First, Twin Peaks asserts that the term "Free and Open Source Software" may have different meanings in different situations. Certainly in the context presented by Red Hat the definition is sufficiently broad as to encompass virtually every interpretation imaginable, to wit:
In the following paragraph (33) Twin Peaks accepts the Court's observation about open source software, but Twin Peaks then denies any of the remaining allegations of paragraph 33 of the counterclaims. Effectively, Twin Peaks thus denies that in Jacobsen the Federal Circuit held open source licenses enforceable under copyright law. Really?
In paragraph 38 et. seq. Twin Peaks denies sufficient information to admit that the GPLv2 places restrictions on distribution. Twin Peaks denies sufficient information to admit the very provisions of the GPLv2 that Red Hat cites. In paragraph 45 Twin Peaks denies that the program in question (util-linux and the "mount" program) are licensed under GPLv2.
The bottom line is that Twin Peaks is going to attempt what others have attempted, i.e., to prove the GPL is either inapplicable or unenforceable. The problem Twin Peaks will face is the fact that not one, but two, separate Courts of Appeal, one of which is the Federal Circuit, have already addressed this issue as well as the issue of injunctive relief.
Game on.
1 - Filed: 02/23/2012 -
COMPLAINT (with jury demand) against Gluster, Inc., Red Hat, Inc. (Filing fee $350, receipt number 34611070914). Filed by Twin Peaks Software Inc. (cjl, COURT STAFF) (Filed on 2/23/2012) (Additional attachment(s) added on 2/27/2012: # 1 Civil Cover Sheet) (cjl, COURT STAFF). (Entered: 02/24/2012)
2 - Filed: 02/23/2012 -
Summons Issued as to Red Hat, Inc. (cjl, COURT STAFF) (Filed on 2/23/2012) (cjl, COURT STAFF). (Entered: 02/24/2012)
3 - Filed: 02/23/2012 -
Summons Issued as to Gluster, Inc. (cjl, COURT STAFF) (Filed on 2/23/2012) (cjl, COURT STAFF). (Entered: 02/24/2012)
4 - Filed: 02/23/2012 -
ADR SCHEDULING ORDER: Case Management Statement due by 7/5/2012. Case Management Conference set for 7/12/2012 10:30 AM in Courtroom 4, 3rd Floor, Oakland. (Attachments: # 1Standing Order)(cjl, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/24/2012)
5 - Filed: 02/27/2012 -
REPORT on the filing of an action regarding Patent (cc: form mailed to register). (cjl, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
6 - Filed: 03/12/2012 -
CLERKS NOTICE
Effective March 20, 2012, Magistrate Judge Laurel Beelers courtroom and chambers will be located in the Phillip Burton Federal Building and United States Courthouse, Courtroom C, 15th Floor, 450 Golden Gate Avenue, San Francisco, California 94102.
On or after March 20, 2012, all filings for matters pending on Judge Beelers docket, all court appearances, and all deliveries of chambers copies of documents must be made at the San Francisco Courthouse.
The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.
Please note that all of Judge Beelers case files will be moved to the San Francisco Courthouse, therefore all case numbers assigned to her will be changed slightly to reflect the correct venue. Previously, all case numbers started with 4 to indicate the Oakland office (Example: 4:12-cv-12345-LB). As of March 20, 2012, all of Judge Beelers case files will begin with 3 to indicate the San Francisco office, but everything else will stay the same (Example: 3:12-cv-12345-LB). When e-filing, using the short case number format will always avoid problems when searching for the correct case: 12-12345 (YY-NNNNN).
For information on the San Francisco Courthouses accessibility, parking, driving directions, public transit, hotels and other helpful links, please visit our website: http://www.cand.uscourts.gov, click on Court Information on the right hand side of our main page, then select the San Francisco link under Address and Jurisdiction. The main telephone number for the San Francisco Division is 415-522-2000.
