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Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 1 of 12 PageID #: 652
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CALLWAVE COMMUNICATIONS, LLC,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`T-MOBILE USA, INC. and GOOGLE INC.,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 12-1703-RGA
`
`T-MOBILE USA, INC.’S ANSWER AND
`DEMAND FOR JURY TRIAL
`
`In response to the allegations of the First Amended Complaint for Patent Infringement
`
`(“Complaint”) [D.I. 18] filed by plaintiff CallWave Communications LLC (“CallWave”),
`
`defendant T-Mobile USA, Inc. (“T-Mobile”) responds as follows:
`
`STATEMENT OF JURISDICTION1
`
`1.
`
`T-Mobile admits this Court has subject matter jurisdiction over this action
`
`pursuant to 28 U.S.C. §§ 1331 and 1338(a), but denies that T-Mobile has infringed, or is
`
`infringing, any claims of the United States Patent Nos. 6,771,970 (“the ’970 patent”) or
`
`7,907,933 (“the ’933 patent”).
`
`NATURE OF THE ACTION
`
`2.
`
`T-Mobile admits that this action purports to allege claims for patent infringement
`
`against T-Mobile, but denies that it has infringed, or is infringing, any claims of the ’970 patent
`
`or the ’933 patent (collectively “the Asserted Patents”). T-Mobile further admits that the ’970
`
`
`1 For the ease of reference, T-Mobile repeats the headings set forth in the Complaint. By doing so, T-Mobile makes
`no admission as to the truth of any factual allegations contained in or implied by those headings, and expressly
`denies any such allegation.
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 2 of 12 PageID #: 653
`
`patent was attached as Exhibit A and the ’933 patent was attached as Exhibit B to the Complaint.
`
`T-Mobile denies all other allegations of paragraph 2 of the Complaint.
`
`3.
`
`T-Mobile admits this is an action for patent infringement, and that CallWave’s
`
`allegations appear to be directed, in part, towards T-Mobile’s consumer telephony services, but
`
`denies that it has infringed, or is infringing, any claims of the Asserted Patents. T-Mobile denies
`
`all other allegations of paragraph 3 of the Complaint.
`
`THE PARTIES
`
`4.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 4 of the Complaint and on that basis denies them.
`
`5.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 5 of the Complaint and on that basis denies them.
`
`6.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 6 of the Complaint and on that basis denies them.
`
`7.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 7 of the Complaint and on that basis denies them.
`
`8.
`
`T-Mobile admits that it is a Delaware corporation having a place of business at
`
`12920 S.E. 38th Street, Bellevue, Washington 98006. T-Mobile denies all remaining allegations
`
`of paragraph 8 of the Complaint.
`
`9.
`
`T-Mobile admits that it is in the business of providing mobile telephony services.
`
`T-Mobile denies all remaining allegations of paragraph 9 of the Complaint.
`
`10.
`
`11.
`
`T-Mobile denies the allegations of paragraph 10 of the Complaint.
`
`T-Mobile denies the allegations of paragraph 11 of the Complaint.
`
`- 2 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 3 of 12 PageID #: 654
`
`JURISDICTION AND VENUE
`
`12.
`
`T-Mobile admits that this Court has subject matter jurisdiction over this action as
`
`it relates to T-Mobile pursuant to 28 U.S.C. §§ 1331 and 1338(a), but denies that it has infringed,
`
`or is infringing, any claims of the Asserted Patents. T-Mobile lacks knowledge and information
`
`sufficient to admit or deny the allegations of paragraph 12 of the Complaint as it relates to
`
`Google Inc. (“Google”), and on that basis denies those allegations.
`
`13.
`
`T-Mobile admits that it is subject to personal jurisdiction in this Court for
`
`purposes of this action. T-Mobile lacks knowledge and information sufficient to admit or deny
`
`the allegations of paragraph 13 of the Complaint as it relates to Google, and on that basis denies
`
`those allegations. T-Mobile denies the remaining allegations of paragraph 13 of the Complaint.
`
`14.
`
`T-Mobile admits that venue is proper in this Court for purposes of this action as it
`
`relates to T-Mobile. T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 14 of the Complaint as it relates to Google, and on that basis denies
`
`those allegations. T-Mobile denies the remaining allegations of paragraph 14 of the Complaint.
`
`THE PATENTS-IN-SUIT
`
`15.
