`FOR THE DISTRICT OF DELAWARE
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`VERSATA SOFTWARE, INC. and
`VERSATA DEVELOPMENT GROUP, INC.
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`Plaintiffs,
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`v.
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`CALLIDUS SOFTWARE INC.,
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`Defendant.
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`C.A. No. 12-931-SLR
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`JURY TRIAL DEMANDED
`
`DEFENDANT CALLIDUS SOFTWARE INC.’S
`ANSWER TO COMPLAINT AND COUNTERCLAIMS
`
`Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant CALLIDUS
`
`
`
`SOFTWARE INC. (“Callidus”) answers the Complaint of Plaintiffs VERSATA SOFTWARE,
`
`INC. and VERSATA DEVELOPMENT GROUP, INC. (“Plaintiffs”) as follows:
`
`Callidus denies each and every allegation in the Complaint unless expressly admitted
`
`herein.
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`The Parties
`
`1.
`
`Callidus lacks information sufficient to admit or deny the allegations of Paragraph
`
`1, and on that basis denies them.
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`2.
`
`Callidus lacks information sufficient to admit or deny the allegations of Paragraph
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`2, and on that basis denies them.
`
`3.
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`Callidus admits the allegations of Paragraph 3.
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`Jurisdiction and Venue
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`4.
`
`Callidus admits that the Complaint alleges an action for patent infringement under
`
`the Patent Laws of the United States, 35 U.S.C. § 271, but denies that there has been
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`infringement.
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` Versata Exh. 2010
` Callidus v. Versata
` CBM2013-00054
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`
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`
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`Exh. 2010 - Page 1 of 15
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`5.
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`Callidus admits that the Court has subject matter jurisdiction based on 28 U.S.C.
`
`§§ 1331 and 1338(a).
`
`6.
`
`Callidus admits that venue is proper in this judicial district under 28 U.S.C.
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`§§ 1391(b) and 1400(b). Callidus denies that it has committed any acts of patent infringement in
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`this, or any, judicial district.
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`7.
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`Callidus admits that it is subject to this Court’s specific and general personal
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`jurisdiction and is a Delaware corporation. Callidus denies that it has committed, induced,
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`and/or contributed to acts of patent infringement in this judicial district, or any other judicial
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`district. Callidus lacks information sufficient to admit or deny the remaining allegations of
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`Paragraph 7, and on that basis denies them.
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`Patents
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`8.
`
`Callidus admits that U.S. Patent No. 7,958,024 (“the ‘024 patent”) is entitled
`
`“Method and Apparatus for Processing Sales Transaction Data,” and on its face appears to have
`
`issued on June 7, 2011. Callidus admits that Exhibit A of the Complaint purports to be a true
`
`and correct copy of the ‘024 patent. Callidus lacks information sufficient to admit or deny the
`
`remaining allegations of Paragraph 8, and on that basis denies them.
`
`9.
`
`Callidus admits that U.S. Patent No. 7,908,304 (“the ‘304 patent”) is entitled
`
`“Method and Apparatus for Managing Distributor Information,” and on its face appears to have
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`issued on March 15, 2011. Callidus admits that Exhibit B of the Complaint purports to be a true
`
`and correct copy of the ‘304 patent. Callidus lacks information sufficient to admit or deny the
`
`remaining allegations of Paragraph 9, and on that basis denies them.
`
`10.
`
`Callidus admits that U.S. Patent No. 7,904,326 (“the ‘326 patent”) is entitled
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`“Method and Apparatus for Performing Collective Validation of Credential Information,” and on
`
`its face appears to have issued on March 8, 2011. Callidus admits that Exhibit C of the
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`
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`1
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`Exh. 2010 - Page 2 of 15
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`
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`Complaint purports to be a true and correct copy of the ‘326 patent. Callidus lacks information
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`sufficient to admit or deny the remaining allegations of Paragraph 10, and on that basis denies
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`them.
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`11.
`
`Callidus denies the allegations of Paragraph 11.
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`COUNT I
`Infringement of the ‘024 Patent
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`12.
`
`Callidus incorporates its answers to Paragraphs 1 through 11 as if fully set forth
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`herein.
`
`13.
`
`14.
`
`15.
`
`Callidus denies the allegations of Paragraph 13.
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`Callidus denies the allegations of Paragraph 14.
