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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., §
Plaintiff, §
§
and §
§
DRAGO DAIC, §
Co-Plaintiff and Cross-Claim Defendant, §
§
and JIMMY WILLIAMSON, PC, and § § § Case No. 2:08-CV-00441 Jury Demanded
KELLY D. STEPHENS, §
Third-Party Defendants, §
§
v. §
§
T-Mobile USA, Inc. §
§
Defendant. §
PLAINTIFF’S SUR-REPLY IN OPPOSITION TO T-MOBILE’S MOTION TO DISMISS
Come now Calypso Wireless, Inc. (“Calypso”), Drago Daic, and Jimmy Williamson, P.C. (together “Plaintiffs”) and file this Sur-Reply in Opposition to T-Mobile’s Motion to Dismiss, and would respectfully show the Court the following:
In its Reply1 in support of its Motion to Dismiss2, T-Mobile completely ignores the distinction between constitutional and prudential standing, and mischaracterizes Plaintiffs’ response. Calypso has not admitted that it never had standing. On the contrary, Calypso had constitutional standing from the start of this case, and the prudential standing requirement has been satisfied at least since the Court granted Calypso leave to file its Second Amended
1 Docket No. 133. 2 Docket No. 109.
Complaint adding Drago Daic and Jimmy Williamson, P.C. as parties to this suit.3 Thus, as explained at length in Calypso’s Response in Opposition to T-Mobile’s Motion to Dismiss4, there has never been any question of constitutional standing. The undisputed existence of constitutional standing at the outset of this case negates T-Mobile's argument that a dismissal for lack of standing is in any way justified or required.5
T-Mobile attempts to create a question of standing (without regard to the distinction between constitutional or prudential standing) by misconstruing the holding in Jim Arnold v. Hydrotech Sys.6 According to T-Mobile, the Jim Arnold case stands for the proposition that “if the ownership of the patent cannot be determined before resolving a dispute, then the court cannot exercise jurisdiction over the claim for patent infringement and must dismiss.”7 That is incorrect.
In Jim Arnold, the plaintiff admitted from the start that the status quo was that he did not own the patent, and needed the Court’s help to get it back from Hydrotech so that he could have a claim for patent infringement against Hydrotech.8 That is crucially different from the facts in this case or a case like Air Prods. & Chems. v. Reichhold Chems.9, is the procedural posture. In both this case and the Air Products case, the plaintiff filed its infringement claim as an owner of the patent.10 In Air Products, the defendant raised a licensing defense – i.e., Air Products had granted a license to the defendant – which would undermine any question of injury (and hence
3 See Docket No. 101.
4 See Docket No. 120.
5 Israel Bio-Engineering Project v. Amgen, Inc., 475 F.3d 1256, 1264 (Fed. Cir. 2007)(Joint owner has constitutional standing and can satisfy prudential standing by joining other owners of an undivided interest).
6 109 F.3d 1567 (Fed. Cir. 1997).
7 Docket No. 133 at 8 (emphasis in original).
8 See id. at 1572-73 (“[H]is complaint to the state court clearly showed that he had assigned all right, title, and interest in the patents at issue to Hughes; that he had no ownership interest in the patents on which to sue unless and until the state-provided remedy of rescission was granted”).
9 755 F.2d 1559, 1563 (Fed. Cir. 1985) (“[T]he fact that a question of contract law must be decided prior to reaching the infringement question does not defeat federal subject matter jurisdiction.”).
10 755 F.2d at 1563.
standing).11 Here, Calypso’s co-plaintiffs raised a question of patent ownership. Neither the licensing defense allegation nor the ownership allegation, however, is (or was) sufficient to threaten the court’s subject matter jurisdiction.12 Moreover, the question of ownership previously raised has now been resolved by a stipulation whereby all parties involved in that question expressly stipulated that Calypso's ownership when it filed this suit has not subsequently been changed. 13
Additionally, T-Mobile’s attempt to stretch the Jim Arnold holding to cases like the present case or the Air Products case would result in the absurd situation where any infringement defendant could automatically deprive a patent infringement plaintiff of standing simply by asserting a defense that calls into question ownership of the patent or the existence of an actionable injury.
T-Mobile’s assertion that the defendant’s licensing defense in Air Products “did not implicate standing or the court’s jurisdiction in any way” is just wrong: We recognize that in cases where a license is plead as a defense, or where the license defense is anticipated in the complaint, that the most expeditious conduct of the trial would necessitate that the license issue be resolved first, for if the license issue is resolved in the defendant’s favor the infringement issue is mooted. In this sense, infringement is conditional upon a license defense when raised. A district court, however, is not precluded in patent suits from resolving non-patent questions, and the fact that a question of contract law must be decided prior to reaching the infringement question does not defeat federal subject matter
jurisdiction.14 Constitutional standing exists where a plaintiff can establish (1) an injury-in-fact, (2) a causal connection between the injury and the conduct complained of, and (3) that the injury is likely to
11 See id. 12 See id. (“[T]he fact that a question of contract law must be decided prior to reaching the infringement
question does not defeat federal subject matter jurisdiction.”). 13 See Docket No. 111. 14 755 F.2d at 1563 (emphasis added).
be redressed by a favorable decision.15 In patent cases where the accused infringer is licensed under the patent, there can be no recovery against the licensed defendant, but a ruling for the defendant on its affirmative defense (license) would not deprive the court of subject matter jurisdiction over the case.
The remainder of T-Mobile’s Reply simply re-hashes a laundry list of allegedly prejudicial delays, without articulating any actual prejudice. It is ironic that a defendant – who might ordinarily be expected to take, and indeed has previously taken, a dilatory posture in a case such as this – is complaining about delays. In any case, T-Mobile’s lengthy recitations are not relevant to the question of standing, and should be disregarded.
For the foregoing reasons, Plaintiffs respectfully request that the Court deny each and every form of relief sought by T-Mobile in its Motion to Dismiss.