`
`T-Mobile admits that United States Patent No. 6,771,970 is entitled “LOCATION
`
`DETERMINATION SYSTEM.” The remaining allegations of paragraph 15 of the Complaint
`
`call for a legal conclusion, and on that basis T-Mobile denies them.
`
`16.
`
`T-Mobile admits that United States Patent No. 7,907,933 is entitled “CALL
`
`ROUTING APPARATUS.” The remaining allegations of paragraph 16 of the Complaint call for
`
`a legal conclusion, and on that basis T-Mobile denies them.
`
`EXEMPLARY ACCUSED PRODUCTS
`
`17.
`
`T-Mobile denies the allegations of paragraph 17 of the Complaint.
`
`- 3 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 4 of 12 PageID #: 655
`
`18.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations in the first sentence in paragraph 18 of the Complaint, and on that basis denies them.
`
`T-Mobile admits that T-Mobile subscribers can elect to have purchases made on the Google Play
`
`Store billed directly to the subscriber’s T-Mobile bill. T-Mobile denies the remaining allegations
`
`of paragraph 18 of the Complaint.
`
`19.
`
`T-Mobile admits that T-Mobile subscribers can elect to have purchases made on
`
`the Google Play Store billed directly to the subscriber’s T-Mobile bill. T-Mobile denies the
`
`remaining allegations of paragraph 19 of the Complaint.
`
`
`
`DIRECT INFRINGEMENT OF UNITED STATES PATENT NO. 6,771,970
`
`20.
`
` T-Mobile incorporates by reference its responses to paragraphs 1 through 19 of
`
`the Complaint as though fully restated herein.
`
`21.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations in paragraph 21 of the Complaint, and on that basis denies them.
`
`22.
`
`T-Mobile admits that its users can download the Family Where app in the United
`
`States. T-Mobile denies the remaining allegations of paragraph 22 of the Complaint.
`
`23.
`
`24.
`
`25.
`
`T-Mobile denies the allegations of paragraph 23 of the Complaint.
`
`T-Mobile denies the allegations of paragraph 24 of the Complaint.
`
`T-Mobile admits that on or around January 4, 2013, CallWave sent a letter (“the
`
`T-Mobile Letter”) attaching a copy of the original complaint in this matter to T-Mobile and that
`
`the original complaint included allegations of infringement of the ’970 and ’933 patents.
`
`T-Mobile denies all remaining allegations of paragraph 25 of the Complaint.
`
`26.
`
`The Court has dismissed CallWave’s allegations of willful infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 26 of the
`
`- 4 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 5 of 12 PageID #: 656
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`26 of the Complaint.
`
`27.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 27 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile admits that the T-Mobile Letter
`
`stated that CallWave believes that T-Mobile may be inducing its vendors and/or business
`
`partners to infringe the ’970 patent, but denies that T-Mobile is inducing anyone to infringe the
`
`’970 patent. T-Mobile admits that it has a contractual relationship with a business partner for the
`
`business partner to provide services in connection with the Family Where app, but denies that T-
`
`Mobile has induced that business partner to infringe the ’970 patent. T-Mobile denies the
`
`remaining allegations of paragraph 27 of the Complaint.
`
`28.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 28 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile lacks knowledge and information
`
`sufficient to admit or deny the allegations of paragraph 28 of the Complaint and on that basis
`
`denies them.
`
`29.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 29 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`29 of the Complaint.
`
`30.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 30 of the
`
`- 5 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 6 of 12 PageID #: 657
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`30 of the Complaint.
`
`31.
`
`T-Mobile denies the allegations of paragraph 31 of the Complaint.
`
`DIRECT INFRINGEMENT OF UNITED STATES PATENT NO. 7,907,933
`
`32.
`
`T-Mobile incorporates by reference its responses to paragraphs 1 through 31 of
`
`the Complaint as though fully restated herein.
`
`33.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations in paragraph 33 of the Complaint, and on that basis denies them.
`
`34.
`
`T-Mobile lacks sufficient understanding of what CallWave means by the phrase
`
`“direct carrier billing functionality of the Google Play Store on the T-Mobile network,” and on
`
`that basis denies the allegations of paragraph 34 of the Complaint.
`
`35.
`
`T-Mobile admits that T-Mobile subscribers can elect to have purchases made on
`
`the Google Play Store billed directly to the subscriber’s T-Mobile bill. T-Mobile denies the
`
`remaining allegations of paragraph 35 of the Complaint.