(cpS, COURT STAFF) (Filed on 3/12/2012) (Entered: 03/12/2012)
7 - Filed: 03/14/2012 -
SUMMONS Returned Executed by Twin Peaks Software Inc. Gluster, Inc. served on 3/5/2012, answer due 3/26/2012. (cjl, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)
8 - Filed: 03/16/2012 -
SUMMONS Returned Executed by Twin Peaks Software Inc. Red Hat, Inc. served on 3/12/2012, answer due 4/2/2012. (cjl, COURT STAFF) (Filed on 3/16/2012) (Entered: 03/20/2012)
9 - Filed: 03/22/2012 -
STIPULATION to Extend Time to File Answer or Otherwise Respond to Complaint filed by Twin Peaks Software Inc.. (Banys, Christopher) (Filed on 3/22/2012) (Entered: 03/22/2012)
10 - Filed: 04/17/2012 -
CLERKS NOTICE re Consent to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge due by 5/4/2012. (ls, COURT STAFF) (Filed on 4/17/2012) (Entered: 04/17/2012)
11 - Filed: 05/04/2012 -
CONSENT to Proceed Before a US Magistrate Judge by Twin Peaks Software Inc. (Banys, Christopher) (Filed on 5/4/2012) Modified on 5/10/2012 (bwS, COURT STAFF). (Entered: 05/04/2012)
12 - Filed: 05/04/2012 -
NOTICE of Appearance of Katherine Kelly Lutton filed buy Gluster, Inc., Red Hat, Inc. (Lutton, Katherine) (Filed on 5/4/2012) Modified on 5/10/2012 (bwS, COURT STAFF). (Entered: 05/04/2012)
13 - Filed: 05/04/2012 -
Declination to Proceed Before a U.S. Magistrate Judge by Gluster, Inc. and Request for Reassignment to a United States District Judge . (Lutton, Katherine) (Filed on 5/4/2012) Modified on 5/10/2012 (bwS, COURT STAFF). Modified on 5/10/2012 (bwS, COURT STAFF). (Entered: 05/04/2012)
14 - Filed: 05/04/2012 -
Declination to Proceed Before a U.S. Magistrate Judge and Request for Reassignment to a Untied States District Judge by Red Hat, Inc. (Lutton, Katherine) (Filed on 5/4/2012) Modified on 5/10/2012 (bwS, COURT STAFF). (Entered: 05/04/2012)
15 - Filed: 05/08/2012 -
CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (ls, COURT STAFF) (Filed on 5/8/2012) (Entered: 05/08/2012)
16 - Filed: 05/09/2012 -
ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Ronald M. Whyte for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to the case.. Signed by Executive Committee on 5/9/12. (as, COURT STAFF) (Filed on 5/9/2012) (Entered: 05/09/2012)
17 - Filed: 05/17/2012 -
STIPULATION for Second Extenson of Time for Defendants to Respond To and Including May 31, 2012 re 1 filed by Gluster, Inc., Red Hat, Inc. (Lutton, Katherine) (Filed on 5/17/2012) Modified on 5/18/2012 (bw, COURT STAFF). (Entered: 05/17/2012)
18 - Filed: 05/23/2012 -
NOTICE of Appearance of Shelley Kay Mack by Gluster, Inc. and Red Hat, Inc. (Mack, Shelley) (Filed on 5/23/2012) Text modified on 5/24/2012 (bw, COURT STAFF). (Entered: 05/23/2012)
19 - Filed: 05/31/2012 -
STIPULATION for Third Extension of Time to Respond Complaint re 1 filed by Gluster, Inc., Red Hat, Inc. (Lutton, Katherine) (Filed on 5/31/2012) Modified on 6/1/2012 (bwS, COURT STAFF). (Entered: 05/31/2012)
20 - Filed: 07/02/2012 -