15 See Intellectual Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333, 1346 (Fed. Cir. 2001), cert. denied 534 U.S. 895, 122 S. Ct. 216, 151 L. Ed. 2d 154 (2001).
Dated: March 26, 2010 Respectfully submitted,
/s/ Anthony Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
ATTORNEYS FOR CALYPSO
WIRELESS, INC.
Agreed to by:
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
Matthew C. Juren
State Bar No. 24065530
Matthews, Lawson & Bowick, PLLC
2000 Bering Drive, Suite 700
Houston, Texas 77057
(713) 355-4200 (Telephone)
(713) 355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com
tjohnson@matthewsfirm.com
mjuren@matthewsfirm.com
ATTORNEYS FOR PLAINTIFFS
JIMMY WILLIAMSON, P.C. AND
DRAGO DAIC
CERTIFICATE OF SERVICE
I hereby certify that on March 26, 2010, I caused a true and correct copy of the foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to Local Rule CV-5(a)(3). Jimmy Williamson, P.C. and Kelly D. Stephens are represented by attorneys who are already counsel of record (the same attorneys who represent Drago Daic), and will therefore be served via the Court’s CM/ECF system.
/s/ Anthony Miller Anthony Miller
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-CV-441-TJW-CE
Jury Trial Demanded
[PROPOSED] DOCKET CONTROL ORDER
In accordance with the Court’s Orders on February 26, 2010 (D.I. 119, 122, 123), it is hereby,
ORDERED that the following schedule of deadlines is in effect until further order of this court:
November 7, 2011
Jury Selection – 9:00 a.m. in Marshall, Texas.
November 1, 2011
Pretrial Conference- 9:30 am in Marshall, Texas
September 26, 2011
Joint Pretrial Order, Joint Proposed Jury Instructions and Form of the Verdict.
October 11, 2011
Motions in limine Due
The parties are ordered to meet and confer on their respective motions in limine and advise the court of any agreement in this regard by 1:00 p.m. three (3) business days before the pretrial conference. The parties shall limit their motions in limine to those issues which, if improperly introduced into the trial of the case would be so prejudicial that the court could not alleviate the prejudice with appropriate instruction(s).
October 11, 2011
Notice of Request for Daily Transcript or Real Time Reporting of Court Proceedings. If a daily transcript or real time reporting of court proceedings is requested for trial, the party or parties making said request shall file a notice with the Court and e-mail the Court Reporter, Susan Simmons, at lssimmons@yahoo.com
August 12, 2011
Responses to Dispositive Motions (including Daubert motions) 1
Responses to dispositive motions filed prior to the dispositive motion deadline, including Daubert Motions, shall be due in accordance with Local Rule CV-7(e). Motions for Summary Judgment shall comply with Local Rule CV-56.
July 18, 2011
For Filing Dispositive Motions and any other motions that may require a hearing (including Daubert motions)
April 25, 2011
Mediation to be completed
September 19, 2011
Defendant to Identify Trial Witnesses
September 12, 2011
Plaintiff to Identify Trial Witnesses
The later of July 1,2011 or 35 days after rebuttal expert reports
Expert Discovery Deadline
The later of May 27, 2011 or 28 days after opening expert reports
Designate Rebuttal Expert Witnesses other than claims construction
Rebuttal expert witness reports due
Refer to Discovery Order for required information.
15 Days after claim construction ruling
Comply with P.R. 3-7
The later of April 29, 2011 or 35 days after claim construction ruling
Party with the burden of proof to designate Expert Witnesses other than claims construction
Opening expert witness reports due
Refer to Discovery Order for required information.
April 11, 2011
Fact Discovery Deadline
December 9, 2010
Claim construction hearing 9:00 a.m., Marshall, Texas.
November 12, 2010
Comply with P.R. 4-5(c)
October 29, 2010
Comply with P.R. 4-5(b)
September 23, 2010
Comply with P.R. 4-5(a)
September 9, 2010
Discovery deadline-claims construction issues
September 9, 2010
Respond to Amended Pleadings
August 19, 2010
Amend Pleadings
(It is not necessary to file a Motion for Leave to Amend before the deadline to amend pleadings except to the extent the amendment seeks to add a new patent in suit.
It is necessary to file a Motion for Leave to Amend after August 19, 2010).
September 2, 2010
Comply with P.R. 4-3
August 6, 2010
Comply with P.R. 4-2
July 9, 2010
Comply with P.R. 4-1
April 11, 2011
Privilege Logs to be exchanged by parties (or a letter to the Court stating that there are no disputes as to claims of privileged documents).
June 15, 2010
Comply with P.R. 3-3, 3-4
March 15, 2010
Comply with P.R. 3-1, 3-2
1 This parties are directed to Local Rule CV-7(d), which provides in part that “n the event a party fails to oppose a motion in the manner prescribed herein the court will assume that the party has no opposition.” Local Rule CV-7(e) provides that a party opposing a motion has 12 days, in addition to any added time permitted under Fed. R. Civ. P. 6(e), in which to serve and file a response and any supporting documents, after which the court will consider the submitted motion for decision.
LIMITATIONS ON MOTION PRACTICE
Summary Judgment Motions: Prior to filing any summary judgment motion, the parties must submit letter briefs seeking permission to file the motion. The opening letter brief in each of those matters shall be no longer than five (5) pages and shall be filed with the Court no later than sixty (60) days before the deadline for filing summary judgment motions. Answering letter briefs in each of those matters shall be no longer than five (5) pages and filed with the Court no later than fourteen (14) days thereafter. Reply briefs in each of those matters shall be no longer than three (3) pages and filed with the Court no later than five (5) days thereafter. The Court may decide the question on the submissions or hold a hearing or telephone conference to hear arguments and to determine whether the filing of any motion will be permitted.
