Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 1 of 16 PageID #: 136
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`Civil Action No. 2:22-MD-03042-JRG
`
`This document relates to Civil Action No.
`2:22-CV-00303-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`In re: TAASERA LICENSING LLC
`Patent Litigation
`
`TREND MICRO, INC. (U.S.),
`
` Plaintiff,
`
` v.
`
`TAASERA LICENSING, LLC,
`
` Defendant.
`
`
`
`§
`§
`§
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`§
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`§
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`PLAINTIFF TREND MICRO, INC. (U.S.)’S ANSWER TO
`DEFENDANT TAASERA LICENSING, LLC’S COUNTERCLAIMS
`
`Plaintiff Trend Micro, Inc. (U.S.) (“Plaintiff” or “Trend Micro U.S.”) answers
`
`Defendant/Counterclaim Plaintiff Taasera Licensing, LLC’s (“Defendant” or “Taasera”)
`
`Counterclaims (the “Counterclaims”) against Plaintiff as follows:
`
`THE PARTIES
`
`1.
`
`Trend Micro U.S. is without sufficient knowledge or information to form a belief as to the
`
`truth of the allegations of Paragraph 1 of the Counterclaims, and therefore denies them.
`
`2.
`
`Trend Micro U.S. admits that it is a corporation organized under the laws of California,
`
`with its principal place of business at 225 East John Carpenter Freeway, Irving, Texas 75062.
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`Trend Micro U.S. denies all other allegations in paragraph 2.
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`JURISDICTION
`
`3.
`
`To the extent that the allegations of paragraph 3 of the Counterclaims set forth legal
`
`conclusions, no response is required. Trend Micro U.S. admits that the Counterclaims purport to
`
`state a claim for patent infringement under Title 35 of the United States Code. Trend Micro U.S.
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 2 of 16 PageID #: 137
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`specifically denies Defendant’s contention that there is no subject matter jurisdiction over this
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`action. Trend Micro U.S. denies all other allegations in paragraph 3.
`
`4.
`
`To the extent that the allegations of paragraph 4 of the Counterclaims set forth legal
`
`conclusions, no response is required. Trend Micro U.S. does not contest that it is subject to
`
`personal jurisdiction in this District, solely for purposes of this action. Trend Micro U.S. denies
`
`all other allegations in paragraph 4.
`
`5.
`
`To the extent that the allegations of paragraph 5 of the Counterclaims set forth legal
`
`conclusions, no response is required. Trend Micro U.S. does not contest that venue is proper in
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`this District pursuant to 28 U.S.C. § 1391(b) and (c). Trend Micro U.S. denies all other allegations
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`in paragraph 5.
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`6.
`
`To the extent that the allegations of paragraph 6 of the Counterclaims set forth legal
`
`conclusions, no response is required. Trend Micro U.S. does not contest that it is subject to
`
`personal jurisdiction in this District, solely for purposes of this action. Trend Micro U.S. denies
`
`all other allegations in paragraph 6.
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`PATENTS-IN-SUIT
`
`7.
`
`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
`
`allegations in paragraph 7.
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`8.
`
`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
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`allegations in paragraph 8.
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`9.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
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`allegations in paragraph 9.
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`10.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
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`allegations in paragraph 10.
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 3 of 16 PageID #: 138
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`11.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
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`allegations in paragraph 11.
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`12.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
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`allegations in paragraph 12.
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`13.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
`
`allegations in paragraph 13.
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`14.
`
`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
`
`allegations in paragraph 14.
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`15.
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`Denied. The URL redirects to a landing page. Trend Micro U.S. denies all other
`
`allegations in paragraph 15.
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`16.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in the paragraph regarding ownership and on that basis denies them. Trend
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`Micro U.S. denies all other allegations in paragraph 16.
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`FACTUAL ALLEGATIONS
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`17.
`
`Trend Micro U.S. admits that the Patents-in-Suit purport to cover systems and methods for
`
`network security systems. Trend Micro U.S. denies all other allegations on paragraph 17.
