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To read comments to this article, go here
Lodsys Update ~mw
Wednesday, August 15 2012 @ 06:00 PM EDT

A quick update on the various Lodsys actions. As we mentioned in the article two weeks ago (Lodsys - Another DJ Action), the time for Lodsys to file further actions, according to Oracle, has now passed. So what has been filed should be it. We also mentioned that we were principally going to keep our eyes on two aspects of the cases: Oracle's declaratory judgment action against Lodsys in Wisconsin (because of the substantial prior art that Oracle has raised in seeking invalidation of the Lodsys patents) and the Apple intervention in the Texas case, Lodsys v. Combay.

In the Oracle action Lodsys has filed motions to dismiss or, in the alternative, transfer the action to the Eastern District of Texas. We are awaiting Oracle's response, but it isn't hard to guess what that will be. Oracle moved first and filed in the district where, arguably, Lodsys is actually located, not in the district where Lodsys maintains an empty storefront office (Eastern District of Texas).

In the Combay action (we will continue to call it that despite the fact that Combay is no longer a party) we appear to have never provided Apple's answer, as intervenor, to the complaint. We now provide Apple's answer (107 [PDF; Text]) We also provide Lodsys's response to Apple. (113 [PDF; Text]) The Apple answer and counterclaim is basically: "You've got no claim against us because we are licensed under the patents." And Lodsys's response? "No you're not." One would think this is a pretty simple question and a question that should be disposed of early in this case rather than later, i.e., is Apple licensed under the asserted patents and does that license extinguish the Lodsys claims against one or more of the defendants? Beyond that, these cases remain in their early stages.

With respect to the pending reexaminations of Lodsys patents 7,620,565 and 7,222,078, a non-final office action has recently issued with respect to the '565 patent. (August 10, 2012 Non-Final Action [PDF]). The only claim asserted by Lodsys under the '565 patent in the Combay action is Claim 27, and pursuant to this most recent non-final action, that claim remains rejected by the USPTO. We continue to await further action by the USPTO with respect to the '078 patent.


********************

Documents

107

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

LODSYS GROUP LLC,
Plaintiff,
v.
COMBAY, INC., et al.,
Defendants,
v.
APPLE INC.,
Intervenor and Counter-Claimant.

CIVIL ACTION NO. 2:11-cv-272-JRG

JURY TRIAL DEMANDED

APPLE INC.’S ANSWER AND
COUNTERCLAIM IN
INTERVENTION

Introduction

1. Plaintiff Lodsys Group LLC (“Lodsys”) asserts claims of infringement of United States Patent Nos. 7,620,565 (the “’565 patent”) and 7,222,078 (the “’078 patent”) (collectively the “patents in suit”) by software development companies (collectively “Developers” or “defendants”) who create software applications (“Apps”) that run on Apple products, such as the Mac, iPhone, iPod Touch, iPad and iPad2 (collectively the “Apple Products”).

2. Intervenor Apple Inc. (“Apple”) is licensed to the patents in suit (“License”) and expressly permitted, among other things, to use, sell, offer to sell or otherwise distribute to its Developers products and services that embody the technology covered by the patents in suit.

3. Lodsys purchased the patents in suit subject to Apple’s License.


4. Apple’s ability to use the technology embodied by the patents in suit in products and services offered to its customers is the essence of the value of Apple’s License to the patents in suit.

5. Apple offers products and services to the Developers to enable the Developers to offer their products to the end users of Apple Products. The products and services Apple provides to the Developers consist, among other things, of Apple application program interfaces (“APIs”), Apple software development kits (“SDKs”), and Apple’s operating system (“iOS”) through which the Developers’ programs access Apple hardware and software that permit interaction between the Developers and Apple end users through the App Store. Apple also provides a comprehensive set of Apple hosting, marketing, sales, agency, and delivery services that allow Developers to provide Apps to millions of Apple end users.

