Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 1 of 26
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`CIVIL ACTION NO. 1:17-CV-02097
`
`
`PATENT CASE
`JURY TRIAL DEMANDED
`
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`
`
`v.
`
`SLING TV L.L.C.,
`SLING MEDIA L.L.C.,
`DISH TECHNOLOGIES L.L.C.,
`DISH NETWORK L.L.C., AND
`ARRIS GROUP, INC.,
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`
`
`DEFENDANTS DISH TECHNOLOGIES L.L.C. AND DISH NETWORK L.L.C.’S
`ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND JURY DEMAND
`TO PLAINTIFF REALTIME ADAPTIVE STREAMING L.L.C.’S
`SECOND AMENDED COMPLAINT
`
`
`Defendants DISH Technologies L.L.C. and DISH Network L.L.C. (collectively, the
`
`“DISH Entities”) by and through their undersigned counsel, hereby file this Amended
`
`Answer, Affirmative Defenses, and Counterclaims to the Second Amended Complaint for
`
`Patent Infringement (the “Second Amended Complaint,” Dkt. No. 32) of Plaintiff Realtime
`
`Adaptive Streaming L.L.C. (“Realtime”), on personal knowledge as to their own activities
`
`and on information and belief as to the activities of others.1 The DISH Entities deny each
`
`
`
` 1
`
` The Amended Complaint refers to EchoStar Technologies L.L.C. among other entities.
`However, in a Joint Stipulated Motion to Amend the Caption (the “Joint Motion,” Dkt. No.
`66) the parties stipulated that on February 2, 2018, Defendant, EchoStar Technologies
`
`
`
`
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`CIVIL ACTION NO. 1:17-CV-02097
`
`
`PATENT CASE
`JURY TRIAL DEMANDED
`
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`
`
`v.
`
`SLING TV L.L.C.,
`SLING MEDIA L.L.C.,
`DISH TECHNOLOGIES L.L.C.,
`DISH NETWORK L.L.C., AND
`ARRIS GROUP, INC.,
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`
`
`DEFENDANTS DISH TECHNOLOGIES L.L.C. AND DISH NETWORK L.L.C.’S
`ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND JURY DEMAND
`TO PLAINTIFF REALTIME ADAPTIVE STREAMING L.L.C.’S
`SECOND AMENDED COMPLAINT
`
`
`Defendants DISH Technologies L.L.C. and DISH Network L.L.C. (collectively, the
`
`“DISH Entities”) by and through their undersigned counsel, hereby file this Amended
`
`Answer, Affirmative Defenses, and Counterclaims to the Second Amended Complaint for
`
`Patent Infringement (the “Second Amended Complaint,” Dkt. No. 32) of Plaintiff Realtime
`
`Adaptive Streaming L.L.C. (“Realtime”), on personal knowledge as to their own activities
`
`and on information and belief as to the activities of others.1 The DISH Entities deny each
`
`
`
` 1
`
` The Amended Complaint refers to EchoStar Technologies L.L.C. among other entities.
`However, in a Joint Stipulated Motion to Amend the Caption (the “Joint Motion,” Dkt. No.
`66) the parties stipulated that on February 2, 2018, Defendant, EchoStar Technologies
`
`
`
`
`
`1
`
`
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 2 of 26
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`and every allegation in the Second Amended Complaint, unless expressly admitted
`
`herein.
`
`PARTIES
`
`1.
`
`The DISH Entities lack knowledge or information sufficient to form a belief
`
`as to the truth of the allegations in Paragraph 1 of the Second Amended Complaint, and
`
`therefore deny all such allegations.
`
`2.
`
`Sling TV L.L.C. (“Sling TV”) is distinct from the DISH Entities. However, the
`
`DISH Entities incorporate by reference Sling TV and Sling Media L.L.C.’s (“Sling Media,”
`
`collectively, the “Sling Entities”) response to Paragraph 2 of Defendants Sling TV L.L.C.
`
`and Sling Media L.L.C.’s Answer, Affirmative Defenses, Counterclaims, and Jury Demand
`
`(the “Sling Entities’ Answer,” Dkt. No. 42). The DISH Entities deny any remaining
`
`allegations set forth in Paragraph 2 of the Second Amended Complaint.
`
`3.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 3 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 3 of
`
`the Second Amended Complaint.
`
`4.
