Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`Civil Action No. 1:17-cv-02097
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`Plaintiff,
`
`v.
`
`SLING TV L.L.C.,
`SLING MEDIA, INC.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES, L.L.C.,
`DISH NETWORK L.L.C., and
`ARRIS GROUP, INC.,
`
`
`Defendants.
`
`
`
`DEFENDANT ARRIS GROUP, INC.’S ANSWER AND AFFIRMATIVE
`DEFENSES TO PLAINTIFF REALTIME ADAPTIVE STREAMING, L.L.C.’S
`SECOND AMENDED COMPLAINT
`
`
`Defendant ARRIS Group, Inc. (“ARRIS”), by and through its undersigned
`
`counsel, hereby answers the Second Amended Complaint for Patent Infringement (the
`
`“Second Amended Complaint,” Dkt. No. 13) of Plaintiff, Realtime Adaptive Streaming,
`
`LLC (“Realtime”), on personal knowledge as to its own activities and on information and
`
`belief as to the activities of others. ARRIS denies each and every allegation in the
`
`Second Amended Complaint, unless expressly admitted herein.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`Civil Action No. 1:17-cv-02097
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`Plaintiff,
`
`v.
`
`SLING TV L.L.C.,
`SLING MEDIA, INC.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES, L.L.C.,
`DISH NETWORK L.L.C., and
`ARRIS GROUP, INC.,
`
`
`Defendants.
`
`
`
`DEFENDANT ARRIS GROUP, INC.’S ANSWER AND AFFIRMATIVE
`DEFENSES TO PLAINTIFF REALTIME ADAPTIVE STREAMING, L.L.C.’S
`SECOND AMENDED COMPLAINT
`
`
`Defendant ARRIS Group, Inc. (“ARRIS”), by and through its undersigned
`
`counsel, hereby answers the Second Amended Complaint for Patent Infringement (the
`
`“Second Amended Complaint,” Dkt. No. 13) of Plaintiff, Realtime Adaptive Streaming,
`
`LLC (“Realtime”), on personal knowledge as to its own activities and on information and
`
`belief as to the activities of others. ARRIS denies each and every allegation in the
`
`Second Amended Complaint, unless expressly admitted herein.
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 2 of 18
`
`PARTIES
`
`
`
`ARRIS lacks 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
`
`denies all such allegations.
`
`
`
`Sling TV LLC is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 2 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
`
`
`Sling Media Inc. is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 3 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
`
`
`EchoStar Technologies, LLC is an entity unrelated to ARRIS. As such,
`
`ARRIS lacks knowledge or information sufficient to form a belief as to the truth of the
`
`allegations in Paragraph 4 of the Second Amended Complaint, and therefore denies all
`
`such allegations.
`
`
`
`DISH Network LLC is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 5 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
`
`
`ARRIS admits that it is a Delaware corporation with its principal office at
`
`3871 Lakefield Drive, Suwanee, GA, 30024. ARRIS admits that it can be served
`
`- 2 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 3 of 18
`
`through its registered agent, Corporation Service Company, 40 Technology Pkwy
`
`South, #300, Norcross, GA 30092. ARRIS denies the remaining allegations of
`
`paragraph 4 of the Second Amended Complaint.
`
`
`
`ARRIS denies that DISH and Sling-branded products and services infringe
`
`certain asserted patents. Moreover, Paragraph 7 of the Second Amended Complaint
`
`sets forth conclusions of law to which no response is required. To the extent a
`
`response is deemed to be required however, EchoStar Technologies and DISH are
`
`entities unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations in Paragraph 7 of the Second Amended
`
`Complaint and, therefore, denies all such allegations.
`
`
`
`ARRIS admits that it has purchased some or all aspects of the accused
`
`ARRIS MS4000 from Sling Media Inc. In addition, Paragraph 8 of the Second Amended
`
`Complaint sets forth conclusions of law to which no response is required. To the extent
`
`a response is deemed to be required, however, ARRIS denies the allegations of
`
`Paragraph 8 of the Second Amended Complaint.
`
`- 3 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 4 of 18
`
`JURISDICTION AND VENUE
`
`
`
`ARRIS admits 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. ARRIS further admits 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). ARRIS denies any remaining allegations in Paragraph 9
`
`of the Second Amended Complaint.
