Case 1:12-cv-01701-RGA Document 76 Filed 02/25/14 Page 1 of 15 PageID #: 1498
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`)
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`AT&T MOBILITY LLC’S ANSWER TO CALLWAVE’S
`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Defendant AT&T Mobility LLC
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`(“AT&T”)
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`answers Plaintiff CallWave
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`Communications, LLC’s (“CallWave”) Second Amended Complaint for Patent Infringement
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`(“Complaint”) (D.I. 29) as follows.
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`AT&T denies that CallWave is entitled to the relief requested, or any other relief. AT&T
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`further denies each and every allegation contained in the Complaint, except as expressly stated
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`below. Any factual allegation in the Complaint is admitted below only as to the specific
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`admitted facts, and not as to any purported conclusions, characterizations, implications, or
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`speculations that arguably follow from the facts as admitted.
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`STATEMENT OF JURISDICTION
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`1.
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`AT&T admits that this Court has original jurisdiction of the subject matter of the
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`Complaint pursuant to the provisions of 28 U.S.C. § 1331 and § 1338(a), but denies that the
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`claims alleged in the Complaint are legally valid or sufficient.
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`
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` C.A. No. 12-1701-RGA
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`JURY TRIAL DEMANDED
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`
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`)))))))))))
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`
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`CALLWAVE COMMUNICATIONS, LLC,
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`
`Plaintiff,
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`
`
`v.
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`AT&T MOBILITY, LLC, and
`GOOGLE INC.,
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`Defendants.
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`Patent Owner Exhibit 2014
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`

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`Case 1:12-cv-01701-RGA Document 76 Filed 02/25/14 Page 2 of 15 PageID #: 1499
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`NATURE OF THE ACTION
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`2.
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`AT&T admits that CallWave purports to state a claim for patent infringement
`
`pursuant to the provisions of 35 U.S.C. §§ 271, et seq. AT&T admits that a copy of United
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`States Patent Nos. 6,771,970; 7,907,933; 7,555,110; 7,822,188; and 7,397,910 (collectively, the
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`“Asserted Patents”) are attached as Exhibits A-E to CallWave’s Complaint. The Complaint
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`alleges that AT&T infringes only the ‘970 and ‘933 patents. AT&T denies that it infringes or
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`has infringed any claim of the ‘970 or the ‘933 patents, and no response is required for the
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`remaining Asserted Patents. The Court has dismissed all allegations that AT&T induces others
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`to infringe. AT&T is without knowledge or information sufficient to form a belief as to the truth
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`of the remaining allegations of Paragraph 2, which do not relate to AT&T.
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`3.
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`AT&T denies the allegations in Paragraph 3 as to AT&T. The Court has
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`dismissed all allegations that AT&T induces others to infringe. AT&T is without knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 3,
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`which do not relate to AT&T.
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`THE PARTIES
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`4.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 4, which do not relate to AT&T.
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`5.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 5, which do not relate to AT&T.
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`6.
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`AT&T denies that it is a Georgia corporation headquartered at 1025 Lenox Park
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`Boulevard, Atlanta, Georgia.
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`7.
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` AT&T admits that it provides telecommunications services, to the extent the
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`allegations are understood. AT&T denies the remaining allegations of Paragraph 7.
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`2
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`Patent Owner Exhibit 2014
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`8.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 8, which do not relate to AT&T.
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`9.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 9, which do not relate to AT&T.
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`10.
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` AT&T denies the allegations of Paragraph 10 as they relate to AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 10, which do not relate to AT&T.
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`11.
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`AT&T denies the allegations of Paragraph 11 as they relate to AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 10, which do not relate to AT&T.
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`JURISDICTION AND VENUE
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`12.
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`AT&T admits that this Court has original jurisdiction of the subject matter of the
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`Complaint pursuant to the provisions of 28 U.S.C. § 1331 and § 1338(a), but denies that the
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`claims alleged in the Complaint are legally valid or sufficient.
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`13.
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`Solely for the purposes of this case, AT&T does not contest personal jurisdiction.
