Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 295

FIRST AMENDED ANSWER to 285 Amended Complaint,,, COUNTERCLAIM against Eolas Technologies Incorporated by Frito-Lay, Inc..(Yee, Jeffrey)

IN TTIE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION
Eolas Technologies Incorporated,

Plaintiff,
v.
Adobe Systems Inc., Amazon.com, Inc. Apple Inc., Blockbuster Inc., CDW Corp.n Citigroup Inc., eBay Inc., Frito-Layr Inc.o The Go Daddy Group,Inc., Google Inc., J.C. Penney Company, Inc., JPMorgan Chase & Co., New Frontier Mediar Inc., OfÏice Depot, Inc., Perot Systems Co"p, Playboy Enterprises Internationa[ fnc., Rent-A-Center, Inc., Staples, Inc., Sun Microsystems Inc., Texas Instruments Inc., Yahoo! Inc.o and YouTube, LLC, Defendants

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

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DEFETIDANT FRITO-LAY, INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
Defendant Frito-Lay, Inc. ("Frito-Lay") hereby submits its First Amended Answer to

Eolas Technologies Incorporated's ("Eolas"
("Complaint," Dkt. 285):

or "Plaintiff') First Amended Complaint

ANSWER

I.

PARTIES

L

Frito-Lay lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph I of the Complaint and, therefore, denies them.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMEN DED COMPLAINT

Page

I

2.

Frito-Lay is not required to answer to the allegations contained in Paragraph

2

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph2 and, therefore, denies them.

3.

Frito-Lay is not required to answer to the allegations contained in Paragraph

3

of the Complaint because the allegations are not directed to Frito-I-ay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 3 and, therefore, denies them.

4.

Frito-Lay is not required to answer to the allegations contained in Paragraph 4

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 4 and, therefore, denies them.

5.

Frito-Lay is not required to answer to the allegations contained in Paragraph

5

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 5 and, therefore, denies them.

6.

Frito-Lay is not required to answer to the allegations contained in Paragraph

6

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 6 and, therefore, denies them.

7.

Frito-Lay is not required to answer to the allegations contained in Paragraph

7

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMEN DED COMPLAINT

Page2

lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 7 and, therefore, denies them.

8.

Frito-Lay is not required to answer to the allegations contained in Paragraph

8

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 8 and, therefore, denies them.

9. 10.

Frito-Lay admits to the allegations contained in Paragraph 9 of the Complaint. Frito-Lay is not required to answer to the allegations contained in Paragraph
10

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph I I

I

and, therefore, denies them.

l.

Frito-Lay is not required to answer to the allegations contained in Paragraph I I

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph I

I

and, therefore, denies them.
12

12.

Frito-Lay is not required to answer to the allegations contained in Paragraph

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 12 and, therefore, denies them.

13.

Frito-Lay is not required to answer to the allegations contained in Paragraph l3

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph l3 and, therefore, denies them.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page 3

14.

Frito-Lay is not required to answer to the allegations contained in Paragraph

14

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 14 and, therefore, denies them.

15.

Frito-Lay is not required to answer to the allegations contained in Paragraph l5

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 15 and, therefore, denies them.

16.

Frito-Lay is not required to answer to the allegations contained in Paragraph l6

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 16 and, therefore, denies them.

17.

Frito-Lay is not required to answer to the allegations contained in Paragraph l7

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 17 and, therefore, denies them.

18.

Frito-Lay is not required to answer to the allegations contained in Paragraph l8

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph

l8

and, therefore, denies them.
19

19.

Frito-Lay is not required to answer to the allegations contained in Paragraph

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page 4

lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph l9 and, therefore, denies them.

20.

Frito-Lay is not required to answer to the allegations contained in Paragraph 20

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 20 and, therefore, denies them.

2I.

Frito-Lay is not required to answer to the allegations contained in Paragraph 2l

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph2T and, therefore, denies them.

22.

Frito-Lay is not required to answer to the allegations contained in Paragraph 22

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph22 and, therefore, denies them.

23.

Frito-Lay is not required to answer to the allegations contained in Paragraph23

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph23 and, therefore, denies them.