`
`DISH Technologies L.L.C. (“DISH Technologies”) admits that it is a limited
`
`liability company organized under the laws of the State of Colorado with a principle office
`
`at 9601 S. Meridian Blvd., Englewood, CO 80112. DISH Technologies admits that it can
`
`
`
`L.L.C., a Texas Limited Liability Company, was converted to DISH Technologies L.L.C.,
`a Colorado Limited Liability Company, and agreed to amend the caption accordingly.
`Therefore, all references to EchoStar Technologies L.L.C. in the Amended Complaint will
`be substituted with DISH Technologies L.L.C. in this Answer.
`
`
`
`
`
`2
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`
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 3 of 26
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`be served through its registered agent, Timothy A. Messner, 9601 S. Meridian Blvd.,
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`Englewood, CO 80112. DISH Technologies further admits that it is an indirect subsidiary
`
`of DISH Network L.L.C. and that it designs the set-top boxes used to deliver the DISH TV
`
`service. DISH Technologies denies any remaining allegations set forth in Paragraph 4 of
`
`the Second Amended Complaint.
`
`5.
`
`DISH Network L.L.C. (“DISH Network”) admits that it is a limited liability
`
`company organized under the laws of the State of Colorado with a principle office at 9601
`
`S. Meridian Blvd., Englewood, CO 80112. DISH Network admits that it can be served
`
`through its registered agent, Timothy A. Messner, 9601 S. Meridian Blvd., Englewood,
`
`CO 80112. DISH Network denies any remaining allegations set forth in Paragraph 5 of
`
`the Second Amended Complaint.
`
`6.
`
`ARRIS Group, Inc. (“ARRIS”) is distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 6 of the Second Amended Complaint, and therefore deny all
`
`such allegations.
`
`7.
`
`Paragraph 7 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent any response is deemed to be
`
`required however, the DISH Entities deny the allegations of paragraph 7 of the Second
`
`Amended Complaint.
`
`8.
`
`Sling Media and ARRIS Group are distinct from the DISH Entities. However,
`
`the DISH Entities incorporate by reference the Sling Entities' response in Paragraph 8 of
`
`
`
`
`
`3
`
`
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 4 of 26
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`the Sling Entities' Answer. The DISH Entities deny any remaining allegations set forth in
`
`Paragraph 8 of the Second Amended Complaint.
`
`JURISDICTION AND VENUE
`
`9.
`
`The DISH Entities admit that the Second Amended Complaint is styled as
`
`an action for patent infringement arising under the Patent Laws of the United States, Title
`
`35 of the United States Code. Paragraph 9 of Second Amended Complaint sets forth
`
`conclusions of law to which no response is required. To the extent any response is
`
`deemed to be required, however, the DISH Entities further admit that the Second
`
`Amended Complaint purports to assert that subject matter jurisdiction exists over such
`
`claims under 28 U.S.C. § 1331 and § 1338(a). The DISH Entities deny any remaining
`
`allegations in Paragraph 9 of the Second Amended Complaint.
`
`10.
`
`Paragraph 10 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`Sling TV is distinct from the DISH Entities and the DISH Entities incorporate by reference
`
`the Sling Entities' response in Paragraph 10 of the Sling Entities' Answer. The DISH
`
`Entities deny any remaining allegations set forth in Paragraph 10 of the Second Amended
`
`Complaint.
`
`11.
`
`Paragraph 11 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`Sling Media is distinct from the DISH Entities and the DISH Entities incorporate by
`
`reference the Sling Entities' response in Paragraph 11 of the Sling Entities' Answer. The
`
`
`
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`4
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`DISH Entities deny any remaining allegations set forth in Paragraph 11 of the Second
`
`Amended Complaint.
`
`12.
`
`Paragraph 12 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`DISH Technologies denies any remaining allegations in Paragraph 12 of the Second
`
`Amended Complaint.
`
`13.
`
`Paragraph 13 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`DISH Network denies any remaining allegations in Paragraph 13 of the Second Amended
`
`Complaint.
`
`14.
`
`Paragraph 14 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`ARRIS is distinct from the DISH Entities, and the DISH Entities lack knowledge or
`
`information sufficient to form a belief as to the truth of the allegations in Paragraph 14 of
`
`the Second Amended Complaint and therefore deny all such allegations.
`
`15.