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`The language “regularly transacts business in this judicial district” is vague and ambiguous, and
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`therefore AT&T is without knowledge or information sufficient to form a belief as to the truth of
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`this allegation. AT&T denies that it has committed acts of infringement of one or more of the
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`claims of the Asserted Patents. AT&T is without knowledge or information sufficient to form a
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`belief as to the truth of the remaining allegations of Paragraph 13, which do not relate to AT&T.
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`14.
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`Solely for the purposes of this case, AT&T admits that venue is proper in this
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`district, but not that this district is the most convenient venue. AT&T denies the remaining
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`allegations of Paragraph 14 as to AT&T and specifically denies that it has committed any acts of
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`3
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`Patent Owner Exhibit 2014
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`infringement. AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations of Paragraph 14, which do not relate to AT&T.
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`THE PATENTS IN SUIT
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`15.
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`AT&T admits that U.S. Patent No. 6,771,970 purports on its face to be entitled
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`“Location Determination System.” Because the remaining allegations of Paragraph 15 are
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`vague, ambiguous, and use terms whose meaning is potentially subject to dispute by the parties,
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`AT&T denies those allegations.
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`16.
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` AT&T admits that U.S. Patent No. 7,907,933 purports on its face to be entitled
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`“Call Routing Apparatus.” Because the remaining allegations of Paragraph 16 are vague,
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`ambiguous, and use terms whose meaning is potentially subject to dispute by the parties, AT&T
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`denies those allegations.
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`17.
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` AT&T admits that U.S. Patent No. 7,397,910 purports on its face to be entitled
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`“Method and Apparatus for Providing Expanded Telecommunications Service.” The ‘910 Patent
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`is not asserted against AT&T in this Action and therefore no response is required.
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`18.
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`AT&T admits that U.S. Patent No. 7,822,188 purports on its face to be entitled
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`“Methods and Apparatus for Providing Expanded Telecommunications Service.” The ‘188
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`Patent is not asserted against AT&T in this Action and therefore no response is required.
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`19.
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`AT&T admits that U.S. Patent No. 7,555,110 purports on its face to be entitled
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`“Methods and Apparatus for Providing Expanded Telecommunications Service.” The ‘110
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`Patent is not asserted against AT&T in this Action and therefore no response is required.
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`EXEMPLARY ACCUSED PRODUCTS
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`20.
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`AT&T admits that it provides a service called AT&T FamilyMap. Because the
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`remaining allegations of Paragraph 20 are vague, ambiguous, and use terms whose meaning is
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`potentially subject to dispute by the parties, AT&T denies those allegations.
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`4
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`Patent Owner Exhibit 2014
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`21.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 21, which do not relate to AT&T.
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`22.
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`AT&T admits that certain of its mobile customers have the option to have
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`purchases made from the Google Play Store billed on their AT&T bill. AT&T denies the
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`remaining allegations of Paragraph 22.
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`23.
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`AT&T admits that certain of its mobile customers have the option to have
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`purchases made from the Google Play Store billed on their AT&T bill. AT&T is without
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`of Paragraph 23, which do not relate to AT&T.
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`24.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 24, which do not relate to AT&T.
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`25.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 25, which do not relate to AT&T.
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`INFRINGEMENT OF UNITED STATES PATENT NO. 6,771,970
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`AT&T incorporates its responses to Paragraphs 1 through 25.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`26.
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`27.
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`truth of the allegations of Paragraph 27.
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`28.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 28, which do not relate to AT&T.
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`29.
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`AT&T admits that it provides a service called AT&T FamilyMap. Because the
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`remaining allegations of Paragraph 29 are vague, ambiguous, and use terms whose meaning is
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`potentially subject to dispute by the parties, AT&T denies those allegations.
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`30.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 30, which do not relate to AT&T.
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`5
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`Patent Owner Exhibit 2014
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`31.
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`32.
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`AT&T denies the allegations of Paragraph 31.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 32, which do not relate to AT&T.
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`33.
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`34.
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`AT&T denies the allegations of Paragraph 33.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 34, which do not relate to AT&T.
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`35.
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`AT&T denies the allegations of Paragraph 35 as they relate to AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 35, which do not relate to AT&T.
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`36.
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`Paragraph 36 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T admits
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`that it received a letter from CallWave dated December 29, 2012. AT&T denies the remaining
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`allegations of Paragraph 36.