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`18.
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`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 18 of the Counterclaims and on that basis denies them.
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`19.
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`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 19 of the Counterclaims and on that basis denies them.
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`20.
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`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 20 of the Counterclaims and on that basis denies them.
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`21.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 21 of the Counterclaims and on that basis denies them.
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 4 of 16 PageID #: 139
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`22.
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`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 22 of the Counterclaims and on that basis denies them.
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`23.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 23 of the Counterclaims and on that basis denies them.
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`24.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 24 of the Counterclaims and on that basis denies them.
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`25.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 25 of the Counterclaims and on that basis denies them.
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`26.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 26 of the Counterclaims and on that basis denies them.
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`27.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 27 of the Counterclaims and on that basis denies them.
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`28.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 28 of the Counterclaims and on that basis denies them.
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`29.
`
`Denied.
`
`30.
`
`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 30 of the Counterclaims and on that basis denies them.
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`31.
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`Trend Micro U.S. lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations of paragraph 31 of the Counterclaims and on that basis denies them.
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`COUNT I
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`(Alleged Infringement of the ʼ796 Patent)
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`32.
`
`Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–31 of the
`
`Counterclaims as if fully set forth herein.
`
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 5 of 16 PageID #: 140
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`33.
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`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ796 patent. Denied as to any other allegations in paragraph 33.
`
`34.
`
`Denied.
`
`35.
`
`Denied.
`
`36.
`
`Denied.
`
`37.
`
`Denied.
`
`38.
`
`Denied.
`
`39.
`
`Denied.
`
`40.
`
`Denied.
`
`41.
`
`Denied.
`
`42.
`
`Denied.
`
`COUNT II
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`(Alleged Infringement of the ʼ137 Patent)
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`43.
`
`Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–42 of the
`
`Counterclaims as if fully set forth herein.
`
`44.
`
`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ137 patent. Denied as to any other allegations in paragraph 44.
`
`45.
`
`Denied.
`
`46.
`
`Denied.
`
`47.
`
`Denied.
`
`48.
`
`Denied.
`
`49.
`
`Denied.
`
`50.
`
`Denied.
`
`51.
`
`Denied.
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 6 of 16 PageID #: 141
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`52.
`
`Denied.
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`53.
`
`Denied.
`
`COUNT III
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`(Alleged Infringement of the ʼ441 Patent)
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`54.
`
`Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–53 of the
`
`Counterclaims as if fully set forth herein.
`
`55.
`
`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ441 patent. Denied as to any other allegations in paragraph 55.
`
`56.
`
`Denied.
`
`57.
`
`Denied.
`
`58.
`
`Denied.
`
`59.
`
`Denied.
`
`60.
`
`Denied.
`
`61.
`
`Denied.
`
`62.
`
`Denied.
`
`63.
`
`Denied.
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`64.
`
`Denied.
`
`COUNT IV
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`(Alleged Infringement of the ʼ038 Patent)
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`65.
`
`Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–64 of the
`
`Counterclaims as if fully set forth herein.
`
`66.
`
`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ038 patent. Denied as to any other allegations in paragraph 66.
`
`67.
`
`Denied.
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 7 of 16 PageID #: 142
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`68.
`
`Denied.
`
`69.
`
`Denied.
`
`70.
`
`Denied.
`
`71.
`
`Denied.
`
`72.
`
`Denied.
`
`73.
`
`Denied.
`
`74.
`
`Denied.
`
`75.
`
`Denied.
`
`76.
`
`Denied.
`
`77.
`
`Denied.
`
`78.
`
`Denied.
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`79.
`
`Denied.
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`COUNT IV
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`(Alleged Infringement of the ʼ948 Patent)
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`80.
`
`Trend Micro U.S. incorporates by references its responses to Paragraphs 1–79 of the
`
`Counterclaims as if fully set forth herein.
`
`81.
