Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 1 of 17
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WISCONSIN
`
`
`
`Innovaport LLC,
`
`v
`
`Walmart Inc.,
`
`Plaintiff,
`
`CASE NO. 3:23-CV-498-WMC
`
`JURY TRIAL DEMANDED
`
`
`
`Defendant.
`
`WALMART INC.’S ANSWER TO THE COMPLAINT
`
`
`
`Defendant Walmart Inc. (“Defendant” or “Walmart”), by and through its attorneys,
`
`respectfully submits this Answer and Affirmative Defenses to Innovaport LLC’s (“Plaintiff” or
`
`“Innovaport”) Complaint for Patent Infringement (Dkt. 1) alleging infringement of U.S. Patent
`
`Nos. 8,775,260 (the ’260 patent), 8,787,933 (the ’933 patent), 9,489,690 (the ’690 patent) and
`
`9,990,670 (the ’670 patent) (collectively “the Patents-in-Suit”). Walmart generally denies the
`
`allegations and characterizations in Plaintiff’s Complaint unless expressly and specifically
`
`admitted in the following Paragraphs.
`
`ANSWER
`
`Walmart responds to the allegations contained in the numbered Paragraphs of the
`
`Complaint below. Walmart denies all allegations and characterizations in the Complaint unless
`
`expressly admitted in the following Paragraphs.
`
`
`
`1
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 2 of 17
`
`PARTIES
`
`1
`
`
`
`1. Walmart admits that Innovaport is registered as a domestic limited liability company
`
`and listed its principal office on its registration as 10019 N. Miller Ct., Mequon, WI 53092, and
`
`therefore appears to be a Wisconsin company with its principal place of business at 10019 N.
`
`Miller Ct., Mequon, WI 53092. Walmart lacks knowledge or information sufficient to form a
`
`belief as to the truth of the remaining allegations in Paragraph 1 and therefore denies them.
`
`2. Walmart admits that it is a corporation with its corporate headquarters at 702 S.W.
`
`8th Street, Bentonville Arkansas 72716. Walmart admits that it is the ultimate corporate parent
`
`of entities that operate retail stores in the United States. Walmart denies the remaining
`
`allegations set forth in Paragraph 2.
`
`NATURE OF ACTION
`
`3. Walmart admits that the Complaint purports to be an action for patent infringement
`
`arising under the Patent Laws of the United States, 35 U.S.C. §§ 100 et seq. Walmart denies that
`
`Plaintiff has stated a legally sufficient claim for patent infringement and further specifically
`
`denies any infringement.
`
`4. Walmart admits that Innovaport is listed as the current assignee of U.S. Patent
`
`8,775,260 on the United States Patent & Trademark Office (“USPTO”)’s patent assignment
`
`database. Walmart admits the ’260 Patent is titled “Apparatus and method for providing product
`
`location information to customers in a store.” Walmart admits that the ’260 patent issued on July
`
`8, 2014. Walmart admits that Exhibit A to the Complaint appears to be a copy of the ’260 patent.
`
`Walmart lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in Paragraph 4 and therefore denies them.
`
`
`1 For clarity and ease of reference the section headers recited in the Complaint are used herein.
`Such use is for convenience and does not indicate that Walmart admits or agrees with any text of
`any heading reused herein.
`
`
`
`2
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 3 of 17
`
`5. Walmart admits that Innovaport is listed as the current assignee of U.S. Patent
`
`8,787,933 on the USPTO’s patent assignment database. Walmart admits that the ’933 Patent is
`
`titled “Apparatus and method for providing product location information to customers in a
`
`store.” Walmart admits that the ’933 patent issued on July 22, 2014. Walmart admits that Exhibit
`
`B to the Complaint appears to be a copy of the ’933 patent. Walmart lacks knowledge or
`
`information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 5
`
`and therefore denies them.