Notice of Motion and Motion Dismiss Complaint for Patent Infringement for Failure to State a claim Under Rule 12(B)(6) re 1 filed by Gluster, Inc., Red Hat, Inc.. Motion Hearing set for 8/24/2012 09:00 AM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Responses due by 7/16/2012. Replies due by 7/23/2012. (Attachments: # 1 Memorandum of Points and Authorities, # 2(Proposed) Order, # 3 Declaration ECF Technical Failure)(Lutton, Katherine) (Filed on 7/2/2012) Text modified on 7/3/2012 (bwS, COURT STAFF). (Entered: 07/02/2012)
21 - Filed: 07/02/2012 -
Rule 7.1 Corporate Diclosure Statement and Certification of Interested Entities or Persons by Gluster, Inc., Red Hat, Inc. (Lutton, Katherine) (Filed on 7/2/2012) Modified on 7/3/2012 (bwS, COURT STAFF). (Entered: 07/02/2012)
22 - Filed: 07/16/2012 -
First Amended Complaint For Patent Infringement against Gluster, Inc., Red Hat, Inc.. Filed byTwin Peaks Software Inc. (Attachments: # 1 Exhibit A) (Banys, Christopher) (Filed on 7/16/2012) Modified on 7/17/2012 (bwS, COURT STAFF). (Entered: 07/16/2012)
23 - Filed: 07/16/2012 -
Corporate Disclosure Statement and Certification of Interested Entities or Persons by Twin Peaks Software Inc. (Banys, Christopher) (Filed on 7/16/2012) Modified on 7/17/2012 (bwS, COURT STAFF). (Entered: 07/16/2012)
24 - Filed: 07/16/2012 -
OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT FOR PATENT INFRINGEMENT FOR FAILURE TO STATE A CLAIM UNDER RULE 12(B)(6) (re 20 filed by Twin Peaks Software Inc. (Lin, Richard) (Filed on 7/16/2012) Modified on 7/17/2012 (bwS, COURT STAFF). (Entered: 07/16/2012)
25 - Filed: 07/17/2012 -
Notice of Motion and Unopposed Motion to Withdraw Motion to Dismiss re 20 filed by Gluster, Inc., Red Hat, Inc. Motion Hearing set for 7/24/2012 09:00 AM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Responses due by 7/31/2012. Replies due by 8/7/2012. (Attachments: # 1 (Proposed) Order) (Lutton, Katherine) (Filed on 7/17/2012) Modified on 7/18/2012 (bwS, COURT STAFF). (Entered: 07/17/2012)
26 - Filed: 07/19/2012 -
ORDER by Judge Ronald M. Whyte Granting 25 Unopposed Motion to Withdraw Motion to Dismiss. (jg, COURT STAFF) (Filed on 7/19/2012) (Entered: 07/19/2012)
27 - Filed: 07/23/2012 -
CLERKS NOTICE OF SETTING CASE MANAGEMENT CONFERENCE: Joint Case Management Statement due by 9/14/2012. Case Management Conference set for 9/21/2012 10:30 AM in Courtroom 6, 4th Floor, San Jose. (jg, COURT STAFF) (Filed on 7/23/2012) (Entered: 07/23/2012)
28 - Filed: 08/02/2012 -
ANSWER to Amended Complaint , COUNTERCLAIM re 22 against Twin Peaks Software Inc. by Red Hat, Inc., Gluster, Inc. (Lutton, Katherine) (Filed on 8/2/2012) Modified on 8/3/2012 (bwS, COURT STAFF). (Entered: 08/02/2012)
29 - Filed: 08/06/2012 -
Amended Rule 7.1 CORPORATE DISCLOSURE STATEMENT and Certification of Interested Entities or Persons by Gluster, Inc., Red Hat, Inc. (Lutton, Katherine) (Filed on 8/6/2012) Modified on 8/7/2012 (bwS, COURT STAFF). (Entered: 08/06/2012)
30 - Filed: 08/17/2012 -
