Free Answer to Complaint - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SMARTRAC N.V., SMARTRAC IP B.V. AND SMARTRAC TECHNOLOGY, INC., Plaintiffs, C.A. No. 08-296 (JJF) v. DEMAND FOR JURY TRIAL ON TRACK INNOVATIONS LTD. AND OTI AMERICA, INC, Defendants. ANSWER AND COUNTERCLAIMS Defendants On Track Innovations Ltd. ("OTI Ltd.") and OTI America, Inc. ("OTI America") (collectively, "OTI"), by and through their undersigned counsel, hereby answer the Complaint of Plaintiffs Smartrac N.V., Smartrac IP B.V. and Smartrac Technology US Inc.1 (collectively, "Plaintiffs" or "Smartrac"), and allege counterclaims as follows: Parties 1. OTI denies the allegations of paragraph 1, except admits, on information

and belief, that Smartrac N.V. is publicly traded on the Frankfurt Stock Exchange with its corporate headquarters at Strawinskylaan 851, 1077 XX, Amsterdam, the Netherlands, and admits, on information and belief, that a Smartrac entity (or entities) supplies components used in Radio Frequency Identification ("RFID") systems and produces components including inlays for contactless transmission of data. 2. OTI denies, on information and belief, that Smartrac IP B.V. holds all

rights, title and interest to United States Patent Nos. 6,233,818 ("the `818 Patent") and 6,088,230

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Paragraph 3 of the Complaint identifies Smartrac Technology US Inc. Therefore, OTI refers to this entity, not Smartrac Technology, Inc., as referenced in the caption or the opening paragraph of the Complaint.

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("the '230 Patent"). As to the remaining allegations of Paragraph 2, OTI is without knowledge or information sufficient to form a belief as to the truth of these allegations. 3. OTI is without knowledge or information sufficient to form a belief as to

the truth of the allegations of Paragraph 3. 4. OTI admits the allegations of paragraph 4, except states that it is without

knowledge or information sufficient to respond to the allegation that "OTI sells products in competition with Smartrac," because Smartrac has not provided sufficient information to respond (e.g., the entities, the products, the markets). 5. OTI admits that OTI America is OTI Ltd.'s wholly-owned U.S.

subsidiary, and a Delaware corporation with its main office at 2 Executive Drive, Suite 710, Fort Lee, New Jersey 07024. OTI further admits that OTI Ltd. is involved in its global marketing and strategy development, but denies that OTI Ltd. provides marketing and customer support services in the United States. Jurisdiction and Venue 6. OTI denies the allegations of paragraph 6, except admits that Smartrac

purports to bring a claim under the Patent Laws of the United States, 35 U.S.C. § 1 et seq., and to invoke subject matter jurisdiction over this claim pursuant to 28 U.S.C. §§ 1331 and 1338(a). 7. OTI admits that venue is proper in this District. COUNT I 8. OTI incorporates by reference into Count I its responses to the allegations

of paragraphs 1 through 7 as though fully set forth herein. 9. OTI denies the allegations of paragraph 9.

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10.

OTI denies the allegations of paragraph 10, except admits that the claims

of the `818 Patent recite "a process" and states that the `818 Patent speaks for itself with respect to what it describes. 11. 12. OTI denies the allegations of paragraph 11. OTI denies the allegations of paragraph 12. COUNT II 13. OTI incorporates by reference into Count II its responses to the allegations

of paragraphs 1 through 12 as though fully set forth herein. 14. 15. OTI denies the allegations of paragraph 14. OTI denies the allegations of paragraph 15, except admits that some of the

claims of the `230 Patent recite either a "procedure" or a "process," and states that the `230 Patent speaks for itself with respect to what it describes. 16. 17. OTI denies the allegations of Paragraph 16. OTI denies the allegations in Paragraph 17. AFFIRMATIVE DEFENSES OTI, for its Affirmative Defenses to the Complaint, states as follows, without assuming the burden of proof where that burden would otherwise be on Smartrac, and reserving its rights to assert any and all additional affirmative defenses, including without limitation those that may be determined during the course of discovery: First Affirmative Defense 18. be granted. The allegations of the Complaint fail to state a claim upon which relief can