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`37.
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`Paragraph 37 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T admits
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`that it received a letter from CallWave dated December 29, 2012. AT&T denies the remaining
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`allegations of Paragraph 37.
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`38.
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`Paragraph 38 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 38.
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`39.
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`Paragraph 39 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 39.
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`6
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`Patent Owner Exhibit 2014
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`40.
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`Paragraph 40 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 40.
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`41.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 41, which do not relate to AT&T.
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`42.
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`Paragraph 42 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 42 as they relate to AT&T. AT&T is without knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations of Paragraph
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`42, which do not relate to AT&T.
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`43.
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`AT&T denies the allegations of Paragraph 43 and specifically denies that
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`CallWave is entitled to any of the relief sought in the Complaint as against AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 43, which do not relate to AT&T.
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`INFRINGEMENT OF UNITED STATES PATENT NO. 7,907,933
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`AT&T incorporates its responses to Paragraphs 1 through 43.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`44.
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`45.
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`truth of the allegations of Paragraph 45.
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`46.
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`Because the allegations of Paragraph 46 are vague, ambiguous, and use terms
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`whose meaning is potentially subject to dispute by the parties, AT&T denies those allegations as
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`they relate to AT&T. AT&T is without knowledge or information sufficient to form a belief as
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`to the truth of the remaining allegations of Paragraph 46, which do not relate to AT&T.
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`47.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 47, which do not relate to AT&T.
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`7
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`Patent Owner Exhibit 2014
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`48.
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`49.
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` AT&T denies the allegations of Paragraph 48.
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` AT&T denies the allegations of Paragraph 49 as they relate to AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 49, which do not relate to AT&T.
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`50.
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`Paragraph 50 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T admits
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`that it received a letter from CallWave dated December 29, 2012. AT&T denies the remaining
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`allegations of Paragraph 50.
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`51.
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`Paragraph 51 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 51.
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`52.
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`Paragraph 52 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 52.
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`53.
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`Paragraph 53 appears to relate to allegations of indirect and/or willful
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`infringement, which the Court has dismissed. To the extent an answer is required, AT&T denies
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`the allegations of Paragraph 53 as they relate to AT&T. AT&T is without knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations of Paragraph
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`53, which do not relate to AT&T.
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`54.
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`AT&T denies the allegations of Paragraph 54 and specifically denies that
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`CallWave is entitled to any of the relief sought in the Complaint as against AT&T. AT&T is
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`without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations of Paragraph 54, which do not relate to AT&T.
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`8
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`Patent Owner Exhibit 2014
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`DIRECT INFRINGEMENT OF UNITED STATES PATENT NO. 7,397,910
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`55.
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`56.
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`AT&T incorporates its responses to Paragraphs 1 through 54.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 56.
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`57.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 57, which do not relate to AT&T.
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`58.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 58, which do not relate to AT&T.
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`59.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 59, which do not relate to AT&T.
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`60.
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` AT&T denies the allegations of Paragraph 60 to the extent they relate to AT&T
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`and specifically denies that CallWave is entitled to any of the relief sought in the Complaint as
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`against AT&T. AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations of Paragraph 60, which do not relate to AT&T.
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`61.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 61, which do not relate to AT&T.
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`DIRECT INFRINGEMENT OF UNITED STATES PATENT NO. 7,822,188
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`62.
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`63.
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` AT&T incorporates its responses to Paragraphs 1 through 61.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 63.
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`64.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 64, which do not relate to AT&T.
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`65.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 65, which do not relate to AT&T.
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`9
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`Patent Owner Exhibit 2014
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`66.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 66, which do not relate to AT&T.
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`67.
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` AT&T denies the allegations of Paragraph 67 to the extent they relate to AT&T
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`and specifically denies that CallWave is entitled to any of the relief sought in the Complaint as
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`against AT&T. AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations of Paragraph 67, which do not relate to AT&T.
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`DIRECT INFRINGEMENT OF UNITED STATES PATENT NO. 7,555,110
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`68.
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`69.
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` AT&T incorporates its responses to Paragraphs 1 through 67.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 69.
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`70.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 70, which do not relate to AT&T.
