WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 122

WiLAN Reply to Telefonaktiebolaget LM Ericsson's First Amended Answer and Counterclaims - ANSWER to 112 Answer to Complaint, Counterclaim by WI-LAN Inc..(Weaver, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC.;
TELEFONAKTIEBOLAGET LM
ERICSSON; ERICSSON INC.; SONY
ERICSSON MOBILE COMMUNICATIONS
AB; SONY ERICSSON MOBILE
COMMUNICATIONS (USA) INC.; HTC
CORPORATION; HTC AMERICA, INC.;
EXEDEA INC.; LG ELECTRONICS, INC.;
LG ELECTRONICS MOBILECOMM U.S.A.,
INC.; LG ELECTRONICS U.S.A., INC.
Defendants.

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Civil Action No. 6:10-cv-521-LED
JURY TRIAL DEMANDED

WI-LAN INC.’S REPLY TO DEFENDANT TELEFONAKTIEBOLAGET
LM ERICSSON’S FIRST AMENDED ANSWER AND COUNTERCLAIMS TO
PLAINTIFF’S ORIGINAL COMPLAINT
Plaintiff Wi-LAN Inc. (“Wi-LAN”) hereby replies to the numbered paragraphs of the
Counterclaims of Defendant Telefonaktiebolaget LM Ericsson (“LME”) as follows:
Wi-LAN reasserts and incorporates by reference herein its allegations set forth in
paragraphs 1-68 of its original Complaint.
1.

Wi-LAN admits that LME is a corporation organized and existing under the laws

of Sweden having its principal place of business at Torshamnsgatan 23, Kista, 164 83
Stockholm, Sweden.
2.

Wi-LAN admits that it is a corporation organized under the laws of Canada with

its principal place of business at 11 Holland Ave., Suite 608, Ottawa, Ontario, Canada.

3.

Wi-LAN admits that the Court has subject-matter jurisdiction over LME’s

Counterclaims.
BREACH OF CONTRACT
4.

Wi-LAN admits Wi-LAN and LME executed a Patent and Conflict Resolution

Agreement having an effective date of November 1, 2007. Wi-LAN denies the remaining
allegations of paragraph 4 of LME’s Counterclaims.
5.

Wi-LAN denies the allegations of paragraph 5 of LME’s Counterclaims.

6.

Wi-LAN denies the allegations of paragraph 6 of LME’s Counterclaims.

7.

Wi-LAN denies the allegations of paragraph 7 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’326 PATENT

8.

Wi-LAN admits the allegations of paragraph 8 of LME’s Counterclaims.

9.

Wi-LAN admits the allegations of paragraph 9 of LME’s Counterclaims.

10.

Wi-LAN denies the allegations of paragraph 10 of LME’s Counterclaims.

11.

Wi-LAN denies the allegations of paragraph 11 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’327 PATENT

12.

Wi-LAN admits the allegations of paragraph 12 of LME’s Counterclaims.

13.

Wi-LAN admits the allegations of paragraph 13 of LME’s Counterclaims.

14.

Wi-LAN denies the allegations of paragraph 14 of LME’s Counterclaims.

15.

Wi-LAN denies the allegations of paragraph 15 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’819 PATENT

16.

Wi-LAN admits the allegations of paragraph 16 of LME’s Counterclaims.

17.

Wi-LAN admits the allegations of paragraph 17 of LME’s Counterclaims.

18.

Wi-LAN denies the allegations of paragraph 18 of LME’s Counterclaims.

19.

Wi-LAN denies the allegations of paragraph 19 of LME’s Counterclaims.

NON-INFRINGEMENT AND INVALIDITY OF THE ’211 PATENT
20.

Wi-LAN admits the allegations of paragraph 20 of LME’s Counterclaims.

21.

Wi-LAN denies the allegations of paragraph 21 of LME’s Counterclaims.

22.

Wi-LAN does not have knowledge or information to either admit or deny the

allegations of paragraph 22 of LME’s Counterclaims, and on that basis denies them.
23.

Wi-LAN denies the allegations of paragraph 23 of LME’s Counterclaims.
REPLY TO PRAYER FOR RELIEF

To the extent a reply is necessary, Wi-LAN denies that LME is entitled to any of the relief
requested in its Prayer for Relief.
WI-LAN’S PRAYER FOR RELIEF
In view of the foregoing, Wi-LAN respectfully requests the following relief:
A.

An order dismissing with prejudice LME’s Counterclaims;

B.

An order finding Wi-LAN has not breached the Patent and Conflict Resolution
agreement executed by LME and Wi-LAN and that LME has not suffered any
actual damages;

C.

LME’s prayer for attorney’s fees and costs be denied;

D.

Judgment be entered in favor of Wi-LAN that each of the claims of the ’326,
’327, and ’819 patents is valid and infringed;

E.

In the event the Court finds a case or controversy exists as to the validity of the
’211 patent, an order finding the ’211 patent valid;

F.

An order declaring that this is an exceptional case and awarding Wi-LAN its
costs, expenses, and reasonable attorney fees under 35 U.S.C. § 285 and all other
applicable statutes, rules, and common law, including all such laws governing
contracts in the State of New York; and

G.

The Court award Wi-LAN the relief sought in its original Complaint.

Dated: September 19, 2011

Respectfully submitted,

By:
Local Counsel
Johnny Ward
Texas Bar No. 00794818
Wesley Hill
Texas Bar No. 24032294
WARD & SMITH LAW FIRM
111 W. Tyler Street
Longview, TX 75601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/s/ David B. Weaver
David B. Weaver, Lead Attorney
Texas Bar No. 00798576
Juliet M. Dirba
Texas Bar No. 24051063
John A. Fedock
Texas Bar No. 24059737
Syed K. Fareed
Texas Bar No. 24065216
Jeffrey T. Han
Texas Bar No. 24069870
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
Chuck P. Ebertin
California Bar No. 161374
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]
Fax: [phone]

Attorneys for Plaintiff, Wi-LAN 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 are
deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). All other counsel
of record not deemed to have consented to electronic service were served with a true and correct
copy of the foregoing by email and/or fax, on this the 19th day of September, 2011.

/s/ David B. Weaver
David B. Weaver

US 1054536v.1