`
`Paragraph 15 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent that a response is required, however,
`
`the DISH Entities admit that they directly and/or through intermediaries offer to sell and/or
`
`sell products in the District of Colorado. ARRIS and the Sling Entities are distinct from
`
`the DISH Entities. However, with respect to the Sling Entities, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 15 of the Sling Entities’
`
`Answer. The DISH Entities lack knowledge or information sufficient to form a belief as to
`
`
`
`
`
`5
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 6 of 26
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`the remaining allegations of Paragraph 15 of the Second Amended Complaint, and
`
`therefore deny all such allegations. The DISH Entities deny the remaining allegations of
`
`Paragraph 15.
`
`16.
`
`Paragraph 16 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. The DISH Entities admit that they are limited liability
`
`corporations organized under the laws of Colorado and that they have regular and
`
`established places of business in this District. ARRIS and the Sling Entities are distinct
`
`from the DISH Entities. However, with respect to the Sling Entities, the DISH Entities
`
`incorporate by reference the Sling Entities' response in Paragraph 16 of the Sling Entities'
`
`Answer. The DISH Entities lack knowledge or information sufficient to form a belief as to
`
`the remaining allegations of Paragraph 16 of the Second Amended Complaint, and
`
`therefore deny all such allegations. The DISH Entities deny the remaining allegations of
`
`Paragraph 16.
`
`ASSERTED PATENTS
`
`17.
`
`The DISH Entities admit that the Second Amended Complaint purports to
`
`assert U.S. Patent Nos. 8,867,610 (“the ’610 Patent”) and 8,934,535 (“the ’535 Patent”),
`
`(collectively, “the Asserted Patents”).
`
`18.
`
`The DISH Entities lack knowledge or information sufficient to form a belief
`
`as to the truth of the allegations in Paragraph 18 of the Second Amended Complaint, and
`
`therefore denies all such allegations.
`
`
`
`
`
`
`
`
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`6
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 7 of 26
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`RESPONSE TO COUNT I
`
`[ALLEGED] INFRINGEMENT OF U.S. PATENT NO. 8,867,610
`
`19.
`
`The DISH Entities repeat and incorporate by reference the foregoing
`
`paragraphs, as if fully set forth herein.
`
`20.
`
`The DISH Entities admit that a purported copy of United States Patent No.
`
`8,867,610 is attached to the Second Amended Complaint as Exhibit A, which lists the
`
`patent title as “System and Methods for Video and Audio Data Distribution,” and lists the
`
`patent as being issued on October 21, 2014. The DISH Entities lack knowledge or
`
`information sufficient to form a belief as to the remaining allegations of Paragraph 20 of
`
`the Second Amended Complaint, and therefore denies all such allegations.
`
`21.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 21 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 21 of
`
`the Second Amended Complaint.
`
`22.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities' response in Paragraph 22 of the Sling Entities'
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 22 of
`
`the Second Amended Complaint.
`
`23.
`
`24.
`
`Denied.
`
`ARRIS is distinct from the DISH Entities. The DISH Entities lack knowledge
`
`or information sufficient to form a belief as to the truth of the allegations in Paragraph 24
`
`of the Second Amended Complaint and therefore deny all such allegations.
`
`
`
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`7
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 8 of 26
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`25.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. However,
`
`with respect to the Sling Entities, the DISH Entities incorporate by reference the Sling
`
`Entities' response in Paragraph 25 of the Sling Entities' Answer. The DISH Entities lack
`
`knowledge or information sufficient to form a belief as to the remaining allegations of
`
`Paragraph 25 of the Second Amended Complaint, and therefore deny all such allegations.
`
`The DISH Entities deny the remaining allegations of Paragraph 25.
`
`26.
`
`27.
`
`Denied.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 27 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 27 of
`
`the Second Amended Complaint.
`
`28.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 28 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 28 of
`
`the Second Amended Complaint.
`
`29.
`
`30.
`
`Denied.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 30 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 30 of
`
`the Second Amended Complaint.
`
`31.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 31 of the Sling Entities’
`
`
`
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`8
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`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 31 of
`
`the Second Amended Complaint.
`
`32.
`
`33.
`
`34.
`
`Denied.
`
`Denied.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 34 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities’ response in Paragraph 34 of the Sling Entities’ Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 34.
`
`35.
`
`36.
`
`Denied.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 36 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 36 of the Sling Entities' Answer. The DISH Entities
`
`admit that they had knowledge of the ’610 patent since at least the filing of this Second
`
`Amended Complaint or shortly thereafter. The DISH Entities deny the remaining
`
`allegations of Paragraph 36.