Application for Admission of Attorney Adam J. Kessel for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-7054168.) filed by Gluster, Inc., Red Hat, Inc. (Attachments: # 1(Proposed) Order Grating to Application for Pro Hac Vice of Kessel)(Kessel, Adam) (Filed on 8/17/2012) Modified on 8/20/2012 (bwS, COURT STAFF). (Entered: 08/17/2012)
31 - Filed: 08/23/2012 -
ANSWER TO COUNTERCLAIM re 22 by Twin Peaks Software Inc. (Lin, Richard) (Filed on 8/23/2012) Linkage added on 8/28/2012 (bwS, COURT STAFF). (Entered: 08/23/2012)
32 - Filed: 08/31/2012 -
ADR Certification by Parties and Counsel (ADR L.R. 3-5 b) of discussion of ADR options (Lin, Richard) (Filed on 8/31/2012) Modified on 8/31/2012 (bw, COURT STAFF). (Entered: 08/31/2012)
33 - Filed: 09/13/2012 -
First Amended Answer and Counterclaims to First Amended Complaint for Patent Infringement re 22 against All Plaintiffs by Red Hat, Inc., Gluster, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lutton, Katherine) (Filed on 9/13/2012) Modified on 9/13/2012 (bw, COURT STAFF). (Entered: 09/13/2012)
34 - Filed: 09/13/2012 -
ADR Certification by Parties adn Counsel (ADR L.R. 3-5 b) of discussion of ADR options filed by Defendants Red Hat, Inc. and Gluster, Inc. (Mack, Shelley) (Filed on 9/13/2012) Modified on 9/13/2012 (bw, COURT STAFF). (Entered: 09/13/2012)
35 - Filed: 09/14/2012 -
JOINT CASE MANAGEMENT STATEMENT AND RULE 26(f) REPORT filed by Twin Peaks Software Inc. (Lin, Richard) (Filed on 9/14/2012) Modified on 9/14/2012 (bwS, COURT STAFF). (Entered: 09/14/2012)
37 - Filed: 09/14/2012 -
STIPULATION and (Proposed) Order selecting Private ADR by Red Hat, Inc., Twin Peaks Software Inc. filed by Red Hat, Inc., Twin Peaks Software Inc. (Mack, Shelley) (Filed on 9/14/2012) Modified on 9/14/2012 (bwS, COURT STAFF). (Entered: 09/14/2012)
38 - Filed: 09/20/2012 -
Amended Joint Case Management Statement filed by Gluster, Inc., Red Hat, Inc., Twin Peaks Software Inc. (Lutton, Katherine) (Filed on 9/20/2012) Modified on 9/20/2012 (bwS, COURT STAFF). (Entered: 09/20/2012)
43 - Filed: 09/21/2012 -
Minute Entry: Initial Case Management Conference held on 9/21/2012 before Ronald M. Whyte (Date Filed: 9/21/2012). Further Case Management Conference set for 5/29/2013 09:00 AM in Courtroom 6, 4th Floor, San Jose. Claims Construction Hearing set for 5/29/2013 09:00 AM. Tutorial Hearing set for 5/22/2013 09:00 AM in Courtroom 6, 4th Floor, San Jose. Case referred to Magistrate Judge Grewal for an Early Settlement Conference.(Court Reporter Not Reported.) (jgS, COURT STAFF) (Date Filed: 9/21/2012) (Entered: 10/04/2012)
39 - Filed: 09/26/2012 -
NOTICE of Appearance of Jennifer C. Lu on Behalf of Twin Peaks Software, Inc. (Lu, Jennifer) (Filed on 9/26/2012) Modified on 9/27/2012 (bwS, COURT STAFF). (Entered: 09/26/2012)
40 - Filed: 09/26/2012 -
NOTICE of Appearance of Nicholas Stephan Mancuso on Behalf of Twin Peaks Software, Inc. (Mancuso, Nicholas) (Filed on 9/26/2012) Modified on 9/27/2012 (bwS, COURT STAFF). (Entered: 09/26/2012)
41 - Filed: 09/27/2012 -