`
`6. Walmart admits that Innovaport is listed as the current assignee of U.S. Patent
`
`9,489,690 on the USPTO’s patent assignment database. Walmart admits the ’690 Patent is titled
`
`“Apparatus and method for providing product location information to customers in a store.”
`
`Walmart admits that the ’690 patent issued on November 8, 2016. Walmart admits that Exhibit C
`
`to the Complaint appears to be a copy of the ’690 patent. Walmart denies that the ’690 patent is
`
`valid and enforceable. Walmart lacks knowledge or information sufficient to form a belief as to
`
`the truth of the remaining allegations in Paragraph 6 and therefore denies them.
`
`7. Walmart admits that Innovaport is listed as the current assignee of U.S. Patent
`
`9,990,670 on the USPTO’s patent assignment database. Walmart admits the ’670 Patent is titled
`
`“Apparatus and method for providing product location information to customers in a store.”
`
`Walmart admits that the ’670 patent issued on June 5, 2018. Walmart admits that Exhibit D to
`
`the Complaint appears to be a copy of the ’670 patent. Walmart lacks knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 7 and
`
`therefore denies them.
`
`8. Walmart admits that this Court has subject matter jurisdiction pursuant to 28 U.S.C.
`
`§§ 1331 and 1338(a). Walmart lacks knowledge or information sufficient to form a belief as to
`
`the truth of the remaining allegation in Paragraph 8 because the Complaint has failed to plead or
`
`
`
`3
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 4 of 17
`
`set forth facts suggesting the amount of controversy in this action exceeds the sum or value of
`
`$75,000 and therefore denies the same.
`
`9. Walmart denies that it infringes the ’260, ’933, ’690, or ’670 patents. For purposes of
`
`this action only, Walmart does not contest that venue is proper in this district pursuant to 28
`
`U.S.C. §§ 1391(c) and 1400(b), but does not waive the right to contest venue in any other case or
`
`action in this District.
`
`
`
`BACKGROUND
`
`10. Walmart admits that John T. Pienkos is the named inventor of the ’260, ‘933, ’690,
`
`and ’670 patents. Walmart denies the remaining allegations set forth in Paragraph 10.
`
`11. Walmart denies the allegations of Paragraph 11 because the allegations do not recite
`
`the allegations of Paragraph 10, just “[s]tated another way.” Walmart’s website or mobile phone
`
`application have no connection to the allegations about John Pienkos’ activities in 1998 recited
`
`in Paragraph 10.
`
`12. Walmart admits that Innovaport is the current assignee of the ’260, ’933, ’690, and
`
`’670 patents. Walmart lacks knowledge or information sufficient to form a belief as to the
`
`remaining allegations in Paragraph 12 and therefore denies them.
`
`COUNT I – ALLEGED INFRINGEMENT OF THE ‘260 PATENT
`
`13. Walmart denies that it has been and is willfully infringing or infringing the ’260
`
`patent. Walmart admits that Exhibit E includes an email from Ada Nielsen, the Managing
`
`Director at The PeregrineMaven Group. But Walmart lacks knowledge or information sufficient
`
`to determine what Innovaport’s relationship to The PeregrineMaven Group is or what
`
`involvement Innovaport had in drafting the email in Exhibit E and therefore denies the
`
`characterization that Exhibit E includes a copy of Innovaport’s letter to Walmart’s outside
`
`counsel. Exhibit F appears to be an email about LinkedIn messages, not a LinkedIn message
`
`
`
`4
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 5 of 17
`
`itself. Walmart therefore denies that Exhibit F includes a copy of a LinkedIn message regarding
`
`the patents. Walmart further denies that Exhibit F supports the willfulness allegation of
`
`Paragraph 13 because the email shown in Figure F appears to have been sent from Ms. Nielsen to
`
`Mr. Pienkos at Innovaport, not to Walmart’s outside counsel or Walmart. Walmart denies the
`
`remaining allegations set forth in Paragraph 13.
