Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 1 of 41 PageID #: 4341
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Civil Action No.
`2: 19-cv-00395-JRG
`
`Lead Case
`
`FILED UNDER SEAL
`
`Luminati Networks Ltd.,
`
`Plaintiff,
`
`V.
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
`Defendants.
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
`Counterclaim And Third(cid:173)
`Party Plaintiffs,
`
`V.
`
`Luminati Networks Ltd., EMK Capital
`LLP, EMK Capital Partners LP, EMK
`Capital Partners GP Co-Investment LP,
`Hola VPN Ltd., and Hola Networks Ltd.,
`
`Counterclaim And Third(cid:173)
`Party Defendants.
`
`OXYLABS' ANSWER, TIDRD AMENDED COUNTERCLAIMS
`AND TIDRD AMENDED THIRD-PARTY COMPLAINT
`
`Teso LT, UAB ("Teso"), Oxysales, UAB ("Oxysales"), and Metacluster LT, UAB
`
`("Metacluster") (collectively, "Oxylabs") file this Answer to Plaintiff Luminati Networks Ltd. 's
`
`("Luminati") Complaint for Patent Infringement filed on December 6, 2019 (the "Complaint)
`
`(ECF No. 1) and Third Amended Counterclaims and Third Amended Third-Paiiy Complaint. All
`
`1
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 001
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 2 of 41 PageID #: 4342
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`allegations of the Complaint not expressly admitted or not specifically responded to by Oxylabs
`
`are denied.
`
`THE PARTIES
`
`1.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 1 and, therefore, denies the allegations.
`
`2.
`
`Responding to Paragraph 2, Oxylabs admits that Teso was previously known as
`
`UAB Tesonet (“Tesonet”), and is a Lithuanian entity with an office address of A. Goštauto g.
`
`40A, LT-03163, Vilnius, Lithuania. Oxylabs further admits that, in 2018, Tesonet underwent a
`
`corporate restructuring and, as a result of that restructuring, (i) Tesonet’s name was changed to
`
`Teso LT, UAB and (ii) Metacluster, Oxysales, code200, UAB (“Code200”), and coretech lt,
`
`UAB (“Coretech”) were created. Oxylabs admits that Teso, Metacluster, Oxysales, Code200 and
`
`Coretech share, directly or indirectly, common or overlapping owners. Oxylabs denies the re-
`
`maining allegations of Paragraph 2.
`
`3.
`
`Responding to Paragraph 3, Oxylabs admits that Metacluster is a Lithuanian enti-
`
`ty with an office address of A. Goštauto g. 40A, LT-03163, Vilnius, Lithuania, and that Teso al-
`
`so has this office address. Oxylabs further admits that Teso and Metacluster share a common
`
`owner. Oxylabs admits that Metacluster sells the Real-Time Crawler product (“RTC”) previously
`
`sold by Teso. Oxylabs denies the remaining allegations of Paragraph 3.
`
`4.
`
`Responding to Paragraph 4, Oxylabs admits that Oxysales is a Lithuanian entity
`
`with an office address of A. Goštauto g. 40A, LT-03163, Vilnius, Lithuania, and that Teso and
`
`Metacluster also have this office address. Oxylabs further admits that Oxysales, Teso and Meta-
`
`cluster share a common owner. Oxylabs admits that Oxysales has provided sales agency, client
`
`support and marketing support to Teso and Metacluster. Oxylabs denies the remaining allega-
`
`
`
`2
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 002
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 3 of 41 PageID #: 4343
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`tions of Paragraph 4.
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`5.
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`Responding to Paragraph 5, Oxylabs admits that Teso has sold Oxylabs’ residen-
`
`tial proxy network service (“RPN”) and that Metacluster has sold RTC. Oxylabs further admits
`
`that the RPN and RTC products are advertised on the website https://oxylabs.io. Oxylabs further
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`admits that Teso, Metacluster, and Oxysales have the same owner. Oxylabs denies the remaining
`
`allegations of Paragraph 5.
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`JURISDICTION AND VENUE
`
`6.
