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

Filing 123

WiLAN's Reply to Sony Ericsson's (SEUS) First Amended Answer and Counterclaims - ANSWER to 113 Answer to Complaint, Counterclaim by WI-LAN Inc..(Weaver, David)

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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. § § § § § § § § § § § § § § § § § § § Civil Action No. 6:10-cv-521-LED JURY TRIAL DEMANDED WI-LAN, INC.’S REPLY TO DEFENDANT SONY ERICSSON MOBILE COMMUNICATIONS (USA) INC.’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 Sony Ericsson Mobile Communications (USA) Inc. (“SEUS”) 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 does not have sufficient information or knowledge to either admit or deny the allegations contained in paragraph 1 of SEUS’s Counterclaims, and on that basis denies them. 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 the Court has subject-matter jurisdiction over SEUS’s counterclaims. BREACH OF CONTRACT 4. Wi-LAN admits Wi-LAN and SEUS 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 SEUS’s Counterclaims. 5. Wi-LAN denies that the Patent and Conflict Resolution Agreement precludes the filing of Wi-LAN’s original Complaint, and further denies the remaining allegations of paragraph 5 of SEUS’s Counterclaims. 6. Wi-LAN denies the allegations of paragraph 6 of SEUS’s Counterclaims. 7. Wi-LAN denies the allegations of paragraph 7 of SEUS’s Counterclaims. NON-INFRINGEMENT AND INVALIDITY OF THE ’819 PATENT 8. Wi-LAN admits the allegations of paragraph 8 of SEUS’s Counterclaims. 9. Wi-LAN admits the allegations of paragraph 9 of SEUS’s Counterclaims. 10. Wi-LAN denies the allegations of paragraph 10 of SEUS’s Counterclaims. 11. Wi-LAN denies the allegations of paragraph 11 of SEUS’s Counterclaims. NON-INFRINGEMENT AND INVALIDITY OF THE ’211 PATENT 12. Wi-LAN admits the allegations of paragraph 12 of SEUS’s Counterclaims. 13. Wi-LAN admits the allegations of paragraph 13 of SEUS’s Counterclaims. 14. Wi-LAN denies the allegations of paragraph 14 of SEUS’s Counterclaims. 15. Wi-LAN denies the allegations of paragraph 15 of SEUS’s Counterclaims. REPLY TO PRAYER FOR RELIEF To the extent a reply is necessary, Wi-LAN denies that SEUS 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 SEUS’s Counterclaims; B. An order finding Wi-LAN has not breached the Patent and Conflict Resolution agreement executed by SEUS and Wi-LAN, or in the alternative finding that SEUS has not suffered any actual damages; C. SEUS’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 ’819, and ’211 patents is valid and infringed; E. 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 F. The Court award Wi-LAN the relief sought in its original Complaint. Dated: September 19, 2011 Respectfully submitted, By: /s/ David B. Weaver 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: (903) 757-6400 Fax: (903) 757-2323 jw@jwfirm.com wh@jwfirm.com 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: (512) 542-8400 Fax: (512) 236-3476 Wi-LAN@velaw.com Chuck P. Ebertin California Bar No. 161374 VINSON & ELKINS LLP 525 University Avenue, Suite 410 Palo Alto, CA 94301-1918 Tel: (650) 687-8204 Fax: (650) 618-8508 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 1054678v.1

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