`
` Paragraph 10 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is required, however,
`
`Sling TV is an entity unrelated to ARRIS. As such, ARRIS lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations in Paragraph 10 of
`
`the Second Amended Complaint, and therefore denies all such allegations.
`
` Paragraph 11 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is required, however,
`
`Sling Media is an entity unrelated to ARRIS. As such, ARRIS lacks knowledge or
`
`information sufficient to form a belief as to the truth of the allegations in Paragraph 11 of
`
`the Second Amended Complaint, and therefore denies all such allegations.
`
` Paragraph 12 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is required, however,
`
`EchoStar Technologies is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`- 4 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 5 of 18
`
`Paragraph 12 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
` Paragraph 13of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is required, however,
`
`DISH is an entity unrelated to ARRIS. As such, ARRIS lacks knowledge or information
`
`sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the Second
`
`Amended Complaint, and therefore denies all such allegations.
`
` Paragraph 14 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is deemed to be
`
`required, however, ARRIS admits that it has conducted business in the District of
`
`Colorado. ARRIS does not dispute for purposes of this case that it is subject to
`
`personal jurisdiction in this Court and that venue lies in this Court as to the present
`
`case. ARRIS denies the remaining allegations of paragraph 4 of the Second Amended
`
`Complaint.
`
` Paragraph 15 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is deemed to be
`
`required, however, ARRIS does not dispute for purposes of this case that it is subject to
`
`personal jurisdiction in this Court. Echostar Technologies, Sling TV, Sling Media, and
`
`DISH are entities unrelated to ARRIS. As such, ARRIS lacks knowledge information
`
`sufficient to form a belief as to the truth of the allegations regarding said entities in
`
`Paragraph 15 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
`- 5 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 6 of 18
`
` Paragraph 16 of the Second Amended Complaint sets forth conclusions of
`
`law to which no response is required. To the extent a response is deemed to be
`
`required, however, ARRIS does not dispute that venue lies in this Court as to the
`
`present case under 28 U.S.C. §§ 1391, 1400. ARRIS denies that it has committed acts
`
`of direct or indirect infringement in the District of Colorado. Echostar Technologies,
`
`Sling TV, Sling Media, and DISH are entities unrelated to ARRIS. As such, ARRIS
`
`lacks knowledge information sufficient to form a belief as to the truth of the allegations
`
`regarding said entities in Paragraph 16 of the Second Amended Complaint, and
`
`therefore denies all such allegations. ARRIS denies any remaining allegations set forth
`
`in Paragraph 16 of the Second Amended Complaint.
`
`ASSERTED PATENTS
`
` ARRIS admits 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”).
`
` ARRIS lacks 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.
`
`RESPONSE TO COUNT I
`[ALLEGED] INFRINGEMENT OF U.S. PATENT NO. 8,867,610
`
` ARRIS repeats and incorporates by reference the foregoing paragraphs,
`
`as if fully set forth herein.
`
` ARRIS admits 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
`
`- 6 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 7 of 18
`
`patent as being issued on October 21, 2014. ARRIS lacks knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations of Paragraph 20 of
`
`the Second Amended Complaint, and therefore denies all such allegations.
`
` Sling TV is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 21 of the Second Amended Complaint, and, therefore, denies all such
`
`allegations.
`
` Sling Media is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 22 of the Second Amended Complaint, and, therefore, denies all such
`
`allegations.
`
` DISH is an entity unrelated to ARRIS. As such, ARRIS lacks knowledge
`
`or information sufficient to form a belief as to the truth of the allegations in Paragraph 23
`
`of the Second Amended Complaint, and, therefore, denies all such allegations.
`
` Denied.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 25 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 25 of the Second Amended Complaint.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 26 and, therefore, denies all such allegations.
`
`- 7 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 8 of 18
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 27 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 28 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 29 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 30 and, therefore, denies all such allegations.
`
`
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 31 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 32 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 33 and, therefore, denies all such allegations.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 34 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 34 of the Second Amended Complaint.
`
` Denied.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`- 8 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 9 of 18
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 36 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS admits
`
`that it has had knowledge of the ’610 patent since at least shortly after the filing of this
`
`Second Amended Complaint. ARRIS denies the remaining allegations of Paragraph 36
`
`of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 37 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 37 of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 38 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 38 of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 39 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 39 of the Second Amended Complaint.
