throbber
Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 1 of 13 PageID #: 395
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`
`Case No. 2:18-CV-00514
`Jury Trial Demanded
`
`UNILOC 2017 LLC,
`
`Plaintiff,
`
`
`v.
`
`AT&T SERVICES, INC. and AT&T
`MOBILITY LLC,
`
`Defendants,
`
`
`ERICSSON INC.,
`
`
`Intervenor Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`INTERVENOR ERICSSON INC.’S ANSWER IN INTERVENTION
`
`
`Intervenor Ericsson Inc. (“Ericsson”), by and through its undersigned counsel, hereby
`
`submits the following Answer in Intervention to the November 17, 2018 Complaint (DE 1)
`
`(“Complaint”) of Plaintiff Uniloc 2017 LLC (“Uniloc”):
`
`SCOPE OF ERICSSON’S ANSWER IN INTERVENTION
`
`
`
`Ericsson’s intervention in this case is limited to defending claims arising from AT&T
`
`Services, Inc. and AT&T Mobility LLC’s (collectively, “AT&T”) use of Ericsson products.
`
`To the extent a response is required to allegations outside of this scope, Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of such allegations and
`
`therefore denies them. Ericsson’s use of headings in this Answer in Intervention is for
`
`convenience only and are not admissions as to any of Uniloc’s allegations in the Complaint.
`
`
`
`Ex. 1023 / Page 1 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 2 of 13 PageID #: 396
`
`
`
`
`ANSWER IN INTERVENTION
`
`NATURE OF THE ACTION
`
`1.
`
`Ericsson admits that Uniloc purports to allege in the Complaint that AT&T has
`
`infringed U.S. Patents Nos. 6,901,272 (the “’272 patent), 6,519,005 (the “’005 patent) and
`
`7,016,676 (the “’676 patent) (collectively, the “Patents-in-Suit”). Ericsson admits that Exhibits
`
`A-C of the Complaint appear to be accurate reproductions of the Patents-in-Suit.
`
`2.
`
`Ericsson admits that Uniloc purports to allege in the Complaint that AT&T has
`
`infringed the Patents-in-Suit by importing, making, offering for sale, selling and operating
`
`certain applications and devices. Ericsson admits that Uniloc purports to seek damages and
`
`other relief in the Complaint. Ericsson is without knowledge or information sufficient to form
`
`a belief as to the truth of the allegations set forth in the remainder of this Paragraph and
`
`therefore denies them.
`
`THE PARTIES
`
`3.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`4.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`5.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`6.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`2
`
`Ex. 1023 / Page 2 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 3 of 13 PageID #: 397
`
`
`
`
`7.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`JURISDICTION AND VENUE
`
`8.
`
`This Paragraph states a legal conclusion to which no response is necessary. To
`
`the extent a response is deemed necessary, Ericsson denies that AT&T has infringed the ’676
`
`patent through AT&T’s use of Ericsson products. Ericsson is without knowledge or
`
`information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`this Paragraph and therefore denies them.
`
`9.
`
`Ericsson denies that AT&T has infringed the ’676 patent through AT&T’s use
`
`of Ericsson products. Ericsson is without knowledge or information sufficient to form a belief
`
`as to the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`10.
`
`Ericsson denies that AT&T has infringed the ’676 patent through AT&T’s use
`
`of Ericsson products. Ericsson is without knowledge or information sufficient to form a belief
`
`as to the truth of the remaining allegations set forth in this Paragraph and therefore denies them.
`
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 6,901,272
`
`11.
`
`Ericsson incorporates by reference each response contained in paragraphs 1
`
`through 10 of this Answer in Intervention as though fully set forth herein.
`
`12.
`
`Ericsson admits that Exhibit A of the Complaint appears to be an accurate
`
`reproduction of the ’272 patent. Ericsson admits to the allegations made in the remainder of
`
`this Paragraph.
`
`13.