`
`Oxylabs admits that Luminati has brought a lawsuit alleging patent infringement
`
`under the laws of the United States, as alleged in Paragraph 6. Oxylabs denies that it infringes
`
`any patents.
`
`7.
`
`Oxylabs admits that this Court has subject-matter jurisdiction, as alleged in Para-
`
`graph 7. Oxylabs further admits that Teso did not contest subject-matter jurisdiction in the law-
`
`suit styled Luminati Networks Ltd. v. UAB Tesonet, Case 2:18-cv-00299-JRG (the “First Law-
`
`suit”) and that Teso accepted service of process in the First Lawsuit.
`
`8.
`
`Responding to Paragraph 8, Teso states that it does not contest personal jurisdic-
`
`tion. Oxylabs otherwise denies the allegations of Paragraph 8.
`
`9.
`
`Responding to Paragraph 9, Metacluster states that it does not content personal ju-
`
`risdiction. Oxylabs otherwise denies the allegations of Paragraph 9.
`
`10.
`
`Responding to Paragraph 10, Oxysales states that it does not content personal ju-
`
`risdiction. Oxylabs otherwise denies the allegations of Paragraph 10.
`
`11.
`
`Responding to Paragraph 11, Oxylabs states that the Oxylabs website speaks for
`
`itself. Oxylabs otherwise denies the allegations of Paragraph 11.
`
`12.
`
`Oxylabs denies the allegations of Paragraph 12.
`
`
`
`3
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 003
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 4 of 41 PageID #: 4344
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`13.
`
`Responding to Paragraph 13, Oxylabs states that it does not contest venue and that
`
`Oxysales, Teso, and Metacluster are not United States entities.
`
`FACTUAL ALLEGATIONS
`
`14.
`
`Responding to Paragraph 14, Oxylabs admits that U.S. Patent Nos. 10,469,614
`
`(the “’614 patent”) states, on its face, that it issued on April 9, 2019. Oxylabs admits that U.S.
`
`Patent No. 10,257,319 (the “’319 patent”) states, on its face, that it issued on November 5, 2019.
`
`Oxylabs admits that U.S. Patent No. 10,484,510 (the “’510 patent”) states, on its face, that it is-
`
`sued on November 19, 2019. (The ’614 patent, ’319 patent, and ’510 patent, collectively, the
`
`“Patents-in-Suit.”) Oxylabs further admits that Luminati filed its complaint in the First Lawsuit
`
`before April 9, 2019 and November 5, 2019. Oxylabs otherwise denies the allegations of Para-
`
`graph 14.
`
`15.
`
`Responding to Paragraph 15, Oxylabs states that the ’319 patent and the ’510 pa-
`
`tent speak for themselves. Oxylabs is without knowledge or information sufficient to form a be-
`
`lief as to the truth of the other allegations in Paragraph 15 and, therefore, denies the allegations.
`
`16.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 16 and, therefore, denies the allegations.
`
`17.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 17 and, therefore, denies the allegations.
`
`18.
`
`Responding to Paragraph 18, Oxylabs admits that Tesonet and Hola Networks
`
`Ltd. entered into a contract effective December 2015. Oxylabs also states that it understands that
`
`Hola Networks Ltd. offered a virtual provide network service called HolaVPN. Oxylabs other-
`
`wise denies the allegations of Paragraph 18.
`
`19.
`
`Responding to Paragraph 19, Oxylabs admits that, in May 2017, Tomas Okmanas,
`
`
`
`4
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 004
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 5 of 41 PageID #: 4345
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`a Teso co-founder, met with Ofer Vilkenski. Oxylabs further states that any e-mail sent by Mr.
`
`Vilenski to Mr. Okmanas speaks for itself. Otherwise, Oxylabs denies the allegations of Para-
`
`graph 19.
`
`20.
`
`Responding to Paragraph 20, Oxylabs admits that, on or about June 1, 2017, the
`
`letter attached to the Complaint as ECF No. 1-4 was sent to Mr. Okmanas. Oxylabs further states
`
`that the letter and U.S. Patent Nos. 8,560,604 and 9,241,044 speak for themselves. Oxylabs oth-
`
`erwise denies the allegations of Paragraph 20.
