Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 1 of 20 PageID #: 367
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI DEVICE
`(DONGGUAN) CO., LTD.
`
`Defendants.
`
`
`
`CIVIL ACTION NO. 2:17-cv-513-JRG
`
`
`JURY TRIAL DEMANDED
`
`DEFENDANTS HUAWEI DEVICE USA INC., HUAWEI DEVICE CO., LTD.,
`AND HUAWEI DEVICE (DONGGUAN) CO., LTD’S ANSWER TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Defendants Huawei Device USA Inc. (“Huawei Device USA”), Huawei Device Co., Ltd.
`
`(“Huawei Device”), and Huawei Device (Dongguan) Co., Ltd. (“Huawei Device Dongguan”)
`
`(collectively, “Defendants” or “Huawei”) answer the First Amended Complaint for Patent
`
`Infringement (“Complaint”) of Plaintiff AGIS Software Development, LLC (“AGIS”) as
`
`follows:
`
`THE PARTIES
`
`1.
`
`Defendants are without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in paragraph 1 of the Complaint and therefore deny them.
`
`2.
`
`Defendants admit that Huawei Device is a Chinese corporation with its principal
`
`place of business in Bantian, Longggang District, Shenzhen, 518129 China and that Huawei
`
`Technologies Co., Ltd. is a parent company to Huawei Device. Defendants deny the remaining
`
`allegations in paragraph 2 of the Complaint, and specifically denies that they have committed
`
`any acts of infringement.
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`
`
`1
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 2 of 20 PageID #: 368
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`3.
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`Defendants admit that Huawei Device USA is a Texas corporation with its
`
`principal place of business located at 5700 Tennyson Parkway, Suite 600, Plano, Texas 75024
`
`and has listed, on the Texas Comptroller of Public Accounts website, C T Corporation System as
`
`its registered agent with a registered office address at 1999 Bryan Street, Suite 900, Dallas,
`
`Texas 75201. Defendants further admit that Huawei Device USA is a wholly owned subsidiary
`
`of Huawei Device (Hong Kong) Co., Ltd., which is a wholly owned subsidiary of Huawei
`
`Device Co., Ltd.; Huawei Technologies Co., Ltd. is a parent company to Huawei Device Co.,
`
`Ltd. Defendants deny the remaining allegations in paragraph 3 of the Complaint.
`
`4.
`
`Defendants admit that Huawei Device (Dongguan) is a Chinese corporation with
`
`its principal place of business in Songshan Lake Science and Technology Industrial Zone,
`
`Dongguan, Guangdong, China, 523808 and is a wholly-owned subsidiary of Huawei Device Co.,
`
`Ltd.; Huawei Technologies Co., Ltd. is a parent company to Huawei Device Co., Ltd.
`
`Defendants deny the remaining allegations in paragraph 4 of the Complaint, and specifically
`
`deny that they have committed any acts of infringement.
`
`JURISDICTION AND VENUE
`
`5.
`
`The allegations in paragraph 5 of the Complaint are legal conclusions to which no
`
`answer is required. To the extent any answer is required, Defendants admit that this action
`
`involves the United States patent laws, and that this Court has subject matter jurisdiction over
`
`patent law claims. Defendants deny any remaining allegations in paragraph 5 of the Complaint.
`
`6.
`
`The allegations in paragraph 6 are legal conclusions to which no answer is
`
`required. To the extent that any answer is required, Defendants admit that Huawei Device USA
`
`is incorporated and has a principal place of business in Texas. Defendants, however, deny that
`
`they have committed any acts of infringement in this judicial district or in any other district.
`
`
`
`2
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 3 of 20 PageID #: 369
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`Defendants deny any remaining factual allegations in paragraph 6 of the Complaint and deny that
`
`there is personal jurisdiction over Huawei Device or Huawei Device Dongguan in this District.
`
`7.
`
`The allegations in paragraph 7 are legal conclusions to which no answer is
`
`required. To the extent that any answer is required, Defendants admit that Huawei Device USA
`
`is incorporated and has a principal place of business in Texas and that venue for this case is
`
`governed by 28 U.S.C. § 1400(b). Defendants deny that they have committed any acts of
`
`infringement in this judicial district or in any other district. Defendants further deny that venue
`
`is proper in this District for Huawei Device and Huawei Device (Dongguan). Defendants also
`
`deny that venue is convenient in the Eastern District of Texas for the issues raised in this case.
`
`Defendants deny any remaining factual allegations in paragraph 7 of the Complaint.