`
`14. Denied.
`
`15. Walmart denies that Claim 15 of the ’260 patent is a method of providing product
`
`location information within a first store. Walmart admits that Claim 15 preamble recites “a
`
`method of providing product location information within a first store.” Walmart denies the
`
`remaining allegations set forth in Paragraph 15.
`
`16. Denied.
`
`17. Walmart admits that Claim 15 recites “providing a hub that is at least indirectly in
`
`communication with each of a plurality of user interfaces, and that is capable of accessing at
`
`least one database, the at least one database including both product location information and
`
`additional product-related information.” Walmart denies the remaining allegations set forth in
`
`Paragraph 17.
`
`18. Denied.
`
`19. Walmart admits that Claim 15 recites “wherein the additional product-related
`
`information includes: information concerning a quantity of a first product within a store;
`
`information concerning a price of the product; information concerning an availability or
`
`unavailability of the product within the store; and information linking the product with another
`
`product in a cross-referential manner.” Walmart denies the remaining allegations set forth in
`
`Paragraph 19.
`
`20. Denied.
`
`
`
`5
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 6 of 17
`
`21. Walmart incorporates by reference its answer to Paragraphs 17 and 19. Walmart
`
`admits that Claim 15 further recites “periodically engaging in the communication with each of
`
`the user interfaces, wherein the engaging in communication includes: receiving inquiry signals
`
`from the user interfaces; querying the database to obtain portions of the product location
`
`information in response to the inquiry signals; and providing information signals in response to
`
`the inquiry signals for receipt by the user interfaces, wherein the information signals include
`
`portions of both the product location information and the additional product-related information,
`
`whereby the user interfaces are able to provide output signals based upon the information
`
`signals.” Walmart denies the remaining allegations set forth in Paragraph 21.
`
`22. Denied.
`
`23. Walmart admits that Claim 15 recites “wherein at least some of the communication is
`
`wireless communication.” Walmart denies the remaining allegations set forth in Paragraph 23.
`
`24. Denied.
`
`25. Denied.
`
`26. Denied.
`
`COUNT II– ALLEGED INFRINGEMENT OF THE ‘933 PATENT
`
`
`
`27. Walmart denies that it has been and is willfully infringing or infringing the ’933
`
`patent. Walmart admits that Exhibit E includes an email from Ada Nielsen, the Managing
`
`Director at The PeregrineMaven Group. But Walmart lacks knowledge or information sufficient
`
`to determine what Innovaport’s relationship to The PeregrineMaven Group is or what
`
`involvement Innovaport had in drafting the email in Exhibit E and therefore denies the
`
`characterization that Exhibit E includes a copy of Innovaport’s letter to Walmart’s outside
`
`counsel. Exhibit F appears to be an email about LinkedIn messages, not a LinkedIn message
`
`itself. Walmart therefore denies that Exhibit F includes a copy of a LinkedIn message regarding
`
`
`
`6
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 7 of 17
`
`the patents. Walmart further denies that Exhibit F supports the willfulness allegation of
`
`Paragraph 27 because the email shown in Figure F appears to have been sent from Ms. Nielsen to
`
`Mr. Pienkos at Innovaport, not to Walmart’s outside counsel or Walmart. Walmart denies the
`
`remaining allegations set forth in Paragraph 27.
`
`28. Denied.
`
`29. Walmart denies that Claim 1 is a method of providing product location information
`
`within a first store. Walmart admits that Claim 1 recites “[a] method of providing product
`
`location information within a first store.” Walmart denies the remaining allegations set forth in
`
`Paragraph 29.
`
`30. Walmart admits that Claim 1 recites “providing a plurality of devices including a
`
`mobile device, wherein the plurality of devices are in communication with one another, wherein
`
`at least one of the devices includes at least one user interface, and wherein at least one of the
`
`devices includes at least one information storage device.” Walmart denies the remaining
`
`allegations set forth in Paragraph 30.
