throbber
Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 1 of 11 PageID #: 2102
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`Plaintiff,
`
`
`
`
`
`CIVIL ACTION NO. 6:14-cv-982
`
`CONSOLIDATED LEAD CASE
`
`
`
`CIVIL ACTION NO. 6:14-cv-983
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`1
`
`v.
`
`LG ELECTRONICS, INC.,
`LG ELECTRONICS U.S.A., INC.,
`AT&T MOBILITY LLC,
`VERIZON COMMUNICATIONS, INC.,
`CELLCO PARTNERSHIP D/B/A
`VERIZON WIRELESS,
`SPRINT NEXTEL CORPORATION,
`SPRINT SOLUTIONS, INC.,
`SPRINT SPECTRUM L.P.,
`BOOST MOBILE, LLC,
`T-MOBILE USA, INC., and
`T-MOBILE US, INC.,
`
`Defendants.
`
`
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`
`Plaintiff,
`
`
`v.
`
`SONY MOBILE COMMUNICATIONS
`INC., SONY MOBILE
`COMMUNICATIONS (USA) INC.,
`AT&T MOBILITY LLC,
`VERIZON COMMUNICATIONS, INC.,
`CELLCO PARTNERSHIP D/B/A
`VERIZON WIRELESS,
`T-MOBILE USA, INC., and
`T-MOBILE US, INC.,
`
`
`
`
`Defendants.
`
`
`
` 
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 2 of 11 PageID #: 2103
`
`PLAINTIFF’S REPLY TO SONY MOBILE
`COMMUNICATIONS (USA) INC.’S COUNTERCLAIMS
`
`Plaintiff Cellular Communications Equipment LLC (“CCE”) hereby files this reply to
`
`Defendant Sony Mobile Communications (USA) Inc.’s (“Sony” or “Counterclaimant”)
`
`Counterclaims to the First Amended Complaint. All allegations not expressly admitted are
`
`denied. With respect to the individually numbered paragraphs in Defendant’s counterclaims,
`
`Plaintiff replies as follows:
`
`THE PARTIES
`
`1.
`
`CCE admits that Sony Mobile Communications (USA) Inc. is a corporation
`
`organized and existing under the laws of Delaware, having a principle place of business in San
`
`Mateo, California. Except as admitted, the allegations of paragraph 1 are denied.
`
`2.
`
`CCE admits that it is a limited liability company organized under the laws of
`
`Texas. Except as admitted, the allegations of paragraph 2 are denied.
`
`JURISDICTION AND VENUE
`
`3.
`
`The allegations in paragraph 3 are legal conclusions to which no response is
`
`required. To the extent that paragraph 3 contains any factual allegations to which CCE must
`
`respond, CCE admits that Sony purports to bring a declaratory judgment action for non-
`
`infringement and invalidity of U.S. Patent No. 8,385,966 (“the ‘966 Patent”), U.S. Patent No.
`
`8,848,556 (“the ‘556 Patent”), and U.S. Patent No. 8,868,060 (“the ‘060 Patent”). Except as
`
`admitted, the allegations of paragraph 3 are denied.
`
`4.
`
`CCE admits that this Court has subject matter jurisdiction over the claims and
`
`counterclaims asserted in this action. Except as admitted, the allegations of paragraph 4 are
`
`denied.
`
` 
`
`2
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 3 of 11 PageID #: 2104
`
`5.
`
`CCE admits that this Court has personal jurisdiction over CCE with respect to the
`
`claims and counterclaims asserted in this action. Except as admitted, the allegations of
`
`paragraph 5 are denied.
`
`6.
`
`CCE admits that venue is proper in this District with respect to the claims and
`
`counterclaims asserted in this action. Except as admitted, the allegations of paragraph 6 are
`
`denied.
`
`7.
`
`Based on the CCE’s complaint, Sony’s answer, and Sony’s counterclaims, CCE
`
`admits that there exists an actual, justiciable controversy between Sony and CCE concerning the
`
`’966 patent, the ’556 patents, and the ’060 patent. Except as admitted, the allegations of
`
`paragraph 7 are denied.
`
`8.
`
`The allegations in paragraph 8 are legal conclusions to which no response is
`
`required. To the extent that paragraph 8 contains any factual allegations to which CCE must
`
`respond, CCE denies that this is an exceptional case under 35 U.S.C. § 285 under which Sony is
`
`entitled to recover its attorneys’ fees.