Answer to First Amended Answer and Counterclaims to First Amended Complaint for Patent Infringement re 33 by Twin Peaks Software Inc. (Lin, Richard) (Filed on 9/27/2012) Modified on 9/28/2012 (bwS, COURT STAFF). (Entered: 09/27/2012)
42 - Filed: 10/04/2012 -
CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 11/29/2012 at 9:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul S. Grewal. All lawyers and parties with complete authority to negotiate and consummate a settlement shall be in attendance. All parties are required to lodge a settlement conference statement in compliance with Magistrate Judge Grewal's Standing Order Re: Settlements found at www.cand.uscourts.gov or from the clerk's office. ***This is a text only docket entry, there is no document associated with this notice.*** (ofr, COURT STAFF) (Filed on 10/4/2012) (Entered: 10/04/2012)
44 - Filed: 10/11/2012 -
(Proposed) Case Management And Scheduling Order by Gluster, Inc., Red Hat, Inc. (Mack, Shelley) (Filed on 10/11/2012) Modified on 10/11/2012 (bwS, COURT STAFF). (Entered: 10/11/2012)
Christopher D. Banys (State Bar No. 230038)
Richard C. Lin (State Bar No. 209233)
Jennifer C. Lu (State Bar No. 255820)
Nicholas S. Mancuso (State Bar No. 271668)
[email]
[email]
[email]
[email]
THE LANIER LAW FIRM, P.C.
[address telephone fax]
Attorneys for Plaintiff
TWIN PEAKS SOFTWARE INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
TWIN PEAKS SOFTWARE INC.
Plaintiff,
v.
RED HAT, INC. AND GLUSTER, INC.,
Defendants.
Case No. 5:12-cv-00911-RMW
PLAINTIFF TWIN PEAKS SOFTWARE
INC.’S ANSWER TO DEFENDANTS RED
HAT, INC. AND GLUSTER, INC.’S FIRST
AMENDED ANSWER AND
COUNTERCLAIMS TO PLAINTIFF TWIN
PEAKS SOFTWARE INC.’S FIRST
AMENDED COMPLAINT FOR PATENT
INFRINGEMENT
DEMAND FOR JURY TRIAL
Plaintiff, Twin Peaks Software Inc. (“Twin Peaks”) responds to the counterclaims of
Defendants Red Hat, Inc. and Gluster, Inc. (collectively, “Defendants”) asserted in Defendants’
First Amended Answer and Counterclaims to Plaintiff Twin Peaks Software Inc.’s First
Amended Complaint for Patent Infringement (Dkt. No. 33) as follows:
DEFENDANTS’ COUNTERCLAIMS AGAINST PLAINTIFF TWIN PEAKS
Nature of Action
25. Twin Peaks admits Paragraph 25 of the Counterclaims.
Parties
26. Twin Peaks admits Paragraph 26 of the Counterclaims.
27. Twin Peaks admits Paragraph 27 of the Counterclaims.
28. Twin Peaks admits Paragraph 28 of the Counterclaims.
Jurisdiction and Venue
29. Twin Peaks admits Paragraph 29 of the Counterclaims.
30. Twin Peaks admits Paragraph 30 of the Counterclaims.
31. Twin Peaks admits Paragraph 31 of the Counterclaims.
Free and Open Source Software
32. Twin Peaks denies Paragraph 32 of the Counterclaims to the extent that “free
and open source software (‘FOSS’)” is a term that can have different meanings in different
contexts. The description in Paragraph 32 of the Counterclaims regarding “FOSS” therefore
may not be completely accurate in all situations. Twin Peaks otherwise admits the remaining
allegations in Paragraph 32 of the Counterclaims.