`
`21.
`
`Responding to Paragraph 21, Oxylabs admits that, on or about February 14, 2018,
`
`the letter attached to the Complaint as ECF No. 1-5 was sent to Mr. Okmanas. Oxylabs further
`
`states that the letter speaks for itself. Oxylabs otherwise denies the allegations of Paragraph 21.
`
`22.
`
`Responding to Paragraph 22, Oxylabs admits that, on June 20, 2018, counsel for
`
`Tesonet sent a letter to David Cohen. Oxylabs further states that the letter speaks for itself. Ox-
`
`ylabs admits that “Oxylabs” is the brand name used in connection with certain products, includ-
`
`ing RPN and RTC. Oxylabs states that the Oxylabs website speaks for itself. Oxylabs otherwise
`
`denies the allegations of Paragraph 22.
`
`23.
`
`Responding to Paragraph 23, Oxylabs states that the complaint in the First Law-
`
`suit speaks for itself. Oxylabs further admits that the Patents-in-Suit issued after July 19, 2018.
`
`24.
`
`Responding to Paragraph 24, Oxylabs states that the Oxylabs website speaks for
`
`itself. Oxylabs admits that contractual relationships exist between the Oxylabs entities. Oxylabs
`
`admits that residential proxies are located in Marshall, Texas. Oxylabs otherwise denies the alle-
`
`gations of Paragraph 24.
`
`25.
`
`26.
`
`Oxylabs denies the allegations of Paragraph 25.
`
`Oxylabs denies the allegations of Paragraph 26.
`
`
`
`5
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 005
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 6 of 41 PageID #: 4346
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`27.
`
`28.
`
`29.
`
`30.
`
`Oxylabs denies the allegations of Paragraph 27.
`
`Oxylabs denies the allegations of Paragraph 28.
`
`Oxylabs denies the allegations of Paragraph 29.
`
`Responding to Paragraph 30, Oxylabs states that the End User License Agreement
`
`spoke for itself. Oxylabs otherwise denies the allegations of Paragraph 30.
`
`Oxylabs denies the allegations of Paragraph 31.
`
`Oxylabs denies the allegations of Paragraph 32.
`
`Oxylabs denies the allegations of Paragraph 33.
`
`Oxylabs denies the allegations of Paragraph 34.
`
`Responding to Paragraph 35, Oxylabs admits that the use of RPN allows for ano-
`
`31.
`
`32.
`
`33.
`
`34.
`
`35.
`
`nymity.
`
`36.
`
`Responding to Paragraph 36, Oxylabs states that the Oxylabs website speaks for
`
`itself.
`
`37.
`
`Responding to Paragraph 37, Oxylabs states that the Oxylabs website and hyper-
`
`link speak for themselves. Oxylabs otherwise denies the allegations of Paragraph 37.
`
`38.
`
`39.
`
`Oxylabs denies the allegations of Paragraph 38.
`
`Responding
`
`to Paragraph
`
`39, Oxylabs
`
`states
`
`that
`
`the website
`
`www.darksideofluminati.com spoke for itself. Oxylabs otherwise denies the allegations of Para-
`
`graph 39.
`
`40.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 40 and, therefore, denies the allegations.
`
`41.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 41 and, therefore, denies the allegations.
`
`
`
`6
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 006
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 7 of 41 PageID #: 4347
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`42.
`
`Responding to Paragraph 42, Oxylabs admits that certain former Luminati em-
`
`ployees were contacted by Oxylabs’ legal counsel, and that Oxylabs sought information from the
`
`former employees. Oxylabs is without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in Paragraph 42 concerning any Luminati agreement with its employ-
`
`ees and employee knowledge and, therefore, denies the allegations.
`
`43.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 43 and, therefore, denies the allegations.
`
`44.
`
`45.
`
`46.
`
`Oxylabs denies the allegations of Paragraph 44.
`
`Oxylabs denies the allegations of Paragraph 45.
`
`Oxylabs denies the allegations of Paragraph 46.
`
`COUNT I
`(ALLEGED INFRINGEMENT OF THE ’614 PATENT)
`
`47.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`48.
