Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 281

ANSWER to 253 Answer to Complaint, Counterclaim by Eolas Technologies Incorporated.(McKool, Mike)

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., 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-446

JURY TRIAL

EOLAS' REPLY TO DEFENDANT TEXAS INSTRUMENTS INCORPORATED'S FIRST AMENDED ANSWER AND COUNTERCLAIMS Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in Texas Instruments Incorporated's ("TI") First Amended Answer and Counterclaims (Dkt. 253) as follows: AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 59. Paragraph 59 of TI's First Amended 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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60.

Eolas denies the allegations in paragraph 60 of TI's First Amended Answer and

Counterclaims. SECOND AFFIRMATIVE DEFENSE 61. Paragraph 61 of TI's First Amended 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 First Amended Answer and

Counterclaims. THIRD AFFIRMATIVE DEFENSE 63. Paragraph 63 of TI's First Amended 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 First Amended Answer and

Counterclaims. FOURTH AFFIRMATIVE DEFENSE 65. Paragraph 65 of TI's First Amended 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 First Amended Answer and

Counterclaims. FIFTH AFFIRMATIVE DEFENSE

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67.

Paragraph 67 of TI's First Amended 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 First Amended Answer and

Counterclaims. SIXTH AFFIRMATIVE DEFENSE 69. Paragraph 69 of TI's First Amended 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 First Amended Answer and

Counterclaims. SEVENTH AFFIRMATIVE DEFENSE 71. Paragraph 71 of TI's First Amended 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 First Amended Answer and

Counterclaims. EIGHTH AFFIRMATIVE DEFENSE 73. Paragraph 73 of TI's First Amended 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. Eolas denies the allegations in paragraph 74 of TI's First Amended Answer and

Counterclaims.

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75.

Eolas admits that the '985 Patent is a continuation of the '906 patent. Eolas

denies the remaining allegations in paragraph 75 of TI's First Amended Answer and Counterclaims. 76. Eolas admits that there is a license between Eolas and The Regents of the

University of California. 77. Eolas lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 77 of TI's First Amended Answer and Counterclaims and, on that basis, denies them. 78. Eolas lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 78 of TI's First Amended Answer and Counterclaims, and on that basis, denies them. 79. Eolas lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 79 of TI's First Amended Answer and Counterclaims and, on that basis, denies them. 80. Eolas admits that there is a document which purports to contain the following

contents as quoted: "Tue, 30 Aug 1994 23:15:10 -0700"; "FYI . . . press release"; "Researchers at the U. of California have created software for embedding interactive program objects within hypermedia documents. Previously, object linking and embedding (OLE) has been employed on single machines or local area networks using MS Windows-TM-. This UC software is the first instance where program objects have been embedded in documents over an open and distributed hypermedia environment such as the World Wide Web on the Internet." Except as so admitted, Eolas denies the allegations in paragraph 80 of TI's First Amended Answer and Counterclaims.

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81.

Eolas lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 81 of TI's First Amended Answer and Counterclaims and, on that basis, denies them. 82. Eolas lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 82 of TI's First Amended Answer and Counterclaims and, on that basis, denies them. 83. Eolas admits that the District Court issued a publicly available ruling (Docket

Number 491) in the action (N.D.Ill. 1:99-cv-626) which states: Doyle created a file to hold all the information he found in 1998 about the Viola browser, and he labeled his file "Viola stuff." The "Viola Stuff" file included descriptions of two "beta" releases of the Viola browser, a version 3.0 release in February 1994, and a version 3.1 release in March 1994. There were public announcements in both cases of Internet addresses where "source and binary" code for the Viola browser could be found. He also found extensive links for various purported "demos" of the Viola browser's capabilities. The ruling speaks for itself, and thus no further response is required. To the extent a further response is required to paragraph 83 of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied. 84. Eolas admits that the application for the '906 patent included at least one The prosecution history for the '906 patent is publicly

information disclosure statement.

available. The publicly available prosecution history speaks for itself, and thus no further response is required. To the extent a further response is required to paragraph 84 of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied. 85. Eolas admits it filed suit against Microsoft Corporation in a civil action (N.D.Ill.

1:99-cv-626) in 1999.

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86.

Eolas admits U.S. Patent No. 5,838,906 was issued on November 17, 1998. Eolas

admits U.S. Patent No. 5,838,906 underwent two reexaminations: Serial No. 90/006,831 was requested on October 30, 2003 and Serial No. 90/007,858 was requested on December 22, 2005. Eolas admits it filed suit against Microsoft Corporation in 1999. Except as so admitted, Eolas denies the remaining allegations in paragraph 86 of TI's First Amended Answer and Counterclaims. 87. Eolas admits that one or more information disclosure statements were submitted

to the Patent Office during reexamination for Serial No. 90/006,831. The publicly available information disclosure statements speak for themselves, and thus no further response is required. To the extent further response is required to paragraph 87 of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied. 88. Eolas admits a Notice of Intent to Issue a Reexamination Certificate dated January

20, 2006 in reexamination Serial No. 90/006,831 was issued. The prosecution history for the reexamination of the '906 patent is publicly available. The publicly available prosecution history speaks for itself, and thus no further response is required. To the extent a further response is required to paragraph 88 of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied. 89. Eolas admits an Office Action dated July 30, 2007 in reexamination Serial No.

90/007858 was issued. The prosecution history for the reexamination of the '906 patent is publicly available. The publicly available prosecution history speaks for itself, and thus no further response is required. To the extent a further response is required to paragraph 89 of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied.

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90.

Eolas denies that there is an Interview Summary Action dated July 30, 2007, and

on that basis, denies the allegations in paragraph 90 of TI's First Amended Answer and Counterclaims. 91. Eolas admits an Office Action dated April 18, 2008 in reexamination Serial No.

90/007,858 was issued. The prosecution history for the reexamination of the '906 patent is publicly available. The publicly available prosecution history speaks for itself, and thus no further response is required. To the extent a further response is required to paragraph 91of TI's First Amended Answer and Counterclaims, Eolas answers as follows: denied. 92. Eolas denies the allegations in paragraph 92 of TI's First Amended Answer and

Counterclaims. 93. Eolas denies the allegations in paragraph 93 of TI's First Amended Answer and

Counterclaims. COUNTERCLAIMS 94. Paragraph 94 of TI's First Amended 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. 95. Eolas denies the allegations in paragraph 95 of TI's First Amended Answer and

Counterclaims. 96. Eolas denies the allegations in paragraph 96 of TI's First Amended Answer and

Counterclaims. 97. Eolas denies the allegations in paragraph 97 of TI's First Amended Answer and

Counterclaims.

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98.

Eolas admits the allegations in paragraph 98 of TI's First Amended Answer and

Counterclaims. 99. Eolas denies the allegations in paragraph 99 of TI's First Amended Answer and

Counterclaims. 100. Eolas denies the allegations in paragraph 100 of TI's First Amended Answer and

Counterclaims. 101. Eolas denies the allegations in paragraph 101 of TI's First Amended Answer and

Counterclaims. 102. Paragraph 102 of TI's First Amended 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. TI'S REQUESTED RELIEF Eolas denies that TI is entitled to the relief requested in paragraphs 103-109 of its First Amended 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 First Amended 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

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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 94-102 of its First Amended 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. 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: May 3, 2010.

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.

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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 3rd day of May, 2010. 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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