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`71.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 71, which do not relate to AT&T.
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`72.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 72, which do not relate to AT&T.
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`73.
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` AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 73, which do not relate to AT&T.
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`74.
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`AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the allegations of Paragraph 74, which do not relate to AT&T.
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`75.
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`AT&T denies the allegations of Paragraph 75 to the extent they relate to AT&T
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`and specifically denies that CallWave is entitled to any of the relief sought in the Complaint as
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`against AT&T. AT&T is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations of Paragraph 75, which do not relate to AT&T.
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`10
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`Patent Owner Exhibit 2014
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`PRAYER FOR RELIEF
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`76.
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`For Paragraphs 76 – 81, AT&T denies that CallWave is entitled to any of the
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`relief sought in the Complaint as against AT&T. CallWave’s prayer therefore should be denied
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`in its entirety and with prejudice.
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`82.
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`AT&T admits that Plaintiff demands a trial by jury of all matters to which it is
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`entitled to trial by jury pursuant to FED. R. CIV. P. 38.
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`To the extent not expressly admitted above, the factual allegations contained in the
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`Complaint are denied.
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`SEPARATE DEFENSES
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`83.
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`For its additional defenses, AT&T incorporates by reference as if fully set forth
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`herein its responses to Paragraphs 1 – 82 to CallWave’s Complaint. Without assuming any
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`burden other than that imposed by operation of law, AT&T alleges and asserts the following
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`defenses in response to the allegations, undertaking the burden of proof only as to those defenses
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`deemed affirmative defenses by law, regardless of how such defenses are denominated herein.
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`In addition, AT&T specifically reserves all rights to allege additional defenses that become
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`known through the course of discovery.
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`FIRST ADDITIONAL DEFENSE
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`(Non-Infringement)
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`84.
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`AT&T does not infringe and has not infringed, literally or by the doctrine of
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`equivalents, any valid and enforceable claim of the ‘933 or the ‘970 patent, either directly,
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`contributorily, by inducement, jointly, or in any other manner.
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`11
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`SECOND ADDITIONAL DEFENSE
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`(Invalidity)
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`85.
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`The claims of the ‘933 and the ‘970 Patents are invalid for failure to comply with
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`the conditions and requirements for patentability specified in, but not limited to 35 U.S.C. §§ 41,
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`101, 102, 103, 112, 116, and 282.
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`THIRD ADDITIONAL DEFENSE
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`(Limitations on Damages)
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`86.
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`CallWave’s ability to recover damages under 35 U.S.C. §§ 286-287 is limited.
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`FOURTH ADDITIONAL DEFENSE
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`(Limitations on Costs)
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`87.
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`CallWave is precluded from recovering costs under 35 U.S.C. § 288.
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`FIFTH ADDITIONAL DEFENSE
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`(Estoppel, Laches, and Waiver)
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`88.
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`CallWave is barred, in whole or in part, by the doctrines of estoppel, laches, or
`
`waiver.
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`SIXTH ADDITIONAL DEFENSE
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`(Prosecution History Estoppel)
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`89.
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`CallWave’s claims are barred by the doctrine of prosecution history estoppel
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`based on amendments, statements, admissions, omissions, representations, disclaimers and/or
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`disavowals made during the prosecution of the ‘933 and the ‘970 Patents, related patents, and the
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`specifications of those patents.
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`SEVENTH ADDITIONAL DEFENSE
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`(No Entitlement to Injunctive Relief)
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`90.
`
`CallWave is not entitled to injunctive relief under eBay v. MercExchange, LLC,
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`126 S.Ct. 1837, 547 U.S. 388 (2006) because, inter alia, any alleged injury to CallWave would
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`not be immediate or irreparable, CallWave would have an adequate remedy at law, and the
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`balance of hardships do not warrant injunctive relief.
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`EIGHTH ADDITIONAL DEFENSE
`
`(No Entitlement to Attorney Fees)
`
`91.
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`CallWave cannot prove that this is an exceptional case and is therefore precluded
`
`from seeking recovery of its attorneys’ fees under the provisions of 35 U.S.C. § 285.
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`NINTH ADDITIONAL DEFENSE
`
`(Express or Implied License)
`
`92.