`
`- 9 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 10 of 18
`
`RESPONSE TO COUNT II
`[ALLEGED] INFRINGEMENT OF U.S. PATENT NO. 8,934,535
`
` ARRIS repeats and incorporates by reference the foregoing paragraphs,
`
`as if fully set forth herein.
`
` ARRIS admits that a purported copy of United States Patent No.
`
`8,934,535 is attached to the Second Amended Complaint as Exhibit C, which lists the
`
`patent title as “Systems and Methods for Video and Audio Data Storage and
`
`Distribution,” and lists the patent as being issued on January 13, 2015. ARRIS is
`
`without sufficient information to form a belief as to the truth remaining allegations of
`
`Paragraph 41 of the Second Amended Complaint, and therefore denies all such
`
`allegations.
`
` Sling TV is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 42 of the Second Amended Complaint, and, therefore, denies all such
`
`allegations.
`
` Sling Media is an entity unrelated to ARRIS. As such, ARRIS lacks
`
`knowledge or information sufficient to form a belief as to the truth of the allegations in
`
`Paragraph 43 of the Second Amended Complaint, and, therefore, denies all such
`
`allegations.
`
` DISH is an entity unrelated to ARRIS. As such, ARRIS lacks knowledge
`
`or information sufficient to form a belief as to the truth of the allegations in Paragraph 44
`
`of the Second Amended Complaint, and, therefore, denies all such allegations.
`
` Denied.
`
`- 10 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 11 of 18
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 46 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 46 of the Second Amended Complaint.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 47 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 48 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 49 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 50 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 51 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 52 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 53 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 54 and, therefore, denies all such allegations.
`
`- 11 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 12 of 18
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 55 and, therefore, denies all such allegations.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 56 and, therefore, denies all such allegations.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 57 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 57 of the Second Amended Complaint.
`
` ARRIS lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 58 and, therefore, denies all such allegations.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 59 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS admits
`
`that it has had knowledge of the ’535 patent since at least shortly after the filing of this
`
`Second Amended Complaint. ARRIS denies the remaining allegations of Paragraph 59
`
`of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 60 of the
`
`- 12 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 13 of 18
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 60 of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 61 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 61 of the Second Amended Complaint.
`
` EchoStar Technologies, Sling TV, Sling Media, and DISH are entities
`
`unrelated to ARRIS. As such, ARRIS lacks knowledge or information sufficient to form
`
`a belief as to the truth of the allegations regarding said entities in Paragraph 62 of the
`
`Second Amended Complaint and, therefore, denies all such allegations. ARRIS denies
`
`the remaining allegations of Paragraph 62 of the Second Amended Complaint.
`
`RESPONSE TO PRAYER FOR RELIEF
`
`ARRIS denies the underlying allegations of Realtime’s Prayer for Relief against
`
`ARRIS, denies that Realtime is entitled to any relief whatsoever, and requests that the
`
`Court deny all relief to Realtime, enter judgment in favor of ARRIS, and award ARRIS
`
`its attorneys’ fees as the prevailing party in the action.
`
`[REALTIME’S] DEMAND FOR JURY TRIAL
`
`ARRIS is not required to provide a response to Realtime’s request for a trial by
`
`jury.
`
`- 13 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 14 of 18
`
`GENERAL DENIALS
`
`ARRIS denies all allegations in the Second Amended Complaint not specifically
`
`admitted above.
`
`AFFIRMATIVE AND OTHER DEFENSES
`
`ARRIS’s Affirmative Defenses are listed below. ARRIS reserves the right to
`
`amend this Answer to add additional Affirmative Defenses, including allegations of
`
`inequitable conduct, and/or any other defenses currently unknown to ARRIS, as they
`
`become known throughout the course of discovery in this action. Assertion of a defense
`
`is not a concession that ARRIS has the burden of proving the matter asserted.