`
`PATENTS-IN-SUIT
`
`8.
`
`Defendants admit that U.S. Patent No. 8,213,970 (“’970 patent”) is entitled,
`
`“Method of Utilizing Forced Alerts for Interactive Remote Communications” and, on its face,
`
`indicates an issue date of July 3, 2012. Defendants admit that Exhibit A to the Complaint is
`
`alleged to be a copy of the ’970 patent. Defendants deny the remaining allegations in paragraph
`
`8 of the Complaint.
`
`9.
`
`Defendants admit that U.S. Patent No. 9,408,055 (“’055 patent”) is entitled,
`
`“Method to Provide Ad Hoc and Password Protected Digital and Voice Networks” and, on its
`
`face, indicates an issue date of August, 2, 2016. Defendants admit that Exhibit B to the
`
`Complaint is alleged to be a copy of the ’055 patent. Defendants deny the remaining allegations
`
`in paragraph 9 of the Complaint.
`
`10.
`
`Defendants admit that U.S. Patent No. 9,445,251 (“’251 patent”) is entitled,
`
`“Method to Provide Ad Hoc and Password Protected Digital and Voice Networks” and, on its
`
`
`
`3
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 4 of 20 PageID #: 370
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`face, indicates an issue date of September 13, 2016. Defendants admit that Exhibit C to the
`
`Complaint is alleged to be a copy of the ’251 patent. Defendants deny the remaining allegations
`
`in paragraph 10 of the Complaint.
`
`11.
`
`Defendants admit that U.S. Patent No. 9,467,838 (“’838 patent”) is entitled,
`
`“Method to Provide Ad Hoc and Password Protected Digital and Voice Networks” and, on its
`
`face, indicates an issue date of October 11, 2016. Defendants admit that Exhibit D to the
`
`Complaint is alleged to be a copy of the ’838 patent. Defendants deny the remaining allegations
`
`in paragraph 11 of the Complaint.
`
`FACTUAL ALLEGATIONS
`
`12.
`
`Defendants are without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in paragraph 12 of the Complaint, and therefore deny them.
`
`13.
`
`Defendants are without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in paragraph 13 of the Complaint and therefore deny them.
`
`14.
`
`Defendants are without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in paragraph 14 of the Complaint and therefore deny them.
`
`15.
`
`Defendants are without knowledge or information sufficient to form a belief as to
`
`the truth of the allegations in paragraph 15 of the Complaint and therefore deny them.
`
`16.
`
`Defendants admit that various parties design products using the Android operating
`
`system from non-party Google LLC, but deny that each Defendant designs their own products
`
`utilizing the Android operating system. Defendants are without knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations in paragraph 16 of the
`
`Complaint and therefore deny them.
`
`
`
`4
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 5 of 20 PageID #: 371
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`17.
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`Defendants admit that Huawei Device and Huawei Device Dongguan design and
`
`manufacture, and Huawei Device USA sold and/or offered for sale in the United States, Android-
`
`based devices, including those named “Huawei Union,” “Huawei Mate 9,” “Huawei Nexus 6P,”
`
`“Huawei GX8” and “Huawei P8 lite” (collectively, “Accused Devices”). Defendants admit that
`
`Google Mobile Applications that are available for phones that run the Android operating system
`
`include Google Maps, Find My Device, Hangouts, and Google+. Defendants understand that
`
`the factual allegations directed to the functionality of the Accused Devices rely upon language
`
`found in the asserted patents and/or effectively amount to an allegation of infringement, and, on
`
`that basis, Defendants deny them, and specifically deny that they have committed any acts of
`
`infringement. Defendants further deny that the Accused Products have supported the Google
`
`Latitude application, which, on information and belief, was discontinued prior to the release of
`
`the Accused Products. Defendants are without knowledge or information sufficient to form a
`
`belief as to the truth of the remaining factual allegations in paragraph 17 of the Complaint and on
`
`that basis deny them.
`
`COUNT I
`
`(Infringement of the ’970 Patent)
`
`18.
`
`In response to paragraph 18 of the Complaint, Defendants incorporate by
`
`reference its responses to the preceding paragraphs as if fully set forth herein.
`
`19.
`
`Defendants admit that they have not directly entered into a license with Plaintiff
`
`concerning the ’970 patent. Defendants deny the remaining allegations in paragraph 19 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`20.
`
`Defendants deny the allegations in paragraph 20 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`
`
`5
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 6 of 20 PageID #: 372
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`21.