`
`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ948 patent. Denied as to any other allegations in paragraph 81.
`
`82.
`
`Denied.
`
`83.
`
`Denied.
`
`84.
`
`Denied.
`
`85.
`
`Denied.
`
`86.
`
`Denied.
`
`87.
`
`Denied.
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 8 of 16 PageID #: 143
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`88.
`
`Denied.
`
`89.
`
`Denied.
`
`90.
`
`Denied.
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`91.
`
`Denied.
`
`92.
`
`Denied.
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`COUNT IV
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`(Alleged Infringement of the ʼ616 Patent)
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`93.
`
`Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–92 of the
`
`Counterclaims as if fully set forth herein.
`
`94.
`
`Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ616 patent. Denied as to any other allegations in paragraph 94.
`
`95.
`
`Denied.
`
`96.
`
`Denied.
`
`97.
`
`Denied.
`
`98.
`
`Denied.
`
`99.
`
`Denied.
`
`100. Denied.
`
`101. Denied.
`
`102. Denied.
`
`103. Denied.
`
`104. Denied.
`
`105. Denied.
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`106. Denied.
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`107. Denied.
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 9 of 16 PageID #: 144
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`108. Denied.
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`COUNT VII
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`(Alleged Infringement of the ʼ997 Patent)
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`109. Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–108 of the
`
`Counterclaims as if fully set forth herein.
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`110. Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
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`Micro U.S. regarding the ʼ997 patent. Denied as to any other allegations in paragraph 110.
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`111. Denied.
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`112. Denied.
`
`113. Denied.
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`114. Denied.
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`115. Denied.
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`116. Denied.
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`117. Denied.
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`118. Denied.
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`119. Denied.
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`120. Denied.
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`121. Denied.
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`122. Denied.
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`123. Denied.
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`COUNT VIII
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`(Alleged Infringement of the ʼ918 Patent)
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`124. Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–123 of the
`
`Counterclaims as if fully set forth herein.
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 10 of 16 PageID #: 145
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`125. Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and Trend
`
`Micro U.S. regarding the ʼ918 patent. Denied as to any other allegations in paragraph 125.
`
`126. Denied.
`
`127. Denied.
`
`128. Denied.
`
`129. Denied.
`
`130. Denied.
`
`131. Denied.
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`132. Denied.
`
`133. Denied.
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`134. Denied.
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`135. Denied.
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`136. Denied.
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`137. Denied.
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`COUNT IX
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`(Alleged Infringement of the ʼ517 Patent)
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`138. Trend Micro U.S. incorporates by reference its responses to Paragraphs 1–137 of
`
`the Counterclaims as if fully set forth herein.
`
`139. Admitted that there are no licenses between Taasera Licensing or TaaSera, Inc. and
`
`Trend Micro U.S. regarding the ʼ517 patent. Denied as to any other allegations in paragraph 139.
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`140. Denied.
`
`141. Denied.
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`142. Denied.
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`143. Denied.
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`DM2\16806979.4
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`10
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 11 of 16 PageID #: 146
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`144. Denied.
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`145. Denied.
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`146. Denied.
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`147. Denied.
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`148. Denied.
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`149. Denied.
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`150. Trend Micro U.S. acknowledges Taasera’s demand for a jury trial and demands a jury trial
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`DEMAND FOR JURY TRIAL
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`for all issues so triable.
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`PRAYER FOR RELIEF
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`Trend Micro U.S. denies that Taasera is entitled to any relief whatsoever from Trend
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`Micro U.S., whether sought in the Prayer for Relief or otherwise. Trend Micro U.S. also denies
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`that Taasera has any valid claim pursuant to 35 U.S.C. § 271, et seq., and denies that it has
`
`violated any of the patent laws of the United States with respect to the patents-in-suit. Taasera’s
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`Prayer for Relief should therefore be denied in its entirety and with prejudice, and Taasera
`
`should take nothing from Trend Micro U.S.
