Uniloc USA, Inc. et al v. NATIONAL INSTRUMENTS CORP. et al

Filing 45

ANSWER to 1 Complaint, by Pervasive Software, Inc..(Pickell, Aaron)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION UNILOC USA., INC. and UNILOC SINGAPORE PRIVTE LIMITED Plaintiffs v. (1) NATIONAL INSTRUMENTS CORP.; (2) PERVASIVE SOFTWARE INC.; (3) ADOBE SYSTEMS INC.; (4) FILEMAKER, INC.; (5) SAFENET, INC.; (6) CA, INC.; (7) PINNACLE SYSTEMS, INC.; (8) SONIC SOLUTIONS; (9) ONYX GRAPHINCS, INC.; (10) SYMANTEC CORP.; (11) ALADDIN KNOWLEDGE SYSTEMS, INC; and (12) ALADDIN KNOWLEDGE SYSTEMS LTD. Defendants § § § § § § § § § § § § § § § § § § § § § § § § §

CIVIL ACTION NO. 6:10-CV-00472-LED JURY TRIAL DEMANDED

PERVASIVE SOFTWARE'S ANSWER AND COUNTERCLAIMS TO UNILOC USA, INC. AND UNILOC SINGAPORE PRIVATE LIMITED'S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Defendant Pervasive Software Inc. ("Pervasive"), pursuant to Rule 12, Fed. R. Civ. P., files its answer and affirmative defenses to the Original Complaint of Plaintiffs Uniloc USA, Inc. and Uniloc Singapore Private Limited (collectively, "Uniloc") and for its answer shows the following:

JURISDICTION AND VENUE 1. Pervasive admits that the Complaint alleges infringement under the United Sates

patent laws and that this Court has jurisdiction over such matters pursuant to 28 U.S.C. §§ 1331 and 1338. Pervasive denies any wrongdoing or infringement. 2. As to the allegations directed to Pervasive in paragraph 2, Pervasive admits that it

conducts business with customers residing in this District. Pervasive is without knowledge or information sufficient to form a belief as to the allegations of paragraph 2 that are directed to other defendants, and therefore denies them. 3. Pervasive admits that the Complaint alleges venue under 28 U.S.C. §§ 1391 (b),

(c), and/or 1400(b), but denies that this District is the most convenient for adjudication of the claims raised by Uniloc in this action. Pervasive denies any wrongdoing or infringement. THE PARTIES 4. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 4 of Uniloc's Complaint, and therefore denies them. 5. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 5 of Uniloc's Complaint, and therefore denies them. 6. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 6 of Uniloc's Complaint, and therefore denies them. 7. Pervasive admits that it is a Delaware corporation having a principal place of

business at 12365-B Riata Trace Parkway, Austin, Texas 78727. Pervasive admits that it conducts business with customers residing in this District. Pervasive denies that it has committed the tort of patent infringement. Pervasive denies that the address of its agent for service of process is 8821 Bell Mountain Dr., Austin, Texas 78730.

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8.

Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 8 of Uniloc's Complaint, and therefore denies them. 9. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 9 of Uniloc's Complaint, and therefore denies them. 10. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 10 of Uniloc's Complaint, and therefore denies them. 11. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 11 of Uniloc's Complaint, and therefore denies them. 12. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 12 of Uniloc's Complaint, and therefore denies them. 13. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 13 of Uniloc's Complaint, and therefore denies them. 14. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 14 of Uniloc's Complaint, and therefore denies them. 15. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 15 of Uniloc's Complaint, and therefore denies them. 16. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 16 of Uniloc's Complaint, and therefore denies them. 17. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 17 of Uniloc's Complaint, and therefore denies them. ALLEGED INFRINGEMENT OF U.S. PATENT NO. 5,490,216 18. Pervasive incorporates its responses to paragraphs 1-17 as if set forth fully herein.

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19.

Pervasive admits that U.S. Patent No. 5,490,216 ("the `216 patent") is entitled

"System for Software Registration." Pervasive is without knowledge or information sufficient to form a belief as to whether the `216 patent was duly and legally issued and therefore denies that allegation. Pervasive is without knowledge or information sufficient to form a belief as to the ownership of the `216 patent and therefore denies that allegation. 20. Pervasive is without knowledge or information sufficient to form a belief as to

whether Uniloc USA, Inc. is the exclusive licensee of the `216 patent in the United States and therefore denies that allegation. 21. Pervasive is without knowledge or information sufficient to form a belief as to

whether Uniloc USA, Inc. has marked its products with the `216 patent number pursuant to 35 U.S.C. 287, and therefore denies that allegation. 22. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 22 of Uniloc's Complaint, and therefore denies them. 23. Pervasive denies the allegations of paragraph 23 of Uniloc's Complaint.

Pervasive further denies that it has infringed, directly or indirectly, literally, or by the doctrine of equivalents, any valid and enforceable claim of the `216 patent. 24. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 24 of Uniloc's Complaint, and therefore denies them. 25. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 25 of Uniloc's Complaint, and therefore denies them. 26. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 26 of Uniloc's Complaint, and therefore denies them.

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27.

Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 27 of Uniloc's Complaint, and therefore denies them. 28. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 28 of Uniloc's Complaint, and therefore denies them. 29. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 29 of Uniloc's Complaint, and therefore denies them. 30. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 30 of Uniloc's Complaint, and therefore denies them. 31. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 31 of Uniloc's Complaint, and therefore denies them. 32. Pervasive lacks sufficient knowledge or information to form a belief as to the

truth of the allegations in paragraph 32 of Uniloc's Complaint, and therefore denies them. 33. 34. Pervasive denies the allegations of paragraph 33 of Uniloc's Complaint. Pervasive denies the allegations of paragraph 34 of Uniloc's Complaint. PRAYER FOR RELIEF 35. Pervasive denies that Uniloc is entitled to any of the requested relief and denies

any and all such allegations in paragraphs A through F of its Prayer for Relief. Pervasive denies any wrongdoing or infringement of the `216 patent. AFFIRMATIVE DEFENSES Pervasive alleges and asserts the following defenses, affirmative or otherwise, without assuming any burden of proof that they would not otherwise have. In addition to the defenses described below and subject to its responses above, Pervasive specifically reserves all rights to allege additional defenses that become known through the course of discovery.

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FIRST AFFIRMATIVE DEFENSE 36. Pervasive does not infringe and has not infringed, directly or indirectly, literally,

or by the doctrine of equivalents, any valid and enforceable claim of the `216 patent. SECOND AFFIRMATIVE DEFENSE 37. To the extent that Uniloc asserts that Pervasive indirectly infringes, either by

contributory infringement or by inducing infringement, Pervasive is not liable to Uniloc for the acts alleged to have been performed before Pervasive knew that its actions would cause indirect infringement. Dated: October 25, 2010.

Respectfully submitted, By: /s/ Aaron J Pickell Charles D. Huston State Bar No. 10328950 Aaron J. Pickell State Bar No. 24051193 Stacy L. Zoern State Bar No. 24051565 DAFFER MCDANIEL, LLP 700 Lavaca Street, Suite 720 Austin, TX 78701 Tel. [phone] Fax [phone] ATTORNEYS FOR PERVASIVE SOFTWARE INC.

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CERTIFICATE OF SERVICE The undersigned 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 CM/EMF system pursuant to Local Rule CV-5(a)(2). Any other counsel of record will be served by facsimile transmission and/or first class mail this 25th day of October, 2010. /s/ Aaron J. Pickell Aaron J. Pickell

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