`
`Defendants deny the allegations in paragraph 21 of the Complaint, and
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`specifically deny that they have committed any acts of infringement.
`
`22.
`
`Defendants deny the allegations in paragraph 22 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`23.
`
`Defendants deny the allegations in paragraph 23 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`24.
`
`Defendants deny the allegations in paragraph 24 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any damages.
`
`25.
`
`Defendants deny the allegations in paragraph 25 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff has suffered
`
`any harm.
`
`26.
`
`Defendants deny the allegations in paragraph 26 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any relief.
`
`COUNT II
`
`(Infringement of the ’055 Patent)
`
`27.
`
`In response to paragraph 27 of the Complaint, Defendants incorporate by
`
`reference its responses to the paragraphs 1 through 17 as if fully set forth herein.
`
`28.
`
`Defendants admit that they have not directly entered into a license with Plaintiff
`
`concerning the ’055 patent. Defendants deny the remaining allegations in paragraph 28 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`
`
`6
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 7 of 20 PageID #: 373
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`29.
`
`Defendants deny the allegations in paragraph 29 of the Complaint, and
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`specifically deny that they have committed any acts of infringement.
`
`30.
`
`Defendants deny the allegations in paragraph 30 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`31.
`
`Defendants deny the allegations in paragraph 31 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`32.
`
`Defendants admit that Google Mobile Applications that are available for phones
`
`that run the Android operating system include Google Maps. Defendants understand that the
`
`factual allegations directed to the functionality of the Accused Devices in paragraph 32 rely upon
`
`language found in the asserted patents and/or effectively amount to an allegation of infringement,
`
`and, on that basis, Defendants deny them, and specifically deny that they have committed any
`
`acts of infringement. Defendants deny the remaining allegations in paragraph 32 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`33.
`
`Defendants deny the allegations in paragraph 33 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`34.
`
`The allegations of paragraph 34 consist of Plaintiff’s characterizations of
`
`webpages found at
`
`https://play.google.com/store/apps/details?id=com.google.android.apps.messaging&hl=en;
`
`https://play.google.com/store/apps/details?id=com.google.android.talk&hl=en; and
`
`https://www.blog.google/topics/rcs/delivering-rcs-messaging-android-users-worldwide/, which
`
`have been set forth as the best evidence of the webpages’ contents, and therefore no response is
`
`required. To the extent that any response is required, Defendants deny the allegations in
`
`paragraph 34, and specifically deny that they have committed any acts of infringement.
`
`
`
`7
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 8 of 20 PageID #: 374
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`Defendants further understand that the factual allegations directed to the functionality of the
`
`Accused Devices set forth in paragraph 34 rely upon language found in the asserted patents
`
`and/or effectively amount to an allegation of infringement, and, on that basis, Defendants deny
`
`them. Defendants deny any remaining allegations in paragraph 34 of the Complaint.
`
`35.
`
`The allegations of paragraph 35 consist of Plaintiff’s characterizations of the
`
`webpage found at https://arstechnica.com/gadgets/2017/03/location-sharing-finally-returns-to-
`
`google-maps/, which has been set forth as the best evidence of the webpage’s contents, and
`
`therefore no response is required. To the extent that any response is required, Defendants deny
`
`the allegations in paragraph 35, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 35 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny any remaining allegations in paragraph 35 of the Complaint.
`
`36.
`
`The allegations of paragraph 36 consist of Plaintiff’s characterizations of the
`
`webpage found at
`
`https://support.google.com/maps/answer/144361?co=GENIE.Platform%3DAndroid&hl=en,
`
`which has been set forth as the best evidence of the webpage’s contents, and therefore no
`
`response is required. To the extent that any response is required, Defendants deny the
`
`allegations in paragraph 36, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 36 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 36 of the Complaint.
`
`
`
`8
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 9 of 20 PageID #: 375
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`37.
`
`Defendants deny the allegations in paragraph 37 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any damages.
`
`38.
`
`Defendants deny the allegations in paragraph 38 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff has suffered
`
`any harm.
`
`39.
`
`Defendants deny the allegations in paragraph 39 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any relief.
`
`COUNT III
`
`(Infringement of the ’251 Patent)
`
`40.
`
`In response to paragraph 40 of the Complaint, Defendants incorporate by
`
`reference its responses to the paragraphs 1 through 17 as if fully set forth herein.
`
`41.