`
`Responding to Paragraph 48, Oxylabs admits that what purports to be a true and
`
`correct copy of the ’614 patent is attached as ECF No. 1-1. Oxylabs otherwise denies the allega-
`
`tions of Paragraph 48.
`
`49.
`
`Responding to Paragraph 49, Oxylabs states that 35 U.S.C. § 282 speaks for itself.
`
`Oxylabs otherwise denies the allegations of Paragraph 49.
`
`50.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 50 and, therefore, denies the allegations.
`
`51.
`
`Responding to Paragraph 51, Oxylabs states that Claim 1 of the ’614 patent
`
`speaks for itself.
`
`52.
`
`Oxylabs denies the allegations of Paragraph 52.
`
`
`
`7
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 007
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 8 of 41 PageID #: 4348
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`53.
`
`54.
`
`Oxylabs denies the allegations of Paragraph 53.
`
`Responding to Paragraph 54, Oxylabs states that the ’614 patent speaks for itself.
`
`Oxylabs otherwise denies the allegations of Paragraph 54.
`
`55.
`
`Responding to Paragraph 55, Oxylabs states that the pleadings in the First Law-
`
`suit and the ’614 patent speak for themselves. Oxylabs otherwise denies the allegations of Para-
`
`graph 55.
`
`56.
`
`57.
`
`58.
`
`59.
`
`60.
`
`Oxylabs denies the allegations of Paragraph 56.
`
`Oxylabs denies the allegations of Paragraph 57.
`
`Oxylabs denies the allegations of Paragraph 58.
`
`Oxylabs denies the allegations of Paragraph 59.
`
`Oxylabs denies the allegations of Paragraph 60.
`
`COUNT II
`(ALLEGED INFRINGEMENT OF THE ’319 PATENT)
`
`61.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`62.
`
`Responding to Paragraph 62, Oxylabs admits that what purports to be a true and
`
`correct copy of the ’319 patent is attached as ECF No. 1-2. Oxylabs otherwise denies the allega-
`
`tions of Paragraph 62.
`
`63.
`
`Responding to Paragraph 63, Oxylabs states that 35 U.S.C. § 282 speaks for itself.
`
`Oxylabs otherwise denies the allegations of Paragraph 63.
`
`64.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 64 and, therefore, denies the allegations.
`
`65.
`
`Responding to Paragraph 65, Oxylabs states that Claim 1 of the ’319 patent
`
`speaks for itself.
`
`
`
`8
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 008
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 9 of 41 PageID #: 4349
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`66.
`
`67.
`
`Oxylabs denies the allegations of Paragraph 66.
`
`Responding to Paragraph 67, Oxylabs states that the ’319 patent speaks for itself.
`
`Oxylabs otherwise denies the allegations of Paragraph 67.
`
`68.
`
`69.
`
`70.
`
`71.
`
`72.
`
`73.
`
`Oxylabs denies the allegations of Paragraph 68.
`
`Oxylabs denies the allegations of Paragraph 69.
`
`Oxylabs denies the allegations of Paragraph 70.
`
`Oxylabs denies the allegations of Paragraph 71.
`
`Oxylabs denies the allegations of Paragraph 72.
`
`Oxylabs denies the allegations of Paragraph 73.
`
`COUNT III
`(ALLEGED INFRINGEMENT OF THE ’510 PATENT)
`
`74.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`75.
`
`Responding to Paragraph 75, Oxylabs admits that what purports to be a true and
`
`correct copy of the ’510 patent is attached as ECF No. 1-3. Oxylabs otherwise denies the allega-
`
`tions of Paragraph 75.
`
`76.
`
`Responding to Paragraph 76, Oxylabs states that 35 U.S.C. § 282 speaks for itself.
`
`Oxylabs otherwise denies the allegations of Paragraph 76.
`
`77.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 77 and, therefore, denies the allegations.
`
`78.
`
`Responding to Paragraph 78, Oxylabs states that Claim 1 of the ’510 patent
`
`speaks for itself.
`
`79.
`
`80.
`
`
`
`Oxylabs denies the allegations of Paragraph 79.
