Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 339

ANSWER to 311 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 PEROT SYSTEMS CORPORATION'S ORIGINAL ANSWER AND COUNTERCLAIMS TO PLAINTIFF'S FIRST AMENDED COMPLAINT Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff") hereby replies to the counterclaims set forth in Perot Systems Corporation's ("Perot Systems") Original Answer and Counterclaims to Plaintiff's First Amended Complaint (dkt. 311, hereinafter "Answer and Defenses") as follows:

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COUNTERCLAIMS I. The Parties 85. On information and belief, based solely on Perot Systems' response to paragraph

16 of Eolas' Complaint, Eolas admits the allegations in paragraph 85 of Perot Systems' Answer and Defenses. 86. Defenses. II. Jurisdiction and Venue 87. Eolas admits that Perot Systems' counterclaims arise under the Patent Laws of the Eolas admits the allegations in paragraph 86 of Perot Systems' Answer and

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 87 of Perot Systems' Answer and Defenses. 88. Eolas admits that venue is proper in this District, and in the Tyler Division.

Except as so admitted, Eolas denies the allegations in paragraph 88 of Perot Systems' Answer and Defenses. 89. Eolas admits that this court has personal jurisdiction over it. Except as so

admitted, Eolas denies the allegations in paragraph 89 of Perot Systems' Answer and Defenses. III. General Allegations 90. Defenses. 91. Defenses. Eolas admits the allegations in paragraph 91 of Perot Systems' Answer and Eolas admits the allegations in paragraph 90 of Perot Systems' Answer and

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92. Defenses. 93.

Eolas admits the allegations in paragraph 92 of Perot Systems' Answer and

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 93 of Perot Systems' Answer and Defenses. IV. Declaratory Relief Regarding Non-Infringement of the '906 Patent 94. Defenses. 95. Defenses. V. Declaratory Relief Regarding Non-Infringement of the '985 Patent 96. Defenses. 97. Defenses. VI. Declaratory Relief Regarding Invalidity of the '906 Patent 98. Defenses. 99. Defenses. VII. Declaratory Relief Regarding Invalidity of the '985 Patent 100. Defenses. Eolas denies the allegations in paragraph 100 of Perot Systems' Answer and Eolas denies the allegations in paragraph 99 of Perot Systems' Answer and Eolas denies the allegations in paragraph 98 of Perot Systems' Answer and Eolas denies the allegations in paragraph 97 of Perot Systems' Answer and Eolas denies the allegations in paragraph 96 of Perot Systems' Answer and Eolas denies the allegations in paragraph 95 of Perot Systems' Answer and Eolas denies the allegations in paragraph 94 of Perot Systems' Answer and

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101. Defenses. 102. Defenses.

Eolas denies the allegations in paragraph 101 of Perot Systems' Answer and

Eolas denies the allegations in paragraph 102 of Perot Systems' Answer and

PEROT SYSTEMS' REQUESTED RELIEF Eolas denies that Perot Systems is entitled to the relief requested in paragraphs A-Q of its Answer and Defenses 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 Defenses 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

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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 Defenses. 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.

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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