`
`31. Denied.
`
`32. Walmart admits that Claim 1 recites “wherein the at least one information storage
`
`device includes both product location information and additional product-related information
`
`that includes information regarding at least one of information concerning a quantity of a
`
`first product within the store, information concerning a price of the product, information
`
`concerning a presence or absence of the product within the store, information concerning a
`
`time at which the product should be available at the store if the product is currently absent
`
`from the store, and information linking the product with another product in a cross-referential
`
`manner, and further information concerning at least one past location inquiry of a customer.”
`
`Walmart denies the remaining allegations set forth in Paragraph 32.
`
`
`
`7
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 8 of 17
`
`33. Denied.
`
`34. Walmart admits that Claim 1 recites “receiving an input signal at least indirectly by
`
`way of the at least one user interface.” Walmart denies the remaining allegations set forth in
`
`Paragraph 34.
`
`35. Denied.
`
`36. Walmart admits that Claim 1 recites “querying the information storage device to
`
`obtain portions of the product location information and the additional product-related
`
`information in response to the input signal.” Walmart denies the remaining allegations set forth
`
`in Paragraph 36.
`
`37. Denied.
`
`38. Walmart admits that Claim 1 recites “providing a product location information signal
`
`in response to the input signal, for receipt by the at least one user interface, whereby the at least
`
`one user interface is able to provide an output signal based upon the product location information
`
`signal.” Walmart denies the remaining allegations set forth in Paragraph 38.
`
`39. Denied.
`
`40. Walmart admits that Claim 1 recites “wherein the output signal provides at least one
`
`suggestion to the customer in accordance with one or more preferences of the customer,
`
`including location information concerning a location of at least one item of interest to the
`
`customer, the one or more preferences being obtained at least in part based upon the further
`
`information.” Walmart denies the remaining allegations set forth in Paragraph 40.
`
`41. Denied.
`
`42. Denied.
`
`43. Denied.
`
`COUNT III – ALLEGED INFRINGEMENT OF THE ‘690 PATENT
`
`
`
`
`
`8
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 9 of 17
`
`44. Walmart denies that it has been and is willfully infringing or infringing the ’690
`
`patent. Walmart admits that Exhibit E includes an email from Ada Nielsen, the Managing
`
`Director at The PeregrineMaven Group. But Walmart lacks knowledge or information sufficient
`
`to determine what Innovaport’s relationship to The PeregrineMaven Group is or what
`
`involvement Innovaport had in drafting the email in Exhibit E and therefore denies the
`
`characterization that Exhibit E includes a copy of Innovaport’s letter to Walmart’s outside
`
`counsel. Exhibit F appears to be an email about LinkedIn messages, not a LinkedIn message
`
`itself. Walmart therefore denies that Exhibit F includes a copy of a LinkedIn message regarding
`
`the patents. Walmart further denies that Exhibit F supports the willfulness allegation of
`
`Paragraph 44 because the email shown in Figure F appears to have been sent from Ms. Nielsen to
`
`Mr. Pienkos at Innovaport, not to Walmart’s outside counsel or Walmart. Walmart denies the
`
`remaining allegations set forth in Paragraph 44.
`
`45. Denied.
`
`46. Walmart denies that Claim 1 is a method of providing product location information
`
`within a store. Walmart admits that Claim 1 recites “[a] method of providing product location
`
`information within a store.” Walmart denies the remaining allegations set forth in Paragraph 46.
`
`47. Denied.
`
`48. Walmart admits that Claim 1 recites “providing a plurality of devices including a
`
`mobile device, wherein the plurality of devices are in communication with one another, wherein
`
`at least one of the devices includes at least one user interface, and wherein at least one of the
`
`devices includes at least one information storage device including a database.” Walmart denies
`
`the remaining allegations set forth in Paragraph 48.
`
`49. Denied.