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Second Affirmative Defense 19. The `818 Patent is invalid for failure to meet the conditions for

patentability of 35 U.S.C. § 101 et seq., including but not limited to 35 U.S.C. §§ 102, 103 and 112. Third Affirmative Defense 20. The `230 Patent is invalid for failure to meet the conditions for

patentability of 35 U.S.C. § 101 et seq., including but not limited to 35 U.S.C. §§ 102, 103 and 112. Fourth Affirmative Defense 21. Smartrac's enforcement of the `818 and `230 Patents against OTI is barred

or limited by the equitable doctrines of laches and estoppel. Fifth Affirmative Defense 22. The `230 Patent is unenforceable due to acts, misrepresentations and

omissions of material fact made by one or more of the applicants, alleged inventors, attorneys, representatives, or their agents who prosecuted or assisted in the prosecution of the application for the `230 Patent, or others associated with the filing or prosecution of the `230 Patent (hereinafter referred to as "applicants"). These acts, misrepresentations, and omissions were made, on information and belief, with the intent to deceive the United States Patent Office and include, without limitation, the failure to cite material and relevant art. Failure To Cite Material And Relevant Art From A "Parallel German Case" 23. Applicants, in a December 9, 1996 "Information Disclosure Statement,"

submitted during prosecution of the `230 Patent, disclosed a number of references, stating that some of these references were "cited in the parallel German case." This "parallel German case"

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was a reference to DE 44 10 732, the asserted German priority application for applicants' U.S. application. 24. On July 28, 1997, a request for opposition to DE 44 10 732 was filed by a This request for

representative of ODS R. Oldenbourg Datensysteme GmbH ("ODS").

opposition relied upon, inter alia, U.S. Patent No. 3,674,602, entitled "Apparatus For Making Wire Scribed Circuit Boards" ("the `602 Patent"). 25. During subsequent proceedings in the opposition, including an appeal, a

further reference, DE 32 47 344 ("the DE `344 Patent"), was cited. On information and belief, it was initially cited in an October 8, 1998 letter to the German Patent Office, submitted on behalf of Advanced Interconnection Technology, Inc. and then subsequently referred to by ODS on March 10, 1999. 26. The United States counterpart to the DE `344 Patent is United States

Patent No. 4,450,623, entitled "Process For The Manufacture Of Circuit Boards" ("the `623 Patent"). 27. Although applicants were aware of these proceedings relating to the

parallel German case with respect to DE 44 10 732, as evidenced by their statements in the December 9, 1996 Information Disclosure Statement, applicants did not disclose, during the prosecution of the application for the `230 Patent in suit, the additional references -- the `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623 Patent) -- that were cited during the opposition and subsequent proceedings in Germany. 28. The `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623

Patent) are prior art to the `230 Patent.

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29.

The `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623

Patent) are relevant and material and would have been considered important by a reasonable Patent Examiner in deciding whether to allow the application for the `230 Patent to issue as a patent. By way of example, these patents disclose positioning a coil on a substrate and bonding to the substrate in at least one place. 30. Despite the materiality of the `602 Patent and DE `344 Patent (or its U.S.

counterpart, the `623 Patent), applicants failed to disclose these references to the Patent Office with, on information and belief, the intent to deceive the Patent Office. Sixth Affirmative Defense 31. The `818 Patent is unenforceable due to acts, misrepresentations and

omissions of material fact made by one or more of the applicants, alleged inventors, attorneys, representatives, or their agents who prosecuted or assisted in the prosecution of the application for the `818 Patent, or others associated with the filing or prosecution of the `818 Patent (hereinafter referred to as "applicants"). These acts, misrepresentations, and omissions were made, on information and belief, with the intent to deceive the United States Patent Office and include, without limitation, the failure to cite material and relevant art. Failure To Cite Material And Relevant Art From An International Search Report 32. Applicants, in an October 1, 1998 "Information Disclosure Statement,"

stated that they were disclosing "references cited in a corresponding International Search Report." One of the references cited was DE 44 10 732. 33. 34. DE 44 10 732 is the German counterpart to the `230 Patent in suit. DE 44 10 732 names the same alleged inventors as the alleged inventors

of the `818 Patent in suit.

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35.