6. Apple’s business with its Developers is extremely valuable to Apple. In return for providing these products and services to the Developers, the Developers pay to Apple a percentage of the revenue the Developers earn from selling their Apps to Apple end users. Over twenty-five billion Apps have been downloaded from the App Store, and the App Store offers more than 550,000 Apps in over twenty different categories, including games, business, news, health, and travel.

7. Lodsys’s claims of infringement are based on the Developers’ use of the products and services provided to them by Apple.

8. Because Apple is licensed to offer products and services that embody the patents in suit to its Developers, under the patent law doctrines of exhaustion and first sale, Developers are entitled to use, free from claims of infringement of the patents in suit, those products and services to which Apple is licensed.

-2-


9. By commencing this suit against the Developers based on their use of products and services offered to them by Apple and by threatening other App developers, Lodsys has diminished the value to Apple of its License. There has been at least one report of an effort to organize a boycott of further use of Apple’s licensed technology by App developers until this issue is resolved. Apple’s interest is direct, very real, and of extraordinary importance to the continued success of Apple’s business, and will be prejudiced absent intervention to assert the defenses set out below.

10. Some of the Developers are very small companies and all possess far fewer resources than Apple. Moreover, none of the defendants in this action possess the detailed knowledge and expertise regarding Apple’s licensed products and services necessary to respond to Lodsys’s infringement allegations. In addition, the Developers may not have the same motivation as Apple to assert the defense based on Apple’s License. Accordingly, the Developers may lack the ability, information, and motivation to protect Apple’s rights under the License to offer products and services for use by Developers free from any claim of infringement of the patents in suit.

11. Apple’s interest in defending its rights in the License raises issues that are common to the main action.

12. To protect the value of its License and the business that is permitted under the License, Apple intervenes in this lawsuit. Lodsys has no legal basis upon which to assert infringement claims based on Developers’ use of licensed Apple technology.

THE PARTIES

13. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 1 of Lodsys’s Amended Complaint for Patent

-3-


Infringement (the “Amended Complaint”), and on that basis denies each and every allegation contained therein.

14. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 2 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

15. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 3 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

16. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 4 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

17. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 5 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

18. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 6 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

19. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 7 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

20. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 8 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

-4-


21. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 9 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

22. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 10 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

23. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 11 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

24. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 12 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

JURISDICTION AND VENUE

25. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 13 of the Amended Complaint, and on that basis denies each and every allegation contained therein, except that Apple admits that this action purports to arise under the patent laws of the United States and that Lodsys purports to ground subject matter jurisdiction in 28 U.S.C. §§ 1331 and 1338(a).

26. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 14 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

ALLEGED INFRINGEMENT OF U.S. PATENT NO. 7,620,565 B2

27. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 15 of the Amended Complaint, and on that basis

-5-


denies each and every allegation contained therein, except that Apple admits that Lodsys purports that Exhibit A is a true and correct copy of U.S. Patent No. 7,620,565 (the “’565 Patent”), which issued on November 17, 2009 and is titled “Customer-Based Product Design Module.”

28. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 16 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

29. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 17 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

30. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 18 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

31. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 19 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

32. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 20 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

33. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 21 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

-6-


34. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 22 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

35. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 23 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

36. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 24 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

37. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 25 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

38. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 26 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

39. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 27 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

ALLEGED INFRINGEMENT OF U.S. PATENT NO. 7,222,078 B2

40. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 28 of the Amended Complaint, and on that basis denies each and every allegation contained therein, except that Apple admits that Lodsys purports that Exhibit B is a true and correct copy of U.S. Patent No. 7,222,078 (the “’078

-7-


Patent”), which issued on May 22, 2007 and is titled “Methods and Systems for Gathering Information from Units of a Commodity Across a Network.”

41. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 29 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

42. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 30 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

43. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 31 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

44. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 32 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

45. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 33 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

46. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 34 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

47. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 35 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

-8-


48. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 36 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

49. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 37 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

50. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 38 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

51. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 39 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

52. Apple lacks knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 40 of the Amended Complaint, and on that basis denies each and every allegation contained therein.