`
`
`
`9
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 10 of 17
`
`50. Walmart admits that Claim 1 recites “wherein the at least one information storage
`
`device includes both product location information and additional product-related information
`
`linking a product with an other [sic] product in a cross-referential manner.” Walmart denies the
`
`remaining allegations set forth in Paragraph 50.
`
`51. Denied.
`
`52. Walmart admits that Claim 1 recites “receiving a product location inquiry regarding
`
`the product by way of the at least one user interface.” Walmart denies the remaining allegations
`
`set forth in Paragraph 52.
`
`53. Denied.
`
`54. Walmart admits that Claim 1 recites “processing the product location inquiry at a
`
`signal processing device to determine a product location inquiry signal.” Walmart denies the
`
`remaining allegations set forth in Paragraph 54.
`
`55. Denied.
`
`56. Walmart admits that Claim 1 recites “querying the at least one information storage
`
`device to obtain portions of the product location information and additional product-related
`
`information in response to the product location inquiry signal.” Walmart denies the remaining
`
`allegations set forth in Paragraph 56.
`
`57. Denied.
`
`58. Walmart admits that Claim 1 recites “providing a product location information signal
`
`in response to the product location inquiry signal.” Walmart denies the remaining allegations set
`
`forth in Paragraph 58.
`
`59. Denied.
`
`60. Walmart admits that Claim 1 recites “providing an output signal at an output device,
`
`the output signal being a response to the product location inquiry, wherein the output signal
`
`
`
`10
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 11 of 17
`
`includes location information concerning the product and also provides at least one suggestion
`
`related to the other product.” Walmart denies the remaining allegations set forth in Paragraph 60.
`
`61. Denied.
`
`62. Denied.
`
`63. Denied.
`
`COUNT IV – ALLEGED INFRINGEMENT OF THE ‘670 PATENT
`
`
`
`64. Walmart denies that it has been and is willfully infringing or infringing the ’670
`
`patent. Walmart admits that Exhibit E includes an email from Ada Nielsen, the Managing
`
`Director at The PeregrineMaven Group. But Walmart lacks knowledge or information sufficient
`
`to determine what Innovaport’s relationship to The PeregrineMaven Group is or what
`
`involvement Innovaport had in drafting the email in Exhibit E and therefore denies the
`
`characterization that Exhibit E includes a copy of Innovaport’s letter to Walmart’s outside
`
`counsel. Exhibit F appears to be an email about LinkedIn messages, not a LinkedIn message
`
`itself. Walmart therefore denies that Exhibit F includes a copy of a LinkedIn message regarding
`
`the patents. Walmart further denies that Exhibit F supports the willfulness allegation of
`
`Paragraph 64 because the email shown in Figure F appears to have been sent from Ms. Nielsen to
`
`Mr. Pienkos at Innovaport, not to Walmart’s outside counsel or Walmart. Walmart denies the
`
`remaining allegations set forth in Paragraph 64.
`
`65. Denied.
`
`66. Walmart denies that Claim 1 is a method of providing product location information
`
`within a store. Walmart admits that Claim 1 recites “[a] method of providing product location
`
`information within a store.” Walmart denies the remaining allegations set forth in Paragraph 66.
`
`67. Denied.
`
`
`
`11
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 12 of 17
`
`68. Walmart admits that Claim 1 recites “providing at least one information storage
`
`device including a database, wherein the at least one information storage device is configured to
`
`be at least indirectly in communication with at least one other device that includes at least one
`
`user interface, and wherein at least one of the at least one information storage device and the at
`
`least one other device with respect to which the least one information storage device is
`
`configured to be at least indirectly in communication is or includes a mobile device.” Walmart
`
`denies the remaining allegations set forth in Paragraph 68.
`
`69. Denied.
`
`70. Walmart admits that Claim 1 recites “wherein the at least one information storage
`
`devices includes both product location information and additional product product-related
`
`information linking a product with an other [sic] product in a cross-referential manner.” Walmart
`
`denies the remaining allegations set forth in Paragraph 70.