`
`37.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 37 of the Second Amended Complaint with respect to ARRIS
`
`
`
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`9
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 10 of 26
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`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 37 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 37.
`
`38.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 38 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 38 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 38.
`
`39.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 39 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 39 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 39.
`
`RESPONSE TO COUNT II
`
`[ALLEGED] INFRINGEMENT OF U.S. PATENT NO. 8,934,535
`
`40.
`
`The DISH Entities repeat and incorporate by reference the foregoing
`
`paragraphs, as if fully set forth herein.
`
`41.
`
`The DISH Entities admit that a purported copy of United States Patent No.
`
`8,934,535 is attached to the Second Amended Complaint as Exhibit B, which lists the
`
`patent title as “Systems and Methods for Video and Audio Data Storage and Distribution,”
`
`
`
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`10
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 11 of 26
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`and lists the patent as being issued on January 13, 2015. The Dish Entities lack sufficient
`
`information to form a belief as to the truth of the remaining allegations of Paragraph 41 of
`
`the Second Amended Complaint, and therefore deny all such allegations.
`
`42.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 42 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 42 of
`
`the Second Amended Complaint.
`
`43.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 43 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 43 of
`
`the Second Amended Complaint.
`
`44.
`
`45.
`
`Denied.
`
`ARRIS is distinct from the DISH Entities. The DISH Entities lack knowledge
`
`or information sufficient to form a belief as to the truth of the allegations in Paragraph 45
`
`of the Second Amended Complaint and therefore deny all such allegations.
`
`46.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 46 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 46 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 46.
`
`47.
`
`Denied.
`
`
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`48.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 48 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 48 of
`
`the Second Amended Complaint.
`
`49.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 49 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 49 of
`
`the Second Amended Complaint.
`
`50.
`
`51.
`
`52.
`
`Denied.
`
`Denied.
`
`Sling TV is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 52 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 52 of
`
`the Second Amended Complaint.
`
`53.
`
`Sling Media is distinct from the DISH Entities. However, the DISH Entities
`
`incorporate by reference the Sling Entities’ response in Paragraph 53 of the Sling Entities’
`
`Answer. The DISH Entities deny any remaining allegations set forth in Paragraph 53 of
`
`the Second Amended Complaint.
`
`54.
`
`55.
`
`56.
`
`Denied.
`
`Denied.
`
`Denied.
`
`
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`57.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 57 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 57 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 57.
`
`58.
`
`59.
`
`Denied.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 59 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 59 of the Sling Entities' Answer. The DISH Entities
`
`admit that they had knowledge of the ’535 patent since at least the filing of this Second
`
`Amended Complaint or shortly thereafter. The DISH Entities deny the remaining
`
`allegations of Paragraph 59.
`
`60.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 60 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 60 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 60.
`
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`13
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`61.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
`
`Entities lack knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 61 of the Second Amended Complaint with respect to ARRIS
`
`and therefore deny all such allegations. The DISH Entities incorporate by reference the
`
`Sling Entities' response in Paragraph 61 of the Sling Entities' Answer. The DISH Entities
`
`deny the remaining allegations of Paragraph 61.
`
`62.
`
`ARRIS and the Sling Entities are distinct from the DISH Entities. The DISH
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`Entities lack knowledge or information sufficient to form a belief as to the truth of the
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`allegations in Paragraph 62 of the Second Amended Complaint with respect to ARRIS
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`and therefore deny all such allegations. The DISH Entities incorporate by reference the
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`Sling Entities' response in Paragraph 62 of the Sling Entities' Answer. The DISH Entities
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`deny the remaining allegations of Paragraph 62.
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`RESPONSE TO PRAYER FOR RELIEF
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`The DISH Entities deny the underlying allegations of Realtime’s Prayer for Relief,
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`deny that Realtime is entitled to any relief whatsoever, and requests that the Court deny
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`all relief to Realtime, enter judgment in favor of the DISH Entities, and award the DISH
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`Entities their attorneys’ fees as the prevailing party in the action.
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`[REALTIME’S] DEMAND FOR JURY TRIAL
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`The DISH Entities are not required to provide a response to Realtime’s request for
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`a trial by jury.
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`14
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 15 of 26
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`GENERAL DENIALS
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`The DISH Entities deny all allegations in the Second Amended Complaint not
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`specifically admitted above.
