Lodsys, LLC v. Combay, Inc. et al

Filing 113

Plaintiff's Original ANSWER to 107 Answer to Amended Complaint, Counterclaim by Lodsys Group LLC.(Huck, Christopher)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
LODSYS GROUP, LLC,

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Plaintiff,
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v.
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ATARI INTERACTIVE, INC.;
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COMBAY, INC.;
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ELECTRONIC ARTS, INC.;
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ICONFACTORY, INC.;
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ILLUSION LABS AB;
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MICHAEL G. KARR D/B/A SHOVELMATE; §
QUICKOFFICE, INC.;
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ROVIO MOBILE LTD.
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RICHARD SHINDERMAN;
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SQUARE ENIX LTD.;
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TAKE-TWO INTERACTIVE SOFTWARE, §
INC.,
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Defendants,
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APPLE INC.,
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Intervenor.
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CIVIL ACTION NO. 2:11-cv-272-JRG

JURY TRIAL DEMANDED

PLAINTIFF LODSYS, LLC’S ORIGINAL ANSWER TO
INTERVENOR APPLE INC.’S COUNTERCLAIM
COMES NOW, Plaintiff Lodsys Group, LLC (“Plaintiff”), and files its Original Answer
to the Counterclaim filed by Intervenor Apple Inc. (“Intervenor”). Pursuant to the Court’s April
12, 2012 Memorandum Opinion and Order [dkt. no. 105] (the “Intervention Order”),
Intervenor’s intervention is limited to the issues of patent exhaustion and licensing. Pursuant to
the Intervention Order, this Original Answer is limited to the issues on which the Court granted
limited intervention and, therefore, does not include any claims that Plaintiff may have against
Intervenor outside the scope of the limited intervention.

Accordingly, Plaintiff would

respectfully show the Court as follows, as limited by the Intervention Order:

Introduction
1.

Answering paragraph 1, Plaintiff states that its Amended Complaint for Patent

Infringement (the “Complaint”) speaks for itself, and Plaintiff denies any characterizations or
allegations inconsistent with the Complaint.
2.

Answering paragraph 2, Plaintiff admits that, at a point in time, Apple held a

limited license to the patents-in-suit. Plaintiff denies the remaining allegations in paragraph 2.
3.

Answering paragraph 3, Plaintiff admits that its assignment to the patents-in-suit

was subject to certain then-existing licenses.

Plaintiff denies the remaining allegations in

paragraph 3.
4.

Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 4, and on that basis denies each and every allegation
contained paragraph 4.
5.

Answering paragraph 5, Plaintiff denies the allegation that “[t]he products and

services Apple provides to the Developers … permit interaction between the Developers and
Apple end users through the App Store.” Plaintiff also denies that Apple owns or provides “end
users.” Plaintiff is without knowledge or information sufficient to form a belief as to the truth of
the remaining allegations in paragraph 5, and on that basis denies each and every remaining
allegation contained paragraph 5.
6.

Plaintiff is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 6, and on that basis denies each and every allegation
contained paragraph 6.
7.

Plaintiff denies the allegations in paragraph 7.

8.

Plaintiff denies the allegations in paragraph 8.

9.

The first sentence of paragraph 9 contains legal or other conclusions that do not

require a response. To the extent a response is required, Plaintiff denies the allegations in the
first sentence of paragraph 9. Plaintiff is without knowledge or information sufficient to form a
belief as to the truth of the allegations in the second sentence of paragraph 9, and on that basis
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denies each and every allegation contained in the second sentence of paragraph 9. Plaintiff
denies the allegations in the third sentence in paragraph 9.
10.

Answering the first sentence in paragraph 10, Plaintiff admits that some of the

defendants and/or “Developers” are smaller than Intervenor. Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations in the first
sentence of paragraph 10, and on that basis denies each and every remaining allegation contained
in the first sentence of paragraph 10. Plaintiff denies the allegations in second sentence of
paragraph 10. Answering the third sentence of paragraph 10, Plaintiff states that certain of the
defendants and/or “Developers” have asserted “the defense based on Apple’s License.” Plaintiff
is without knowledge or information sufficient to form a belief as to the truth of the remaining
allegations in the third sentence of paragraph 10, and on that basis denies each and every
remaining allegation contained in the third sentence of paragraph 10.

Plaintiff denies the

allegations in fourth sentence of paragraph 10.
11.

Paragraph 11 contains legal or other conclusions that do not require a response.

To the extent a response is required, Plaintiff denies the allegations in paragraph 11.
12.