33. Twin Peaks admits that in Jacobsen v. Katzer, 535 F.3d 1373, 1378 (Fed. Cir.
2008), the Federal Circuit noted that “[o]pen source licensing has become a widely used
method of creative collaboration that serves to advance the arts and sciences in a manner and at
a pace that few could have imagined just a few decades ago.” Twin Peaks also admits that the
Federal Circuit in Jacobsen stated: “Open Source software projects invite computer
programmers from around the world to view software code and make changes and
improvements to it. Through such collaboration, software programs can often be written and
1
debugged faster and at lower cost than if the copyright holder were required to do all of the
work independently. In exchange and in consideration for this collaborative work, the
copyright holder permits users to copy, modify and distribute the software code subject to
conditions that serve to protect downstream users and to keep the code accessible.” Id. at 1378-
79. Twin Peaks denies the remaining allegations in Paragraph 33 of the Counterclaims.
Red Hat and FOSS
34. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 34 of the Counterclaims, and therefore denies them.
35. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 35 of the Counterclaims, and therefore denies them.
36. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 36 of the Counterclaims, and therefore denies them.
The GNU General Public License
37. Twin Peaks admits that Exhibit A to Red Hat’s Counterclaims appears to be a
copy of version 2 of the GNU General Public License (the “GPLv2”). Twin Peaks lacks
sufficient information to admit or deny the remaining allegations in Paragraph 37 of the
Counterclaims, and therefore denies them.
38. Twin Peaks admits that in Wallace v. Int’l Bus. Machines Corp., 467 F.3d 1104,
1105 (7th Cir. 2006), Judge Easterbrook stated: “Copyright law, usually the basis of limiting
reproduction in order to collect a fee, ensures that open-source software remains free: any
attempt to sell a derivative work will violate the copyright laws, even if the improver has not
accepted the GPL.” Twin Peaks lacks sufficient information to admit or deny the remaining
allegations in Paragraph 38 of the Counterclaims, and therefore denies them.
39. Twin Peaks admits that Section 2(b) of Exhibit A to Red Hat’s Counterclaims
states: “You must cause any work that you distribute or publish, that in whole or in part
contains or is derived from the Program or any part thereof, to be licensed as a whole at no
charge to all third parties under the terms of this License.” Twin Peaks lacks sufficient
information to admit or deny the remaining allegations in Paragraph 39 of the Counterclaims,
2
and therefore denies them.
40. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 40 of the Counterclaims, and therefore denies them.
41. Twin Peaks admits that Section 3 of Exhibit A to Red Hat’s Counterclaims
states:
You may copy and distribute the Program (or a work based on it, under Section 2)
in object code or executable form under the terms of Sections 1 and 2 above
provided that you also do one of the following:
a) Accompany it with the complete corresponding machine-readable source code,
which must be distributed under the terms of Sections 1 and 2 above on a medium
customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any
third party, for a charge no more than your cost of physically performing source
distribution, a complete machine-readable copy of the corresponding source code,
to be distributed under the terms of Sections 1 and 2 above on a medium
customarily used for software interchange . . . .
Twin Peaks lacks sufficient information to admit or deny the remaining allegations in
Paragraph 41 of the Counterclaims, and therefore denies them.
42. Twin Peaks admits that Section 4 of Exhibit A to Red Hat’s Counterclaims
states:
You may not copy, modify, sublicense, or distribute the Program except as
expressly provided under this License. Any attempt otherwise to copy, modify,
sublicense or distribute the Program is void, and will automatically terminate your
rights under this License.
Twin Peaks lacks sufficient information to admit or deny the remaining allegations in
Paragraph 42 of the Counterclaims, and therefore denies them.
43. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 43 of the Counterclaims, and therefore denies them.
util-linux and the “mount” Program
44. Twin Peaks admits Paragraph 44 of the Counterclaims.
45. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 45 of the Counterclaims, and therefore denies them.