`
`Responding to Paragraph 80, Oxylabs states that the ’510 patent speaks for itself.
`
`9
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 009
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 10 of 41 PageID #: 4350
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`Oxylabs otherwise denies the allegations of Paragraph 80.
`
`81.
`
`82.
`
`83.
`
`84.
`
`85.
`
`86.
`
`Oxylabs denies the allegations of Paragraph 81.
`
`Oxylabs denies the allegations of Paragraph 82.
`
`Oxylabs denies the allegations of Paragraph 83.
`
`Oxylabs denies the allegations of Paragraph 84.
`
`Oxylabs denies the allegations of Paragraph 85.
`
`Oxylabs denies the allegations of Paragraph 86.
`
`COUNT IV
`(ALLEGED MISAPPROPRIATION OF TRADE SECRETS)
`
`87.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`88.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 88 and, therefore, denies the allegations.
`
`89.
`
`Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 89 and, therefore, denies the allegations.
`
`90.
`
`91.
`
`92.
`
`93.
`
`Oxylabs denies the allegations of Paragraph 90.
`
`Oxylabs denies the allegations of Paragraph 91.
`
`Oxylabs denies the allegations of Paragraph 92.
`
`Oxylabs denies the allegations of Paragraph 93.
`
`COUNT V
`(ALLEGED INTENTIONAL UNAUTHORIZED ACCESS OF PROTECTED COMPUTER)
`
`94.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`95.
`
`96.
`
`
`
`Oxylabs denies the allegations of Paragraph 95.
`
`Oxylabs denies the allegations of Paragraph 96.
`
`10
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 010
`
`

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`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 11 of 41 PageID #: 4351
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`97.
`
`Oxylabs denies the allegations of Paragraph 97.
`
`COUNT VI
`(ALLEGED FALSE ADVERTISING UNDER 15 U.S.C. § 1125(A) ET SEQ.)
`
`98.
`
`Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`99.
`
`Oxylabs denies the allegations of Paragraph 99.
`
`100. Oxylabs denies the allegations of Paragraph 100.
`
`101. Oxylabs denies the allegations of Paragraph 101.
`
`102. Oxylabs denies the allegations of Paragraph 102.
`
`103. Oxylabs denies the allegations of Paragraph 103.
`
`104. Oxylabs denies the allegations of Paragraph 104.
`
`COUNT VII
`(ALLEGED TORTIOUS INTERFERENCE WITH LUMINATI’S BUSINESS RELATIONSHIPS)
`
`105. Oxylabs incorporates the foregoing paragraphs by reference as if fully set forth
`
`herein.
`
`106. Oxylabs is without knowledge or information sufficient to form a belief as to the
`
`truth of the allegations in Paragraph 106 and, therefore, denies the allegations.
`
`107. Oxylabs denies the allegations of Paragraph 107.
`
`108. Oxylabs denies the allegations of Paragraph 108.
`
`LUMINATI’S PRAYER FOR RELIEF
`
`109. Oxylabs admits that Luminati requests certain relief from the Court. Oxylabs de-
`
`nies that Luminati is entitled to any relief.
`
`LUMINATI’S DEMAND FOR JURY TRIAL
`
`110. Oxylabs admits that Luminati has demanded a trial by jury of all issues so triable.
`
`Oxylabs demands, pursuant to Federal Rule of Civil Procedure 38, a trial by jury on all issues so
`
`
`
`11
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 011
`
`

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`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 12 of 41 PageID #: 4352
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`triable.
`
`DEFENSES
`
`111. Without altering the burden of proof, Oxylabs asserts the following defenses,
`
`which are based upon an investigation that is not complete. Oxylabs’ investigation of its defenses
`
`is continuing, and Oxylabs reserves the right to assert all defenses under Federal Rule of Civil
`
`Procedure 8, 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, among other things, discovery and fur-
`
`ther investigation in this case.
`
`FIRST DEFENSE
`(NON-INFRINGEMENT)
`
`112. Oxylabs has not directly or indirectly, literally or under the doctrine of equiva-
`
`lents, infringed, contributed to the infringement of, or induced the infringement of any valid and
`
`enforceable claim of the Patents-in-Suit, and is not liable for infringement thereof.