`
`Defendants admit that they have not directly entered into a license with Plaintiff
`
`concerning the ’251 patent. Defendants deny the remaining allegations in paragraph 41 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`42.
`
`Defendants deny the allegations in paragraph 42 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`43.
`
`Defendants deny the allegations in paragraph 43 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`44.
`
`Defendants deny the allegations in paragraph 44 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`
`
`9
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 10 of 20 PageID #: 376
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`45.
`
`Defendants admit that Google Mobile Applications that are available for phones
`
`that run the Android operating system include Google Maps. Defendants understand that the
`
`factual allegations directed to the functionality of the Accused Devices in paragraph 45 rely upon
`
`language found in the asserted patents and/or effectively amount to an allegation of infringement,
`
`and, on that basis, Defendants deny them, and specifically deny that they have committed any
`
`acts of infringement. Defendants deny the remaining allegations in paragraph 45 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`46.
`
`The allegations of paragraph 46 consist of Plaintiff’s characterizations of the
`
`webpages found at https://support.google.com/mail/answer/30970?hl=en;
`
`https://support.google.com/plus/answer/3302509?hl=en&co=GENIE.Platform%3DAndroid&oco
`
`=1, which have been set forth as the best evidence of the webpages’ contents, and therefore no
`
`response is required. To the extent that any response is required, Defendants deny the
`
`allegations in paragraph 46, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 46 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 46 of the Complaint.
`
`47.
`
`The allegations of paragraph 47 consist of Plaintiff’s characterizations of the
`
`webpage found at https://developers.google.com/maps/documentation/android-api/location,
`
`which has been set forth as the best evidence of the webpage’s contents, and therefore no
`
`response is required. To the extent that any response is required, Defendants deny the
`
`allegations in paragraph 47, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`
`
`10
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 11 of 20 PageID #: 377
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`functionality of the Accused Devices in paragraph 47 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 47 of the Complaint.
`
`48.
`
`The allegations of paragraph 48 consist of Plaintiff’s characterizations of the
`
`webpage found at https://arstechnica.com/gadgets/2017/03/location-sharing-finally-returns-to-
`
`google-maps/, which has been set forth as the best evidence of the webpage’s contents, and
`
`therefore no response is required. To the extent that any response is required, Defendants deny
`
`the allegations in paragraph 48, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 48 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 48 of the Complaint.
`
`49.
`
`Defendants understand that any factual allegations directed to the functionality of
`
`the Accused Devices in paragraph 49 rely upon language found in the asserted patents and/or
`
`effectively amount to an allegation of infringement, and, on that basis, Defendants deny them,
`
`and specifically deny that they have committed any acts of infringement. Defendants deny any
`
`remaining allegations in paragraph 49 of the Complaint.
`
`50.
`
`Defendants deny the allegations in paragraph 50 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any damages.
`
`51.
`
`Defendants deny the allegations in paragraph 51 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff has suffered
`
`any harm.
`
`
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`11
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 12 of 20 PageID #: 378
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`52.
`
`Defendants deny the allegations in paragraph 52 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any relief.
`
`COUNT IV
`
`(Infringement of the ’838 Patent)
`
`53.
`
`In response to paragraph 53 of the Complaint, Defendants incorporate by
`
`reference its responses to the paragraphs 1 through 17 as if fully set forth herein.
`
`54.
`
`Defendants admit that they have not directly entered into a license with Plaintiff
`
`concerning the ’838 patent. Defendants deny the remaining allegations in paragraph 54 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`55.
`
`Defendants deny the allegations in paragraph 55 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`56.
`
`Defendants deny the allegations in paragraph 56 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`57.
`
`Defendants deny the allegations in paragraph 57 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement.
`
`58.
`
`Defendants admit that Google Mobile Applications that are available for phones
`
`that run the Android operating system include Google Maps. Defendants understand that the
`
`factual allegations directed to the functionality of the Accused Devices in paragraph 58 rely upon
`
`language found in the asserted patents and/or effectively amount to an allegation of infringement,
`
`and, on that basis, Defendants deny them, and specifically deny that they have committed any
`
`acts of infringement. Defendants deny the remaining allegations in paragraph 58 of the
`
`Complaint, and specifically deny that they have committed any acts of infringement.
`
`
`
`12
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 13 of 20 PageID #: 379
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`59.
