWORKS, INC.
`
`
`-5-
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`just.
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`Case 2:12-cv-02832-JPM-tmp Document 21 Filed 12/31/12 Page 6 of 6 PageID 218
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`OF COUNSEL:
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`Laurence S. Rogers (admission application pending)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`Phone: 212.596.9033
`Facsimile: 212-596-9090
`Laurence.Rogers@ropesgray.com
`
`Brandon H. Stroy (admission application pending)
`ROPES & GRAY LLP
`1900 University Avenue
`East Palo Alto, CA 94303
`Phone: 650.617.4028
`Facsimile: 650.617.4090
`Brandon.Stroy@ropesgray.com
`
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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`the date of such service.
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`
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`60305334.2
`12/31/2012 9:15 am
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`s/Glen G. Reid, Jr.
`Glen G. Reid, Jr.
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`-6-
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