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`Callidus admits that it has knowledge of the ‘024 patent as of the date it was
`
`served with a copy of the Complaint. Callidus denies the remaining allegations of Paragraph 15.
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`16.
`
`Callidus denies the allegations of Paragraph 16.
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`COUNT II
`Infringement of the ‘304 Patent
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`17.
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`Callidus incorporates its answers to Paragraphs 1 through 16 as if fully set forth
`
`herein.
`
`18.
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`19.
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`20.
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`Callidus denies the allegations of Paragraph 18.
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`Callidus denies the allegations of Paragraph 19.
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`Callidus admits that it has knowledge of the ‘304 patent as of the date it was
`
`served with a copy of the Complaint. Callidus denies the remaining allegations of Paragraph 20.
`
`21.
`
`Callidus denies the allegations of Paragraph 21.
`
`COUNT III
`Infringement of the ‘326 Patent
`
`22.
`
`Callidus incorporates its answers to Paragraphs 1 through 21 as if fully set forth
`
`
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`2
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`Exh. 2010 - Page 3 of 15
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`
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`herein.
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`23.
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`24.
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`25.
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`Callidus denies the allegations of Paragraph 23.
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`Callidus denies the allegations of Paragraph 24.
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`Callidus admits that it has knowledge of the ‘326 patent as of the date it was
`
`served with a copy of the Complaint. Callidus denies the remaining allegations of Paragraph 25.
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`26.
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`Callidus denies the allegations of Paragraph 26.
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`Response to Plaintiffs’ Prayer for Relief
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`Callidus denies that Plaintiffs are entitled to any of the relief sought in its prayer or any
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`relief whatsoever.
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`AFFIRMATIVE DEFENSES
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`Callidus asserts the following affirmative defenses without admitting in any way that
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`Callidus is liable to Plaintiffs, or that Plaintiffs are entitled to any relief whatsoever.
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`First Affirmative Defense
`(Failure to State a Claim for Infringement)
`
`27.
`
`Plaintiffs have failed to state a claim for patent infringement under the U.S.
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`Patent laws including, but not limited to, 35 U.S.C. § 271.
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`Second Affirmative Defense
`(Failure to State a Claim for Past Damages)
`
`28.
`
`Plaintiffs have failed to allege facts sufficient to claim any damages prior to the
`
`filing of this action pursuant to the marking and notice provisions of 35 U.S.C. § 287.
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`Third Affirmative Defense
`(Non-Infringement)
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`29.
`
`Callidus has not infringed, contributed to the infringement of, or induced the
`
`infringement of the ‘024 patent, the ‘304 patent, and the ‘326 patent, and is not liable for
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`infringement thereof either literally or under the doctrine of equivalents.
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`3
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`Exh. 2010 - Page 4 of 15
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`Fourth Affirmative Defense
`(Invalidity)
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`30.
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`Based on information and belief, one or more claims of the ‘024 patent, the ‘304
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`patent, and the ‘326 patent, are invalid for failure to meet the conditions of patentability of 35
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`U.S.C. §§ 1 et seq., including but not limited to 35 U.S.C. §§101, 102, 103, and/or 112.
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`Fifth Affirmative Defense
`(No Injunction)
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`31.
`
`The Complaint and each of the claims therein do not entitle Plaintiffs to
`
`injunctive relief on the grounds that the facts and circumstances do not warrant injunctive relief.
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`Sixth Affirmative Defense
`(Prosecution History Estoppel and/or Disclaimer)
`
`32.
`
`On information and belief, Plaintiffs’ claims for relief are barred, in whole or in
`
`part, by the doctrine of prosecution history estoppel and/or prosecution disclaimer.
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`Seventh Affirmative Defense
`(Laches, Estoppel, Equitable Estoppel and/or Waiver)
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`33.
`
`On information and belief, that Plaintiffs’ rights in the ‘024 patent, the ‘304
`
`patent, and the ‘326 patent, are barred, in whole or in part, by one or more of the equitable
`
`doctrines of laches, estoppel, equitable estoppel, and waiver.
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`Eighth Affirmative Defense
`(Unclean Hands)
`
`34.
`
`On information and belief, that Plaintiffs’ rights in the ‘024 patent, the ‘304
`
`patent, and the ‘326 patent, are barred, in whole or in part, by the equitable doctrine of unclean
`
`hands.