JURY DEMAND

53. Apple denies that Lodsys is entitled to a jury except as permitted by law.

PRAYER FOR RELIEF

54. Apple denies that Lodsys is entitled to the relief requested in paragraphs (a)-(f).

-9-


AFFIRMATIVE DEFENSE

Apple, as a further and separate defense to the Amended Complaint and without assuming any burden it would not otherwise have, alleges the following affirmative defense:

License/Exhaustion of Patent Rights and First Sale

55. Apple realleges and incorporates herein by reference the matters set forth in paragraphs 1-54 above.

56. As set out above, Apple is licensed to the patents in suit under the License. The License expressly permits Apple to offer and otherwise make available to its Developers products and services that embody the inventions contained in the patents in suit. Plaintiff’s infringement claims against the Developers are based substantially or entirely on the Developers’ use of products and services that Apple is authorized to provide under the License and which Lodsys claims embody the patents in suit.

57. Under the patent law doctrines of exhaustion and first sale, the Developers can use the products and services Apple provides to them free of claims of infringing the patents in suit. Therefore, Lodsys’s claims against the Developers are barred by at least the doctrines of patent exhaustion and first sale.

COUNTERCLAIM

Without waiver of any of its rights, including the right to seek dismissal and/or transfer of this action, Apple, by and through its undersigned counsel, and by way of a counterclaim against Lodsys, alleges:

Parties

58. Apple is a corporation organized under the laws of the State of California and maintains its principal place of business at One Infinite Loop, Cupertino, California 95014.

-10-


59. Lodsys purports to be a limited liability company organized under the laws of the State of Texas that maintains its principal place of business in Marshall, Texas.

Jurisdiction and Venue

60. This counterclaim arises under the United States patent laws, 35 U.S.C. § 1, et seq., and seeks relief for which this court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338, 1367, and/or 2201-2202.

61. Venue is proper under 28 U.S.C. § 1391 because, among other reasons, Lodsys purports to reside in this district and further purports to conduct business in this district.

62. This Court has general and specific personal jurisdiction over Lodsys because, among other reasons, Lodsys purports to reside in this district and further purports to conduct business in this district.

First Counterclaim for Declaratory Relief

63. Apple realleges and incorporates herein by reference the matters set forth in paragraphs 1-62 above.

64. Lodsys has invoked federal patent law to control the post-sale use of Apple’s licensed products and services. Absent a declaration and order as sought by Apple, Lodsys will continue wrongfully to assert patent claims that are subject to the License and therefore exhausted. An immediate, real, definite, and concrete dispute exists between Apple and Lodsys over whether the License and the doctrines of patent exhaustion and first sale preclude Lodsys’s ability to sue and threaten Developers for using Apple products and services that allegedly embody the patents in suit.

65. A declaration that Lodsys’s claims against the Developers are barred by the doctrines of patent exhaustion and first sale will render moot many, if not all, existing claims and defenses in this action. Apple is authorized under the License to offer and otherwise make

-11-


available to Developers products and services that embody the patents in suit. To the extent that these products and services do embody the patents in suit, the Developers are permitted to use them free from suit by Lodsys under the doctrines of patent exhaustion and first sale.

66. Therefore, Apple is entitled to a declaration that Lodsys’s claims against the Developers are barred by the doctrines of patent exhaustion and first sale.

JURY DEMAND

67. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Apple respectfully requests a trial by jury on all issues to which it is entitled to a jury trial by law.

PRAYER FOR RELIEF

WHEREFORE, Apple respectfully prays that (i) Lodsys take nothing against any defendant by way of the Amended Complaint, (ii) that Lodsys’s Amended Complaint be dismissed with prejudice, (iii) that the Court issue an order declaring that Lodsys’s claims against the Developers are barred by the doctrines of patent exhaustion and first sale, and (iv) that the Court award Apple such other and further relief as it deems proper.