3
46. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 46 of the Counterclaims, and therefore denies them.
47. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 47 of the Counterclaims, and therefore denies them.
Red Hat’s Copyright Registrations
48. Twin Peaks admits that Exhibit B to Red Hat’s Counterclaims appears to contain
copies of U.S. Copyright Registration No. TX 7-557-456, dated August 13, 2012, for a work
entitled “Mount – 2.10m,” and U.S. Copyright Registration No. TX 7-557-458, dated August
13, 2012, for a work entitled “Mount – 2.12a.” Twin Peaks lacks sufficient information to
admit or deny the remaining allegations in Paragraph 48 of the Counterclaims, and therefore
denies them.
Twin Peaks’ Improper Use of Red Hat’s Source Code
49. Twin Peaks admits Paragraph 49 of the Counterclaims.
50. Twin Peaks admits Paragraph 50 of the Counterclaims.
51. Twin Peaks admits Paragraph 51 of the Counterclaims.
52. Twin Peaks denies the allegations in Paragraph 52 of the Counterclaims.
53. Twin Peaks admits that “TPS Replication Plus” and “TPS My Mirror” include a
module called “mount.mfs.” Twin Peaks denies the remaining allegations in Paragraph 53 of
the Counterclaims.
54. Twin Peaks denies the allegations in Paragraph 54 of the Counterclaims.
55. Twin Peaks denies the allegations in Paragraph 55 of the Counterclaims.
56. Twin Peaks denies the allegations in Paragraph 56 of the Counterclaims.
57. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 57 of the Counterclaims, and therefore denies them.
58. Twin Peaks denies the allegations in Paragraph 58 of the Counterclaims.
COUNT 1
(Declaratory Judgment of Non-Infringement)
59. Twin Peaks incorporates by reference its responses to Paragraphs 26-31 of the
4
Counterclaims as if fully set forth herein.
60. Twin Peaks admits Paragraph 60 of the Counterclaims.
61. Twin Peaks admits that Red Hat requests, pursuant to the Federal Declaratory
Judgment Act, 28 U.S.C. § 2201 et seq., a declaration of the Court that Red Hat has not
infringed and does not currently infringe any claim of the ’439 Patent, either directly,
contributorily, or by inducement. Twin Peaks denies the remaining allegations in Paragraph 61
of the Counterclaims.
62. Twin Peaks denies the allegations in Paragraph 62 of the Counterclaims.
COUNT II
(Declaratory Judgment of Invalidity)
63. Twin Peaks incorporates by reference its responses to Paragraphs 26-31 of the
Counterclaims as if fully set forth herein.
64. Twin Peaks admits Paragraph 64 of the Counterclaims.
65. Twin Peaks admits that Red Hat requests, pursuant to the Federal Declaratory
Judgment Act, 28 U.S.C. § 2201 et seq., a declaration of the Court that the ’439 Patent is
invalid. Twin Peaks denies the remaining allegations in Paragraph 65 of the Counterclaims.
66. Twin Peaks denies the allegations in Paragraph 66 of the Counterclaims.
COUNT III
(Copyright Infringement)
67. Twin Peaks incorporates by reference its responses to Paragraphs 26-58 of the
Counterclaims as if fully set forth herein.
68. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 68 of the Counterclaims, and therefore denies them.
69. Twin Peaks lacks sufficient information to admit or deny the allegations in
Paragraph 69 of the Counterclaims, and therefore denies them.