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`Reservation of Defenses
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`Callidus reserves all affirmative defenses under Rule 8(c) of the Federal Rules of Civil
`
`Procedure, the Patent Laws of the United States, and any other defenses at law or in equity, that
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`4
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`Exh. 2010 - Page 5 of 15
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`
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`may now or in the future be available based on discovery or any other factual investigation
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`concerning this case.
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`Demand for Jury Trial
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`Callidus requests a trial by jury as to all issues so triable.
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`COUNTERCLAIMS
`
`For its counterclaims against Plaintiffs VERSATA SOFTWARE, INC. and VERSATA
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`DEVELOPMENT GROUP, INC. (hereinafter “Counterclaim Defendants”), Counterclaim
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`Plaintiff CALLIDUS SOFTWARE INC. (“Callidus”) alleges as follows:
`
`The Parties
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`1.
`
`Callidus is a corporation organized and existing under the laws of the state of
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`Delaware, having a principal place of business at 6200 Stoneridge Mall Road, Suite 500,
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`Pleasanton, California 94588. Callidus is a market and technology leader in cloud-based
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`solutions for sales effectiveness sold to companies of every size throughout the world.
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`Callidus’s customers use its sales effectiveness solutions to optimize investments in sales
`
`planning and performance. Callidus’s solutions enable businesses to achieve new insights into
`
`the principal levers that drive their sales force performance so that they can repeat sales success
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`for sustainable and predictable sales growth.
`
`2.
`
`Upon information and belief, Versata Software, Inc., is a Delaware corporation
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`with its principal place of business at 6011 West Courtyard Drive, Austin, Texas 78730. Upon
`
`information and belief, Versata Software, Inc., may be served with process through its registered
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`agent, Capitol Services, Inc., 1675 South State Street, Suite B, Dover, Delaware 19901.
`
`3.
`
`Upon information and belief, Versata Development Group, Inc., f/k/a Trilogy
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`Development Group, Inc., is a Delaware corporation with its principle place of business at 6011
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`West Courtyard Drive, Austin, Texas 78730. Upon information and belief, Versata
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`
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`5
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`Exh. 2010 - Page 6 of 15
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`Development Group, Inc., may be served with process through its registered agent, Capitol
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`Services, Inc., 1675 South State Street, Suite B, Dover, Delaware 19901.
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`Jurisdiction and Venue
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`4.
`
`This is an action for:
`
`a.
`
`declaratory judgment of non-infringement and invalidity under the patent
`
`laws of the United States, 35 U.S.C. § 1, et seq., with a specific remedy
`
`sought based upon the laws authorizing actions for declaratory judgment
`
`in the courts of the United States, 28 U.S.C. §§ 2201 and 2202; and
`
`b.
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`patent infringement under the patent laws of the United States, 35 U.S.C.
`
`§ 1, et seq., more particularly 35 U.S.C. § 271.
`
`5.
`
`This Court has subject matter jurisdiction over this action, which arises under the
`
`patent laws of the United States, pursuant to 28 U.S.C. §§ 1331, 1338(a), 2201, and 2202. There
`
`is an actual controversy within the jurisdiction of this Court under 28 U.S.C. §§ 2201 and 2202.
`
`Counterclaim Defendants have filed an action for infringement of the ‘326, ‘304, and ‘024
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`patents against Counterclaim Plaintiff Callidus.
`
`6.
`
`7.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1400(b).
`
`This Court has personal jurisdiction over Counterclaim Defendants. Upon
`
`information and belief, Counterclaim Defendants are each Delaware corporations that conduct
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`business in this District and have sought and are seeking to monetize their patent portfolio,
`
`including the ‘326, ‘304, and ‘024 patents, in this District.
`
`Patents
`
`8.
`
`On July 31, 2001, the United States Patent and Trademark Office (“USPTO”)
`
`duly and legally issued United States Patent No. 6,269,355 (“the ‘355 patent”), entitled
`
`“Automated Process Guidance System and Method Using Knowledge Management System.”
`
`
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`6
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`Exh. 2010 - Page 7 of 15
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`Callidus holds all right, title, and interest in and to the ‘355 patent (a true and correct copy of
`
`which is attached hereto as Exhibit A).
`
`9.
`
`On February 1, 2005, the USPTO duly and legally issued United States Patent No.
