Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 335

ANSWER to 308 Answer to Amended 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 CDW LLC'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT, DEFENSES AND COUNTERCLAIMS Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in CDW LLC's ("CDW") Answer to Plaintiff's First Amended Complaint, Defenses and Counterclaims (dkt. 308, hereinafter "Counterclaims") as follows: COUNTERCLAIM 1. Paragraph 1 of CDW's Counterclaim 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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2.

Eolas admits that CDW purports to bring claims for declaratory judgment and that

CDW's counterclaims arise under the Patent Laws of the United States and that this Court has jurisdiction over these counterclaims. Except as so admitted, Eolas denies the allegations in paragraph 2 of CDW's Counterclaims. 3. On information and belief, based solely on CDW's response to paragraph 6 of

Eolas' First Amended Complaint, Eolas admits the allegations in paragraph 3 of CDW's Counterclaims. 4. 5. 6. Eolas admits the allegations in paragraph 4 of CDW's Counterclaims. Eolas admits the allegations in paragraph 5 of CDW's Counterclaims. Eolas admits that this Court has personal jurisdiction over it and that venue is

proper in this District, and in the Tyler Division. Except as so admitted, Eolas denies the allegations in paragraph 6 of CDW's Counterclaims. Count I Declaratory Judgment of Non-Infringement Regarding U.S. Patent No. 5,838,906 7. Paragraph 7 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 8. 9. Eolas admits the allegations in paragraph 8 of CDW's Counterclaims. Paragraph 9 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 10. 11. Eolas admits the allegations in paragraph 10 of CDW's Counterclaims. Eolas denies the allegations in paragraph 11 of CDW's Counterclaims.

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Count II Declaratory Judgment of Patent Invalidity Regarding U.S. Patent No. 5,838,906 12. Paragraph 12 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 13. 14. Eolas admits the allegations in paragraph 13 of CDW's Counterclaims. Paragraph 14 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 15. 16. Eolas admits the allegations in paragraph 15 of CDW's Counterclaims. Eolas denies the allegations in paragraph 16 of CDW's Counterclaims. Count III Declaratory Judgment of Non-Infringement Regarding U.S. Patent No. 7,599,985 17. Paragraph 17 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 18. 19. Eolas admits the allegations in paragraph 18 of CDW's Counterclaims. Paragraph 19 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 20. 21. Eolas admits the allegations in paragraph 20 of CDW's Counterclaims. Eolas denies the allegations in paragraph 21 of CDW's Counterclaims.

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Count IV Declaratory Judgment of Patent Invalidity Regarding U.S. Patent No. 7,599,985 22. Paragraph 22 of CDW's Counterclaims does not contain a statement which

warrants an affirmance or denial. To the extent any response is warranted, Eolas responds as follows: denied. 23. 24. 25. 26. Eolas admits the allegations in paragraph 23 of CDW's Counterclaims. Eolas denies the allegations in paragraph 24 of CDW's Counterclaims. Eolas admits the allegations in paragraph 25 of CDW's Counterclaims. Eolas denies the allegations in paragraph 26 of CDW's Counterclaims. CDW'S REQUESTED RELIEF Eolas denies that CDW is entitled to the relief requested in paragraphs A-F of its Answer and Counterclaims or any other relief on its Answer and Counterclaims. CDW'S JURY DEMAND CDW's jury demand 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 CDW Corporation: A. B. that all relief requested by Eolas in its Complaint be granted; that all relief requested by CDW in its Counterclaims be denied and that CDW

take nothing by way of its Counterclaims;

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C.

that CDW 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 CDW has failed to state a claim upon which relief can be granted, with respect to each cause of action set forth in its Counterclaims. SECOND AFFIRMATIVE DEFENSE CDW 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: June 24, 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.

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 24th day of June, 2010. Local Rule CV5(a)(3)(A). /s/ Josh Budwin Josh Budwin