`
`36.
`
`T-Mobile lacks knowledge and information sufficient to admit or deny the
`
`allegations of paragraph 36 of the Complaint, and on that basis denies them.
`
`37.
`
`38.
`
`T-Mobile denies the allegations of paragraph 37 of the Complaint.
`
`T-Mobile lacks knowledge or information sufficient to admit or deny the
`
`allegations of paragraph 38 of the Complaint, and on that basis denies them.
`
`39.
`
`The Court has dismissed CallWave’s allegations of willful infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 39 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`39 of the Complaint as they relate to T-Mobile.
`
`- 6 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 7 of 12 PageID #: 658
`
`40.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 40 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile admits that the T-Mobile Letter
`
`stated that CallWave believes that T-Mobile may be inducing T-Mobile’s vendors to infringe the
`
`’933 patent, but denies that it is inducing its vendors to infringe the ’933 patent. T-Mobile lacks
`
`sufficient understanding of what CallWave means by the phrase “Google is one of T-Mobile’s
`
`vendors for direct carrier billing,” and on that basis denies the allegations of the second sentence
`
`in paragraph 40. T-Mobile lacks sufficient understanding of what CallWave means by the
`
`phrase “to provide direct carrier billing on the T-Mobile network,” and on that basis denies the
`
`allegations of the third sentence in paragraph 40. T-Mobile denies the remaining allegations of
`
`paragraph 40 of the Complaint.
`
`41.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 41 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`41 of the Complaint.
`
`42.
`
`The Court has dismissed CallWave’s allegations of indirect infringement. See
`
`Order (dated January 28, 2014) [D.I. 63] at 6. Thus, the allegations in this paragraph 42 of the
`
`Complaint do not require a response. Nevertheless, T-Mobile denies the allegations of paragraph
`
`42 of the Complaint.
`
`43.
`
`44.
`
`T-Mobile denies the allegations of paragraph 43 of the Complaint.
`
`All allegations not specifically admitted herein are denied.
`
`T-MOBILE’S AFFIRMATIVE DEFENSES
`
`Without assuming any burden that it would not otherwise have, as affirmative defenses to
`
`- 7 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 8 of 12 PageID #: 659
`
`the Complaint, T-Mobile asserts that:
`
`FIRST AFFIRMATIVE DEFENSE
`(Non-Infringement of the ’970 Patent)
`
`45.
`
`T-Mobile has not infringed and is not infringing (directly, contributorily, or by
`
`inducement), literally or under the doctrine of equivalents, any valid claims of the ’970 patent.
`
`SECOND AFFIRMATIVE DEFENSE
`(Invalidity of the ’970 Patent)
`
`46.
`
`The claims of the ’970 patent are invalid under 35 U.S.C. § 1 et seq., including
`
`without limitation §§ 102, 103, and 112.
`
`THIRD AFFIRMATIVE DEFENSE
`(Non-Infringement of the ’933 Patent)
`
`47.
`
`T-Mobile has not infringed and is not infringing (directly, contributorily, or by
`
`inducement), literally or under the doctrine of equivalents, any valid claims of the ’933 patent.
`
`FOURTH AFFIRMATIVE DEFENSE
`(Invalidity of the ’933 Patent)
`
`48.
`
`The claims of the ’933 patent are invalid under 35 U.S.C. § 1 et seq., including
`
`without limitation §§ 101, 102, 103, and 112.
`
`FIFTH AFFIRMATIVE DEFENSE
`(Equitable Defenses)
`
`49.
`
`CallWave’s claims for relief are barred, in whole or in part, by waiver, laches,
`
`and/or other equitable doctrines.
`
`SIXTH AFFIRMATIVE DEFENSE
`(No Entitlement to Injunctive Relief)
`
`50.
`
`CallWave is not entitled to injunctive relief as it has, at a minimum, adequate
`
`remedies at law and has suffered no irreparable harm.
`
`- 8 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 9 of 12 PageID #: 660
`
`SEVENTH AFFIRMATIVE DEFENSE
`(Limitation on Damages and Costs)
`
`51.
`
`Upon information and belief, CallWave’s claims for relief are barred, in whole or
`
`in part, under 35 U.S.C. §§ 286, 287, and/or 288.
`
`EIGHTH AFFIRMATIVE DEFENSE
`(No Entitlement to Enhanced Damages)
`
`52.
