Actus, LLC v. Bank of America Corp. et al

Filing 109

RESPONSE to 75 Answer to Amended Complaint, Counterclaim by Actus, LLC. (Davis, William)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

ACTUS, LLC, Plaintiff, v. (1) (2) (3) (4) (5) (6) (7) BANK OF AMERICA CORP.; BLAZE MOBILE, INC.; CAPITAL ONE FINANCIAL CORP.; ENABLE HOLDINGS, INC.; GOOGLE, INC.; GREEN DOT CORP.; JAVIEN DIGITAL PAYMENT SOLUTIONS, INC.; (8) JPMORGAN CHASE & CO.; (9) MASTERCARD INTERNATIONAL, INC.; (10) META FINANCIAL GROUP, INC.; (11) M&T BANK CORP.; (12) OBOPAY, INC.; (13) SONIC SOLUTIONS; (14) VISA, INC.; (15) VIVENDI UNIVERSAL U.S. HOLDING CO.; (16) VIVENDI UNIVERSAL, SA; (17) WAL-MART STORES, INC.; (18) THE WALT DISNEY CO.; (19) THE WESTERN UNION CO.; (20) WILDTANGENT, INC.; (21) AGILECO, Defendants. PLAINTIFF'S RESPONSE TO DEFENDANT OBOPAY, INC.'S COUNTERCLAIMS

CASE NO. 2:09-cv-102-TJW(CE) JURY TRIAL DEMANDED

Plaintiff Actus, LLC ("Actus") hereby responds to each paragraph of Defendant Obopay, Inc.'s ("Obopay") counterclaims as follows, wherein each and every paragraph is hereby incorporated by reference into each and every answer to each and every Count: COUNTERCLAIMS THE PARTIES 1. 2. Admitted upon information and belief. Admitted. JURISDICTION AND VENUE 3. 4. Admitted. Admitted. COUNTERCLAIMS FOR DECLARATORY RELIEF FIRST CLAIM FOR RELIEF: DECLARATION OF NONINFRINGEMENT OF U.S. PATENT NO. 7,328,189 5. Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 6. 7. Admitted. Denied.

SECOND CLAIM FOR RELIEF: DECLARATION OF NONINFRINGEMENT OF U.S. PATENT NO. 7,249,099 8. Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 9. 10. Admitted. Denied.

THIRD CLAIM FOR RELIEF: DECLARATION OF NONINFRINGEMENT OF U.S. PATENT NO. 7,177,838
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11.

Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 12. 13. Admitted. Denied.

FOURTH CLAIM FOR RELIEF: DECLARATION OF INVALIDITY OF U.S. PATENT NO. 7,328,189 14. Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 15. 16. Admitted. Denied.

FIFTH CLAIM FOR RELIEF: DECLARATION OF INVALIDITY OF U.S. PATENT NO. 7,249,099 17. Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 18. 19. Admitted. Denied.

SIXTH CLAIM FOR RELIEF: DECLARATION OF INVALIDITY OF U.S. PATENT NO. 7,177,838 20. Actus restates and incorporates by reference each of its responses to the

allegations of paragraphs 1-4 of the Obopay's Counterclaims above, as if fully set forth herein. 21. 22. Admitted. Denied.

EXCEPTIONAL CASE 23. Denied. 3

PL A I N T I F F ' S R E S P O N S E T O DE F E N D A N T OB O P A Y , I N C . ' S C O U N T E R C L A I M S

RESEPONSE TO PRAYER FOR RELIEF IN OBOPAY'S COUNTERCLAIMS Actus denies that Obopay is entitled to any of the relief requested in its Prayer. PRAYER FOR RELIEF In addition to the relief requested in its First Amended Complaint, Actus respectfully requests a judgment against Obopay as follows: A. B. That Obopay take nothing by its Counterclaims; That the Court award Actus all costs and attorneys' fees incurred in defending

against Obopay's Counterclaims; C. Any and all further relief that the Court deems just and proper.

Dated: June 23, 2009

Respectfully submitted, /s/ William E. Davis, III William E. Davis, III TX State Bar No. 24047416 The Davis Firm, PC 111 W. Tyler St. Longview, TX 75601 Ph: 903-230-9090 Fx: 903-230-0661 [e-mail] Attorney for Actus, LLC

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, the foregoing was served on all counsel of record who have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d), all others not deemed to have consented to electronic service were served with a true and correct copy of the foregoing via email on this 23rd day of June, 2009. /s/ William E. Davis, III William E. Davis, III

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