Motions to Strike Expert Testimony/Daubert Motions: Prior to filing any Motions to Strike or Daubert Motions, the parties must submit letter briefs seeking permission to file the motion. The opening letter brief in each of those matters shall be no longer than three (3) pages and shall be filed with the Court no later than sixty (60) days before the deadline for filing Motions to Strike or Daubert Motions. Answering letter briefs in each of those matters shall be no longer than three (3) pages and filed with the Court no later than fourteen (14) days thereafter. Reply briefs in each of those mailers shall be no longer than two (2) pages and filed with the Court no later than five (5) days thereafter. The Court may hold a hearing or telephone conference to hear arguments and to determine whether the filing of any motion will be permitted.
For all of the above mentioned motions, the letter briefs shall be filed without exhibits. Any requests to submit letter briefs after the deadlines outlined above must show good cause.
OTHER LIMITATIONS
1. All depositions to be read into evidence as part of the parties’ case-in-chief shall be EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony; ONLY those portions which are relevant to the issues in controversy shall be read into evidence.
2. The Court will refuse to entertain any motion to compel discovery filed after the date of this Order unless the movant advises the Court within the body of the motion that counsel for the parties have first conferred in a good faith attempt to resolve-the matter. See Eastern District of Texas Local Rule CV-7(h).
3. The following excuses will not warrant a continuance nor justify a failure to comply with the discovery deadline:
(a) The fact that there are motions for summary judgment or motions to dismiss pending;
(b) The fact that one or more of the attorneys is set for trial in another court on the same day, unless the other setting was made prior to the date of this order or was made as a special provision for the parties in the other case;
(c) The failure to complete discovery prior to trial, unless the parties can demonstrate that it was impossible to complete discovery despite their good faith effort to do so.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-CV-441-TJW-CE
Jury Trial Demanded
[PROPOSED] DISCOVERY ORDER
After a review of the pleaded claims and defenses in this action, in furtherance of the management of the court’s docket under Fed. R. Civ. P. 16, and after receiving the input of the parties to this action, it is ORDERED AS FOLLOWS:
1.
Disclosures. Except as provided by paragraph 1(h), and, to the extent not already disclosed, by March 31, 2010, each party shall disclose to every other party the following information:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the disclosing party’s claims or defenses (the disclosing party need not marshal all evidence that may be offered at trial);
(d) the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified person’s connection with the case, and a brief, fair summary of the substance of the information known by any such person;
(e) any indemnity and insuring agreements under which any person or entity carrying on an insurance business may be liable to satisfy part or all of a judgment entered in this action or to indemnify or reimburse for payments made to satisfy the judgment;
(f) any settlement agreements relevant to the subject matter of this action;
(g) any statement of any party to the litigation;
(h) for any testifying expert, by the date set by the court in the Docket Control Order, each party shall disclose to the other party or parties:
a.
the expert’s name, address, and telephone number;
b.
the subject matter on which the expert will testify;
c.
if the witness is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the disclosing party regularly involve giving expert testimony:
(a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and
(b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26.
d.
for all other experts, the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them or documents reflecting such information;
2.
Protective Orders. The court will enter the parties’ Agreed Protective Order.
3.
Additional Disclosures. Each party, without awaiting a discovery request, shall provide, to the extent not already provided, to every other party the following:
(a) the disclosures required by the Patent Rules for the Eastern District of Texas;
(b) by January 25, 2011, a copy of all documents, electronically stored information, and tangible things in the possession, custody, or control of the party that are relevant to the pleaded claims or defenses involved in this action, except to the extent these disclosures are affected by the time limits set forth in the Patent Rules for the Eastern District of Texas. By written agreement of all parties, alternative forms of disclosure of documents may be provided in lieu of paper copies. For example, the parties may agree to exchange images of documents electronically or by means of computer disk; or the parties may agree to review and copy disclosure materials at the offices of the attorneys representing the parties instead of requiring each side to furnish paper copies of the disclosure materials;
(c) by May 9, 2011, a complete computation of any category of damages claimed by any party to the action, making available for inspection and copying as under Rule 34, the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
(d) by November 11, 2010, those documents and authorizations described in Local Rule CV-34.
4.
Discovery Limitations. The discovery in this case is limited to the disclosures described in Paragraphs 1 and 3 together with 40 interrogatories per side, 40 requests for admissions per side, the depositions of the parties, depositions on written questions of custodians of business records for third parties, 60 hours of nonparty depositions per side, and 3 expert witnesses per side, except that each side may serve an unlimited number of requests for admission for the purposes of authenticating documents. “Side” means a party or a group of parties with a common interest. Any party may move to modify these limitations for good cause.
5.
Privileged Information. There is no duty to disclose privileged documents or information. However, the parties are directed to meet and confer concerning privileged documents or information after the Status Conference. By February 22, 2011, the parties shall exchange privilege logs identifying the documents or information and the basis for any disputed claim of privilege in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the applicability of the privilege or protection. Any party may move the court for an order compelling the production of any documents or information identified on any other party’s privilege log. If such a motion is made, the party asserting privilege shall respond to the motion within the time period provided by Local Rule CV-7. The party asserting privilege shall then file with the Court within 30 days of the filing of the motion to compel any proof in the form of declarations or affidavits to support their assertions of privilege, along with the documents over which privilege is asserted for in camera inspection. If the parties have no disputes concerning privileged documents or information, then the parties shall inform the court of that fact by April 11, 2011.
6.
Pre-trial disclosures. Each party shall provide to every other party regarding the evidence that the disclosing party may present at trial as follows:
(a) The name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to present at trial and those whom the party may call if the need arises.
(b) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony.
(c) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures shall be made at least 30 days before trial. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and file a list disclosing (1) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (B), and (2) any objections, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (c). Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.
7.
Signature. The disclosures required by this order shall be made in writing and signed by the party or counsel and shall constitute a certification that, to the best of the signer’s knowledge, information and belief, such disclosure is complete and correct as of the time it is made. If feasible, counsel shall meet to exchange disclosures required by this order; otherwise,
8.
Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information on the basis of which it knows that the information disclosed was either incomplete or incorrect when made, or is no longer complete or true.
9.
Disputes.
(a) Except in cases involving claims of privilege, any party entitled to receive disclosures may, after the deadline for making disclosures, serve upon a party required to make disclosures a written statement, in letter form or otherwise, of any reason why the party entitled to receive disclosures believes that the disclosures are insufficient. The written statement shall list, by category, the items the party entitled to receive disclosures contends should be produced. The parties shall promptly meet and confer. If the parties are unable to resolve their dispute, then the party required to make disclosures shall, within 14 days after service of the written statement upon it, serve upon the party entitled to receive disclosures a written statement, in letter form or otherwise, which identifies (1) the requested items that will be disclosed, if any, and (2) the reasons why any requested items will not be disclosed. The party entitled to receive disclosures may thereafter file a motion to compel.
(b) Counsel are directed to contact the chambers of the undersigned for any “hot-line” disputes before contacting the Discovery Hotline provided by Local Rule CV-26(e). If the undersigned is not available, the parties shall proceed in accordance with Local Rule CV-26(e).
10.
No Excuses. A party is not excused from the requirements of this Discovery Order because it has not fully completed its investigation of the case, or because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures. Absent court order to the contrary, a party is not excused from disclosure because there are pending motions to dismiss, to remand or to change venue.
11.
Filings. Only upon request from chambers shall counsel submit to the court courtesy copies of any filings.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§
§
§
§
§
§
§
§
§
§
Case No. 2:08-CV-00441
Jury Demanded
JOINT MOTION TO RELEASE BOND
Plaintiff Calypso Wireless, Inc. (“Calypso”) requests that the Court release the $50,000.00 bond that Calypso paid into the registry1 of the Court in support of the Temporary Restraining Order (Docket No. 91) signed January 13, 2010. Plaintiff, Calypso, Cross-Defendant Drago Daic ("Daic") and Third-Party Defendants Jimmy Williamson, P.C. ("Williamson P.C.") and Kelly D. Stephens ("Stephens") have settled aspects of their dispute whereby the bond is to be released and returned to Calypso by mutual agreement.2 Daic, Williamson P.C. and Stephens do not oppose, and in fact, join in this motion.
Dated: March 3, 2010 Respectfully submitted,
/s/ Anthony P. Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Dallas, Texas 75202
Phone: (214) 347-4700
Fax: (214) 347-4799
ATTORNEYS FOR CALYPSO WIRELESS, INC.
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
Matthew C. Juren
State Bar No. 24065530
Matthews, Lawson & Bowick, PLLC
2000 Bering Drive, Suite 700
Houston, Texas 77057
(713) 355-4200 (Telephone)
(713) 355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com
tjohnson@matthewsfirm.com
mjuren@matthewsfirm.com
ATTORNEYS FOR PLAINTIFFS
DRAGO DAIC AND FOR WILLIAMSON P.C.
Case 2:08-cv-00441-TJW-CE Document 127 Filed 03/03/2010 Page 2 of
Crex
You are probably looking at the wrong website. The company's 8K filed 1/28/2010 says:
"The company is working on updating its website; www.calypsowireless.us and informs its shareholders that the previous website www.calypsowireless.com has been lost to a Russian entity when the company did not make payment to maintain its registration of that domain in early 2009. Additionally, the domain www.calypsowirelessinc.com has always been owned and operated by Drago Diac and not the Company. The Company has demanded that Mr. Daic remove all references to the Company from that site and has received no response to, nor compliance with, that demand".
Calypso has demanded that Daic remove this website's references to Calypso.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., Plaintiff-Counterclaim Defendant, and DRAGODAIC, Plaintiff-Counterclaim and Crossclaim Defendant,
v. T -MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff, and JIMMY WILLIAMSON, PC and KELLY D.
STEPHENS, Third-Party Defendants.
Case No. 2:08-CV-441-TJW-CE Jury Trial Demanded
T-MOBILE USA, INC.'S ANSWER AND COUNTERCLAIMS TO CALYPSO WIRELESS, INC.'S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
Defendant T-Mobile USA, Inc. ("T-Mobile"), by its attorneys, answers the Second Amended and Supplemental Complaint ("Second Amended Complaint") ofPlaintiff Calypso Wireless, Inc. ("Calypso") as follows.
T-Mobile further states that anything in Calypso's Second Amended Complaint that is not expressly admitted is hereby denied.
I. NATURE OF THE ACTION
T -Mobile admits that the Second Amended Complaint purports to bring an action for patent infringement, but denies that Calypso has stated a legally sufficient claim for patent infringement.
T -Mobile admits that the Second Amended Complaint purports to bring an action for a declaration ofrights, for breach ofcontract, and for tortious interference. T-Mobile otherwise lacks knowledge or information sufficient to form a belief as to the truth of the allegations ofParagraph 2 ofthe Second Amended Complaint, and therefore denies these allegations.
II. THE PARTIES
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 3 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile admits the allegations in Paragraph 4 of the Second Amended Complaint except denies that it is a Washington Corporation. T-Mobile is a Delaware Corporation with its principal place ofbusiness located at 12920 S.E. 38th Street, Bellevue, Washington 98006-1350.
T -Mobile lacks know ledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 5 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 6 ofthe Second Amended Complaint, and therefore denies these allegations.
7. T-Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 7 ofthe Second Amended Complaint, and therefore denies these allegations.
III. JURISDICTION
T -Mobile denies that this Court has jurisdiction over this claim for patent infringement pursuant to 35 U.S.C. § 1, et seq., on the basis that Calypso lacks standing to assert this claim. To the extent that all ofthe ownership interests in the patent-in-suit reside with Calypso, T-Mobile admits that jurisdiction is proper pursuant to 28 U.S.C. § 1338, but otherwise denies the allegations in Paragraph 8 ofthe Second Amended Complaint and specifically denies that Calypso has stated a legally sufficient claim for patent infringement.