On or about August 3, 1995, Applicants were sent, and, on information

and belief, received and knew about an International Search Report directed to DE 44 10 732. This International Search Report was also included as part of WO 95/26538, published on October 5, 1995. 36. Applicants did not cite all of the references from this August 3, 1995

International Search Report during prosecution of the `818 Patent. 37. Applicants did not cite WO 93/09551 from this August 3, 1995

International Search Report during prosecution of the `818 Patent. 38. WO 93/09551 was given the designation "X" on the International Search

Report, meaning that the "document [is] of particular relevance; [and] the claimed invention [of DE 44 10 732] cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." WO 93/09551 is also relevant to the alleged invention of the `818 patent. 39. WO 93/09551 is entitled "Transponder And Process And Device For

Producing It." The Abstract states that "[t]he present invention relates to a process and a device for contacting electric line components on an electronic component fitted with electrical connection surfaces, like a chip, especially for the production of a transponder having a winding support, a coiled wired winding and a chip. The process of the invention and the device of the invention permit direct contact between the winding wire and the connecting surfaces of the chip, thus providing transponders which are especially small and easy to make." 40. WO 93/09551 is prior art to the `818 Patent.

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41.

WO 93/09551 is material and relevant and would have been considered

important by a reasonable Patent Examiner in deciding whether to allow the application for the `818 Patent to issue as a patent. 42. Despite the materiality of WO 93/09551, applicants failed to disclose it to

the Patent Office with, on information and belief, the intent to deceive the Patent Office. COUNTERCLAIMS 43. This is an action brought by counterclaim-plaintiffs, On Track Innovations

Ltd. ("OTI Ltd.") and OTI America, Inc. ("OTI America") (collectively, "OTI") against counterclaim-defendants Smartrac N.V., Smartrac IP B.V., and Smartrac Technology US Inc. (collectively, "Smartrac") for a declaratory judgment of non-infringement, invalidity, and unenforceability of U.S. Patent Nos. 6,088,230 ("the `230 patent") and 6,233,818 ("the `818 patent"). This is also an action by OTI against counterclaim-defendants Smartrac N.V. and Smartrac Technology US Inc. for infringement of U.S. Patent No. 5,241,160 (Ex. A). Parties 44. Pina, Israel. 45. OTI America is a Delaware corporation with a principal place of business OTI Ltd. is an Israeli company with a principal place of business in Rosh-

in Fort Lee, New Jersey. 46. On information and belief, based on Smartrac's allegations in the

Complaint, Smartrac N.V. is a Dutch N.V. with offices located at Strawinskylaan 851, 1077 XX, Amsterdam, the Netherlands.

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47.

On information and belief, based on Smartrac's allegations in the

Complaint, Smartrac IP B.V. is a Dutch B.V. with offices located at Strawinskylaan 851, 1077 XX, Amsterdam, the Netherlands. 48. On information and belief, based on Smartrac's allegations in the

Complaint, Smartrac Technology US Inc. is a Delaware corporation with an office located in Minneapolis, Minnesota, and which manufactures and sells Smartrac products. Jurisdiction 49. These counterclaims arise under the patent laws of the United States, Title

35 of the United States Code, and the provisions of the Federal Declaratory Judgment Act. 50. The jurisdiction of this Court is proper under 35 U.S.C. § 1 et seq., and 28

U.S.C. §§ 1331, 1338 and 2201-02. Background 51. and `818 Patents. 52. On May 20, 2008, Smartrac filed a Complaint against OTI alleging Smartrac IP B.V. alleges that it holds all right, title and interest to the `230

infringement of the `230 and `818 Patents. OTI has denied infringement and has averred that the `230 and `818 Patents are invalid and unenforceable. 53. Smartrac's actions give rise to an actual case or controversy within the

jurisdiction of the Court, pursuant to 28 U.S.C. §§ 2201 and 2202. COUNT I (Declaratory Judgment of Non-Infringement of the `230 and `818 Patents) 54. OTI incorporates by reference the averments of paragraphs 43 through 53

as if set forth here in full.

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55.

OTI has not infringed, contributed to, or induced infringement of any

claim of the `230 Patent. 56. OTI has not infringed, contributed to, or induced infringement of any

claim of the `818 Patent. COUNT II (Declaratory Judgment of Invalidity of the `230 and `818 Patents) 57. OTI incorporates by reference the averments of paragraphs 43 through 56

as if set forth here in full. 58. The `230 Patent is invalid for failure to meet the conditions for

patentability of 35 U.S.C. § 101 et seq., including but not limited to 35 U.S.C. §§ 102, 103 and 112. 59. The `818 Patent is invalid for failure to meet the conditions of

patentability of 35 U.S.C. § 101 et seq., including but not limited to 35 U.S.C. §§ 102, 103 and 112. COUNT III (Declaratory Judgment of Unenforceability of `230 and `818 Patents) 60. OTI incorporates by reference the averments of paragraphs 43 through 59

as if set forth here in full. Unenforceability Of The `230 Patent 61. The `230 Patent is unenforceable due to acts, misrepresentations and

omissions of material fact made by one or more of the applicants, alleged inventors, attorneys, representatives, or their agents who prosecuted or assisted in the prosecution of the application for the `230 Patent, or others associated with the filing or prosecution of the `230 Patent (hereinafter referred to as "applicants"). These acts, misrepresentations, and omissions were