`
` CallWave is not entitled to enhanced damages under 35 U.S.C. § 284 or pursuant
`
`to the Court’s inherent powers.
`
`NINTH AFFIRMATIVE DEFENSE
`(No Entitlement to Attorneys’ Fees)
`
`53.
`
`CallWave is not entitled to attorneys’ fees under 35 U.S.C. § 285 or pursuant to
`
`the Court’s inherent powers.
`
`TENTH AFFIRMATIVE DEFENSE
`(No Entitlement to a Finding of Exceptional Case)
`
`54.
`
`CallWave is not entitled to a finding that this case is exceptional under 35 U.S.C.
`
`§ 285 or under the Court’s inherent powers.
`
`ELEVENTH AFFIRMATIVE DEFENSE
`(Prosecution History Estoppel)
`
`55.
`
`By reason of statements, representations, concessions, admissions, arguments or
`
`amendments, whether explicit or implicit, made by or on behalf of the applicants during the
`
`prosecution of the patent applications that led to the issuance of the ‘970, and ‘933 patents,
`
`CallWave’s claims of patent infringement are barred in whole or in part by the doctrine of
`
`prosecution history estoppel.
`
`- 9 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 10 of 12 PageID #: 661
`
`TWELFTH AFFIRMATIVE DEFENSE
`(Reservation of Rights)
`
`56.
`
`T-Mobile reserves the right to assert additional defenses that may become
`
`apparent during the course of this action.
`
`DEMAND FOR JURY TRIAL
`
`57.
`
`T-Mobile demands a trial by jury on all issues so triable.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, defendant T-Mobile prays that this Court:
`
`A.
`
`Dismiss CallWave’s Complaint in its entirety with prejudice, with CallWave
`
`taking nothing thereby;
`
`Deny all of CallWave’s claims against T-Mobile;
`
`Find that T-Mobile has not infringed the ’970 patent;
`
`Find that the ’970 patent is invalid;
`
`Find that T-Mobile has not infringed the ’933 patent;
`
`Find that the ’933 patent is invalid;
`
`Find this to be an exceptional case and grant T-Mobile its attorneys’ fees;
`
`Award T-Mobile its costs and fees in this action; and
`
`Grant to T-Mobile such other and further relief as the Court deems just and
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`proper.
`
`- 10 -
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 11 of 12 PageID #: 662
`
`Dated February 25, 2014.
`
`
`
`CONNOLLY GALLAGHER LLP
`
`
`
`By: /s/ Arthur G. Connolly III
` Arthur G. Connolly III (#2667)
` Connolly Gallagher LLP
` The Brandywine Building
` 1000 West Street, Suite 1400
` Wilmington, DE 19801
` Tel: 302-888-6318
` Email: AConnolly@connollygallagher.com
`
`
`
`OF COUNSEL:
`
`Ramsey M. Al-Salam (admitted Pro Hac Vice)
`Email: RAlsalam@perkinscoie.com
`Kaustuv M. Das (admitted Pro Hac Vice)
`Email: KMDas@perkinscoie.com
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101-3099
`Tel: (206) 359-8000
`Fax: (206) 359-9000
`
`Kirk R. Ruthenberg (admitted Pro Hac Vice)
`kirk.ruthenberg@dentons.com
`Mark L. Hogge (admitted Pro Hac Vice)
`Email: mark.hogge@dentons.com
`Shailendra K. Maheshwari (admitted
` Pro Hac Vice)
`Email: shailendra.maheshwari@dentons.com
`DENTONS US LLP
`1301 K Street, N.W., Suite 600
`Washington, DC 20005
`Tel: (202) 408-6400
`Fax: (202) 408-6399
`
`
`
`
`ATTORNEYS FOR T-MOBILE USA, INC.
`
`- 11 -
`
`
`
`
`
`Patent Owner Exhibit 2006
`
`

`

`Case 1:12-cv-01703-RGA Document 68 Filed 02/25/14 Page 12 of 12 PageID #: 663
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on February 25, 2014, I caused the foregoing to be electronically
`
`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`counsel of record.
`
`
`
`
`
`
`
`
`Dated February 25, 2014.
`
`
`
`
`/s/Arthur G. Connolly III
`
`Arthur G. Connolly III (#2667)
`
`
`
`
`
`- 12 -
`
`Patent Owner Exhibit 2006
`
`

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