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

Filing 56

Plaintiff's ANSWER to 51 Answer to Complaint, Counterclaim of of Defendant Sony Ericsson Mobile Communications (USA) Inc. by WI-LAN Inc..(Hill, Jack)

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 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. counterclaims. BREACH OF CONTRACT 4. Wi-LAN admits Wi-LAN and SEUS executed a Patent and Conflict Resolution Wi-LAN admits the Court has subject-matter jurisdiction over SEUS's

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 admits SEUS paid to Wi-LAN $100,000 pursuant to the Patent and

Conflict Resolution Agreement, but denies the remaining 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. 9. 10. 11. Wi-LAN admits the allegations of paragraph 8 of SEUS's Counterclaims. Wi-LAN admits the allegations of paragraph 9 of SEUS's Counterclaims. Wi-LAN denies the allegations of paragraph 10 of SEUS's Counterclaims. Wi-LAN denies the allegations of paragraph 11 of SEUS's Counterclaims. NON-INFRINGEMENT AND INVALIDITY OF THE '211 PATENT 12. 13. 14. Wi-LAN admits the allegations of paragraph 12 of SEUS's Counterclaims. Wi-LAN admits the allegations of paragraph 13 of SEUS's Counterclaims. 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. B. An order dismissing with prejudice SEUS's Counterclaims; 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. D. SEUS's prayer for attorney's fees and costs be denied; 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: December 22, 2010

Respectfully submitted, By: /s/ David B. Weaver (by permission Wesley Hill) 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 Juliet M. Dirba Texas State Bar No. 24051063 David D. Hornberger Texas State Bar No. 24055686 VINSON & ELKINS LLP 2801 Via Fortuna, Suite 100 Austin, TX 78746 Tel: [phone] Fax: [phone] [e-mail] [e-mail] Chuck P. Ebertin California State Bar No. 161374 VINSON & ELKINS LLP 525 University Avenue, Suite 410 Palo Alto, CA 94301-1918 Tel: [phone] Fax: [phone] [e-mail] 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 22nd day of December, 2010.

/s/ Wesley Hill Wesley Hill

US 672231v.1