`
`The allegations of paragraph 59 consist of Plaintiff’s characterizations of the
`
`webpages found at
`
`https://support.google.com/plus/answer/3302509?hl=en&co=GENIE.Platform%3DAndroid&oco
`
`=1; and https://support.google.com/mail/answer/30970?hl=en, which have been set forth as the
`
`best evidence of the webpages’ contents, and therefore no response is required. To the extent
`
`that any response is required, Defendants deny the allegations in paragraph 59, and specifically
`
`deny that they have committed any acts of infringement. Defendants further understand that any
`
`factual allegations directed to the functionality of the Accused Devices in paragraph 59 rely upon
`
`language found in the asserted patents and/or effectively amount to an allegation of infringement,
`
`and, on that basis, Defendants deny them. Defendants deny the remaining allegations in
`
`paragraph 59 of the Complaint.
`
`60.
`
`The allegations of paragraph 60 consist of Plaintiff’s characterizations of the
`
`webpage found at https://developers.google.com/maps/documentation/android-api/location,
`
`which has been set forth as the best evidence of the webpage’s contents, and therefore no
`
`response is required. To the extent that any response is required, Defendants deny the
`
`allegations in paragraph 60, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 60 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 60 of the Complaint.
`
`61.
`
`The allegations of paragraph 61 consist of Plaintiff’s characterizations of the
`
`webpage found at https://arstechnica.com/gadgets/2017/03/location-sharing-finally-returns-to-
`
`google-maps/, which has been set forth as the best evidence of the webpage’s contents, and
`
`
`
`13
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 14 of 20 PageID #: 380
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`therefore no response is required. To the extent that any response is required, Defendants deny
`
`the allegations in paragraph 61, and specifically deny that they have committed any acts of
`
`infringement. Defendants further understand that any factual allegations directed to the
`
`functionality of the Accused Devices in paragraph 61 rely upon language found in the asserted
`
`patents and/or effectively amount to an allegation of infringement, and, on that basis, Defendants
`
`deny them. Defendants deny the remaining allegations in paragraph 61 of the Complaint.
`
`62.
`
`Defendants understand that any factual allegations directed to the functionality of
`
`the Accused Devices in paragraph 62 rely upon language found in the asserted patents and/or
`
`effectively amount to an allegation of infringement, and, on that basis, Defendants deny them,
`
`and specifically deny that they have committed any acts of infringement. Defendants deny any
`
`remaining allegations in paragraph 62 of the Complaint.
`
`63.
`
`Defendants deny the allegations in paragraph 63 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any damages.
`
`64.
`
`Defendants deny the allegations in paragraph 64 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff has suffered
`
`any harm.
`
`65.
`
`Defendants deny the allegations in paragraph 65 of the Complaint, and
`
`specifically deny that they have committed any acts of infringement or that Plaintiff is entitled to
`
`any relief.
`
`
`
`14
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 15 of 20 PageID #: 381
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`DEMAND FOR JURY TRIAL
`
`Plaintiff’s demand for a trial by jury for all issues triable to a jury does not state any
`
`allegation, and Defendants are not required to respond. To the extent that any allegations are
`
`included in the demand, Defendants deny these allegations.
`
`PRAYER FOR RELIEF
`
`These paragraphs of the Complaint set forth the statement of relief requested by
`
`Plaintiff to which no response is required. Defendants deny that Plaintiff is entitled to any of
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`the requested relief and denies any allegations therein.
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`AFFIRMATIVE DEFENSES
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`Defendants allege and assert the following defenses, affirmative or otherwise, without
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`assuming any burden of proof that it would not otherwise have. In addition to the affirmative
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`defenses described below and subject to its responses above, Defendants specifically reserve all
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`rights to allege additional defenses, affirmative or otherwise, that become known through the
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`course of discovery.
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`FIRST AFFIRMATIVE DEFENSE
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`FAILURE TO STATE A CLAIM
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`The Complaint fails to state a claim upon which relief can be granted because, inter alia,
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`the Complaint does not plausibly state a claim of infringement for which relief can be granted.
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`SECOND AFFIRMATIVE DEFENSE
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`NON-INFRINGEMENT
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`Defendants do not infringe and have not infringed (whether directly, contributorily, or by
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`inducement), either literally or under the doctrine of equivalents, any valid and enforceable
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`
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`15
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`

`

`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 16 of 20 PageID #: 382
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`claims of the ’970 patent, the ’055 patent, the ’251 patent, and the ’838 patent (“Patents-in-
`
`Suit”).