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`6,850,924 (“the ‘924 patent”), entitled “Automated Process Guidance System and Method.”
`
`Callidus holds all right, title, and interest in and to the ‘924 patent (a true and correct copy of
`
`which is attached hereto as Exhibit B).
`
`10.
`
`On October 29, 2002, the USPTO duly and legally issued United States Patent
`
`No. 6,473,748 (“the ‘748 patent”), entitled “System for Implementing Rules.” Callidus holds all
`
`right, title, and interest in and to the ‘748 patent (a true and correct copy of which is attached
`
`hereto as Exhibit C).
`
`COUNT I
`(Declaratory Judgment of Non-Infringement of the ‘024 Patent)
`
`11.
`
`Callidus incorporates Paragraphs 1-10 of these Counterclaims as if fully set forth
`
`herein.
`
`12.
`
`Callidus has not directly infringed, contributed to the infringement, or induced the
`
`infringement of any claim of the ‘024 patent. Without limitation, Callidus’s software, including
`
`Callidus’s TrueComp product, does not meet each and every limitation, literally or under the
`
`doctrine of equivalents, of any claim of the ‘024 patent.
`
`COUNT II
`(Declaratory Judgment of Invalidity of the ‘024 Patent)
`
`13.
`
`Callidus incorporates Paragraphs 1-12 of these Counterclaims as if fully set forth
`
`herein.
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`14.
`
`The claims of the ‘024 patent are invalid for failing to satisfy one or more of the
`
`statutory requirements for patentability set forth in the United States patent laws, Title 35 of the
`
`United States Code, including but not limited to 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`
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`7
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`Exh. 2010 - Page 8 of 15
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`COUNT III
`(Declaratory Judgment of Non-Infringement of the ‘304 Patent)
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`15.
`
`Callidus incorporates Paragraphs 1-14 of these Counterclaims as if fully set forth
`
`herein.
`
`16.
`
`Callidus has not directly infringed, contributed to the infringement, or induced the
`
`infringement of any claim of the ‘304 patent. Without limitation, Callidus’s software, including
`
`Callidus’s SPM Suite and specifically including Callidus’s TrueComp and TrueProducer
`
`products and related services, do not meet each and every limitation, literally or under the
`
`doctrine of equivalents, of any claim of the ‘304 patent.
`
`COUNT IV
`(Declaratory Judgment of Invalidity of the ‘304 Patent)
`
`17.
`
`Callidus incorporates Paragraphs 1-16 of these Counterclaims as if fully set forth
`
`herein.
`
`18.
`
`The claims of the ‘304 patent are invalid for failing to satisfy one or more of the
`
`statutory requirements for patentability set forth in the United States patent laws, Title 35 of the
`
`United States Code, including but not limited to 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`COUNT V
`(Declaratory Judgment of Non-Infringement of the ‘326 Patent)
`
`19.
`
`Callidus incorporates Paragraphs 1-18 of these Counterclaims as if fully set forth
`
`herein.
`
`20.
`
`Callidus has not directly infringed, contributed to the infringement, or induced the
`
`infringement of any claim of the ‘326 patent. Without limitation, Callidus’s software, including
`
`Callidus’s SPM Suite and specifically including Callidus’s TrueComp and TrueProducer
`
`products and related services, do not meet each and every limitation, literally or under the
`
`doctrine of equivalents, of any claim of the ‘326 patent.
`
`
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`8
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`Exh. 2010 - Page 9 of 15
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`COUNT VI
`(Declaratory Judgment of Invalidity of the ‘326 Patent)
`
`21.
`
`Callidus incorporates Paragraphs 1-20 of these Counterclaims as if fully set forth
`
`herein.
`
`22.
`
`The claims of the ‘326 patent are invalid for failing to satisfy one or more of the
`
`statutory requirements for patentability set forth in the United States patent laws, Title 35 of the
`
`United States Code, including but not limited to 35 U.S.C. §§ 101, 102, 103, and/or 112.
`
`COUNT VII
`(Infringement of the ‘355 Patent)
`
`23.
`
`Callidus incorporates Paragraphs 1-22 of these Counterclaims as if fully set forth
`
`herein.
`
`24.