`
`
`
`FIRST COUNTERCLAIM
`(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ‘966 PATENT)
`
` CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 8 of
`
`9.
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-8 of this Reply.
`
`10.
`
`CCE admits that it has initiated a civil action against Sony by filing a Complaint
`
`in this Court alleging that Sony has infringed the ’966 Patent.
`
`11.
`
`CCE denies the allegations of paragraph 11.
`
`
`
` 
`
`3
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 4 of 11 PageID #: 2105
`
`12.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to infringement of the ’966 Patent. Except as admitted, the allegations of paragraph 12 are
`
`denied.
`
`13.
`
`The allegations in paragraph 13 are legal conclusions to which no response is
`
`required. To the extent that paragraph 13 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
`SECOND COUNTERCLAIM
`(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ‘556 PATENT)
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 13 of
`
`14.
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-13 of this Reply.
`
`15.
`
`CCE admits that it has initiated a civil action against Sony by filing a Complaint
`
`in this Court alleging that Sony has infringed the ’556 Patent.
`
`16.
`
`17.
`
`CCE denies the allegations of paragraph 16.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to infringement of the ’556 Patent. Except as admitted, the allegations of paragraph 17 are
`
`denied.
`
`18.
`
`The allegations in paragraph 18 are legal conclusions to which no response is
`
`required. To the extent that paragraph 18 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
`THIRD COUNTERCLAIM
`(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ‘060 PATENT)
`
`19.
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 18 of
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-18 of this Reply.
`4
`
` 
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 5 of 11 PageID #: 2106
`
`
`
`20.
`
`CCE admits that it has initiated a civil action against Sony by filing a Complaint
`
`in this Court alleging that Sony has infringed the ’060 Patent.
`
`21.
`
`22.
`
`CCE denies the allegations of paragraph 21.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to infringement of the ’060 Patent. Except as admitted, the allegations of paragraph 22 are
`
`denied.
`
`23.
`
`The allegations in paragraph 23 are legal conclusions to which no response is
`
`required. To the extent that paragraph 23 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
`FOURTH COUNTERCLAIM
`(DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘966 PATENT)
`
`24.
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 23 of
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-23 of this Reply.
`
`25.
`
`CCE denies the allegations of paragraph 25. CCE asserts that incorporation by
`
`reference of Sony’s motion for summary judgment is improper.
`
`26.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to validity of the ’966 Patent. Except as admitted, the allegations of paragraph 26 are denied.
`
`27.
`
`The allegations in paragraph 27 are legal conclusions to which no response is
`
`required. To the extent that paragraph 27 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
` 
`
`5
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 6 of 11 PageID #: 2107
`
`FIFTH COUNTERCLAIM
`(DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘556 PATENT)
`
`28.
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 27 of
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-27 of this Reply.
`
`29.
`
`CCE denies the allegations of paragraph 29. CCE asserts that incorporation by
`
`reference of Sony’s motion for summary judgment is improper.
`
`30.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to validity of the ’556 Patent. Except as admitted, the allegations of paragraph 30 are denied.
`
`31.
`
`The allegations in paragraph 31 are legal conclusions to which no response is
`
`required. To the extent that paragraph 31 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
`SIXTH COUNTERCLAIM
`(DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘060 PATENT)
`
`32.
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 31 of
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-31 of this Reply.
`
`33.
`
`CCE denies the allegations of paragraph 33. CCE asserts that incorporation by
`
`reference of Sony’s motion for summary judgment is improper.
`
`34.
`
`CCE admits that an actual controversy exists between Sony and CCE with respect
`
`to validity of the ’060 Patent. Except as admitted, the allegations of paragraph 34 are denied.
`
`35.
`
`The allegations in paragraph 35 are legal conclusions to which no response is
`
`required. To the extent that paragraph 35 contains any factual allegations to which CCE must
`
`respond, CCE denies such allegations.
`
`
`
` 
`
`6
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 7 of 11 PageID #: 2108
`
`SEVENTH COUNTERCLAIM
`(BREACH OF CONTRACT)
`
`36.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`37.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`38.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`39.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`40.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`41.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`42.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
` 
`
`7
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 8 of 11 PageID #: 2109
`
`43.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`44.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`45.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`46.
`
`CCE filed an antecedent motion to dismiss this counterclaim. Thus, other than as
`
`indicated in the motion to dismiss, CCE makes no response to the allegations comprising the
`
`counterclaim at this time.