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`THIRD AFFIRMATIVE DEFENSE
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`INVALIDITY
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`The claims of the Patents-in-Suit are invalid and unenforceable under 35 U.S.C. § 101
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`because the claims are directed to abstract ideas or other non-statutory subject matter.
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`The claims of the Patents-in-Suit are invalid and unenforceable under 35 U.S.C. § 102
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`because the claims lack novelty, and are taught and suggested by the prior art. Defendants
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`reserve the right to identify and rely upon prior art that may be discovered as discovery
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`progresses in this action.
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`The claims of the Patents-in-Suit are invalid and unenforceable under 35 U.S.C. § 103
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`because the claims are obvious in view of the prior art. Defendants reserve the right to identify
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`and rely upon prior art that may be discovered as discovery progresses in this action.
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`The claims of the Patents-in-Suit are invalid and unenforceable for failure satisfy the
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`conditions set forth in 35 U.S.C. § 112, including failure of written description, lack of
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`enablement, and claim indefiniteness.
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`FOURTH AFFIRMATIVE DEFENSE
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`BAR TO DAMAGES
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`Plaintiff’s claims for damages are barred, in whole or in part, under 35 U.S.C. §§ 286,
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`287 and/or 288. Furthermore, Defendants have not engaged in any conduct entitling Plaintiff to
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`a finding that this case is exceptional, and Plaintiff is not entitled to enhanced damages, costs,
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`attorneys’ fees or expenses.
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`
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`16
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 17 of 20 PageID #: 383
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`FIFTH AFFIRMATIVE DEFENSE
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`NO INJUNCTIVE RELIEF
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`Plaintiff’s claim for injunctive relief is barred because any alleged injury to Plaintiff is not
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`immediate or irreparable, and Plaintiff has an adequate remedy at law for any alleged injury.
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`Moreover, Plaintiff has no likelihood of success as Defendants do not infringe and has not
`
`infringed the ’970 patent, the ’055 patent, the ’251 patent, and the ’838 patent, each patent of which
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`is not valid.
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`SIXTH AFFIRMATIVE DEFENSE
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`PROSECUTION HISTORY ESTOPPEL AND DISCLAIMER
`
`
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`Plaintiff’s claims are barred, in whole or in part, under the doctrine of prosecution history
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`estoppel due to amendments and/or statements made during prosecution of the ’970 patent, the
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`’055 patent, the ’251 patent, or the ’838 patent.
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`RESERVATION OF DEFENSES
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`Defendants reserve all affirmative defenses under Federal Rule of Civil Procedure 8(c),
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`the patent laws, and any other defenses available at law or in equity that now exist or in the
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`future may be available based on discovery or any other factual investigation concerning this
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`action
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`EXCEPTIONAL CASE
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`On information and belief, this is an exceptional case entitling Defendants to an award of
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`their attorneys’ fees incurred in connection with defending and prosecuting this action pursuant to
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`35 U.S.C. § 285, as a result of, inter alia, Plaintiff’s assertion of the Patents-in-Suit against
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`Defendants with the knowledge that Defendants do not infringe any valid or enforceable claim of
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`the Patents-in-Suit and/or that the Patents-in-Suit are invalid and/or unenforceable.
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`
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`17
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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 18 of 20 PageID #: 384
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`DEMAND FOR JURY TRIAL
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`In accordance with Fed. R. Civ. P. 38(b), Defendants demand a trial by jury on all issues
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`so triable.
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`
`
`
`Dated: October 5, 2017
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`
`
`
`
`
`
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`Respectfully submitted by:
`
`
`
`
`
`/s/ J. Mark Mann
`J. Mark Mann
`SBN: 12926150
`mark@themannfirm.com
`G. Blake Thompson
`SBN: 24042033
`blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Tel: 903-657-8540
`Fax: 903-657-6003
`
`Michael A. Berta
`Michael.berta@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`Three Embarcadero Center
`10th Floor
`San Francisco, CA 94111-4024
`Tel: 415-471-3277
`
`Nicholas H. Lee
`Nicholas.lee@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`777 South Figueroa Street
`44th Floor
`Los Angeles, CA 90017-5844
`Tel: 213-243-4156
`
`Kent E. Baldauf, Jr.
`kbaldaufjr@webblaw.com
`Bryan P. Clark
`
`
`
`18
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`

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`Case 2:17-cv-00513-JRG Document 29 Filed 10/05/17 Page 19 of 20 PageID #: 385
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`bclark@webblaw.com
`THE WEBB LAW FIRM
`One Gateway Center
`420 Ft.