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`DEFENSES AND AFFIRMATIVE DEFENSES
`
`1.
`
`Trend Micro U.S. alleges and asserts the following defenses and affirmative defenses in
`
`response to the allegations in the Counterclaims. Trend Micro U.S. undertakes the burden of proof
`
`only as to those defenses that are deemed affirmative defenses as a matter of law. In addition to
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`the defenses described below, Trend Micro U.S. reserves all rights to amend or supplement these
`
`defenses as additional facts become known.
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`DM2\16806979.4
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`11
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 12 of 16 PageID #: 147
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`First Defense – Non-Infringement
`
`1.
`
`Trend Micro U.S. has not infringed, directly, jointly, contributorily, or by inducement, any
`
`valid or enforceable claim of the patents-in-suit, either literally or under the doctrine of equivalents,
`
`and has not otherwise committed any acts in violation of 35 U.S.C. § 271, et seq.
`
`Second Defense – Invalidity/Ineligibility
`
`2.
`
`At least the asserted claims of the patents-in-suit are invalid, unenforceable, or ineligible
`
`for patenting under one or more of the provisions of Title 35 of the United States Code, including
`
`but not limited to 35 U.S.C. §§ 101 (subject matter), 102 (anticipation), 103 (obviousness), and/or
`
`112 (indefiniteness, failure to claim the subject matter regarded as the invention, and failure to
`
`satisfy the written description and/or enablement requirements), the rules, regulations, and laws
`
`pertaining thereto, and/or under other judicially-created bases for invalidity and ineligibility.
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`Third Defense – Failure to State a Claim
`
`3.
`
`Counterclaim Plaintiff has failed to plead its claims with specificity or factual support to
`
`place Trend Micro U.S. on notice of the claims Counterclaim Plaintiff is asserting against it, such
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`that Counterclaim Plaintiff has failed to state a claim upon which relief can be granted.
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`4.
`
`Counterclaim Plaintiff has failed to state a claim upon which relief can be granted for
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`infringement under 35 U.S.C. § 271(b) for failing to plausibly allege facts sufficient to identify or
`
`show: (a) a direct infringer for any claim of alleged indirect infringement of the patents-in-suit by
`
`Trend Micro U.S., (b) and pre-suit factual basis that Trend Micro U.S. had actual knowledge or
`
`was willfully blind to the Patents-in-Suit or Trend Micro U.S.’s alleged infringement, and (c) that
`
`Trend Micro U.S. had specific intent to induce infringement of the Patents-in-Suit.
`
`5.
`
`Counterclaim Plaintiff has failed to state a claim upon which relief can be granted for
`
`infringement under 35 U.S.C. § 271(c) for failing to plausibly allege facts sufficient to identify or
`
`show: (a) a direct infringer for any claim of indirect infringement of the Patents-in-Suit by Trend
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 13 of 16 PageID #: 148
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`Micro U.S., (b) any pre-suit factual basis that Trend Micro U.S. had actual knowledge or was
`
`willfully blind to the Patents-in-Suit or Trend Micro U.S.’s alleged infringement, and (c) that any
`
`component(s) allegedly supplied by Trend Micro U.S. are especially made or especially adapted
`
`for use in the Patents-in-Suit and are not staple articles of commerce suitable for substantial non-
`
`infringing use.
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`Fourth Defense – Limitations on Damages and Costs
`
`6.
`
`Counterclaim Plaintiff’s claims for damages and/or costs are limited under the statutory
`
`limitations on damages and/or costs set forth in 35 U.S.C. §§ 286, 287 and/or 288.
`
`Fifth Defense – Prosecution History Estoppel and Disclaimer
`
`7.
`
`Counterclaim Plaintiff’s claims are barred by the doctrine of prosecution history estoppel
`
`and prosecution disclaimer based on amendments, statements, admissions, omissions,
`
`representations, disclaimers, and/or disavowals made during the prosecution of the patents-in-suit
`
`and other patents that also claim priority to the same parent applications.