`
`SECOND DEFENSE
`(INVALIDITY)
`
`113. The claims of the Patents-in-Suit are invalid and/or void for failure to meet the
`
`conditions for patentability specified by 35 U.S.C. §§ 101 et seq., including but not limited to 35
`
`U.S.C. §§ 101, 102, 103, 112 and/or 282 and/or the Rules and Regulations of the United States
`
`Patent & Trademark Office.
`
`THIRD DEFENSE
`(LIMITATION ON DAMAGES)
`
`114. Luminati’s claims for relief are limited by 35 U.S.C. §§ 286-287 and/or 28 U.S.C.
`
`§ 1498.
`
`FOURTH DEFENSE
`(PROSECUTION HISTORY ESTOPPEL)
`
`115. By reason of proceedings in the United States Patent & Trademark Office, and by
`
`
`
`12
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 012
`
`

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`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 13 of 41 PageID #: 4353
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`reasons of amendments, statements, admissions, omissions and/or representations made by the
`
`applicants or on their behalf, Luminati is estopped from asserting infringement of the Patents-in-
`
`Suit against Oxylabs.
`
`FIFTH DEFENSE
`(DISCLOSURE-DEDICATION)
`
`116. Luminati’s claims are barred to the extent Luminati has dedicated to the public
`
`systems, methods, and/or products disclosed in the Patents-in-Suit but not literally claimed there-
`
`in.
`
`SIXTH DEFENSE
`(INEQUITABLE CONDUCT)
`
`117. The ’614 patent is unenforceable as a result of the inequitable conduct of Lumina-
`
`ti due to its omission of information material to patentability during prosecution with the specific
`
`intent to mislead or deceive the United States Patent & Trademark Office. Such intentionally
`
`omitted information includes the applications that issued as the ’319 and ’510 patents, which
`
`were examined by Examiner Nguyen, in the prosecution of the application that issued as the ’614
`
`patent, U.S. Pat. App. 16/214,433 (the “’433 Application”), which Examiner Scott examined.
`
`The applications that issued as the ’319 and ’510 patents were unquestionably known to at least
`
`Derry Shribman and Ofer Vilenski, who are the coinventors of all three Patents-in-Suit, as well
`
`as Yehuda Binder, the prosecutor that signed all papers submitted by the patentee in the prosecu-
`
`tion of all three Patents-in-Suit. Manual of Patent Examining Procedure (“MPEP”) § 2001.06(b)
`
`makes clear that each of these individuals owed
`
`a duty to bring to the attention of the examiner, or other Office of-
`ficial involved with the examination of a particular application, in-
`formation within their knowledge as to other copending United
`States applications which are “material to patentability” of the ap-
`plication in question. This may include providing the identification
`of pending or abandoned applications filed by at least one of the
`inventors or assigned to the same assignee as the current applica-
`
`
`
`13
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 013
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 14 of 41 PageID #: 4354
`
`tion that disclose similar subject matter that are not otherwise iden-
`tified in the current application.
`
`118. The intentionally withheld applications were material to the patentability of the
`
`claims of the ’614 patent. Specifically, on June 27, 2019, Examiner Scott rejected all pending
`
`claims of the ’433 Application except claim 28, which was objected to as allowable if rewritten
`
`in independent form as claim 1.
`
`119. On July 15, 2019, Examiner Scott and Prosecutor Binder agreed on a phone call
`
`that Examiner Scott had intended to allow claim 29 and not claim 28 (despite Examiner Scott
`
`providing a full basis for rejecting claim 29 under 35 U.S.C. § 103 in his June 27, 2019 final of-
`
`fice action). On July 27, 2019, without traversing any of the rejections to claim 1 of the ’433 Ap-
`
`plication, Luminati amended claim 1 to add the subject matter of claim 29, which Examiner
`
`Scott allowed on August 23, 2019. Accordingly, Examiner Scott allowed amended claim 1 solely
`
`based upon Luminati’s additional limitations of claim 29.
`
`120.