`
`
`
`EIGHTH COUNTERCLAIM
`(DECLARATORY JUDGMENT THAT SONY MOBILE IS LICENSED TO PRACTICE
`THE ASSERTED PATENTS)
`
`CCE admits that Sony purports to repeat the allegations of paragraphs 1 to 46 of
`
`47.
`
`its Counterclaims. CCE incorporates and re-alleges paragraphs 1-46 of this Reply.
`
`48.
`
`49.
`
`CCE denies the allegations of paragraph 48.
`
`CCE admits that it has granted licenses to certain third parties. Except as
`
`admitted, the allegations of paragraph 49 are denied.
`
`50.
`
`CCE lacks knowledge or information sufficient to form a belief about paragraph
`
`50 and thus denies same.
`
`51.
`
`CCE lacks knowledge or information sufficient to form a belief about paragraph
`
`51 and thus denies same.
`
` 
`
`8
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 9 of 11 PageID #: 2110
`
`52.
`
`CCE lacks knowledge or information sufficient to form a belief about paragraph
`
`52 and thus denies same.
`
`53.
`
`54.
`
`CCE denies the allegations of paragraph 53.
`
`CCE lacks knowledge or information sufficient to form a belief about paragraph
`
`54 and thus denies same.
`
`RESERVATION OF RIGHTS
`
`55.
`
`CCE admits that Sony purports to reserve the right to assert additional
`
`counterclaims as they become known through further investigation and discovery. Except as
`
`admitted, the allegations of paragraph 55 are denied.
`
`PRAYER FOR RELIEF
`
`Although no answer is required to Sony’s request for relief, CCE denies all allegations in sub
`
`paragraphs (A) through (N) and further denies that the requested relief should be granted to
`
`Sony.
`
`DEMAND FOR JURY TRIAL
`
`CCE admits that Sony requests a trial by jury on all issues so triable.
`
`PLAINTIFF’S PRAYER
`
`Plaintiff prays for the following relief:
`
`A. All relief sough in Plaintiff’s Second Amended Complaint;
`
`B. Dismissal of Sony’s counterclaims and judgment that Sony take nothing;
`
`C. Judgment declaring that Sony infringes one or more claims of the ’966 Patent, ’556
`
`Patent, and/or ’060 Patent;
`
`D. Judgment declaring that the ’966 Patent, ’556 Patent, and/or ’060 Patent are valid and
`
`enforceable;
`
` 
`
`9
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 10 of 11 PageID #: 2111
`
`E. Judgment that Sony account for and pay to Plaintiff all damages to and costs incurred by
`
`Plaintiff because of Sony’s infringing activities, either through direct or indirect
`
`infringement, either alone or in combination with the actions of others;
`
`F. Judgment declaring that Sony account for and pay to Plaintiff a reasonable, on-going,
`
`post-judgement royalty because of Sony’s infringing activities;
`
`G. An award of Plaintiff’s fees and costs in defending against Sony’s counterclaims,
`
`together with pre-judgment and post-judgment interest in the maximum amount provided
`
`by law; and
`
`H. Any and all further relief for Plaintiff as the Court may deem just and proper.
`
`
`
`
`
`Dated: December 7, 2015
`
`
`
`
`
` 
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Edward R. Nelson III
`Edward R. Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`Thomas C. Cecil
`tom@nelbum.com
`Texas State Bar No. 24069489
`NELSON BUMGARDNER, P.C.
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`Phone: (817) 377-9111
`Fax: (817) 377-3485
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`J. Wesley Hill
`Texas State Bar No. 24032294
`Claire Abernathy Henry
`Texas State Bar No. 24053063
`WARD & SMITH LAW FIRM
`P.O. Box 1231
`1127 Judson Rd. Ste. 220
`Longview, Texas 75606-1231
`(903) 757-6400
`10
`
`

`

`Case 6:14-cv-00982-KNM Document 171 Filed 12/07/15 Page 11 of 11 PageID #: 2112
`
`(903) 757-2323 (fax)
`jw@jwfirm.com
`wh@wsfirm.com
`claire@wsfirm.com
`
`ATTORNEYS FOR PLAINTIFF
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing was served on all parties of record
`on December 7, 2015 via the Court’s CM/ECF system.
`
`
`
`/s/ Edward R. Nelson III
`
`
`
`
` 
`
`11
`
`

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