Dated: April 13, 2012

Respectfully submitted,

By /s/ Melissa Richards Smith
Melissa Richards Smith
Texas State Bar No. 24001351
GILLAM & SMITH, L.L.P
[address telephone fax email]

-12-


Jeffrey E. Ostrow (admitted pro hac vice)
SIMPSON THACHER & BARTLETT LLP
[address telephone fax email]

Counsel for Intervenor and Counter-Claimant Apple Inc.

CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a)(3) on this the 13th of April, 2012.

/s/ Melissa Richards Smith

Melissa Richards Smith

-13-



113

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

LODSYS GROUP, LLC,
Plaintiff,
v.
ATARI INTERACTIVE, INC.;
COMBAY, INC.;
ELECTRONIC ARTS, INC.;
ICONFACTORY, INC.;
ILLUSION LABS AB;
MICHAEL G. KARR D/B/A SHOVELMATE;
QUICKOFFICE, INC.;
ROVIO MOBILE LTD.
RICHARD SHINDERMAN;
SQUARE ENIX LTD.;
TAKE-TWO INTERACTIVE SOFTWARE, INC.,
Defendants,
APPLE INC.,
Intervenor.

CIVIL ACTION NO. 2:11-cv-272-JRG

JURY TRIAL DEMANDED

PLAINTIFF LODSYS, LLC’S ORIGINAL ANSWER TO
INTERVENOR APPLE INC.’S COUNTERCLAIM

COMES NOW, Plaintiff Lodsys Group, LLC (“Plaintiff”), and files its Original Answer to the Counterclaim filed by Intervenor Apple Inc. (“Intervenor”). Pursuant to the Court’s April 12, 2012 Memorandum Opinion and Order [dkt. no. 105] (the “Intervention Order”), Intervenor’s intervention is limited to the issues of patent exhaustion and licensing. Pursuant to the Intervention Order, this Original Answer is limited to the issues on which the Court granted limited intervention and, therefore, does not include any claims that Plaintiff may have against Intervenor outside the scope of the limited intervention. Accordingly, Plaintiff would respectfully show the Court as follows, as limited by the Intervention Order:


Introduction 1. Answering paragraph 1, Plaintiff states that its Amended Complaint for Patent Infringement (the “Complaint”) speaks for itself, and Plaintiff denies any characterizations or allegations inconsistent with the Complaint. 2. Answering paragraph 2, Plaintiff admits that, at a point in time, Apple held a limited license to the patents-in-suit. Plaintiff denies the remaining allegations in paragraph 2. 3. Answering paragraph 3, Plaintiff admits that its assignment to the patents-in-suit was subject to certain then-existing licenses. Plaintiff denies the remaining allegations in paragraph 3. 4. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 4, and on that basis denies each and every allegation contained paragraph 4. 5. Answering paragraph 5, Plaintiff denies the allegation that “[t]he products and services Apple provides to the Developers … permit interaction between the Developers and Apple end users through the App Store.” Plaintiff also denies that Apple owns or provides “end users.” Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 5, and on that basis denies each and every remaining allegation contained paragraph 5. 6. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6, and on that basis denies each and every allegation contained paragraph 6. 7. Plaintiff denies the allegations in paragraph 7. 8. Plaintiff denies the allegations in paragraph 8. 9. The first sentence of paragraph 9 contains legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the allegations in the first sentence of paragraph 9. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence of paragraph 9, and on that basis

1


denies each and every allegation contained in the second sentence of paragraph 9. Plaintiff denies the allegations in the third sentence in paragraph 9.

10. Answering the first sentence in paragraph 10, Plaintiff admits that some of the defendants and/or “Developers” are smaller than Intervenor. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in the first sentence of paragraph 10, and on that basis denies each and every remaining allegation contained in the first sentence of paragraph 10. Plaintiff denies the allegations in second sentence of paragraph 10. Answering the third sentence of paragraph 10, Plaintiff states that certain of the defendants and/or “Developers” have asserted “the defense based on Apple’s License.” Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in the third sentence of paragraph 10, and on that basis denies each and every remaining allegation contained in the third sentence of paragraph 10. Plaintiff denies the allegations in fourth sentence of paragraph 10.