Denied.
Denied.
Denied.
Denied.
For the purposes ofthis action, T-Mobile consents to personal jurisdiction but denies the allegations in Paragraph 13 ofthe Second Amended Complaint.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 14 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 15 of the Second Amended Complaint, and therefore denies these allegations.
16. T-Mobile admits that venue is proper in this judicial district pursuant to 28 U.S.C.
§ 1391(c), but denies that there is not a venue that is clearly more convenient. T-Mobile denies the remaining allegations in Paragraph 16 of the Second Amended Complaint.
17. Denied.
IV. GENERAL ALLEGATIONS
18. T-Mobile admits that Exhibit 1 ofthe Second Amended Complaint appears to be
a copy ofU.S. Patent No. 6,680,923 ("the '923 patent"), entitled "Communication System and Method," and bears an issue date ofJanuary 20,2004. T-Mobile otherwise lacks information or knowledge sufficient to form a belief as to the truth ofthe remaining allegations in Paragraph 18 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 19 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 20 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 21 ofthe Second Amended Complaint, and therefore denies these allegations.
22. Denied.
23. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 23 ofthe Second Amended Complaint, and therefore denies these allegations.
24. T -Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 24 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 25 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 26 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 27 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 28 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 30 ofthe Second Amended Complaint, and therefore denies these allegations.
31. T -Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 31 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 32 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 33 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 34 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 35 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 36 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 37 ofthe Second Amended Complaint, and therefore denies these allegations.
38. T-Mobile lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 38 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 39 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 40 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 41 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 42 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 43 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 44 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 45 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 46 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 47 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 48 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 49 ofthe Second Amended Complaint, and therefore denies these allegations.
v. CAUSES OF ACTION
A. Claim for Patent Infringement
50. No response is required to Calypso's incorporation by reference ofthe foregoing paragraphs ofits Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-49 of this Answer and incorporates such responses by reference herein.
Denied.
Denied.
53. Denied.
B. Declaratory Judgment as to the 2009 Duress Agreement
No response is required to Calypso's incorporation by reference of the foregoing paragraphs ofits Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-53 ofthis Answer and incorporates such responses by reference herein.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 55 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 56 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 57 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 58 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 59 of the Second Amended Complaint, and therefore denies these allegations.
60. T -Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 60 ofthe Second Amended Complaint, and therefore denies these allegations.
61. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 61 ofthe Second Amended Complaint, and therefore denies these allegations.
C. Declaratory Judgment as to the '923 Patent
No response is required to Calypso's incorporation by reference ofthe foregoing paragraphs ofits Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-61 ofthis Answer and incorporates such responses by reference herein.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 63 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 64 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 65 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 66 ofthe Second Amended Complaint, and therefore denies these allegations.
67. T -Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 67 ofthe Second Amended Complaint, and therefore denies these allegations.
68. T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 68 of the Second Amended Complaint, and therefore denies these allegations.
D. Breach of Contract of the 2008 Agreement
No response is required to Calypso's incorporation by reference ofthe foregoing paragraphs of its Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-68 ofthis Answer and incorporates such responses by reference herein.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 70 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 71 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth ofthe allegations in Paragraph 72 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 73 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 74 ofthe Second Amended Complaint, and therefore denies these allegations.
E. Tortious Interference with Prospective Contracts
No response is required to Calypso's incorporation by reference ofthe foregoing paragraphs ofits Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-74 of this Answer and incorporates such responses by reference herein.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 76 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 77 ofthe Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 78 of the Second Amended Complaint, and therefore denies these allegations.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 79 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 80 ofthe Second Amended Complaint, and therefore denies these allegations.
81. T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the
truth ofthe allegations in Paragraph 81 ofthe Second Amended Complaint, and therefore denies these allegations.
F. Conversion of Calypso's Intellectual Property
No response is required to Calypso's incorporation by reference ofthe foregoing paragraphs of its Second Amended Complaint. To the extent that a response is deemed required, T-Mobile restates the above responses to Paragraphs 1-81 of this Answer and incorporates such responses by reference herein.
T-Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 83 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 84 of the Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth ofthe allegations in Paragraph 85 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 86 ofthe Second Amended Complaint, and therefore denies these allegations.
T -Mobile lacks knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations in Paragraph 87 ofthe Second Amended Complaint, and therefore denies these allegations.
88. T -Mobile lacks knowledge or information sufficient to form a belief as to the
truth ofthe allegations in Paragraph 88 of the Second Amended Complaint, and therefore denies these allegations.
VI. CONDITIONS PRECEDENT
89. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 89 ofthe Second Amended Complaint, and therefore denies these allegations.
VII. JURY DEMAND
90. A response is not required to Calypso's demand for a jury trial in Paragraph 90 of the Second Amended Complaint. To the extent that a response is deemed required, T-Mobile requests a jury trial for all issues so triable pursuant to Rule 38 of the Federal Rules ofCivil Procedure.
VIII. ATTORNEY'S FEES
91. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 91 of the Second Amended Complaint, and therefore denies these allegations.
IX. RESPONSE TO CALYPSO'S PRAYER FOR RELIEF
92. A response is not required to Calypso'S prayer for relief in Paragraph 92 of the Second Amended Complaint. To the extent that a response is deemed required, T -Mobile denies that Calypso is entitled to be awarded any relief whatsoever from T-Mobile. T-Mobile has not infringed, directly or indirectly, any valid and enforceable claim of the '923 patent, and Calypso is not entitled to any remedy or recovery relating to its claim for patent infringement. Calypso's prayer should therefore be denied and with prejudice, and Calypso should take nothing therefor.