Paragraph 12 contains legal or other conclusions that do not require a response.

To the extent a response is required, Plaintiff denies the allegations in paragraph 12.
Parties
13.

Plaintiff admits the allegations in paragraph 58.

14.

Plaintiff admits the allegations in paragraph 59.
Jurisdiction and Venue

15.

Plaintiff admits that this Court has jurisdiction over the subject matter of

Intervenor’s Counterclaim. The remaining legal or other conclusions in paragraph 60 do not
require a response.

To the extent a response is required, Plaintiff denies the remaining

allegations in paragraph 60.
16.

Plaintiff admits the allegations in paragraph 61

17.

Plaintiff admits the allegations in paragraph 62.
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First Counterclaim for Declaratory Relief
18.

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

allegations in paragraphs 1 through 12 and 58 through 62 of Intervenor’s Answer and
Counterclaim, as if fully set forth herein.
19.

Plaintiff denies the allegations in the first sentence in paragraph 64.

The

remaining allegations in paragraph 64 contain legal or other conclusions that do not require a
response. To the extent a response is required, Plaintiff denies the remaining allegations in
paragraph 64.
20.

The first sentence of paragraph 65 contains legal or other conclusions that do not

require a response. To the extent a response is required, Plaintiff denies the allegations in the
first sentence of paragraph 65. Plaintiff denies the remaining allegations in paragraph 65.
21.

Paragraph 66 contains legal or other conclusions that do not require a response.

To the extent a response is required, Plaintiff denies the allegations in paragraph 66.
Plaintiff’s Affirmative Defenses to Intervenor’s Counterclaim
Without assuming the burden of pleading or proof that would otherwise rest on
Intervenor, Plaintiff asserts the following defenses and affirmative defenses to Intervenor’s
Counterclaim:
1.

Intervenor’s Counterclaim fails to state a claim upon which relief can be granted.

2.

Intervenor’s Counterclaim is barred, in whole or in part, by the doctrines of

unclean hands, estoppel, release, and waiver.
3.

Intervenor’s Counterclaim is barred, in whole or in part, because Intervenor has

breached its alleged license to the patents-in-suit.
4.

Intervenor’s Counterclaim is barred, in whole or in part, by the terms of its

alleged license to the patents-in-suit.
5.

Intervenor’s Counterclaim is barred, in whole or in part, by the terms of its

agreements with defendants and/or “Developers.”

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6.

To the extent that Intervenor’s Counterclaim relies on any purported oral contract,

any such oral contract is void and unenforceable under the statute of frauds.
7.

Intervenor’s Counterclaim is barred, in whole or in part, by a failure of

consideration.
The above defenses and affirmative defenses are based on the facts currently known to
Plaintiff. Plaintiff reserves the right to amend or add defenses or affirmative defenses based on
facts later discovered, pled, or offered.
Demand for Jury Trial on Intervenor’s Counterclaim
Plaintiff demands a trial by jury on Intervenor’s Counterclaim.
Response to Intervenor’s Prayer for Relief
Plaintiff denies that Intervenor is entitled to any of the relief requested in Intervenor’s
Prayer for Relief.
Plaintiff’s Prayer for Relief
WHEREFORE, in addition to the relief requested in its Amended Complaint, Plaintiff
respectfully requests entry of a judgment in its favor and against Intervenor as follows:
A.

That Intervenor take nothing by its Counterclaim;

B.

That the Court award Plaintiff all costs and attorneys’ fees incurred in defending

against Intervenor’s Counterclaim; and
C.

Any and all further relief that the Court deems just and proper.

Dated: May 4, 2012.

Respectfully Submitted,
By:

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/s/ Christopher M. Huck
Michael A. Goldfarb
(admitted pro hac vice)
Christopher M. Huck
(admitted pro hac vice)
KELLEY, DONION, GILL,
HUCK & GOLDFARB, PLLC
701 Fifth Avenue, Suite 6800
Seattle, Washington 98104
Phone: [phone]

Fax: [phone]
Email: [e-mail]
[e-mail]
William E. “Bo” Davis, III
Texas State Bar No. 24047416
THE DAVIS FIRM, PC
111 West Tyler Street
Longview, Texas 75601
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff
Lodsys Group, 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, this response was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(a)(3)(V). Pursuant to Fed. R.
Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have
consented to electronic service were served with a true and correct copy of the foregoing by
email, on this the 4th day of May 2012.
By:

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/s/ Christopher M. Huck
Christopher M. Huck