Lodsys, LLC v. Combay, Inc. et al

Filing 121

Plaintiff's Original ANSWER to 118 Answer to 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,

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

PLAINTIFF LODSYS, LLC’S ORIGINAL ANSWER TO
DEFENDANT SQUARE ENIX LTD.’S COUNTERCLAIMS
COMES NOW, Plaintiff Lodsys Group, LLC (“Plaintiff”), and files its Original Answer
to the Counterclaims filed by Defendant Square Enix Ltd. (“Defendant”), and would respectfully
show the Court as follows:
THE PARTIES
1.

Plaintiff admits the allegations in paragraph 56.

2.

Plaintiff admits the allegations in paragraph 57.
JURISDICTION AND VENUE

3.

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

Defendant’s Counterclaims. The remaining legal or other conclusions in paragraph 58 do not
require a response.

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

allegations in paragraph 58.
4.

Plaintiff admits the allegations in paragraph 59.

5.

Plaintiff admits that venue for Defendant’s Counterclaims is proper in this

District. 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.
6.

Plaintiff admits the allegations in paragraph 61.

7.

Plaintiff admits the allegations in paragraph 62.

8.

Paragraph 63 contains legal or other conclusions that do not require a response.

To the extent a response is required, Plaintiff denies the allegations in paragraph 63.
First Counterclaim
9.

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

allegations in paragraphs 56 through 63 of Defendant’s Counterclaims, as if fully set forth
herein.
10.

Plaintiff admits the allegations in paragraph 65.

11.

Plaintiff admits that, at a point in time, Apple held a license to the ‘565 Patent and

‘078 Patent. 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 66. Plaintiff denies the
remaining allegations in paragraph 66.
12.

Plaintiff admits that it has asserted claims of infringement against Defendant. The

remaining legal or other conclusions in paragraph 67 do not require a response. To the extent a
response is required, Plaintiff denies the remaining allegations in paragraph 67.
Second Counterclaim
13.

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

allegations in paragraphs 56 through 67 of Defendant’s Counterclaims, as if fully set forth
herein.
14.

Plaintiff admits the allegations in paragraph 69.

15.

Plaintiff denies the allegations in paragraph 70.

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Third Counterclaim
16.

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

allegations in paragraphs 56 through 70 of Defendant’s Counterclaims, as if fully set forth
herein.
17.

Plaintiff admits the allegations in paragraph 72.

18.

Plaintiff denies the allegations in paragraph 73.
Fourth Counterclaim

19.

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

allegations in paragraphs 56 through 73 of Defendant’s Counterclaims, as if fully set forth
herein.
20.

Plaintiff admits the allegations in paragraph 75.

21.

Plaintiff denies the allegations in paragraph 76.
Fifth Counterclaim

22.

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

allegations in paragraphs 56 through 76 of Defendant’s Counterclaims, as if fully set forth
herein.
20.

Plaintiff admits the allegations in paragraph 78.

21.

Plaintiff denies the allegations in paragraph 79.

PLAINTIFF’S AFFIRMATIVE DEFENSES TO DEFENDANT’S COUNTERCLAIM
Without assuming the burden of pleading or proof that would otherwise rest on
Defendant, Plaintiff asserts the following defenses and affirmative defenses to Defendant’s First
Counterclaim:
1.

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

unclean hands, estoppel, release, and waiver as to conduct by Apple.
2.

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

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

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3.

Defendant’s Counterclaim is barred, in whole or in part, by the terms of Apple’s

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

Upon information and belief, Defendant’s Counterclaim is barred, in whole or in

part, by the terms of its agreements with Apple.
5.

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

any such oral contract is void and unenforceable under the statute of frauds.
6.

Defendant’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 ON DEFENDANT’S COUNTERCLAIMS
Plaintiff demands a trial by jury on Defendant’s Counterclaims.
RESPONSE TO DEFENDANT’S PRAYER FOR RELIEF
Plaintiff denies that Defendant is entitled to any of the relief requested in Defendant’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 Defendant as follows:
A.

That Defendant take nothing by its Counterclaims;

B.

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

against Defendant’s Counterclaims; and
C.

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

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Dated: May 18, 2012.

Respectfully Submitted,
By:

/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 18th day of May 2012.
By:

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/s/ Christopher M. Huck
Christopher M. Huck