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

Filing 161

RESPONSE to 153 Response to Non-Motion WI-LAN INC.S REPLY TO DEFENDANT SONY ERICSSON MOBILE COMMUNICATIONS (USA) INC.S SECOND AMENDED ANSWER AND COUNTERCLAIMS by WI-LAN Inc.. (Fedock, John)

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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 SECOND AMENDED ANSWER AND COUNTERCLAIMS Plaintiff Wi-LAN, Inc. (“Wi-LAN”) hereby replies to the numbered paragraphs of the Second Amended Counterclaims (“SEUS’s 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 lacks sufficient information or knowledge to either admit or deny the allegations contained in paragraph 1 of SEUS’s Counterclaims, and therefore denies the same. 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. US 1267274v.1 3. Wi-LAN admits that this Court has subject-matter jurisdiction over SEUS’s Counterclaims. BREACH OF CONTRACT 4. Wi-LAN admits that it sent a letter to SEUS offering to license the patents that were owned by Wi-LAN at that time. Wi-LAN further denies the remainder of the allegations as stated in Paragraph 4 of SEUS’s Counterclaims. 5. Wi-LAN admits that Wi-LAN and SEUS entered into a Patent and Conflict Resolution Agreement (“CRA”) that has an effective date of November 1, 2007. Wi-LAN 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 in Paragraph 7 of SEUS’s Counterclaims. 8. Wi-LAN admits the allegations in Paragraph 8 of SEUS’s Counterclaims. 9. Wi-LAN admits the first two sentences of Paragraph 9 of SEUS’s Counterclaims. Wi-LAN also admits that the Sony Ericsson produts Vivaz, Xperia X10, Equinox, W518a, Satio, Xperia X2a, Xperia Pureness, Aino, and Naite comply with specifications for HSPA in 3GPP Release 5. Wi-LAN denies the remaining allegations of Paragraph 9 of SEUS’s Counterclaims. 10. Wi-LAN admits that all of the currently accused products incorporate HSPA technology. Wi-LAN denies the remaining allegations in Paragraph 10 of SEUS’s Counterclaims. 11. Wi-LAN lacks sufficient information or knowledge to either admit or deny the first sentence of Paragraph 11 of SEUS’s Counterclaims, and therefore denies the same. WiLAN admits that it has previously asserted that certain wireless devices complying with the IEEE 802.11a and 802.11g standards fall within the scope of U.S. Patent Nos. 5,282,222 and RE37802, neither of which has been asserted in this case or is related to any patents that have been asserted 2 US 1267274v.1 in this case. Wi-LAN denies the remaining allegations of Paragraph 11 of SEUS’s Counterclaims. 12. Wi-LAN denies the allegations contained in Paragraph 12 of SEUS’s Counterclaims. 13. Wi-LAN denies the allegations contained in Paragraph 13 of SEUS’s Counterclaims. 14. Wi-LAN denies the allegations contained in Paragraph 14 of SEUS’s Counterclaims. NON-INFRINGEMENT AND INVALIDITY OF THE ’819 PATENT 15. Wi-LAN admits the allegations of Paragraph 15 of SEUS’s Counterclaims. 16. Wi-LAN admits the allegations of Paragraph 16 of SEUS’s Counterclaims. 17. Wi-LAN denies the allegations of Paragraph 17 of SEUS’s Counterclaims. 18. Wi-LAN denies the allegations of Paragraph 18 of SEUS’s Counterclaims. NON-INFRINGEMENT AND INVALIDITY OF THE ’211 PATENT 19. Wi-LAN admits the allegations of Paragraph 19 of SEUS’s Counterclaims. 20. Wi-LAN admits the allegations of Paragraph 20 of SEUS’s Counterclaims. 21. Wi-LAN denies the allegations of Paragraph 21 of SEUS’s Counterclaims. 22. Wi-LAN denies the allegations of Paragraph 22 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’ Counterclaims; 3 US 1267274v.1 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’ 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. 4 US 1267274v.1 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: (903) 757-6400 Fax: (903-757-2323 jw@jwfirm.com wh@jwfirm.com 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: (512) 542-8400 dweaver@velaw.com jfedock@velaw.com jdirba@velaw.com jhan@velaw.com sfareed@velaw.com Charles P. Ebertin VINSON & ELKINS LLP 525 University Avenue, Suite 410 Palo Alto, CA 94301-1918 Tel: (650) 617-8400 cebertin@velaw.com Attorneys for Plaintiff, Wi-LAN Inc. 5 US 1267274v.1 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 6 US 1267274v.1

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