Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 190

ANSWER to 119 Answer to Complaint, Counterclaim by Eolas Technologies Incorporated.(McKool, Mike)

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Eolas Technologies Incorporated v. Adobe Systems Incorporated et al Doc. 190 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 PEROT SYSTEMS CORPORATION'S ANSWER AND COUNTERCLAIMS Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in Perot Systems Corporation's ("Perot Systems") Answer and Counterclaims as follows: COUNTERCLAIMS I. The Parties 78. On information and belief, based solely on Perot Systems' response to paragraph 17 of Eolas' Complaint, Eolas admits the allegations in paragraph 78 of Perot Systems' Answer and Counterclaims. 1 Austin 55481v1 Dockets.Justia.com 79. Eolas admits the allegations in paragraph 79 of Perot Systems' Answer and Counterclaims. II. Jurisdiction 80. Eolas admits that Perot Systems' counterclaims arise under the Patent Laws of the United Sates, Title 35, United States Code. Eolas admits that the jurisdiction of this court is proper over these counterclaims. Except as so admitted, Eolas denies the allegations in paragraph 80 of Perot Systems' Answer and Counterclaims. 81. Eolas admits that venue is proper in this District, and in the Tyler Division. Except as so admitted, Eolas denies the allegations in paragraph 81 of Perot Systems' Answer and Counterclaims. 82. Eolas admits that this court has personal jurisdiction over it. Except as so admitted, Eolas denies the allegations in paragraph 82 of Perot Systems' Answer and Counterclaims. III. General Allegations 83. Eolas admits the allegations in paragraph 83 of Perot Systems' Answer and Counterclaims. 84. Eolas admits the allegations in paragraph 84 of Perot Systems' Answer and Counterclaims. 85. Eolas admits the allegations in paragraph 85 of Perot Systems' Answer and Counterclaims. 86. Eolas admits that there is an actual and justiciable controversy between Eolas and Perot Systems. Except as so admitted, Eolas denies the allegations in paragraph 86 of Perot Systems' Answer and Counterclaims. 2 Austin 55481v1 IV. Declaratory Relief Regarding Non-Infringement of the '906 Patent 87. Eolas denies the allegations in paragraph 87 of Perot Systems' Answer and Counterclaims. 88. Eolas denies the allegations in paragraph 88 of Perot Systems' Answer and Counterclaims. V. Declaratory Relief Regarding Non-Infringement of the '985 Patent 89. Eolas denies the allegations in paragraph 89 of Perot Systems' Answer and Counterclaims. 90. Eolas denies the allegations in paragraph 90 of Perot Systems' Answer and Counterclaims. VI. Declaratory Relief Regarding Invalidity of the '906 Patent 91. Eolas denies the allegations in paragraph 91 of Perot Systems' Answer and Counterclaims. 92. Eolas denies the allegations in paragraph 92 of Perot Systems' Answer and Counterclaims. VII. Declaratory Relief Regarding Invalidity of the '985 Patent 93. Eolas denies the allegations in paragraph 93 of Perot Systems' Answer and Counterclaims. 94. Eolas denies the allegations in paragraph 94 of Perot Systems' Answer and Counterclaims. 95. Eolas denies the allegations in paragraph 95 of Perot Systems' Answer and Counterclaims. 3 Austin 55481v1 PEROT SYSTEMS' REQUESTED RELIEF Eolas denies that Perot Systems is entitled to the relief requested in paragraphs A-Q of its Answer and Counterclaims or any other relief on its Counterclaims. PEROT SYSTEMS' JURY DEMAND Perot Systems' demand for a jury trial does not contain a statement which warrants an affirmance or denial. PRAYER FOR RELIEF WHEREFORE, Plaintiff Eolas Technologies Incorporated, prays for the following relief against Defendant Perot Systems Corporation.: A. B. that all relief requested by Eolas in its Complaint be granted; that all relief requested by Perot Systems in its Answer and Counterclaims to Plaintiff's Complaint be denied and that Perot Systems take nothing by way of its Counterclaims; C. that Perot Systems 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 Perot Systems has failed to state a claim upon which relief can be granted, with respect to each cause of action set forth in its Answer and Counterclaims. 4 Austin 55481v1 SECOND AFFIRMATIVE DEFENSE Perot Systems 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. 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. 5 Austin 55481v1 DATED: January 11, 2010. Respectfully submitted, MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 mmckool@mckoolsmith.com Douglas Cawley Texas State Bar No. 04035500 dcawley@mckoolsmith.com Luke McLeroy Texas State Bar No. 24041455 lmcleroy@mckoolsmith.com MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: (214) 978-4000 Telecopier: (214) 978-4044 Sam F. Baxter Texas State Bar No. 01938000 sbaxter@mckoolsmith.com McKool Smith, P.C. 104 E. Houston St., Ste. 300 P.O. Box O Marshall, Texas 75670 Telephone: (903) 923-9000 Telecopier: (903) 923-9095 Kevin L. Burgess Texas State Bar No. 24006927 kburgess@mckoolsmith.com Steven J. Pollinger Texas State Bar No. 24011919 spollinger@mckoolsmith.com Josh W. Budwin Texas State Bar No. 24050347 jbudwin@mckoolsmith.com MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Telecopier: (512) 692-8744 ATTORNEYS FOR PLAINTIFF EOLAS TECHNOLOGIES, INC. 6 Austin 55481v1 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 11th day of January, 2010. Local Rule CV5(a)(3)(A). /s/ Josh Budwin Josh Budwin 7 Austin 55481v1

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