AFFIRMATIVE DEFENSES
93. Further answering the Second Amended Complaint and as additional answers thereto, T -Mobile asserts the following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE (Non-Infringement)
94. T -Mobile has not infringed and does not infringe any valid and enforceable claim ofthe '923 patent directly or indirectly, literally or by the doctrine of equivalents. T-Mobile does not infringe any of the asserted claims at least because none of the accused services switch between wireless networks depending on "predetermined parameters" including a "preestablished vicinity range," as required by one or more of the asserted claims.
SECOND AFFIRMATIVE DEFENSE (Invalidity)
95. One or more claims of the '923 patent are invalid for failure to satisfy one or more ofthe requirements ofthe Patent Act, 35 U.S.C. § 1, et seq., including, but not limited to, the conditions ofpatentability set forth in 35 U.S.C. §§ 101, 102, 103, and 112. For example, all of the asserted claims ofthe patent-in-suit are invalid pursuant to 35 U.S.C. §§ 102 and 103 at least in view of one or more of the prior art references discussed in paragraphs 104-118 of T -Mobile's Third Affirmative Defense for inequitable conduct.
THIRD AFFIRMATIVE DEFENSE (Inequitable Conduct in Prosecuting the '923 Application)
96. Calypso's allegation of infringement ofthe '923 patent is barred because the '923 patent is unenforceable due to inequitable conduct in its procurement, including, but not limited to, failure to disclose to the United States Patent and Trademark Office ("PTO") material prior art and information ofwhich Calypso, the patent agent or attorneys, named inventor and/or other individuals substantively involved in the preparation and prosecution ofCalypso's patent
applications including at least Peter Matos, Esq. (collectively, "Applicants"), were aware. On
infonnation and belief, Applicants failed to disclose material prior art and infonnation to the PTa ofwhich they were aware with an intent to deceive the PTa during prosecution of Application No. 09/577,812, the application that led to the '923 patent ("the '923 application").
Title 37 ofthe Code of Federal Regulations ("CFR") § 1.56 and the Manual of Patent Examination Procedure ("MPEP") § 2000.01, et seq., impose a duty ofcandor and good faith on each individual associated with the filing and prosecution of a patent application before the PTa, which requires he or she to disclose to the PTa all infonnation that is material to the patentability of the application under examination. Breach ofthis duty ofcandor, good faith, and honesty with intent to deceive the PTa constitutes inequitable conduct so as to render the '923 patent unenforceable.
On infonnation and belief, the '923 application was filed on May 23, 2000, and issued as the '923 patent on January 20,2004. On infonnation and belief, Peter Matos, Esq., of the law finn ofMalloy & Malloy, P.A., was the prosecuting attorney for the '923 application. The primary examiner was Examiner Kwang Bin Yao.
On infonnation and belief, on March 9,2001, Applicants filed a co-pending Patent Cooperation Treaty ("PCT") application, application number PCTlUS01/07528 ("the PCT application"). Mr. Matos ofMalloy & Malloy, P.A. was also listed as the agent for the PCT application. Applicants' PCT application was examined by a different examiner than the '923 application.
On infonnation and belief, Applicants' PCT application was published as WO 01/90853 A2 on or about November 29,2001.
On its face, the PCT application claims priority to the '923 application.
On information and belief, during prosecution ofthe '923 application and the
peT application, the claims of the peT application and the '923 application were identical, nearly identical, or substantially similar. The claims Applicants initially sought during prosecution ofthe '923 application were identical or nearly identical to the claims sought in the peT application. The claims ofthe '923 application remained unchanged from the original application until an amendment was filed on September 15, 2003. The claims as amended remained substantially similar or identical to the claims in the peT application and the original '923 application.
Failure to Disclose the International Search Report and Material Prior Art from the International Search Report
An International Search Report ("the ISR") was performed in connection with Applicants' peT application. On information and belief, the ISR was mailed to Applicants on July 3,2001, and on information and belief, Applicants, including at least Peter Matos, Esq., received it. The ISR was published on April 11, 2002 as WO 01190853 A3.
The ISR lists ten references: U.S. Patent No. 4,456,793 ("the '793 patent"); U.S. Patent No. 4,910,794 ("the '794 patent"); U.S. Patent No. 5,070,536 ("the '536 patent"); U.S. Patent No. 5,483,676 ("the '676 patent"); U.S. Patent No. 5,657,345 ("the '345 patent"); U.S. Patent No. 5,819,184 ("the 184 patent"); U.S. Patent No. 5,943,692 ("the '692 patent"); U.S. Patent No. 5,974,312 ("the '312 patent"); U.S. Patent No. 6,167,258 ("the '258 patent"), and
U.S. Patent No. 6,202,060 ("the '060 patent").
105. The ISR categorizes the references according to their relevance to the claims in the application. Among the categories are "X" and "Y." A reference categorized with an "X" is a reference that has been identified as a "document ofparticular relevance; the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the
document is taken alone." A reference categorized with a "Y" is a reference that has been
identified as a "document ofparticular relevance; the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Among the ten references identified in the ISR, eight were identified as either X or Y references, or both, and of those eight, seven had priority dates before the priority date claimed in the PCT application: the '793 patent, the '794 patent, the '536 patent, the '676 patent, the '345 patent, the '184 patent, and the'692 patent (collectively, "the ISR prior art references").
106. The examiner identified the '793 patent, and specifically Figures 1-6 and coL 2:28 -coL 4:2, as a "document ofparticular relevance" to claims 1-8 and 10 of the PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-8 and 10 of the PCT application are identical to claims 1-8 and 10 of the claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 of the PCT application are nearly identical to the claims that ultimately issued as claims 1,2,3,4, and 5 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
107. The examiner also identified the '793 patent, and specifically Figures 1-6 and coL
2:28 -coL 4:2, as a "document ofparticular relevance" to claims 9 and 11-39 ofthe PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 9 and 11-39 ofthe PCT application are identical to claims 9 and 11-39 ofthe claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-39 ofthe PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-15 ofthe '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued. Further, claims 14-20 and 23-24 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 ofthe '923 patent, respectively.
