FIRST DEFENSE (Non-Infringement)
42. Trustwave does not and has not infringed any valid and enforceable claim of U.S. Patent No. 8,484,698 literally, under the doctrine of equivalents, directly, indirectly, contributorily, by way of inducement, and/or via any other mechanism of liability.
SECOND DEFENSE (Invalidty)
43. At least claims 53 and 54 of the ‘698 patent, as alleged by StrikeForce in its complaint, are invalid and/or unenforceable for failure to comply with one or more of the conditions of patentability set forth in Title 35 of the United States Code, including without limitation, §§ 101, 102, 103, and 112.
THIRD DEFENSE (Equity)
44. StrikeForce is barred in whole or in part under principles of equity, including without limitation, laches, prosecution laches, prosecution history estoppel and disclaimer, waiver, estoppel, and/or unclean hands.
FOURTH DEFENSE (Limitation of Damages)
45. Any claim by StrikeForce for damages is limited under 35 U.S.C. §§ 286 and/or 287. StrikeForce is barred under 35 U.S.C. § 287 from recovering damages prior to the date of the filing of its Complaint. StrikeForce is also barred by 35 U.S.C. § 288 from recovering costs associated with its action.
FIFTH DEFENSE (Lack of Ownership)
46. StrikeForce has failed to provide adequate evidence showing ownership of the ’698 patent.
SIXTH DEFENSE (Lack of Standing)
47. StrikeForce lacks standing to bring suit for alleged infringement of ’698 patent.
SEVENTH DEFENSE (Non-Availability of Injunction)
48. StrikeForce is not entitled to injunctive relief under any theory, at least because: (1) StrikeForce has not suffered nor will it suffer irreparable harm because of Trustwave’s conduct; (2) any harm to StrikeForce would be outweighed by the harm to Trustwave if an injunction were entered; (3) StrikeForce has an adequate remedy at law even if it were to prevail
in this action; and (4) the public interest would not be served by an injunction in favor of StrikeForce.
EIGHTH DEFENSE (Res Judicata / Issue Preclusion)
49. StrikeForce’s complaint contains claims and/or issues that are barred in whole or in part under principles of res judicata and/or issue preclusion.
NINTH DEFENSE (Failure to State a Claim)
50. StrikeForce’s complaint fails to state claims upon which relief can be granted.