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made, on information and belief, with the intent to deceive the United States Patent Office and include, without limitation, the failure to cite material and relevant art. Failure To Cite Material And Relevant Art From A "Parallel German Case" 62. Applicants, in a December 9, 1996 "Information Disclosure Statement,"

submitted during prosecution of the `230 Patent, disclosed a number of references, stating that some of these references were "cited in the parallel German case." This "parallel German case" was a reference to DE 44 10 732, the asserted German priority application for applicants' U.S. application. 63. On July 28, 1997, a request for opposition to DE 44 10 732 was filed by a This request for

representative of ODS R. Oldenbourg Datensysteme GmbH ("ODS").

opposition relied upon, inter alia, U.S. Patent No. 3,674,602, entitled "Apparatus For Making Wire Scribed Circuit Boards" ("the `602 Patent"). 64. During subsequent proceedings in the opposition, including an appeal, a

further reference, DE 32 47 344 ("the DE `344 Patent"), was cited. On information and belief, it was initially cited in an October 8, 1998 letter to the German Patent Office, submitted on behalf of Advanced Interconnection Technology, Inc. and then subsequently referred to by ODS on March 10, 1999. 65. The United States counterpart to the DE `344 Patent is United States

Patent No. 4,450,623, entitled "Process For The Manufacture Of Circuit Boards" ("the `623 Patent"). 66. Although applicants were aware of these proceedings relating to the

parallel German case with respect to DE 44 10 732, as evidenced by their statements in the December 9, 1996 Information Disclosure Statement, applicants did not disclose, during the

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prosecution of the application for the `230 Patent in suit, the additional references -- `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623 Patent) -- that were cited during the opposition and subsequent proceedings in Germany. 67. The `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623

Patent) are prior art to the `230 Patent. 68. The `602 Patent and DE `344 Patent (or its U.S. counterpart, the `623

Patent) are relevant and material and would have been considered important by a reasonable Patent Examiner in deciding whether to allow the application for the `230 Patent to issue as a patent. By way of example, these patents disclose positioning a coil on a substrate and bonding to the substrate in at least one place. 69. Despite the materiality of the `602 Patent and DE `344 Patent (or its U.S.

counterpart, the `623 Patent), applicants failed to disclose these references to the Patent Office with, on information and belief, the intent to deceive the Patent Office. Unenforceability Of The `818 Patent 70. The `818 Patent is unenforceable due to acts, misrepresentations and

omissions of material fact made by one or more of the applicants, alleged inventors, attorneys, representatives, or their agents who prosecuted or assisted in the prosecution of the application for the `818 Patent, or others associated with the filing or prosecution of the `818 Patent (hereinafter referred to as "applicants"). These acts, misrepresentations, and omissions were made, on information and belief, with the intent to deceive the United States Patent Office and include, without limitation, the failure to cite material and relevant art.

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Failure To Cite Material And Relevant Art From An International Search Report 71. Applicants, in an October 1, 1998 "Information Disclosure Statement,"

stated that they were disclosing "references cited in a corresponding International Search Report." One of the references cited was DE 44 10 732. 72. 73. DE 44 10 732 is the German counterpart to the `230 Patent in suit. DE 44 10 732 names the same alleged inventors as the alleged inventors

of the `818 Patent in suit. 74. On or about August 3, 1995, Applicants were sent, and, on information

and belief, received and knew about an International Search Report directed to DE 44 10 732. This International Search Report was also included as part of WO 95/26538, published on October 5, 1995. 75. Applicants did not cite all of the references from this August 3, 1995

International Search Report during prosecution of the `818 Patent. 76. Applicants did not cite WO 93/09551 from this August 3, 1995

International Search Report during prosecution of the `818 Patent. 77. WO 93/09551 was given the designation "X" on the International Search