`
`CallWave’s claims against AT&T are barred, in whole or in part, to the extent that
`
`any AT&T product accused of infringement is directly or indirectly provided by AT&T to an
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`entity having an express or implied license under the ‘933 or the ‘970 Patents.
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`TENTH ADDITIONAL DEFENSE
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`(Jurisdiction under U.S. Court of Federal Claims)
`
`93.
`
`To the extent that CallWave may accuse products or services that are provided by
`
`or for the government of the United States of America, there is no jurisdiction over such claims,
`
`pursuant to 28 U.S.C. § 1498(a), outside of the U.S. Court of Federal Claims.
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`PRAYER FOR RELIEF
`
`Wherefore, AT&T requests that this Court grant the following relief:
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`13
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`A.
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`A judgment in AT&T’s favor on CallWave’s claims and otherwise deny
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`CallWave’s requested relief;
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`B.
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`Award AT&T its reasonable attorneys fees, filing fees, and reasonable costs of
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`suit incurred in defending against CallWave’s claims; and
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`C.
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`Grant AT&T such further and other relief as this Court deems proper and just.
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`
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`Respectfully submitted,
`
`
`Of Counsel:
`
`Joseph P. Zammit
`FULBRIGHT & JAWORSKI L.L.P.
`666 Fifth Avenue
`New York, NY 10103-3198
`(212) 318-3000
`jzammit@fulbright.com
`
`Daniel S. Leventhal
`Brett McKean
`FULBRIGHT & JAWORSKI L.L.P.
`Fulbright Tower
`1301 McKinney, Suite 5100
`Houston, TX 77010-3095
`(713) 651-5151
`dleventhal@fulbright.com
`bmckean@fulbright.com
`
`Mark C. Nelson
`Steven M. Geiszler
`Daniel A. Valenzuela
`DENTONS US LLP
`2000 McKinney Avenue
`Suite 1900
`Dallas, TX 75201-1858
`(214) 259-0900
`mark.nelson@dentons.com
`steven.geiszler@dentons.com
`daniel.valenzuela@dentons.com
`
`Dated: February 25, 2014
`
`
`
`SEITZ ROSS ARONSTAM & MORITZ LLP
`
` /s/ Benjamin J. Schladweiler
`Collins J. Seitz, Jr. (Bar No. 2237)
`Benjamin J. Schladweiler (Bar No. 4601)
`100 S. West Street, Suite 400
`Wilmington, DE 19801
`(302) 576-1600
`cseitz@seitzross.com
`bschladweiler@seitzross.com
`
`Counsel for Defendant AT&T Mobility, LLC
`
`14
`
`Patent Owner Exhibit 2014
`
`

`
`Case 1:12-cv-01701-RGA Document 76 Filed 02/25/14 Page 15 of 15 PageID #: 1512
`
`CERTIFICATE OF SERVICE
`
`I, Benjamin J. Schladweiler, hereby certify that on February 25, 2014, I caused the
`
`
`
`foregoing AT&T Mobility LLC's Answer to CallWave's Second Amended Complaint for Patent
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`Infringement to be served via electronic mail to the following individuals:
`
`William D. Belanger
`Benjamin Snitkoff
`Lauren Reznick
`Noah V. Malgeri
`PEPPER HAMILTON LLP
`19th Floor, High Street Tower
`125 High Street
`Boston, MA 02110-2736
`belangew@pepperlaw.com
`snitkoffb@pepperlaw.com
`reznickl@pepperlaw.com
`malgerin@pepperlaw.com
`
` Counsel for Plaintiff CallWave
` Communications, LLC
`
`
` /s/ Benjamin J. Schladweiler
`Benjamin J. Schladweiler (Bar No. 4601)
`
`
`
`Edmond D. Johnson
`James G. McMillan, III
`PEPPER HAMILTON LLP
`Hercules Plaza, Suite 5100
`1313 N. Market Street
`P.O. Box 1709
`Wilmington, DE 19899-1709
`(302) 777-6500
`johnsone@pepperlaw.com
`mcmillaj@pepperlaw.com
`
`Counsel for Plaintiff CallWave
`Communications, LLC
`
`
`
`
`
`
`
`Patent Owner Exhibit 2014