`
` The ’319 patent issued over three months earlier on April 9, 2018, purporting to
`
`have a priority date of October 9, 2009, making the ’319 patent prior art to the ’433 Application.
`
`Significantly, the additional limitations of claim 29 of the ’433 Application are coextensive in
`
`scope with claim 1 of the ’319 patent. Due to Luminati’s intentional failure to disclose the appli-
`
`cations that issued as the ’319 and ’510 patents (or the fact that the ’319 patent in fact issued),
`
`Examiner Scott was not aware of that Luminati claimed, in claim 1 of the prior art ’319 patent,
`
`the exact same subject matter on which Examiner Scott based his allowance of the claims of the
`
`’614 patent. But for Luminati’s omission of these applications, Examiner Scott would not have
`
`allowed the claims of the ’614 patent because the purportedly allowable subject matter of claim
`
`29 of the ’614 patent is disclosed by claim 1 of the prior art ’319 patent.
`
`121. Luminati intentionally withheld these applications from Examiner Scott with the
`
`
`
`14
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 014
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 15 of 41 PageID #: 4355
`
`specific intent to mislead or deceive the United States Patent & Trademark Office. The inten-
`
`tionally withheld patent applications were unquestionably known to Luminati, as the ’433 Appli-
`
`cation and the withheld applications share the same inventors and prosecuting attorney. MPEP §
`
`2001.06(b) expressly states that the inventors and the prosecuting attorney had a duty to disclose
`
`the withheld applications in the prosecution of the ’433 Application. The only reasonable infer-
`
`ence is that the failure to submit a known reference that is expressly required to be disclosed was
`
`a result of a specific intent to mislead or deceive the United States Patent & Trademark Office,
`
`especially considering that the applications are material to patentability. Luminati’s specific in-
`
`tent to deceive is also evidenced by the conduct giving rise to Teso’s counterclaims, as more ful-
`
`ly described below, as Luminati was motivated to mislead Examiner Scott in order to obtain the
`
`’614 patent to assert against Oxylabs in furtherance of this conduct.
`
`SEVENTH DEFENSE
`(FIRST AMENDMENT / LITIGATION PRIVILEGE)
`
`122. Oxylabs asserts that certain of Luminati’s non-patent claims are barred, in whole
`
`or in part, by the First Amendment to the United States Constitution, the litigation privilege, le-
`
`gal justification, fair use, and/or Oxylabs’ free-speech rights. For example, Luminati appears to
`
`premise its false advertising and tortious-interference claims based on Oxylabs’ “Bust the Bully”
`
`prior-art program and the website http://www.darksideofluminati.com/. But that program and
`
`website are protected by First Amendment to the United States Constitution, the litigation privi-
`
`lege, legal justification, fair use, and/or free-speech rights.
`
`EIGHTH DEFENSE
`(EXTRATERRITORIALITY)
`
`123. Oxylabs asserts that Luminati’s claims are barred, in whole or in part, by extrater-
`
`ritoriality principles. For example, the Patents-in-Suit do not apply outside of the United States
`
`and, further, all steps of the methods of the asserted claims must be performed entirely in the
`
`
`
`15
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 015
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 16 of 41 PageID #: 4356
`
`United States. See, e.g., NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir.
`
`2005). Luminati has not shown that all steps of the methods of the asserted claims are performed
`
`in the United States. Additionally, with respect to Luminati’s non-patent claims, Luminati has
`
`not shown that these claims have the requisite nexus to the United States and/or the State of Tex-
`
`as as, for example, the activities that Luminati appears to complain of occurred overseas. See,
`
`e.g., WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136 (2018); RJR Nabisco,
`
`Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016); Citizens Ins. Co. of Am. v. Daccach, 217
`
`S.W.3d 430, 443 (Tex. 2007).
`
`JURY DEMAND (ANSWER)
`
`124. Oxylabs demands, pursuant to Rule 38 of the Federal Rules of Civil Procedure, a
`
`trial by jury on all issues so triable.
`
`OXYLABS’ PRAYER FOR RELIEF (ANSWER)
`
`125. Oxylabs requests that the Court enter a judgment in Oxylabs’ favor as follows:
`
`A.
`
`B.