Report, meaning that the "document [is] of particular relevance; [and] the claimed invention [of DE 44 10 732] cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." WO 93/09551 is also relevant to the alleged invention of the `818 patent. 78. WO 93/09551 is entitled "Transponder And Process And Device For

Producing It." The Abstract states that "[t]he present invention relates to a process and a device for contacting electric line components on an electronic component fitted with electrical

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connection surfaces, like a chip, especially for the production of a transponder having a winding support, a coiled wired winding and a chip. The process of the invention and the device of the invention permit direct contact between the winding wire and the connecting surfaces of the chip, thus providing transponders which are especially small and easy to make." 79. 80. WO 93/09551 is prior art to the `818 Patent. WO 93/09551 is material and relevant and would have been considered

important by a reasonable Patent Examiner in deciding whether to allow the application for the `818 Patent to issue as a patent. 81. Despite the materiality of WO 93/09551, applicants failed to disclose it to

the Patent Office with, on information and belief, the intent to deceive the Patent Office. COUNT IV Smartrac Infringement of `160 Patent 82. On August 31, 1993, United States Patent No. 5,241,160 ("the `160

Patent"), entitled "System and Method for the Non-Contact Transmission of Data," was duly and legally issued by the United States Patent and Trademark Office. 83. 84. OTI Ltd. is the owner of all right, title and interest in the `160 patent. On information and belief, Smartrac N.V. and Smartrac Technology US

Inc. have been and are now infringing one or more claims of the `160 Patent by making, using, offering to sell, and/or selling within the United States, and/or by importing into the United States products that infringe the '160 Patent and/or by contributing to, or inducing, infringement of the `160 Patent. 85. OTI has been, and is being, irreparably harmed, and has incurred, and will

continue to incur, damages as a result of this infringement of the `160 Patent.

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PRAYER FOR RELIEF WHEREFORE, OTI respectfully prays for entry of judgment: A. B. C. D. Dismissing Smartrac's Complaint with prejudice; Declaring that OTI has not infringed the `818 and `230 Patents; Declaring that the`818 and `230 Patents are invalid and unenforceable; Declaring that Smartrac N.V. and Smartrac Technology US Inc. have

been, and are, infringing the `160 Patent; E. Ordering that Smartrac N.V. and Smartrac Technology US Inc., their

officers, agents, servants and employees, and those persons in active concert or participation with them, be preliminarily and permanently enjoined from continuing their infringing activities; F. Awarding OTI all relief available under the patent laws of the United

States, including but not limited to monetary damages, including prejudgment interest, and enhanced damages, based on Smartrac's willful infringement of the `160 Patent; G. Awarding to OTI its attorneys' fees pursuant to 35 U.S.C. § 285 and other

statutes because this an exceptional case; H. I. deem just. Awarding to OTI its costs and expenses; and Granting to OTI such further necessary or proper relief as the Court may

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DEMAND FOR JURY TRIAL Pursuant to Rule 38 of the Federal Rules of Civil Procedure, OTI hereby demands trial by jury of all issues so triable. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Rodger D. Smith II
Jack B. Blumenfeld (# 1014) Rodger D. Smith II (#3778) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected] [email protected] Attorneys for Defendants and CounterclaimPlaintiffs OF COUNSEL: Jesse J. Jenner Mark H. Bloomberg ROPES & GRAY LLP 1211 Avenue of the Americas New York, NY 10036 (212) 596-9000 [email protected] [email protected]

Douglas J. Gilbert David A. Loewenstein Guy Yonay PEARL COHEN ZEDEK LATZER LLP 1500 Broadway New York, NY 10036 (646) 878 - 0800 [email protected] [email protected] [email protected] July 25, 2008
2425467

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CERTIFICATE OF SERVICE I, Rodger D. Smith II, hereby certify that on July 25, 2008, I caused the foregoing to be electronically filed, which will send notification of such filing(s) to the following: Melanie K. Sharp, Esquire Dawn M. Jones, Esquire YOUNG CONAWAY STARGATT & TAYLOR LLP I also certify that copies were caused to be served on July 25, 2008, upon the following in the manner indicated: BY ELECTRONIC MAIL and HAND DELIVERY Melanie K. Sharp (# 2501) Dawn M. Jones (# 4270) Young Conaway Stargatt & Taylor LLP The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 BY ELECTRONIC MAIL Steven M. Bauer Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299

/s/ Rodger D. Smith II
Rodger D. Smith II (# 3778)

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