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`AFFIRMATIVE AND OTHER DEFENSES
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`The DISH Entities’ Affirmative Defenses are listed below. The DISH Entities
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`reserve the right to amend this Answer to add additional Affirmative Defenses, including
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`allegations of inequitable conduct, and/or any other defenses currently unknown to the
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`DISH Entities, as they become known throughout the course of discovery in this action.
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`Assertion of a defense is not a concession that the DISH Entities have the burden of
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`proving the matter asserted.
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`FIRST AFFIRMATIVE DEFENSE
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`(Failure to State a Claim)
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`Realtime has failed to state a claim on which relief can be granted because the
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`DISH Entities have not performed and are not performing any act in violation of any right
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`validly belonging to Realtime. Realtime has failed to state a claim on which relief can be
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`granted regarding, but without limitation to, willful infringement and pre-suit indirect
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`infringement.
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`SECOND AFFIRMATIVE DEFENSE
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`(Invalidity)
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`The claims of the ʼ610 Patent and the ʼ535 Patent are invalid and/or unenforceable
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`for failing to meet one or more of the requisite statutory and decisional requirements
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`and/or conditions for patentability specified in 35 U.S.C. §§ 101, 102, 103, 112, and/or
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`15
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 16 of 26
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`116, the non-statutory doctrine of double patenting, and the rules, regulations, and laws
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`pertaining thereto. For example, to the extent that Realtime alleges that H.264 infringes
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`claims of the ʼ610 Patent and the ʼ535 Patent, those claims are invalid over prior art video
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`compression standards such as H.262 (MPEG-2 Part 2) and H.263.
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`THIRD AFFIRMATIVE DEFENSE
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`(Limitation on Damages)
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`Realtime’s right to seek damages and other remedies from the DISH Entities is
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`limited by 35 U.S.C. §§ 285, 286, 287, and/or 288, and may additionally be limited by 28
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`U.S.C. § 1498. For example, on information and belief, Realtime and its licensees failed
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`to provide notice under the marking requirements of 35 U.S.C. § 287 and Realtime may
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`not obtain damages for the period of time prior to the operative Complaint.
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`FOURTH AFFIRMATIVE DEFENSE
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`(Laches, Prosecution Laches, Waiver, Estoppel, Unclean Hands)
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`Realtime’s claims for relief are barred, in whole or in part, under principles of equity
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`including, but not limited to, laches, prosecution laches, waiver, estoppel, and/or unclean
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`hands. For example, Realtime knew that asymmetric encoders, such as Lempel-Ziv,
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`were well-known in the prior art at the time it prosecuted the Asserted Patents. Realtime
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`failed to notify the USPTO that asymmetric encoders were not novel and thus failed to
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`act with appropriate candor before the USPTO.
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`16
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 17 of 26
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`FIFTH AFFIRMATIVE DEFENSE
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`(Prosecution History Estoppel)
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`To the extent that Realtime alleges infringement under the doctrine of equivalents,
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`Realtime’s alleged cause of action is barred, including, without limitation, by way of
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`example, under the doctrine of prosecution history estoppel, claim vitiation, and/or
`
`recapture. By virtue of statements made, amendments made, and/or positions taken
`
`during the prosecution of the applications for the ʼ610 Patent and the ʼ535 Patent, and
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`any application to which these patents claim priority, and in view of any statements made,
`
`amendments made and/or positions that Realtime has taken or will take before the U.S.
`
`Patent and Trademark Office during, for example, reexamination or inter partes review,
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`Realtime is estopped from asserting that the ʼ610 Patent and the ʼ535 Patent cover or
`
`include any of the accused products or services of the DISH Entities.
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`SIXTH AFFIRMATIVE DEFENSE
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`
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`(Lack of Knowledge)
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`
`
`To the extent that Realtime asserts that the DISH Entities indirectly infringe, either
`
`by contributory infringement or inducement of infringement, the DISH Entities are not
`
`liable for the acts taking place before the DISH Entities knew that their actions would
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`allegedly cause infringement. Any and all products or actions accused of infringement
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`have substantial uses that do not infringe and do not induce or contribute to the alleged
`
`infringement of the claims of the ʼ610 Patent and the ʼ535 Patent.
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`17
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 18 of 26
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`SEVENTH AFFIRMATIVE DEFENSE
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`(Lack of Control)
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`Realtime’s claims for relief are barred because Realtime’s injuries, if any, were not
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`caused by the DISH Entities, and the DISH Entities are not liable for the acts of others
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`over whom they have no control.
