Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 337

ANSWER to 300 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 OFFICE DEPOT, INC.'S ANSWER AND COUNTERCLAIMS TO PLAINTIFF'S FIRST AMENDED COMPLAINT Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in Office Depot, Inc.'s ("Office Depot") Answer and Counterclaims to Plaintiff's First Amended Complaint (dkt. 300, hereinafter "Answer and Counterclaims") as follows:

1

COUNTERCLAIMS The Parties 63. On information and belief, based solely on Office Depot's response to paragraph

15 of Eolas' Complaint, Eolas admits the allegations in paragraph 63 of Office Depot's Answer and Counterclaims. 64. Eolas admits the allegations in paragraph 64 of Office Depot's Answer and

Counterclaims. Jurisdiction and Venue 65. Eolas admits that Office Depot's 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. Eolas admits that venue is proper in this District, and in the Tyler Division. Except as so admitted, Eolas denies the allegations in paragraph 65 of Office Depot's Answer and Counterclaims. 66. Eolas admits that this Court has personal jurisdiction over it. Except as so

admitted, Eolas denies the allegations in paragraph 66 of Office Depot's Answer and Counterclaims. Count I Declaratory Judgment of Non-Infringement of the '906 Patent 67. Eolas admits that there is an actual and justiciable controversy between Eolas and

Office Depot regarding the infringement of the `906 patent. Except as so admitted, Eolas denies the allegations in paragraph 67 of Office Depot's Answer and Counterclaims.

2

68.

Paragraph 68 of Office Depot'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. 69. Eolas denies the allegations in paragraph 69 of Office Depot's Answer and

Counterclaims. Count II Declaratory Judgment of Invalidity of the '906 Patent 70. Paragraph 70 of Office Depot'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. 71. Eolas admits that there is an actual and justiciable controversy between Eolas and

Office Depot regarding the validity of the `906 patent. Except as so admitted, Eolas denies the allegations in paragraph 71 of Office Depot's Answer and Counterclaims. 72. Paragraph 72 of Office Depot'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. 73. Eolas denies the allegations in paragraph 73 of Office Depot's Answer and

Counterclaims. Count III Declaratory Judgment of Non-Infringement of the '985 Patent 74. Eolas admits that there is an actual and justiciable controversy between Eolas and

Office Depot regarding the infringement of the `985 patent. Except as so admitted, Eolas denies the allegations in paragraph 74 of Office Depot's Answer and Counterclaims.

3

75.

Paragraph 75 of Office Depot'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. 76. Eolas denies the allegations in paragraph 76 of Office Depot's Answer and

Counterclaims. Count IV Declaratory Judgment of Invalidity of the '985 Patent 77. Paragraph 77 of Office Depot'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. 78. Eolas admits that there is an actual and justiciable controversy between Eolas and

Office Depot regarding the validity of the `985 patent. Except as so admitted, Eolas denies the allegations in paragraph 78 of Office Depot's Answer and Counterclaims. 79. Paragraph 79 of Office Depot'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. 80. Eolas denies the allegations in paragraph 80 of Office Depot's Answer and

Counterclaims. OFFICE DEPOT'S REQUESTED RELIEF Eolas denies that Office Depot is entitled to the relief requested in paragraphs a-g of its Answer and Counterclaims or any other relief on its Counterclaims.

4

OFFICE DEPOTS' JURY DEMAND Office Depot'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 Office Depot, Inc.: A. B. that all relief requested by Eolas in its Complaint be granted; that all relief requested by Office Depot in its Answer and Counterclaims be

denied and that Office Depot take nothing by way of its Counterclaims; C. that Office Depot 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 Office Depot has failed to state a claim upon which relief can be granted, with respect to each cause of action set forth its Answer and Counterclaims. SECOND AFFIRMATIVE DEFENSE Office Depot 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.

5

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.

6

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