COMES NOW Defendant Walgreen Co. (“Walgreen”) and for its Answer
and Affirmative Defenses to Plaintiff MyMedicalRecords, Inc.’s (“MMR”) Complaint hereby states as follows:
1. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 1 of the Complaint and, therefore, denies each and every allegation set forth therein on that basis.
2. Walgreen admits the allegations in Paragraph 2.
3. In response to Paragraph 3 of the Complaint, Walgreen admits that the Complaint purports to state a claim for patent infringement but denies any wrongdoing or liability under the patent laws and further denies that Plaintiff is
owed any damages thereunder.
4. In response to Paragraph 4 of the Complaint, Walgreen admits that the Court has jurisdiction over it. Walgreen denies the remaining allegations in Paragraph 4 of the Complaint.
5. In response to Paragraph 5 of the Complaint, Walgreen admits that venue is proper in this Court. Walgreen denies the remaining allegations in Paragraph 5 of the Complaint.
6. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 6 of the Complaint and,therefore, denies each and every allegation set forth therein on that basis.
7. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 7 of the Complaint and, therefore, denies each and every allegation set forth therein on that basis.
8. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 8 of the Complaint and, therefore, denies each and every allegation set forth therein on that basis.
9. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 9 of the Complaint and,therefore, denies each and every allegation set forth therein on that basis.
10. Walgreen is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 10 of the Complaint, and, therefore, denies each and every allegation set forth therein on that basis.
11. Walgreen admits that, together with its subsidiaries, it operates the largest drugstore chain in the United States with net sales of $71.6 billion in the fiscal year ended August 31, 2012. Walgreen admits that as of August 31, 2012, it operated 8,385 locations (including 7,930 drugstores) in 50 states, the District of Columbia, Guam, and Puerto Rico. Walgreen admits that it provides millions of customers with pharmacy, health and wellbeing solutions. Walgreen admits that one of its goals is to be the first choice for health and daily living in thecommunities it serves. Except as expressly admitted, above, the allegations in
Paragraph 11 are denied.
12. Walgreen’s public statements speak for themselves. Consequently, the allegations in Paragraph 12 are denied.
13. Walgreen admits that it offers its customers the ability to manage their medical prescriptions through a secure online account and that said account requires a user name and password. Walgreen admits that a customer may add family members to the account and manage multiple prescriptions from a single account. Walgreen denies the remaining allegations in Paragraph 13 of the
Complaint.
14. Walgreen admits that a customer may bring a written copy of a
prescription and a physician may call in or fax a prescription to a Walgreen pharmacy, and it can be added to the customer’s account. Walgreen denies the remaining allegations in Paragraph 14 of the Complaint.
15. In response to Paragraph 15 of the Complaint, Walgreen incorporates its responses to Paragraphs 1 through 14 of the Complaint as though set forth fully herein.
16. Walgreen admits that U.S. Patent No. 8,301,466 (the “‘466 Patent”)(i) was issued by the United States Patent and Trademark Office on October 30, 2012; (ii) is entitled “Method and System for Providing Online Records;” (iii) that Robert H. Lorsch is listed as its inventor; (iv) that MMR is listed as its original
assignee; and (v) that it was attached as Exhibit A to the Complaint. Walgreen denies the remaining allegations of Paragraph 16 of the Complaint.
17. Walgreen denies the allegations contained in Paragraph 17 of the Complaint.
18. Walgreen denies the allegations contained in Paragraph 18 of the Complaint.
19. Walgreen denies the allegations contained in Paragraph 19 of the Complaint.
20. Walgreen denies the allegations contained in Paragraph 20 of the Complaint.
21. Walgreen denies the allegations contained in Paragraph 21 of the Complaint.
22. Walgreen denies the allegations contained in Paragraph 22 of the Complaint.
WHEREFORE, Walgreen denies that Plaintiff is entitled to any of the relief it requests in its Complaint or otherwise and, accordingly, respectfully prays for entry of judgment:
a) Dismissing Plaintiff’s Complaint with prejudice;
b) Finding that Walgreen has not infringed and is not infringing upon any claim of the ‘466 Patent;
c) Finding that each claim of the ‘466 Patent is unpatentable, invalid, and/or unenforceable;
d) Enjoining Plaintiff and/or any of its representatives from directly or indirectly asserting infringement, or instituting any further action for infringement of the alleged patent, against Walgreen or any of its representatives;
e) Finding that the case is exceptional for Defendant under 35 U.S.C. § 285 and awarding Walgreen its reasonable attorneys’ fees, expenses, and costs incurred in connection with this action; and
f) Awarding Walgreen such other and further relief as the Court may
deem just and proper under the circumstances.
AFFIRMATIVE DEFENSES
By asserting the following affirmative defenses, Walgreen does not allege or admit that it has the burden of proof and/or the burden of persuasion with respect to any of these matters.
First Affirmative Defense
The Complaint fails to state a claim against Walgreen upon which relief can be granted.
Second Affirmative Defense
Walgreen does not infringe, has not infringed, and does not and has not induced infringement or contributed to the infringement of the one or more claims
asserted by Plaintiff of the ‘466 Patent.
Third Affirmative Defense
Upon information and belief, Walgreen states that Plaintiff is wholly or partially barred from the relief that it seeks because the claims of the ‘466 Patent are each invalid for failure to comply with the requirements of the patent laws of the United States, 35 U.S.C. § 100, et seq., including, without limitation, those set forth in 35 U.S.C. §§ 101, 102, 103, and 112.
Fourth Affirmative Defense
Upon information and belief, Walgreen states that Plaintiff is wholly or partially barred from the relief that it seeks based upon the principles and doctrines of waiver, equitable estoppel, and/or laches.
Fifth Affirmative Defense
Upon information and belief, Walgreen states that Plaintiff is precluded and estopped from asserting that Walgreen has infringed upon any of the claims of the ‘466 Patent by reasons of Plaintiff’s (or its representatives’) remarks, representations, concessions, amendments, and/or admissions during the patent
prosecution proceedings in the U.S. Patent and Trademark Office.
Sixth Affirmative Defense
Walgreen has not caused Plaintiff to suffer any damages, and, in any event, Plaintiff’s claims for damages are too speculative and are barred and/or must be offset due to its failure to mitigate its alleged damages.
Seventh Affirmative Defense
Plaintiff’s claims are barred by the doctrine of divided infringement.
Reservation of Rights
Walgreen asserts the above defenses based on its present knowledge, which is based on its investigation to date and an absence of discovery. Walgreen’s investigation of its defense is ongoing, and Walgreen reserves the right to supplement or amend its Answer and to add defenses that may be supported by facts revealed through discovery and or its investigation.
AI