II. 24.
fully set forth here.

JURISDICTION AND VENUE

Frito-Lay incorporates its responses contained in Paragraphs l-23 as though

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page 5

25.

Frito-Lay admits that the Complaint includes claims of patent infringement that

arise under the patent laws of the United States, 35 U.S.C. $ 101 er seq.Fnto-Lay admits that this

Court has subject matter jurisdiction over this action.

26.

Frito-Lay admits that it is subject to this Court's personal jurisdiction. Except

as

expressly admitted herein, Frito-Lay lacks sufficient knowledge or information

to form a

belief as to the truth of the allegations contained in Paragraph26 and,therefore, denies them.

27.

Frito-Lay admits that venue is proper with respect to Frito-Lay. Except

as

expressly admitted herein, Frito-Lay lacks sufficient knowledge or information

to form

a

belief as to the truth of the allegations contained in Paragraph2T and, therefore, denies them.

III. 28. 29.
fully set forth here.

PATENT INFRINGEMENT

Frito-Lay incorporates its responses contained in Paragraphs l-27 as though

From the face of the United States Patents Nos. 5,838,906 ("the '906 Patent) and

7,599,985 ("the '985 Patent"), the title and date

of

issuance appears

to be as alleged in

Paragraph 30 of the Complaint. Except as stated herein, Frito-Lay lacks suflicient knowledge or

information to form a belief as to the truth of the allegations contained in Paragraph 29 and,
therefore, denies them.

30. 31.

Frito-Lay lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 30 and, therefore, denies them.

Frito-Lay is not required to answer to the allegations contained in Paragraph

3

I

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph32 and, therefore, denies them.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page 6

32.

Frito-Lay is not required to answer to the allegations contained in Paragraph 32

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 33 and, therefore, denies them.

33.

Frito-Lay is not required to answer to the allegations contained in Paragraph 33

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph34 and, therefore, denies them.

34.

Frito-Lay is not required to answer to the allegations contained in Paragraph 34

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 35 and, therefore, denies them.

35.

Frito-Lay is not required to answer to the allegations contained in Paragraph 35

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 36 and, therefore, denies them.

36.

Frito-Lay is not required to answer to the allegations contained in Paragraph 36

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 37 and, therefore, denies them.

37.

Frito-Lay is not required to answer to the allegations contained in Paragraph 37

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PageT

lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 38 and, therefore, denies them.

38.

Frito-Lay denies the allegations contained in Paragraph 38, including but not

limited to the allegations that it has directly and/or indirectly infringed (by inducement and/or

contributory infringement), or is continuing to infringe, directly and/or indirectly, the '906
Patent and/or the '985 Patent.

39.

Frito-Lay is not required to answer to the allegations contained in Paragraph 39

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph

4l

and, therefore, denies them.

40.

Frito-Lay is not required to answer to the allegations contained in Paragraph 40

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph

4l and, therefore,

denies them.

41.

Frito-Lay is not required to answer to the allegations contained in Paragraph 4l

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph42 and,therefore, denies them.

42.

Frito-Lay is not required to answer to the allegations contained in Paragraph 42

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 43 and, therefore, denies them.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FTRST AMENDED COMPLAINT

Page 8

43.

Frito-Lay is not required to answer to the allegations contained in Paragraph 43

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufhcient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 44 and, therefore, denies them.

44.

Frito-Lay is not required to answer to the allegations contained in Paragraph 44

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 45 and, therefore, denies them.

45.

Frito-Lay is not required to answer to the allegations contained in Paragraph 45

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 46 and, therefore, denies them.

46.

Frito-Lay is not required to answer to the allegations contained in Paragraph 46

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 47 and, therefore, denies them.

47.

Frito-Lay is not required to answer to the allegations contained in Paragraph 47

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 48 and, therefore, denies them.

48.

Frito-Lay is not required to answer to the allegations contained in Paragraph 48

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANS\ilER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page 9

lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 49 and, therefore, denies them.

49.

Frito-Lay is not required to answer to the allegations contained in Paragraph 49

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 50 and, therefore, denies them.

50.

Frito-Lay is not required to answer to the allegations contained in Paragraph 50

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph

5l

and, therefore, denies them.

51.