`
`Dismissing Luminati’s Complaint in its entirety, with prejudice;
`
`Declaring that Luminati is not entitled to any relief, whether in law or eq-
`
`uity or otherwise, from its suit against Oxylabs;
`
`C.
`
`Declaring that Oxylabs does not infringe and has not infringed the Patents-
`
`in-Suit;
`
`D.
`
`E.
`
`F.
`
`Declaring that the claims of the Patents-in-Suit are invalid;
`
`Declaring that the claims of the ’614 patent are unenforceable;
`
`Permanently enjoining Luminati, its successors and assigns, and anyone
`
`acting in concert therewith or on its behalf, from attempting to enforce the
`
`Patents-in-Suit against Oxylabs or any parents, affiliates, or subsidiaries of
`
`
`
`16
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 016
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 17 of 41 PageID #: 4357
`
`Oxylabs or any of their respective officers, agents, employees, successors,
`
`and assigns;
`
`G.
`
`Declaring that this is an exceptional case in Oxylabs’ favor pursuant to 35
`
`U.S.C. § 285;
`
`H.
`
`Awarding Oxylabs its costs, expenses, and reasonable attorney’s fees,
`
`whether pursuant to 35 U.S.C. § 285, 15 U.S.C. § 1117(a), or otherwise;
`
`and
`
`I.
`
`Entering an Order that Oxylabs shall have and recover from Luminati any
`
`and all such other and further relief, general and special, at law or in equi-
`
`ty, to which Oxylabs may be justly entitled.
`
`COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
`
`126. Pursuant to Federal Rules of Civil Procedure 13, 14 and 20, Oxylabs files these
`
`Third Amended Counterclaims against Luminati and this Third Amended Complaint against
`
`Third-Party Defendants EMK Capital LLP, EMK Capital Partners LP, and EMK Capital Partners
`
`GP Co-Investment LP (collectively, “EMK”); and Hola VPN Ltd. and Hola Networks Ltd. (col-
`
`lectively, “Hola”) (Luminati, EMK, and Hola, collectively, “Defendants”). Oxylabs alleges,
`
`based on personal knowledge with respect to its own actions and upon information and belief
`
`with respect to all others’ actions, as follows:
`
`SUMMARY OF COUNTERCLAIMS AND THIRD-PARTY COMPLAINT
`
`127. Luminati, its majority owner EMK, and Hola have violated—and engaged in a
`
`conspiracy to violate—the antitrust laws of the United States, including by their monopolization
`
`and attempted monopolization of the residential proxy marketplace. Luminati, at EMK’s control
`
`and direction, has also filed sham patent-infringement lawsuits against Oxylabs and other com-
`
`
`
`17
`
`Luminati Exhibit 2007
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 017
`
`

`

`Case 2:19-cv-00395-JRG Document 95 Filed 07/31/20 Page 18 of 41 PageID #: 4358
`
`petitors in violation of the antitrust laws. Oxylabs files this suit against Defendants to hold them
`
`liable for their antitrust violations and seek redress for the injuries Oxylabs has suffered.
`
`PARTIES
`
`128. Teso LT, UAB is an entity organized and existing under the laws of the Republic
`
`of Lithuania with its principal place of business at A. Goštauto g. 40A, LT-03163, Vilnius, Lith-
`
`uania.
`
`129. Oxysales, UAB is an entity organized and existing under the laws of the Republic
`
`of Lithuania with its principal place of business at A. Goštauto g. 40A, LT-03163, Vilnius, Lith-
`
`uania.
`
`130. Metacluster LT, UAB is an entity organized and existing under the laws of the
`
`Republic of Lithuania with its principal place of business at A. Goštauto g. 40A, LT-03163, Vil-
`
`nius, Lithuania.
`
`131. Luminati is an entity organized and existing under the laws of Israel with its prin-
`
`cipal place of business at 3 Hamahshev Street, Netanya 42507, Israel.
`
`132. EMK is an entity organized and existing under the laws of the United Kingdom
`
`with its principal place of business at Lex House, 17 Connaught Place, London, W2 2ES, United
`
`Kingdom. EMK announc