`
`Sixth Defense – 28 U.S.C. § 1498
`
`8.
`
`To the extent that any accused products have been used or manufactured by or for the
`
`United States Government, Counterclaim Plaintiff’s claims and requests for relief are barred by or
`
`subject to limitations pursuant to 28 U.S.C. § 1498.
`
`Seventh Defense – Standing
`
`9.
`
`To the extent Counterclaim Plaintiff and/or its predecessors-in-interest lacked ownership
`
`of any of the asserted patents and/or all substantial rights to any asserted patent at any relevant
`
`time during this lawsuit and/or at the time the patent(s) was/were assigned, Counterclaim Plaintiff
`
`lacks standing to bring this action. Counterclaim Plaintiff also lacks standing based on injury in
`
`fact because it has not alleged nor supported its allegations in a manner mandated by constitutional
`
`requirements.
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`DM2\16806979.4
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 14 of 16 PageID #: 149
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`Eighth Defense – Failure to Mark or Provide Notice
`
`10.
`
`Counterclaim Plaintiff’s claims for damages are barred and/or limited, in whole or in part,
`
`because Counterclaim Plaintiff, its predecessors-in-interest, and/or its licensees failed to give
`
`notice of any products that purport to practice the patents-in-suit by marking such products or
`
`otherwise notifying Trend Micro U.S. of the alleged infringement as required by 35 U.S.C. § 287.
`
`Reservation of Additional Defenses
`
`11.
`
`Trend Micro U.S.’s investigation of the matter is ongoing. It reserves all defenses under
`
`the Federal Rules of Civil Procedure, the patent laws of the United States, other applicable state
`
`and federal laws, and any other defenses, at law or in equity, that may now exist or in the future
`
`be available based on discovery and further factual investigation in this case.
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`DM2\16806979.4
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`14
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 15 of 16 PageID #: 150
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`Dated: November 21, 2022
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`D. Stuart Bartow
`DSBartow@duanemorris.com
`DUANE MORRIS LLP
`1201 North Market Street, Suite 501
`Wilmington, DE 19801
`Telephone: 302-657-4929
`Facsimile: 302-657-4901
`
`Gilbert A. Greene
`TX Bar No. 24045976
`W. Andrew Liddell
`TX Bar No. 24070145
`BGreene@duanemorris.com
`WALiddell@duanemorris.com
`DUANE MORRIS LLP
`Las Cimas IV
`900 S. Cap. of Texas Hwy, Suite 300
`Austin, TX 78746-5435
`Telephone: 512-277-2300
`Facsimile: 512-277-2301
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`Holly Engelmann
`TX Bar No. 24040865
`HEngelmann@duanemorris.com
`Duane Morris LLP
`100 Crescent Court, Suite 1200
`Dallas, TX 75201
`Telephone: 214-257-7200
`Facsimile: 214-257-7201
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`Respectfully submitted,
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`By: /s/ Melissa R. Smith
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`Melissa R. Smith
`Texas State Bar No. 07921800
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Joshua B. Long
`jblong@duanemorris.com
`Duane Morris LLP
`1330 Post Oak Boulevard, Suite 800
`Houston, TX 77056-3166
`Telephone: 713-402-3900
`Facsimile: 713-402-3901
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`Brianna M. Vinci
`bvinci@duanemorris.com
`Duane Morris LLP
`30 S. 17th Street
`Philadelphia, PA 19103
`Telephone: 215-979-1198
`Facsimile: 215-754-4983
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`ATTORNEYS FOR TREND MICRO (U.S.), INC.
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`DM2\16806979.4
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`15
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`Case 2:22-cv-00303-JRG Document 43 Filed 11/21/22 Page 16 of 16 PageID #: 151
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Plaintiff’s counsel of record were served with a true and
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`correct copy of the foregoing document by electronic mail on November 21, 2022.
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`/s/ Melissa R. Smith
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`DM2\16806979.4
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`16
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