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

Filing 159

RESPONSE to 152 Response to Non-Motion WI-LAN INC.S REPLY TO DEFENDANT TELEFONAKTIEBOLAGET LM ERICSSONS SECOND AMENDED ANSWER AND COUNTERCLAIMS by WI-LAN Inc.. (Fedock, John)

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 SECOND AMENDED ANSWER AND COUNTERCLAIMS
Plaintiff Wi-LAN, Inc. (“Wi-LAN”) hereby replies to the numbered paragraphs of the
Second Amended Counterclaims (“LME’s 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.

Upon information and belief, 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.

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3.

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

Counterclaims.
BREACH OF CONTRACT
4.

Wi-LAN admits that it sent a letter dated October 30, 2006 to LME offering to

license the patents that were owned by Wi-LAN at that time. Wi-LAN denies the remainder of
the allegations as stated in Paragraph 4 of LME’s Counterclaims.
5.

Wi-LAN admits that Wi-LAN and LME entered into a Patent and Conflict

Resolution Agreement (“CRA”). Wi-LAN denies the remaining allegations of Paragraph 5 of
LME’s Counterclaims.
6.

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

7.

Wi-LAN admits the allegations in Paragraph 7 of LME’s Counterclaims.

8.

Wi-LAN admits the first two sentences of Paragraph 8 of LME’s Counterclaims.

Wi-LAN also admits that the Ericsson products RBS-3000, RBS-6000, W30 and W35 comply
with specifications for HSPA in 3GPP Release 5. Wi-LAN denies the remaining allegations of
Paragraph 8 of LME’s Counterclaims.
9.

Wi-LAN admits that all of the currently accused products incorporate HSPA

technology. Wi-LAN denies the remaining allegations in Paragraph 9 of LME’s Counterclaims.
10.

Wi-LAN admits the allegations of Paragraph 10 of LME’s Counterclaims.

11.

Wi-LAN denies the allegations in Paragraph 11 of LME’s Counterclaims.

12.

Wi-LAN denies the allegations in Paragraph 12 of LME’s Counterclaims.

13.

Wi-LAN denies the allegations in Paragraph 13 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’326 PATENT

14.

Wi-LAN admits the allegations of Paragraph 14 of LME’s Counterclaims.

15.

Wi-LAN admits the allegations of Paragraph 15 of LME’s Counterclaims.
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16.

Wi-LAN denies the allegations of Paragraph 16 of LME’s Counterclaims.

17.

Wi-LAN denies the allegations of Paragraph 17 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’327 PATENT

18.

Wi-LAN admits the allegations of Paragraph 18 of LME’s Counterclaims.

19.

Wi-LAN admits the allegations of Paragraph 19 of LME’s Counterclaims.

20.

Wi-LAN denies the allegations of Paragraph 20 of LME’s Counterclaims.

21.

Wi-LAN denies the allegations of Paragraph 21 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’819 PATENT

22.

Wi-LAN admits the allegations of Paragraph 22 of LME’s Counterclaims.

23.

Wi-LAN admits the allegations of Paragraph 23 of LME’s Counterclaims.

24.

Wi-LAN denies the allegations of Paragraph 23 of LME’s Counterclaims.

25.

Wi-LAN denies the allegations of Paragraph 25 of LME’s Counterclaims.
NON-INFRINGEMENT AND INVALIDITY OF THE ’211 PATENT

26.

Wi-LAN admits the allegations of Paragraph 26 of LME’s Counterclaims.

27.

Wi-LAN denies the allegations of Paragraph 27 of LME’s Counterclaims.

28.

Wi-LAN is without sufficient information to admit or deny the allegations in

Paragraph 28 of LME’s Counterclaims, and therefore denies the same.
29.

Wi-LAN denies the allegations of Paragraph 29 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 LME’s 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;
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B.

An order finding Wi-LAN has not breached the Patent and Conflict

Resolution agreement executed by LME and Wi-LAN, or in the alternative finding 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.

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Dated: February 23, 2012

Respectfully submitted,
By:

/s/ John A. Fedock
Johnny Ward
Texas State Bar No. 00794818
Wesley Hill
Texas State Bar No. 24032294
WARD & SMITH LAW FIRM
111 W. Tyler Street
Longview, TX 75601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David B. Weaver – LEAD ATTORNEY
Texas State Bar No. 00798576
John A. Fedock
Texas State Bar No. 24059737
Juliet M. Dirba
Texas State Bar No. 24051063
Jeffrey T. Han
Texas State Bar No. 24069870
Syed K. Fareed
Texas State Bar No. 24065216
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Charles P. Ebertin
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]
[e-mail]
Attorneys for Plaintiff, Wi-LAN Inc.

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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 23rd day of February, 2012.

/s/ John A. Fedock
John A. Fedock

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