`
`71. Denied.
`
`72. Walmart admits that Claim 1 recites “receiving a product location inquiry signal
`
`regarding the product, the product location inquiry signal being at least indirectly based upon a
`
`product location inquiry received by way of the at least one user interface.” Walmart denies the
`
`remaining allegations set forth in Paragraph 72.
`
`73. Denied.
`
`74. Walmart admits that Claim 1 recites “processing the product location inquiry signal at
`
`a signal processing device to determine a processed product location inquiry signal.” Walmart
`
`denies the remaining allegations set forth in Paragraph 74.
`
`75. Denied.
`
`76. Walmart admits that Claim 1 recites “querying the at least one information storage
`
`device to obtain portions of the product location information and additional product-related
`
`
`
`12
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 13 of 17
`
`information in response to the processed product location inquiry signal.” Walmart denies the
`
`remaining allegations set forth in Paragraph 76.
`
`77. Denied.
`
`78. Walmart admits that Claim 1 recites “providing a product location information signal
`
`that is at least indirectly responsive to the processed product location inquiry signal.” Walmart
`
`denies the remaining allegations set forth in Paragraph 78.
`
`79. Denied.
`
`80. Walmart admits that Claim 1 recites “wherein the product location information is
`
`configured to enable, at least indirectly, a providing of an output signal at an output device as a
`
`response to the product location inquiry that includes location information concerning the
`
`product and also provides at least one suggestion related to the other product.” Walmart denies
`
`the remaining allegations set forth in Paragraph 80.
`
`81. Denied.
`
`82. Denied.
`
`83. Denied.
`
`84. Denied.
`
`85. Denied.
`
`86. Denied.
`
`
`
`SUMMARY
`
`[Plaintiff’s] Request for Relief
`Walmart denies that Plaintiff is entitled to any relief in connection with the allegations in
`
`its Complaint and specifically denies the allegations in Paragraphs A-C of Plaintiff’s Request for
`
`Relief.
`
`
`
`
`
`
`
`13
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 14 of 17
`
`AFFIRMATIVE DEFENSES
`
`Walmart’s Affirmative Defenses are listed below. Walmart reserves the right to amend its
`
`answer to add additional Affirmative Defenses, including, without limitation, any defenses
`
`revealed during discovery.
`
`First Affirmative Defense:
`(Non-Infringement)
`
`
`
`Innovaport is not entitled to any relief on its patent infringement claims because Walmart
`
`does not and has not infringed, induced infringement, or contributorily infringed, directly,
`
`indirectly, willfully or otherwise, the asserted claims of the Patents-in-Suit literally or under the
`
`doctrine of equivalents.
`
`Second Affirmative Defense:
`(Invalidity)
`
`The claims of the Patents-in-Suit are invalid, void, and/or unenforceable for failing to
`
`satisfy the conditions of patentability set forth in Title 35 of the United States Code, including,
`
`without limitation, 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`Third Affirmative Defense:
`(Limitation on Damages)
`
`Innovaport’s claims for damages are statutorily limited or barred by 35 U.S.C. §§ 286 and
`
`287. To the extent that Innovaport, any predecessors in interest and/or any licensee to the Patents-
`
`in-Suit failed to properly mark any of their relevant products or materials as required by 35 U.S.C.
`
`§ 287, or otherwise give proper notice that the actions of Walmart allegedly infringe the Patents-
`
`in-Suit, Walmart is not liable to Innovaport for the acts alleged to have been performed before
`
`Walmart received actual notice that it was allegedly infringing the Patents-in-Suit. Innovaport is
`
`further barred under 35 U.S.C. § 288 from recovering costs associated with its action. Innovaport
`
`is further barred from recovering any damages from after the expiration of each Patent-in-Suit.