`
`This Paragraph states a legal conclusion to which no response is necessary. To
`
`the extent a response is deemed necessary, denied.
`
`
`
`
`
`3
`
`Ex. 1023 / Page 3 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 4 of 13 PageID #: 398
`
`
`
`
`14.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`15.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`16.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`17.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`18.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`19.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`20.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`21.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`22.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`23.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`24.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`4
`
`Ex. 1023 / Page 4 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 5 of 13 PageID #: 399
`
`
`
`
`25.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`26.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`27.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`28.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`29.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`30.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`COUNT II: INFRINGEMENT OF U.S. PATENT NO. 6,519,005
`
`31.
`
`Ericsson incorporates by reference each response contained in paragraphs 1
`
`through 10 of this Answer in Intervention as though fully set forth herein.
`
`32.
`
`Ericsson admits that Exhibit B of the Complaint appears to be an accurate
`
`reproduction of the ’005 patent. Ericsson admits to the allegations made in the remainder of
`
`this Paragraph.
`
`33.
`
`This Paragraph states a legal conclusion to which no response is necessary. To
`
`the extent a response is deemed necessary, denied.
`
`34.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`5
`
`Ex. 1023 / Page 5 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 6 of 13 PageID #: 400
`
`
`
`
`35.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`36.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`37.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`38.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`39.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`40.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`41.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`42.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`43.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`44.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`45.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`6
`
`Ex. 1023 / Page 6 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 7 of 13 PageID #: 401
`
`
`
`
`46.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`47.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`48.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`49.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`50.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`51.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`COUNT III: INFRINGEMENT OF U.S. PATENT NO. 7,016,676
`
`52.
`
`Ericsson incorporates by reference each response contained in paragraphs 1
`
`through 10 of this Answer in Intervention as though fully set forth herein.
`
`53.
`
`Ericsson admits that Exhibit C of the Complaint appears to be an accurate
`
`reproduction of the ’676 patent. Ericsson admits to the allegations made in the remainder of
`
`this Paragraph.
`
`54.
`
`This Paragraph states a legal conclusion to which no response is necessary. To
`
`the extent a response is deemed necessary, denied.
`
`55.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`7
`
`Ex. 1023 / Page 7 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 8 of 13 PageID #: 402
`
`
`
`
`56.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`57.
`
`Ericsson is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in this Paragraph and therefore denies them.
`
`58.
`
`Ericsson admits that it provides to AT&T base stations that can be configured
`
`to communicate with LTE-LAA-enabled devices over an unlicensed frequency band
`
`(“Ericsson LTE-LAA Base Stations”). Ericsson denies the remaining allegations set forth in
`
`this Paragraph.
`
`59.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`60.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`61.
`
`Ericsson admits that the Ericsson LTE-LAA Base Stations communicate with
`
`smartphones. Ericsson further admits that certain of those smartphones are capable of
`
`communicating with other devices via the LTE-LAA and Wi-Fi protocols. Ericsson denies
`
`that the Ericsson LTE-LAA Base Stations communicate with any devices using the Wi-Fi
`
`protocol. Ericsson is without knowledge or information sufficient to form a belief as to the
`
`truth of the remaining allegations set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`8
`
`Ex. 1023 / Page 8 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 9 of 13 PageID #: 403
`
`
`
`
`62.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations set forth in this Paragraph and therefore denies them.
`
`63.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`64.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`65.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`66.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`67.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`68.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`
`
`
`
`9
`
`Ex. 1023 / Page 9 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 10 of 13 PageID #: 404
`
`
`
`
`69.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`70.
`
`Denied with respect to Ericsson LTE-LAA Base Stations. Ericsson is without
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in this Paragraph and therefore denies them.
`
`DEFENSES
`
`First Defense
`
`Each purported claim for relief fails to state a claim upon which relief can be granted.