Frito-Lay is not required to answer to the allegations contained in Paragraph 5 I

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 52 and, therefore, denies them.

52.

Frito-Lay is not required to answer to the allegations contained in Paragraph 52

of the Complaint because the allegations are not directed to Frito-Lay. Moreover, Frito-Lay
lacks sufficient knowledge or information to form a belief as to the truth of the allegations
contained in Paragraph 53 and, therefore, denies them.

53.

Frito-Lay denies the allegations contained in Paragraph 53 of the Complaint to

the extent that the allegations are directed to Frito-Lay. Moreover, Frito-Lay lacks sufficient

knowledge or information to form a belief as to the truth of the allegation contained in
Paragraph 53 directed at Defendants other than Frito-Lay, and therefore, denies them.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page

l0

54.

Frito-Lay denies the allegations contained in Paragraph 54 of the Complaint to

the extent that the allegations are directed to Frito-Lay. Moreover, Frito-Lay lacks sufficient

knowledge or information to form a belief as to the truth of the allegation contained in
Paragraph 54 directed at Defendants other than Frito-Lay, and therefore, denies them.

55.

Frito-Lay denies the allegations contained in Paragraph 55 of the Complaint to

the extent that the allegations are directed to Frito-Lay. Moreover, Frito-Lay lacks sufficient

knowledge or information to form a belief as to the truth of the allegation contained in
Paragraph 55 directed at Defendants other than Frito-Lay, and therefore, denies them.

56.

Frito-Lay denies the allegations contained in Paragraph 56 of the Complaint to

the extent that the allegations are directed to Frito-Lay. Moreover, Frito-Lay lacks suffîcient

knowledge or information to form a belief as to the truth of the allegation contained in
Paragraph 56 directed at Defendants other than Frito-Lay, and therefore, denies them.

PLAINTIFF'S PRAYER FOR RELIEF

57.
Frito-Lay.

Frito-Lay denies that Plaintiff is entitled to any of its requests for relief against

DEFENSES

58.

Frito-Lay's Defenses are set forth below. Frito-Lay undertakes the burden of

proof only as to those defenses as required by law regardless of how such defenses are
denominated herein. Frito-Lay reserves the right
Defenses.

to amend its Answer to add additional

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page I I

FIRST DEFENSE

59.

Frito-Lay has not and does not directly

or indirectly (bV inducement,

contributory inûingement, or otherwise) infringe any of the claims of the '906 Patent or the '985
Patent either literally or under the Doctrine of Equivalents.

SECOND DEFENSE

60.

The '906 Patent and the '985 Patent are invalid or void for failing to satisff the

conditions ofpatentability as set forth in 35 U.S.C $$100,

l0l,

102, 103 and/or 112.

THIRD DEFENSE

61.

Plaintiff is estopped from construing any valid claim of the'906 Patent orthe

'985 Patent to be infringed literally or by the Doctrine of Equivalents by any act of Frito-Lay
due to the disclosures of prior art or to the admissions or statements made to the U.S. Patent

and Trademark Office during prosecution of the patents in suit or because of the disclosure or
language of the specifrcation or claims thereof.

FOI]RTH DEFENSE

62.

Plaintiff is not entitled to recover any damages to the extent that Plaintiff, or

any predecessors in interest to the '906 or the '985 Patent, or licensees thereof, failed to
properly mark any of their relevant products as required by 35 U.S.C. $287 or otherwise give
proper notice that Frito-Lay's actions actually infringed the '906 or the '985 Patent. Frito-Lay is

not liable to Plaintiff for the acts alleged to have been performed before Frito-Lay received
notice that it was allegedly infringing the '906 and/or the '985 Patent.

DEFENDANT FRITO-LAY, INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMEN DED COMPLAINT

Page

l2

FIFTH DEFENSE

63.
herein.

Frito-Lay incorporates its responses as set forth above as though fully set forth

64.

To the extent that Plaintiff asserts that Frito-Lay indirectly infringes, either by

contributory infringement or inducement, Frito-Lay is not liable to Plaintiff for the acts alleged to

have been performed before Frito-Lay knew that its actions would cause the indirect
infringement.

SD(TH DEFENSE

65.

