Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 104

ANSWER to 41 Answer to Complaint, Counterclaim by Eolas Technologies Incorporated.(McKool, Mike)

Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Doc. 104

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION Eolas Technologies Incorporated, Plaintiff, vs. Adobe Systems Inc., Amazon.com, Inc., Apple Inc., Argosy Publishing, Inc., Blockbuster Inc., CDW Corp., Citigroup Inc., eBay Inc., Frito-Lay, Inc., The Go Daddy Group, Inc., Google Inc., J.C. Penney Company, Inc., JPMorgan Chase & Co., New Frontier Media, Inc., Office Depot, Inc., Perot Systems Corp., Playboy Enterprises International, Inc., Rent-A-Center, Inc., Staples, Inc., Sun Microsystems Inc., Texas Instruments Inc., Yahoo! Inc., and YouTube, LLC Defendants. § § § § § § § § § § § § § § § § § § § § §

Civil Action No. 6:09-CV-00446-LED

JURY TRIAL

EOLAS' REPLY TO DEFENDANT TEXAS INSTRUMENTS INCORPORATED'S ANSWER AND COUNTERCLAIMS Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in Texas Instruments Incorporated's ("TI") Answer and Counterclaims as follows: AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 59. Paragraph 59 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 1
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60.

Eolas denies the allegations in paragraph 60 of TI's Answer and Counterclaims. SECOND AFFIRMATIVE DEFENSE

61.

Paragraph 61 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 62. Eolas denies the allegations in paragraph 62 of TI's Answer and Counterclaims. THIRD AFFIRMATIVE DEFENSE 63. Paragraph 63 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 64. Eolas denies the allegations in paragraph 64 of TI's Answer and Counterclaims. FOURTH AFFIRMATIVE DEFENSE 65. Paragraph 65 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 66. Eolas denies the allegations in paragraph 66 of TI's Answer and Counterclaims. FIFTH AFFIRMATIVE DEFENSE 67. Paragraph 67 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 68. Eolas denies the allegations in paragraph 68 of TI's Answer and Counterclaims.

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SIXTH AFFIRMATIVE DEFENSE 69. Paragraph 69 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 70. Eolas denies the allegations in paragraph 70 of TI's Answer and Counterclaims. SEVENTH AFFIRMATIVE DEFENSE 71. Paragraph 71 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 72. Eolas denies the allegations in paragraph 72 of TI's Answer and Counterclaims. COUNTERCLAIMS 73. Paragraph 73 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 74. 75. 76. 77. 78. 79. Eolas denies the allegations in paragraph 74 of TI's Answer and Counterclaims. Eolas denies the allegations in paragraph 75 of TI's Answer and Counterclaims. Eolas admits the allegations in paragraph 76 of TI's Answer and Counterclaims. Eolas denies the allegations in paragraph 77 of TI's Answer and Counterclaims. Eolas denies the allegations in paragraph 78 of TI's Answer and Counterclaims. Paragraph 79 of TI's Answer and Counterclaims does not contain a statement

which warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied.

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TI'S REQUESTED RELIEF Eolas denies that TI is entitled to the relief requested in paragraphs 80-85 of its Answer and Counterclaims or any other relief on its Counterclaims. PRAYER FOR RELIEF WHEREFORE, Plaintiff Eolas Technologies Incorporated, prays for the following relief against Defendant Texas Instruments Incorporated: A. B. that all relief requested by Eolas in its Complaint be granted; that all relief requested by TI in its Answer and Counterclaims to Plaintiff's

Complaint be denied and that TI take nothing by way of its Counterclaims; C. that TI be ordered to pay the costs of this action (including all disbursements) and

attorney fees as provided by 35 U.S.C. § 285 and all other applicable statutes, rules, and common law; and D. such other and further relief as the Court deems just and equitable. AFFIRMATIVE DEFENSES As affirmative defenses, Eolas alleges as follows: FIRST AFFIRMATIVE DEFENSE TI has failed to state a claim upon which relief can be granted, with respect to its Counterclaims set forth in paragraphs 73-79 of its Answer and Counterclaims. SECOND AFFIRMATIVE DEFENSE TI has failed to state facts and/or a legal basis sufficient to permit recovery of its attorneys' fees and/or expenses for defending this suit.

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OTHER AFFIRMATIVE DEFENSES Eolas hereby gives notice that it intends to rely upon any other defense that may become available in this case and hereby reserves the right to amend this Answer to assert any such defense. DEMAND FOR JURY TRIAL Eolas demands a trial by jury of any and all issues triable of right before a jury.

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DATED: December 15, 2009.

Respectfully submitted, MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 [e-mail] Douglas Cawley Texas State Bar No. 04035500 [e-mail] Luke McLeroy Texas State Bar No. 24041455 [e-mail] MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: [phone] Telecopier: [phone] Sam F. Baxter Texas State Bar No. 01938000 [e-mail] McKool Smith, P.C. 104 E. Houston St., Ste. 300 P.O. Box O Marshall, Texas 75670 Telephone: [phone] Telecopier: [phone] Kevin L. Burgess Texas State Bar No. 24006927 [e-mail] Steven J. Pollinger Texas State Bar No. 24011919 [e-mail] Josh W. Budwin Texas State Bar No. 24050347 [e-mail] MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: [phone] Telecopier: [phone] ATTORNEYS FOR PLAINTIFF EOLAS TECHNOLOGIES, INC. 6

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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 document was served on all counsel who have consented to electronic services on this the 15th day of December, 2009. Local Rule CV5(a)(3)(A). In addition, a copy of this document has been served on the following counsel of record for TI via first class mail: Carl R. Roth The Roth Law Firm 115 N. Wellington, Suite 200 Marshall, Texas 75670

/s/ Josh Budwin Josh Budwin

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