`
`Counterclaim Defendants, directly or through their subsidiaries and/or affiliates,
`
`have been and are now directly infringing, and indirectly infringing by way of inducing the
`
`infringement of and/or contributing to the infringement of, the ‘355 patent in the State of
`
`Delaware, in this judicial district, and elsewhere within the United States by, among other things,
`
`making, using, licensing, selling, offering for sale, or importing process guidance software,
`
`including Versata’s Business Rules Management System (“BRMS”) software and software
`
`developed for Counterclaim Defendants’ customers using Versata’s BRMS software, including
`
`the Utah Comprehensive Unemployment Benefits System (“CUBS”), and related services,
`
`covered by one or more claims of the ‘355 patent, all to the injury of Callidus.
`
`25.
`
`By making, using, selling, licensing, and/or offering to sell within the United
`
`States, and/or importing into the United States their products, Counterclaim Defendants have
`
`directly infringed, and will continue to directly infringe, one or more claims of the ‘355 patent
`
`literally and/or under the doctrine of equivalents.
`
`26.
`
`Counterclaim Defendants have, at least as of the date of the filing of this
`
`
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`9
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`Exh. 2010 - Page 10 of 15
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`
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`counterclaim, knowledge of the ‘355 patent, knowledge that its actions as described above are
`
`directly infringing, inducing and/or contributing to the infringement of the ‘355 patent, and
`
`knowledge that its software products and services, including BRMS and CUBS, lack substantial
`
`non-infringing uses.
`
`COUNT VIII
`(Infringement of the ‘924 Patent)
`
`27.
`
`Callidus incorporates Paragraphs 1-26 of these Counterclaims as if fully set forth
`
`herein.
`
`28.
`
`Counterclaim Defendants, directly or through their subsidiaries and/or affiliates,
`
`have been and are now directly infringing, and indirectly infringing by way of inducing the
`
`infringement of and/or contributing to the infringement of, the ‘924 patent in the State of
`
`Delaware, in this judicial district, and elsewhere within the United States by, among other things,
`
`making, using, licensing, selling, offering for sale, or importing process guidance software,
`
`including Versata’s BRMS software and software developed for Counterclaim Defendants’
`
`customers using Versata’s BRMS software, including the Utah CUBS, and related services,
`
`covered by one or more claims of the ‘924 patent, all to the injury of Callidus.
`
`29.
`
`By making, using, selling, licensing, and/or offering to sell within the United
`
`States, and/or importing into the United States their products, Counterclaim Defendants have
`
`directly infringed, and will continue to directly infringe, one or more claims of the ‘924 patent
`
`literally and/or under the doctrine of equivalents.
`
`30.
`
`Counterclaim Defendants have, at least as of the date of the filing of this
`
`counterclaim, knowledge of the ‘924 patent, knowledge that its actions as described above are
`
`directly infringing, inducing and/or contributing to the infringement of the ‘924 patent, and
`
`knowledge that its software products and services, including BRMS and CUBS, lack substantial
`
`
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`10
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`Exh. 2010 - Page 11 of 15
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`
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`non-infringing uses.
`
`COUNT IX
`(Infringement of the ‘748 Patent)
`
`31.
`
`Callidus incorporates Paragraphs 1-30 of these Counterclaims as if fully set forth
`
`herein.
`
`32.
`
`Counterclaim Defendants, directly or through their subsidiaries and/or affiliates,
`
`have been and are now directly infringing, and indirectly infringing by way of inducing the
`
`infringement of and/or contributing to the infringement of, the ‘748 patent in the State of
`
`Delaware, in this judicial district, and elsewhere within the United States by, among other things,
`
`making, using, licensing, selling, offering for sale, or importing business rules software,
`
`including Versata’s BRMS software and software developed for Counterclaim Defendants’
`
`customers using Versata’s BRMS software, and related services, covered by one or more claims
`
`of the ‘748 patent, all to the injury of Callidus.
`
`33.
`
`By making, using, selling, licensing, and/or offering to sell within the United
`
`States, and/or importing into the United States their products, Counterclaim Defendants have
`
`directly infringed, and will continue to directly infringe, one or more claims of the ‘748 patent
`
`literally and/or under the doctrine of equivalents.
`
`34.
`
`Counterclaim Defendants have, at least as of the date of the filing of this
`
`complaint, knowledge of the ‘748 patent, knowledge that its actions as described above are
`
`directly infringing, inducing and/or contributing to the infringement of the ‘748 patent, and
`
`knowledge that its software products and services, including BRMS, lack substantial non-
`
`infringing uses.