`
`
`
`
`
`14
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 15 of 17
`
`Fourth Affirmative Defense:
`(Prosecution Disclaimer/Estoppel)
`
`Innovaport is estopped, based on statements, representations, and admissions made during
`
`prosecution of the patent application(s) resulting in the Patents-in-Suit, from asserting any
`
`interpretation of any valid, enforceable claims of the Patents-in-Suit that would be broad enough
`
`to cover any accused product alleged to infringe the Patents-in-Suit, either literally or by
`
`application of the doctrine of equivalents.
`
`Fifth Affirmative Defense:
`(No Attorney’s Fees)
`
`Walmart has a good faith belief that the Patents-in-Suit are invalid, not infringed, and
`
`unenforceable and, therefore, Plaintiff cannot obtain attorneys’ fees or costs and cannot
`
`demonstrate an exceptional case under 35 U.S.C. § 285.
`
`Sixth Affirmative Defense:
`(No Willfulness)
`
`Should Walmart be found to infringe any valid, enforceable claim of the Patents-in-Suit,
`
`such infringement was not willful and Innovaport is not entitled to increased damages under 35
`
`U.S.C. § 284.
`
`
`
`Seventh Affirmative Defense:
`(No Indirect Infringement)
`
`To the extent Innovaport contends that it alleges a claim for indirect infringement (whether
`
`by inducement or contributorily), Innovaport has failed to state a claim upon which relief can be
`
`granted. And, in any event, Walmart is not liable to Innovaport for any acts alleged to have been
`
`performed by Walmart before the knowledge prerequisites for indirect infringement were satisfied.
`
`PRAYER FOR RELIEF
`
`Walmart respectfully requests entry of judgment that:
`
`A. Finds in favor of Walmart and against Innovaport;
`
`
`
`15
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 16 of 17
`
`B. Finds in favor of Walmart and against Innovaport on Walmart’s affirmative defenses;
`
`C. Finds that the claims of the Patents-in-Suit are invalid;
`
`D. Finds that Walmart has not infringed any claim of the Patents-in-Suit;
`
`E. Declare that this case is exceptional under 35 U.S.C. § 285;
`
`F. Award Walmart its costs and attorneys’ fees incurred in this action; and
`
`G. Grants such other and further relief as the Court may deem just and proper.
`
`
`
`JURY DEMAND
`
`Pursuant to Federal Rule of Civil Procedure 38(c), Walmart demands a trial by jury on all
`
`issues so triable.
`
`
`
`Dated: November 27, 2023
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted
`
`/s/ Jessica H. Polakowski
`Jessica Hutson Polakowski
`Reinhart Boerner Van Deuren
`22 East Mifflin Street, Suite 700
`Madison, WI 53703
`(608) 229-2219
`jpolakowski@reinhartlaw.com
`
`Megan Redmond
`Carrie Bader
`Clifford T. Brazen
`Lydia C. Raw
`ERISE IP, P.A. 
`7015 College Blvd., Ste. 700 
`Overland Park, KS 66211 
`Tel: (913) 777-5600 
`Fax: (913) 777-5601 
`Megan.redmond@eriseip.com 
`Carrie.bader@eriseip.com 
`Cliff.brazen@eriseip.com
`Lydia.raw@eriseip.com 
`
`
`
`
`
`
`
`
`16
`
`

`

`Case: 3:23-cv-00498-wmc Document #: 13 Filed: 11/27/23 Page 17 of 17
`
`CERTIFICATE OF SERVICE
`
`
`I hereby certify that on the 27th day of November 2023, I electronically filed the foregoing
`
`with the Clerk of Court using the CM/ECF system which will send notification of such filing via
`electronic mail to all counsel of record. Any other counsel of record will be served by first class
`U.S. mail.
`
`/s/ Jessica H. Polakowski
`Jessica H. Polakowski
`
`
`
`
`
`
`
`
`
`17
`
`