70. Twin Peaks denies the allegations in Paragraph 70 of the Counterclaims.
71. Twin Peaks denies the allegations in Paragraph 71 of the Counterclaims.
72. Twin Peaks denies the allegations in Paragraph 72 of the Counterclaims.
5
73. Twin Peaks denies the allegations in Paragraph 73 of the Counterclaims.
74. Twin Peaks denies the allegations in Paragraph 74 of the Counterclaims.
75. Twin Peaks denies the allegations in Paragraph 75 of the Counterclaims.
TWIN PEAKS’ AFFIRMATIVE DEFENSES TO RED HAT’S COUNTERCLAIMS
Further answering Red Hat’s Counterclaims, Twin Peaks pleads the following
affirmative defenses:
Failure to State a Claim
76. Red Hat’s Counterclaims fail to state a claim upon which relief can be granted.
Waiver, Laches, and/or Equitable Estoppel
77. Red Hat’s Counterclaims are barred, in whole or in part, by the equitable
defenses of waiver, laches, and/or equitable estoppel.
Unclean Hands
78. Red Hat’s Counterclaims are barred, in whole or in part, by the equitable
defense of unclean hands.
No Copyright Infringement
79. Twin Peaks has not infringed, does not infringe, and is not liable for
infringement of any valid copyright or copyright rights of Red Hat, including, without
limitation, any copyright rights in the works that are registered under U.S. Copyright
Registration Nos. TX 7-557-456 and TX 7-557-458.
Invalidity
80. Red Hat’s copyright counterclaim is barred due to copyright invalidity to the
extent that Red Hat claims rights to works that are functional, are not original, were not
authored by Red Hat, or are otherwise not protectable by copyright and/or are not protected by
U.S. Copyright Registration Nos. TX 7-557-456 and TX 7-557-458.
Fair Use
81. Red Hat’s copyright counterclaim is barred by the doctrine of fair use.
De Minimis Copying
82. Red Hat’s copyright counterclaim is barred by the doctrine of de minimis
6
copying, as any protectable portions of the works that are purportedly covered by U.S.
Copyright Registration Nos. TX 7-557-456 and TX 7-557-458 and used by Twin Peaks (if any)
have been de minimis.
Independent Creation
83. Red Hat is not entitled to any relief for its copyright counterclaim because Twin
Peaks’ “TPS Replication Plus” and “TPS My Mirror” products were created independently and
without reference to any works covered by U.S. Copyright Registration Nos. TX 7-557-456 and
TX 7-557-458.
License
84. Red Hat’s copyright counterclaim is barred because Twin Peaks has either an
express or implied license to use the works that are purportedly covered by U.S. Copyright
Registration Nos. TX 7-557-456 and TX 7-557-458.
Statute of Limitations
85. Red Hat’s request for relief on its copyright counterclaim is limited by the
statute of limitations under 17 U.S.C. § 507.
No Injunctive Relief
86. Red Hat has not suffered any irreparable injury, Red Hat has an adequate
remedy at law, and injunctive relief would be contrary to the public interest, and Red Hat is not
entitled to injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Twin Peaks prays for judgment and seeks relief against Defendants as
follows:
1. That all relief requested by Twin Peaks in its First Amended Complaint for
Patent Infringement be granted.
2. That all relief requested by Defendants in their Answer and Counterclaims be
denied and that Defendants take nothing by way of Counterclaims.
3. That Defendants’ Counterclaims be dismissed in their entirety with prejudice.
4. That the Court grant Twin Peaks its costs and reasonable attorney fees incurred
7
in defending against Red Hat’s copyright infringement counterclaim under 17
U.S.C. § 505.
5. That the Court grant Twin Peaks further relief as the Court deems just and
proper.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Twin Peaks hereby
requests a trial by jury of any and all issues so triable that arise out of or relate to Defendants’
Counterclaims.
Dated: September 27, 2012
Respectfully submitted,
By: /s/ Richard C. Lin
Richard C. Lin
Christopher D. Banys (State Bar No. 230038)
Richard C. Lin (State Bar No. 209233)
Jennifer C. Lu (State Bar No. 255820)
Nicholas S. Mancuso (State Bar No. 271668)
[email]
[email]
[email]
[email]
THE LANIER LAW FIRM, P.C.
[address telephone fax]
Attorneys for Plaintiff
TWIN PEAKS SOFTWARE INC.
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