`
`FIRST AFFIRMATIVE DEFENSE
`(Invalidity)
`
`The claims of the ʼ610 Patent and the ʼ535 Patent are invalid and/or
`
`unenforceable for failing to meet one or more of the requisite statutory and decisional
`
`requirements and/or conditions for patentability specified in 35 U.S.C. §§ 101, 102, 103,
`
`112, and/or 116, the non-statutory doctrine of double patenting, and the rules,
`
`regulations, and laws pertaining thereto. For example, to the extent that Realtime
`
`alleges that H.264 infringes claims of the ʼ610 Patent and the ʼ535 Patent, those claims
`
`are invalid over prior art video compression standards such as H.262 (MPEG-2 Part 2).
`
`By way of another example, at least some of the asserted claims are directed to patent-
`
`ineligible subject matter.
`
`- 14 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 15 of 18
`
`SECOND AFFIRMATIVE DEFENSE
`(Limitation on Damages)
`
`Realtime’s right to seek damages and other remedies from ARRIS is limited by
`
`35 U.S.C. §§ 285, 286, 287, and/or 288, and may additionally be limited by 28 U.S.C.
`
`§ 1498.
`
`THIRD AFFIRMATIVE DEFENSE
`(Prosecution History Estoppel)
`
`To the extent that Realtime alleges infringement under the doctrine of
`
`equivalents, Realtime’s alleged cause of action is barred, including, without limitation,
`
`by way of 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 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, Realtime is estopped from asserting that the ʼ610 Patent and the ʼ535 Patent
`
`cover or include any of the accused products or services of ARRIS.
`
`RESERVATION OF RIGHTS
`
`ARRIS reserves all affirmative defenses available under Rule 8(c) of the Federal
`
`Rules of Civil Procedure, the patent laws of the United States, and all other defenses, at
`
`law or in equity, that may now exist or in the future be available based on discovery and
`
`further investigation of the case.
`
`- 15 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 16 of 18
`
`PRAYER FOR RELIEF
`
`WHEREFORE, ARRIS respectfully requests that this Court enter judgment in its
`
`favor and against Realtime, and grant the following relief:
`
`a. A complete denial of Realtime’s requests for damages, costs, attorney fees,
`
`injunction, and any other form of relief;
`
`b. Dismissal with prejudice of all claims in Realtime’s Second Amended Complaint
`
`against ARRIS;
`
`c. A permanent injunction restraining Realtime and its respective officers, partners,
`
`employees, agents, parents, subsidiaries, and affiliates, and any other persons
`
`acting on its behalf or in concert with it, from charging, suing or threatening, orally
`
`or in writing, that the ʼ610 Patent or the ʼ535 Patent have been infringed by
`
`ARRIS under any subsection of 35 U.S.C. §§ 271 or 281;
`
`d. A declaration that this is an exceptional case under 35 U.S.C. § 285 and
`
`awarding to ARRIS its reasonable costs and expenses of litigation, including but
`
`not limited to attorneys’ fees and expert witness fees;
`
`e. An award to ARRIS of its costs and disbursements in defending in this action
`
`brought by Realtime; and
`
`f. An award to ARRIS of any and all further relief as this Court may deem just and
`
`proper.
`
`- 16 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 17 of 18
`
`DEMAND FOR JURY TRIAL
`
`
`
`Pursuant to Federal Rule of Civil Procedure 38(b), ARRIS hereby demands a trial
`
`by jury on all issues so triable raised by Realtime’s Second Amended Complaint or by
`
`ARRIS’s Answer.
`
`
`
`
`
`Dated: March 21, 2018
`
`Respectfully Submitted,
`
`
`
`
`
`By: /s/Noah C. Graubart
`
`Noah C. Graubart
`GA Bar No. 141862
`graubart@fr.com
`1180 Peachtree St. NE
`21st Floor
`Atlanta, GA 30309
`Tel: (404) 892-5005
`Fax: (404) 892-5002
`
`Attorney for Defendant
`ARRIS Group, Inc.
`
`- 17 -
`
`
`
`Case 1:17-cv-02097-RBJ Document 85 Filed 03/21/18 USDC Colorado Page 18 of 18
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the counsel of record who are deemed to have consented to
`
`electronic service are being served on March 21, 2018, with a copy of this document via
`
`the Court’s CM/ECF system per District of Colorado Civil Local Rule 5.1(d). Any other
`
`counsel of record will be served by electronic mail, facsimile transmission and/or first
`
`class mail on this date.
`
`
`
`
`
`/s/Noah C. Graubart
`Noah C. Graubart
`
`
`
`
`
`
`- 18 -
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