11. Paragraph 11 contains legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the allegations in paragraph 11.

12. Paragraph 12 contains legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the allegations in paragraph 12.

Parties

13. Plaintiff admits the allegations in paragraph 58.

14. Plaintiff admits the allegations in paragraph 59.

Jurisdiction and Venue

15. Plaintiff admits that this Court has jurisdiction over the subject matter of Intervenor’s Counterclaim. The remaining legal or other conclusions in paragraph 60 do not require a response. To the extent a response is required, Plaintiff denies the remaining allegations in paragraph 60.

16. Plaintiff admits the allegations in paragraph 61

17. Plaintiff admits the allegations in paragraph 62.

2


First Counterclaim for Declaratory Relief

18. Plaintiff restates and incorporates by reference each of its responses to the allegations in paragraphs 1 through 12 and 58 through 62 of Intervenor’s Answer and Counterclaim, as if fully set forth herein.

19. Plaintiff denies the allegations in the first sentence in paragraph 64. The remaining allegations in paragraph 64 contain legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the remaining allegations in paragraph 64.

20. The first sentence of paragraph 65 contains legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the allegations in the first sentence of paragraph 65. Plaintiff denies the remaining allegations in paragraph 65.

21. Paragraph 66 contains legal or other conclusions that do not require a response. To the extent a response is required, Plaintiff denies the allegations in paragraph 66.

Plaintiff’s Affirmative Defenses to Intervenor’s Counterclaim

Without assuming the burden of pleading or proof that would otherwise rest on Intervenor, Plaintiff asserts the following defenses and affirmative defenses to Intervenor’s Counterclaim:

1. Intervenor’s Counterclaim fails to state a claim upon which relief can be granted.

2. Intervenor’s Counterclaim is barred, in whole or in part, by the doctrines of unclean hands, estoppel, release, and waiver.

3. Intervenor’s Counterclaim is barred, in whole or in part, because Intervenor has breached its alleged license to the patents-in-suit.

4. Intervenor’s Counterclaim is barred, in whole or in part, by the terms of its alleged license to the patents-in-suit.

5. Intervenor’s Counterclaim is barred, in whole or in part, by the terms of its agreements with defendants and/or “Developers.”

3


6. To the extent that Intervenor’s Counterclaim relies on any purported oral contract, any such oral contract is void and unenforceable under the statute of frauds.

7. Intervenor’s Counterclaim is barred, in whole or in part, by a failure of consideration.

The above defenses and affirmative defenses are based on the facts currently known to Plaintiff. Plaintiff reserves the right to amend or add defenses or affirmative defenses based on facts later discovered, pled, or offered.

Demand for Jury Trial on Intervenor’s Counterclaim

Plaintiff demands a trial by jury on Intervenor’s Counterclaim.

Response to Intervenor’s Prayer for Relief

Plaintiff denies that Intervenor is entitled to any of the relief requested in Intervenor’s Prayer for Relief.

Plaintiff’s Prayer for Relief

WHEREFORE, in addition to the relief requested in its Amended Complaint, Plaintiff respectfully requests entry of a judgment in its favor and against Intervenor as follows:

A. That Intervenor take nothing by its Counterclaim;

B. That the Court award Plaintiff all costs and attorneys’ fees incurred in defending against Intervenor’s Counterclaim; and

C. Any and all further relief that the Court deems just and proper.

Dated: May 4, 2012.

Respectfully Submitted,

By: /s/ Christopher M. Huck
Michael A. Goldfarb
(admitted pro hac vice)
Christopher M. Huck
(admitted pro hac vice)
KELLEY, DONION, GILL,
HUCK & GOLDFARB, PLLC
[address telephone]

4


[fax email]

William E. “Bo” Davis, III
Texas State Bar No. 24047416
THE DAVIS FIRM, PC
[address telephone fax email]

Attorneys for Plaintiff
Lodsys Group, LLC

5


CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this response was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(V). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email, on this the 4th day of May 2012.

By: /s/ Christopher M. Huck
Christopher M. Huck

6



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