`
`Second Defense
`
`Ericsson has not infringed, and does not infringe (literally, under the doctrine of
`
`equivalents, directly, indirectly, contributorily, or by inducement) any valid, enforceable claim
`
`of the ’676 patent.
`
`Third Defense
`
`Uniloc’s right to seek damages is limited, including without limitation, by 35 U.S.C.
`
`§§ 286, 287 and 288.
`
`Fourth Defense
`
`Uniloc’s actions in defending this case do not give rise to an exceptional case under 35
`
`U.S.C. § 285.
`
`Fifth Defense
`
`Ericsson has not willfully infringed any claim of the ’676 patent.
`
`
`
`
`
`
`
`10
`
`Ex. 1023 / Page 10 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 11 of 13 PageID #: 405
`
`
`
`
`Sixth Defense
`
`Uniloc is not entitled to injunctive relief at least because any injury Uniloc has
`
`sustained is not immediate or irreparable, and if Uniloc were to prevail on its cause of action
`
`for any claim, it has an adequate remedy at law.
`
`AFFIRMATIVE DEFENSES
`
`Without altering the burden of proof, Ericsson asserts the following defenses, which
`
`are based upon an investigation that is not complete and is prior to the results of any discovery
`
`from Uniloc. Ericsson’s investigation of its defenses is continuing, and Ericsson reserves the
`
`right to assert all affirmative defenses under Rule 8(c) of the Federal Rules of Civil Procedure,
`
`the patent laws of the United States, and any other defense, at law or in equity, that may now
`
`exist or in the future be available based upon discovery and further investigation in this case.
`
`First Affirmative Defense
`
`The claims of the ’676 patent are invalid for failure to meet the conditions for
`
`patentability set forth in 35 U.S.C. §§ 101 et seq., including without limitation §§ 101, 102,
`
`103, and/or 112 thereof.
`
`Second Affirmative Defense
`
`Uniloc’s claims are barred, in whole or in part, by the doctrines of laches, estoppel,
`
`unclean hands, waiver, acquiescence, and any other applicable equitable doctrine.
`
`DEMAND FOR JURY TRIAL
`
`Pursuant to Federal Rule of Civil Procedure 38(b), Ericsson Inc. demands a trial by
`
`jury on all issues so triable.
`
`
`
`
`
`
`
`11
`
`Ex. 1023 / Page 11 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 12 of 13 PageID #: 406
`
`
`
`
`Dated: May 7, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`/s/ Jacob K. Baron
`
`Joshua C. Krumholz, Esq.
`(LEAD COUNSEL)
`MA Bar No.: 552573
`Email: joshua.krumholz@hklaw.com
`(pro hac vice application forthcoming)
`Jacob K. Baron, Esq.
`MA Bar No.: 652568
`Email: jacob.baron@hklaw.com
`Jacob W. S. Schneider, Esq.
`MA Bar No.: 675315
`Email: jacob.schneider@hklaw.com
`(pro hac vice application forthcoming)
`Rabi Fiotto, Esq.
`MA Bar No.: 699571
`Email: rabi.fiotto@hklaw.com
`(pro hac vice application forthcoming)
`HOLLAND & KNIGHT LLP
`10 Saint James Avenue; 11th Floor
`Boston, MA 02116
`Telephone: (617)523-2700
`Facsimile:
`(617)523-6850
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Attorneys for Ericsson Inc.
`
`
`
`
`12
`
`Ex. 1023 / Page 12 of 13
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00514-JRG Document 44 Filed 05/07/19 Page 13 of 13 PageID #: 407
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on this 7th day of May, 2019, I caused the foregoing
`Answer in Intervention to be electronically filed with the Clerk of the Court by using the
`CM/ECF system which will send a notice of electronic filing to all counsel of record who are
`deemed to have consented to electronic service.
`
`
`
` /s/
`
`Jacob K. Baron
`Jacob K. Baron, Esq.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`Ex. 1023 / Page 13 of 13
`ERICSSON v. UNILOC
`
`

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