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`EIGHTH AFFIRMATIVE DEFENSE
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`(License, Exhaustion, Single Recovery, Intervening Rights)
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`Realtime’s claims for relief are barred by the doctrines of express or implied
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`license, patent exhaustion, the single recovery rule, and/or intervening rights.
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`NINTH AFFIRMATIVE DEFENSE
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`(No Willful Infringement)
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`Realtime has failed to set forth sufficient factual allegations in its Second Amended
`
`Complaint to support an allegation of willful infringement. There are not sufficient well
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`pleaded facts in the Second Amended Complaint to give rise to a plausible inference that
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`the DISH Entities acted—or will in the future act—recklessly despite an objectively high
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`risk of infringement. A solitary request for treble damages under 35 U.S.C. § 284 in the
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`Prayer for Relief is insufficient to give rise to a plausible claim of willful infringement.
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`TENTH AFFIRMATIVE DEFENSE
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`(No Pre-Suit Indirect Infringement)
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`Realtime has failed to set forth sufficient factual allegations in its Second Amended
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`Complaint to support an allegation of pre-suit indirect infringement. Realtime has not
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`provided any factual basis for such a claim, and instead solely alleges knowledge of the
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`18
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 19 of 26
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`patents at least as of the time of filing of the Original Complaint. The Second Amended
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`Complaint solely alleges post-suit knowledge of the asserted patents.
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`RESERVATION OF RIGHTS
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`The DISH Entities reserve all affirmative defenses available under Rule 8(c) of the
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`Federal Rules of Civil Procedure, the patent laws of the United States, and all other
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`defenses, at law or in equity, that may now exist or in the future be available based on
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`discovery and further investigation of the case.
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`THE DISH ENTITIES’ COUNTERCLAIMS
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`Counterclaim-Plaintiffs, the DISH Entities, on personal knowledge as to their own
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`acts, and on information and belief as to all others, based on its own investigation, allege
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`Counterclaims against Realtime as follows:
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`PARTIES
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`1.
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`DISH Technologies is a limited liability company with a principle office at
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`9601 S. Meridian Blvd., Englewood, CO 80112. DISH Technologies can be served
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`through its registered agent, Timothy A. Messner, 9601 S. Meridian Blvd., Englewood,
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`CO 80112.
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`2.
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`DISH Network is a limited liability company with a principle office at 9601 S.
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`Meridian Blvd., Englewood, CO 80112. DISH can be served through its registered agent,
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`Timothy A. Messner, 9601 S. Meridian Blvd., Englewood, CO 80112.
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`3.
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`On information and belief based solely on Paragraph 1 of the Second
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`Amended Complaint, Realtime is a New York limited liability company organized and
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`existing under the laws of the State of New York. Realtime purports to have places of
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`19
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`Case 1:17-cv-02097-RBJ Document 84 Filed 03/21/18 USDC Colorado Page 20 of 26
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`business at 1828 E.S.E. Loop 323, Tyler, Texas 75701 and 66 Palmer Avenue, Suite 27,
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`Bronxville, NY 10708.
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`4.
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`On information and belief, Realtime’s registered agent is Richard G.
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`Tashjian, 729 Seventh Ave., 14th Floor, NY, New York 10019.
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`JURISDICTION AND VENUE
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`5.
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`The jurisdiction of this Court is proper under 28 U.S.C. §§ 1331, 1338, 2201,
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`and/or 2202.
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`6.
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`These counterclaims arise under the Federal Declaratory Judgment Act, 28
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`U.S.C. § 2201, et seq., and the Patent Act of the United States, 35 U.S.C. § 101, et seq.
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`An actual controversy exists under the Declaratory Judgment Act because Realtime’s
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`Second Amended Complaint alleges that the DISH Entities infringe U.S. Patent Nos.
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`8,867,610 (“the ’610 Patent”) and 8,934,535 (“the ’535 Patent”), which the DISH Entities
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`deny.
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`7.
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`This Court has personal jurisdiction over Realtime because it filed the
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`Second Amended Complaint in this Court.
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`8.
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`For purposes of these counterclaims, venue is appropriate in this District
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`under 28 U.S.C. §§ 1391 and/or 1400(b), at least based on Realtime’s filing of this action
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`in this District.
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`FIRST COUNTERCLAIM
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`DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ʼ610 PATENT
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`9.
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`The DISH Entities restate and incorporate by reference the entirety of the
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`foregoing paragraphs, as if fully set forth herein.
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`20
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`Case 1:17-cv-02097-RBJ Document 84
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