Plaintiff s claims against Frito-Lay are improper to the extent that any allegedly

infringing products are directly or indirectly provided to Frito-Lay or by Frito-Lay to an entity
having an express or implied license to the '906 and/or the '985 Patent.

SEVENTH DEFENSE

66. On information

and belief, Plaintiffs patent rights with respect to any

allegedly infringing products are exhausted by virtue of an express or implied license to the

'906 and/or the '985 Patent to one or more third parties.

EIGHTH DEFENSE

67.

Plaintiff is not entitled to any injunctive relief as demanded because any injury

to Plaintiff is neither immediate or irreparable, and Plaintiff has adequate remedies at law.

IIINTH DEITENSE

68.

The '985 Patent is invalid and/or unenforceable under the doctrine of

prosecution laches.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER PLAINTIFF'S FIRST AMENDED COMPLAINT

TO

Page 13

TENTH DEFENSE

69.

On information and belief, and subject to further amendments as Frito-Lay obtains
a

more information during discovery, the '906 Patent and the '985 Patent are unenforceable as
result of inequitable conduct.

70.

On information and belief, as recited in Eolas Technologies, Inc. v. Microsoft

Corp.,399 F.3d 1325 (Fed. Cir.2005), Michael D. Doyle (Doyle), one of the inventors of the'906
Patent, knew of a browser named Viola ("Viola Browser") yet failed to disclose any information regarding that reference to the United States Patent and Trademark Office (PTO).

71.

On information and beliet on August 31,1994, Doyle asserted in apress release

that researchers at the University of California had "created software for embedding interactive
program objects within hypermedia documents." That same day, V/ei contacted Doyle via e-mail

in response to the press release. Wei alleged that his demonstration of Viola (version DX34) to
Sun Microsystems engineers in May 1993 exhibited a way to embed interactive objects and
transport them over the web. Wei directed Doyle in his August 31, 1994 e-mail to a document he

had prepared about Viola (the "Viola paper"), which was available on the Internet at least by

August 13,1994. Doyle downloaded and read the Viola paper. In a later email exchange, Doyle
attempted to obtain Wei's concession that he was not the first to invent the method for embedding

interactive program objects within hypermedia documents. Additionally, Doyle asserted in the email exchange that Wei's invention was different from Doyle's invention.

72.

The Federal Circuit has held that "Wei's May 7,1993 demonstration to two Sun

Microsystems employees without confidentiality agreements was a public use under [35 U.S.C.
$102(b)1." Eolas Technologíes,399 F.3d 1325, 1335. Moreover, the Federal Circuit held that a
reasonable

jury could find at least claims I and 6 of the '906 patent obvious in light of the Viola

DEFENDANT FRITO.LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page

l4

Browser; and a district court could find that Doyle had committed inequitable conduct by failing to disclose the Viola Browser to the PTO. Id. at 1335-36.

73.

On information and beliet on October 17,1994, the University of California filed

the'906 patent application. In 1998, before issuance of the'906 patent, Doyle performed more
research on Viola and made a folder labeled "Viola

stuff." This folder included press releases of

two "beta" versions of Viola from February and March of 1994.

74.

Mr. Doyle and the attorneys prosecuting the application for the '906 Patent owed

a

duty of candor to the United States Patent and Trademark Office ("PTO") in connection with the
prosecution of the '906 Patent. Mr. Doyle and/or the attorneys prosecuting the application for the

'906 Patent violated their duty of candor by, on information and belief, intentionally failing to
disclose the Viola browser to the PTO during the prosecution browser would have been material to the prosecution
Patent is unenforceable.

of the '906 Patent. The Viola
Patent. Therefore, the '906

of the '906

75.

This violation of the duty of candor carries through to each of the applications

claiming priority to the application for the '906 Patent, including the '985 Patent. The '906 Patent
and the'985 Patent share the same specifications. On July 20, 2004, the PTO rejected the claims

pending in the application that issued as the '985 Patent under the doctrine of statutory doublepatenting and obviousness-type double patenting. The owner of the '985 Patent cancelled one pending claim and filed a terminal disclaimer for the remaining claims in order to overcome the double-patenting rejections.

