Free Answer to Counterclaim - District Court of Delaware - Delaware

Case 1 :04-cv-01505-GMS Document 9 Filed O3/10/2005 Page 1 of 4
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

THERMO FINNIGAN LLC, )
Plaintiff, l
vs. g C.A. No: 04-l 505-GMS
APPLERA CORPORATION g JURY TRIAL DEMANDED
Defendant. l

REPLY TO COUNTERCLAIM
Thermo Finnigan LLC ("Thermo") replies to the Counterciaim set forth in Applera
Corporatiorfs (“Applera") Answer and Counterciaim as follows:
17. Thermo admits the Counterclaim purports to seeir a declaratory judgment of
invalidity, noninfringernent, and unenforceability ot`United States Patent No. 5,385,654 ("the
*654 patent"), entitled "Controlled Temperature Anton Separation By Capillary Electrophoresis,"
which was issued on January 31, i995 to Lenore Kelly, Dean S. Burgi, and Robert J. Nelson.
Thermo denies that Appiera is entitled to such relief.
l8r Thermo admits the allegations of Paragraph IS ofthe Counterclaim.
19. Thermo admits the allegations contained in Paragraph 19 of the Counterciaim.
20. Thermo admits the allegations contained in Paragraph 20 ofthe Counterclaim.
21.. No answer is required to the allegations contained in Paragraph 2l ofthe
Counterclaim, which merely state conclusions of law.
22. Thermo denies the allegations contained in Paragraph 22 ofthe Counterclaim.
23. Thermo denies the allegations contained in Paragraph 23 of the Counterclaim.
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Case 1:04-cv-01505—Gl\/IS Document 9 Filed 03/10/2005 Page 2 of 4
24. Thermo denies the allegations contained in Paragraph 24 of the Counterclaim,
(a) The application is a matter of public record and speaks for itself, To the
extent that subparagraph (a) purports to allege that the application provides a factual basis for the
Counterclaiin, Thermo denies such allegations in subparagraph (a). Thermo admits that
Spectraphoresis 1000s were sold more than a year prior to the tiling date ofthe application.
Thermo denies the remainder ofthe allegations in subparagraph (a)t
(b) The Examinerfs Office Action is a matter of public record and speaks for
itself; To the extent that subparagraph (b) purports to allege that there is a factual basis for the
Counterclairn, Thermo denies such allegations in subparagraph (b).
(c) The response ofthe applicants and other correspondence between the
applicants and the examiner are matters of public record and speak for themselves. Thermo
denies the applicants breached any duty of candor to the United States Patent and Trademark
Office. To the extent that subparagraph (c) purports to allege that there is a factual basis for the
Counterclaim, Thermo denies the allegations of subparagraph (c).
(cl) The Examinefs Office Actions, amendments submitted by the applicants,
and the Exarninefs Notice of Allowability are matters of public record and speak for themselves.
To the extent that subparagraph (cl) purports to allege that there is a factual basis for the
Counterclaim, Thermo denies the allegations of subparagraph (cl).
(e) Thermo denies the allegations of subparagraph (ey
(t`) Thermo is without knowledge or information sufficient to form a belief as
to the truth ofthe allegation in subparagraph (tj that one or more ofthe applicants or others
associated with the filing or prosecution ofthe application were aware that the Spectraphoresis
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Case 1:04-cv-01505—G|\/IS Document 9 Filed 03/10/2005 Page 3 of 4
i000 had been placed on sale more than one year prior to the tiling date ofthe application.
Thermo denies the remainder ofthe allegations in subparagraph (f).
PRAYER FOR RELIEF
WHEREPORE, Therrno requests entry of judgment in its favor and against Applera as
follows:
A. Dismiss Applera’s Counterclaim with prejudice;
B. Enter an Order granting Thermo the relief requested in its Complaint; and
C. Award Thermo such other relief as the Court may deem appropriate and just
under the circumstances.
DEMAND FOR JURY TRIAL
Plaintiff and Counterclaim Defendant Thermo Finnigan LLC demands a trial by jury on
all issues so triabie.
K Er diy!/‘\.-2
Fredericlgl,. Cottrell, III (#25 55)
[email protected]
Kelly E. Farnan (#4395)
[email protected]
Richard, Layton & Finger
One Rodney Square
OF COUNSEL: P,Or Box 551
Wilmington, DE 19899
William F. Lee (302) 65I~7`/00
Wayne L, Stoner Attorneys for Thermo Finnigan LLC
Stephen M, Muller
Michael Dube
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
(617) 526—6000
Dated: March l0, 2005
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Case 1:04-cv-01505—G|\/IS Document 9 Filed 03/10/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on March I0, 2005, I electronically filed the foregoing document
with the Clerk of Court using CM/ECI: which will send notification of such filings and hand
delivered to the following:
Josy W. Ingersoll
Adam W. Poff
The Brandywine Building
1000 West Street, l7"’ Floor
Wilmington, DE 19899~0391
I hereby certify that on March l0, 2005 I have sent by Federal Express the foregoing
document to the following non—registered participants:
Walter E. Hanley, Jr.
James Galbraith
Huiya Wu
Kenyon & Kenyon
One Broadway
New York, NY 10004
William G; James, Il
Fred T. Grasso
Kenyon &. Kenyon
1500 K. Street N.W., Suite 700
Washington, DC 20036
/ Kelly E. rarnan (#4395)
[email protected]
Richards, Layton & Finger
One Rodney Square
P.Or Box 551
Wilmington, DE l9899
Attorneys for Plaintiff
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