108. The examiner identified the '794 patent, and specifically Figures 1-6 and col. 2:10 -col. 3:16, as a "document ofparticular relevance" to claims 1-8 and 10 of the PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-8 and 10 ofthe PCT application are identical to claims 1-8 and 10 of the claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 1,2,3,4, and 5 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
109. The examiner also identified the '794 patent, and specifically Figures 1-6 and col.
2:10 -col. 3:16, as a "document ofparticular relevance" to claims 9 and 11-35 of the PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 9 and 11-35 ofthe PCT application are identical to claims 9 and 11-35 ofthe claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-35 ofthe PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-11 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
Further, claims 14-20 and 23-24 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 ofthe '923 patent, respectively.
110. The examiner identified the '536 patent, and specifically Figures 1-6 and col. 2: 29-35, as a "document ofparticular relevance" to claims 1-8 and 10 of the PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-8 and 10 ofthe PCT application are identical to claims 1-8 and 10 ofthe claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 1,2,3,4, and 5 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
Ill. The examiner also identified the '536 patent, and specifically Figures 1-6 and col.
2: 29-35, as a "document ofparticular relevance" to claims 9 and 11-39 ofthe PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 9 and 11-39 of the PCT application are identical to claims 9 and 11-39 ofthe claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-39 of the PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-15 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued. Further, claims 14-20 and 23-24 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 of the '923 patent, respectively.
112. The examiner identified the '676 patent, and specifically Figures 1-6 and col. 2:35
-col. 3:35, as a "document ofparticular relevance" to claims 1-8 and 10 of the PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-8 and 10 of the PCT application are identical to claims 1-8 and 10 of the claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 1,2,3,4, and 5 ofthe '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
113. The examiner also identified the '676 patent, and specifically Figures 1-6 and col.
2:35 -col. 3:35, as a "document ofparticular relevance" to claims 9 and 11-39 of the PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 9 and 11-39 ofthe PCT application are identical to claims 9 and 11-39 ofthe claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-39 ofthe PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-15 ofthe '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued. Further, claims 14-20 and 23-24 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 ofthe '923 patent, respectively.
114. The examiner identified the '345 patent, and specifically Figures 1-2 and col. 2:55 -col. 4:6, as a "document ofparticular relevance" to claims 1-8 and 10 ofthe PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-8 and 10 of the PCT application are identical to claims 1-8 and 10 ofthe claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 1,2,3,4, and 5 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued.
115. The examiner also identified the '345 patent, and specifically Figures 1-2 and col.
2:55 -col. 4:6, as a "document ofparticular relevance" to claims 9 and 11-39 of the PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 9 and 11-39 of the PCT application are identical to claims 9 and 11-39 ofthe claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-39 ofthe PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-15 of the '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued. Further, claims 14-20 and 23-24 ofthe PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 of the '923 patent, respectively.
116. The examiner identified the' 184 patent, and specifically Figures 1-3 and col. 6:41 -col. 8:62, as a "document ofparticular relevance" to claims 1-10 of the PCT application, such that "the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Claims 1-10 ofthe PCT application are identical to claims 1-10 ofthe claims originally sought in the application that led to the '923 patent, and claims 1,2,6, 7, and 8 of the PCT application are nearly identical to the claims that
ultimately issued as claims 1,2,3,4, and 5 ofthe '923 patent, respectively, which correspond to
the claims after they were amended in September 2003, after the search report was issued.
117. The examiner also identified the' 184 patent, and specifically Figures 1-3 and col.
6:41 -col. 8:62, as a "document ofparticular relevance" to claims 11-39 ofthe PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 11-39 of the PCT application are identical to claims 11-39 of the claims originally sought in the application that led to the '923 patent. Claims 27-29 and 30-39 of the PCT application are identical to the claims that ultimately issued as claims 28-30 and 6-15 ofthe '923 patent, respectively, which correspond to the claims after they were amended in September 2003, after the search report was issued. Further, claims 14-20 and 23-24 of the PCT application are nearly identical to the claims that ultimately issued as claims 17-23 and 25-26 ofthe '923 patent, respectively.
118. The examiner identified the '692 patent, and specifically Figures 1-5 and col. 2: 54-58, as a "document ofparticular relevance" to claims 11-20 ofthe PCT application, such that "the claimed invention cannot be considered to involve an inventive step when the document is combined with one or more other such documents, such combination being obvious to a person skilled in the art." Claims 11-20 of the PCT application are identical to claims 11-20 of the claims originally sought in the application that led to the '923 patent. Claims 14-20 of the PCT application are nearly identical to the claims that ultimately issued as claims 17-23 of the '923 patent, which correspond to the claims after they were amended in September 2003, after the search report was issued.
119. Therefore, on infonnation and belief, Applicants knew or should have known that
the ISR and ISR prior art references were material to the patentability ofthe claims prosecuted in the '923 application. On infonnation and belief, Applicants never disclosed the ISR or the ISR prior art references to the PTO during prosecution ofthe '923 application. On information and belief, failure to disclose the ISR and the ISR prior art references to the PTO during prosecution ofthe '923 application was done with an intent to deceive the PTO and constituted a breach of the duty of candor owed to the PTO.
Failure to Disclose the International Preliminary Examination Report and Material Prior Art from the International Preliminary Examination Report
An International Preliminary Examination Report ("IPER") was also issued in connection with the PCT application on January 23,2003. On information and belief, the IPER was transmitted to Applicants and Applicants received it.
In the IPER, the PCT examiner stated: "Claims 1-8 and 10 lack novelty under PCT Article 33(2) as being anticipated by Baker, et al."; "Claim 9 lacks an inventive step under PCT Article 33(3) as being obvious over Baker, et al."; and "Claims 11-39 lack an inventive step under PCT Article 33(3) as being obvious over Baker, et al in view ofMarberg, et al." (Baker et al. and Marberg et al. shall be collectively referred to as "the IPER prior art references").