It was not argued that the pending claims were patentably distinct

from the claims of the '906 Patent. Therefore, the '985 Patent is unenforceable.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Page

l5

ELEVENTH DEFENSE

76.

To the extent that Plaintiffs claims are based on acts performed by the Microsoft

Explorer browser or a user's use thereot there can be no direct, and, therefore, no indirect
infringement due to Microsoft's purported license to the '906 Patent and/or the '985 Patent.

TWELFTH DEFENSE

77.
hands.

Plaintiffls claims are baned by the equitable doctrines of laches and/or unclean

COUNTERCLAIMS

78.
herein.

Frito-Lay incorporates its responses as set forth above as though fully set forth

79.

Frito-Lay has not directly or indirectly infringed, contributed to or induced

infringement of any valid or enforceable claim of the '906 Patent or the'985 Patent, and has not
otherwise committed any acts in violation of 35 U.S.C. ç271.

80.
and,l12.

The '906 Patent and the '985 Patent, and every claim thereof, are invalid for
103

failing to meet the conditions for patentability as set forth in 35 U.S.C. $$100, l0l, 102,

81.

An actual controversy exists between Frito-Lay and Plaintiff concerning

the

alleged infringement and validity of the'906 Patent and the '985 Patent by virtue of Plaintiffs
Complaint herein.

82. 83.

Frito-Lay is entitled to judgment from this Court that no claim of either the

'906 Patent or the '985 Patent has been infringed by Frito-Lay, and that all claims are invalid. This is an exceptional case entitling Frito-Lay to an award of its attorney's fees

incurred in connection with this action pursuant to 35 U.S.C. $285.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER PLAINTIFF'S FIRST AMENDED COMPLAINT

TO

Page 16

84.

Frito-Lay continues to investigate this matter and reserves the right to amend its

Answer and/or Counterclaims to assert any additional defenses or counterclaims that come to
light upon further investigation and discovery.

PRAYER FOR RELIEF
V/HEREFORE Frito-Lay prays that:

85. 86. 87. 88. 89. 90.

the Court dismiss the Complaint against Frito-Lay with prejudice; the Court declare that Frito-Lay has not and does not infringe the '906 Patent or

the'985 Patent;
the Court declare that the '906 Patent and the '985 Patent are invalid;

the Court declare that Eolas is not entitled to any remedy or relief whatsoever

against Frito-Lay;

the Court award Frito-Lay its costs, together with reasonable attorneys fees and

all of its expenses for this suit because this is an exceptional case under 35 U.S.C. $285; and the Court award Frito-Lay such other relief as this Court may deem just and

proper at law or in equity.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER PLAINTIFF'S FIRST AMENDED COMPLAINT

TO

PagelT

Dated: June 3,2009.

Respectfully submitted,

/s/ Je.{fre:t

F.

Yee

Jeffrey K. Joyner (admittedpro hac více) [e-mail] Jeffrey F. Yee (admittedpro hac vice) [e-mail]

GREENBERG TRAURIG LLP
2450 Colorado Avenue, Suite 4008 Santa Monica, California 90404 Telephone: (3 I 0) 586-7700 Facsimile: (3 I 0) 586-7800

Christopher M. Joe chris j oe@bj ciplaw.com Brian Carpenter brian. carpenterb @bj cipl aw. com Eric W. Buether eric.buethere@bj ciplaw. com Buether Joe & Carpenter, LLP 1700 Pacific, Suite 2390 Dallas, Texas 75201 Telephone : (21 4) 466- I 27 0 Facsimile: (21 4) 63 5-1842

ATTORNEYS F'OR DEFENDAI\T FRITO-LAY, n',{C.

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSWER PLAINTIFF'S FIRST AMENDED COMPLAINT

TO

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cERTrrrcArrc oFsERvrcn
The undenigned hereby certifies that all counsel of record who are deemed to have consented

to electronic service are being served with a copy of this document via the Court's CIvÍ/ECF
system per Local Rule CV-5(aX3) this 3rd day of June 2010. Any other counsel of record

will

be served by facsimile transmission and/or electronic mail pursuant to Local Rule CV-5(d). /s/ Jeffrev F. Yee Jeffrey F. Yee

DEFENDANT FRITO-LAY,INC.'S FIRST AMENDED ANSTVER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

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