`
`Prayer for Relief
`
`WHEREFORE, Defendant and Counterclaim Plaintiff Callidus respectfully requests that
`
`
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`11
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`Exh. 2010 - Page 12 of 15
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`
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`this Court enter an order:
`
`A.
`
`Dismissing the claims in the Complaint with prejudice and finding that Plaintiffs
`
`take nothing by them;
`
`B.
`
`Declaring that Callidus has not infringed, contributed to the infringement of,
`
`induced the infringement of, or committed any other act constituting infringement, as set forth in
`
`35 U.S.C. § 271, or any other provision of the U.S. Patent Laws, 35 U.S.C. § 1 et seq., of, any
`
`claim of the ‘326, ‘304, and/or ‘024 patents;
`
`C.
`
`Declaring that each claim of the ‘326, ‘304, and ‘024 patents are invalid, void and
`
`without force and effect;
`
`D.
`
`Enjoining and restraining Plaintiffs, their agents, servants, officers, alter egos,
`
`employees, attorneys, and those persons in active concert, participation, and privity with
`
`Plaintiffs, from asserting against Callidus, its agents, vendees, suppliers, customers, or any others
`
`in privity with it, that any of them infringe any claim of Plaintiff’s ‘326, ‘304, and ‘024 patents;
`
`E.
`
`Enter judgment that Counterclaim Defendants have infringed, directly and
`
`indirectly, by way of inducing the infringement of and/or contributing to the infringement of,
`
`Callidus’s ‘355, ‘924 and ‘748 patents;
`
`F.
`
`Enter a preliminary and permanent injunction, enjoining Counterclaim
`
`Defendants and its officers, directors, agents, servants, employees, affiliates, divisions, branches,
`
`subsidiaries, and parents from infringing, inducing the infringement of, or contributing to the
`
`infringement of Callidus’s ‘355, ‘924 and ‘748 patents;
`
`G.
`
`Order and award Callidus its actual damages for Counterclaim Defendants’
`
`infringement of Callidus’s ‘355, ‘924 and ‘748 patents, together with interest (both pre- and post-
`
`judgment), as fixed by this Court under 35 U.S.C. § 284;
`
`
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`12
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`Exh. 2010 - Page 13 of 15
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`
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`H.
`
`Order an accounting be made to establish the amount of gains, profits and
`
`advantages which Counterclaim Defendants have made, received, or may receive as a result of
`
`their acts of infringement;
`
`I.
`
`J.
`
`Adjudging that this is an exceptional case within the meaning of 35 U.S.C. § 285;
`
`Awarding Callidus its costs, disbursements, and reasonable attorneys’ fees
`
`incurred in connection with this action; and
`
`K.
`
`Awarding any such other and further relief in law or in equity to which Callidus
`
`may be justly entitled.
`
`JURY DEMAND
`
`Callidus hereby demands a trial by jury on all issues so triable by right pursuant to Fed.
`
`R. Civ. P. 38 and Civil L.R. 38.1.
`
`
`
`Dated: May 30, 2013
`
`Respectfully submitted,
`
`/s/Arthur G. Connolly, III
`
`By:
`
`
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`13
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`Exh. 2010 - Page 14 of 15
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`
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`Arthur G. Connolly , III (#2667)
`CONNOLLY GALLAGHER LLP
`The Brandywine Building
`1000 West Street, Suite 1400
`P.O. Box 2207
`Wilmington, DE 19801
`Tel. 302-888-6318
`aconnolly@connollygallagher.com
`
`Deborah E. Fishman (pro hac vice)
`Assad H. Rajani (pro hac vice)
`Michael S. Tonkinson (pro hac vice)
`DICKSTEIN SHAPIRO LLP
`1841 Page Mill Rd. Ste. 150
`Palo Alto, CA 94304
`Phone: (650) 690-9500
`Fax: (650) 690-9501
`fishmand@dicksteinshapiro.com
`rajania@dicksteinshapiro.com
`tonkinsonm@dicksteinshapiro.com
`
`Attorneys for Defendant and Counterclaim
`Plaintiff Callidus Software Inc.
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`14
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`Exh. 2010 - Page 15 of 15
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