On information and belief, the "Baker" reference referred to in the IPER corresponds to the '793 patent disclosed in the ISR, whose first named inventor is "Baker," while the "Marberg" reference referred to in the IPER corresponds to the '692 patent disclosed in the ISR, whose first named inventor is "Marberg."
On information and belief, Applicants knew or should have known that the IPER and IPER prior art references were material to the patentability ofthe claims prosecuted in the '923 application. On information and belief, Applicants never disclosed the IPER or IPER prior
art references to the PTO during prosecution ofthe '923 patent. On infonnation and belief,
failure to disclose the IPER and IPER prior art references to the PTO during prosecution ofthe '923 application was done with an intent to deceive the PTO and constituted a breach ofthe duty ofcandor owed to the PTO.
FOURTH AFFIRMATIVE DEFENSE (Laches, Equitable Estoppel, Consent and Waiver)
124. Calypso's claims are barred in whole or in part by the doctrine oflaches, the doctrine ofequitable estoppel, Calypso's consent, and waiver at least because Calypso and T-Mobile's predecessor, Voicestream Wireless Corporation, engaged in prior interactions, including entering into a non-disclosure agreement on January 15, 2002, for the purposes of "discuss[ ing] certain business transactions and to exchange infonnation for the purpose of exploring a potential business relationship for the benefit of the Parties." (D.1. 19-11). This agreement did not result in T-Mobile licensing the patent-in-suit or in any other business relationship between the parties. Calypso did not file this suit until November 13, 2008, more than six years after the non-disclosure agreement was signed.
FIFTH AFFIRMATIVE DEFENSE (Implied License and Patent Exhaustion)
125. Calypso's claims are barred in whole or in part by express or implied license and/or the doctrine ofpatent exhaustion at least for the reasons stated in paragraph 124 ofTMobile's Fourth Affinnative Defense.
SIXTH AFFIRMATIVE DEFENSE (Notice -35 U.S.c. § 287)
126. To the extent Calypso seeks damages for any alleged infringement prior to its giving actual notice ofthe '923 patent to T -Mobile, its claims are barred pursuant to 35 U.S.C. § 287(a).
SEVENTH AFFIRMATIVE DEFENSE (Lack of Standing)
127. To the extent Calypso does not own all rights to the '923 patent, Calypso's Second Amended Complaint must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of standing.
EIGHTH AFFIRMATIVE DEFENSE (Failure to State a Claim)
128. Calypso fails to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure.
COUNTERCLAIMS
For its Counterclaims in the above-captioned action, T-Mobile USA, Inc. ("T-Mobile") hereby alleges as follows:
THE PARTIES
T -Mobile is a Delaware corporation whose principal place ofbusiness is located at 12920 S.B. 38th Street, Bellevue, WA 98006-1350.
On information and belief, Calypso Wireless, Inc. ("Calypso") is a Delaware corporation with its principal place of business located at 5100 Westheimer, Suite 200, Houston, TX 77056.
JURISDICTION AND VENUE
3. These counterclaims arise under federal law , and this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and the Patent Laws ofthe United States, 35 U.S.C. § 1, et seq.
Venue is proper under at least 28 U.S.C. §§ 1391 and 1400(b).
Calypso has asserted that T-Mobile infringes U.S. Patent No. 6,680,923 ("the
'923 patent"). An actual controversy exists between T -Mobile and Calypso over the alleged infringement and invalidity ofthe '923 patent.
FIRST COUNTERCLAIM
(Non-Infringement)
6. T -Mobile realleges counterclaim paragraphs 1 through 5 as though fully set forth
herein.
7. T-Mobile has not infringed, and does not directly or indirectly infringe any valid,
enforceable claim of the '923 patent, either literally or under the doctrine of equivalents. T-Mobile does not infringe any ofthe asserted claims at least because none ofthe accused services switch between wireless networks depending on "predetermined parameters" including a "preestablished vicinity range," as required by one or more ofthe asserted claims.
8. Accordingly, T -Mobile is entitled to a declaratory judgment that it does not infringe any valid, enforceable claim ofthe '923 patent.
SECOND COUNTERCLAIM (Invalidity)
T-Mobile realleges counterclaim paragraphs 1 through 8 as though fully set forth herein.
The '923 patent is invalid for failing to satisfy one or more ofthe requirements of the Patent Act, 35 U.S.C. § 1, et seq., including, but not limited to, the conditions ofpatentability set forth in 35 U.S.c. §§ 101, 102, 103 and 112. For example, all ofthe asserted claims ofthe patent-in-suit are invalid pursuant to 35 U.S.C. §§ 102 and 103 at least in view ofone or more of the prior art references discussed in paragraphs 104-118 ofT-Mobi1e's Third Affirmative Defense for inequitable conduct.
27
11. Accordingly, T-Mobile is entitled to a declaratory judgment that the '923 patent is
invalid.
THIRD COUNTERCLAIM
(Un enforceability)
T -Mobile repeats and realleges counterclaim paragraphs 1 through 11 as though fully set forth herein.
For the reasons set forth above in T-Mobile's Third Affirmative Defense (affirmative defense paragraphs 96-123), the '923 patent is unenforceable as a result of inequitable conduct in its procurement, including, but not limited to, failure to disclose relevant material prior art and information ofwhich Calypso was aware to the U.S. Patent and Trademark Office during prosecution ofthe application that led to the '923 Patent. On information and belief, such acts were performed with intent to deceive the PTO.
DEMAND FOR A JURY TRIAL
14. T-Mobile demands a trial by jury on all issues so triable.
PRAYER FOR RELIEF
FOR THESE REASONS, T -Mobile respectfully requests that this Court enter judgment in its favor and grant the following relief:
a.
An order declaring that Calypso take nothing from T-Mobile on the claims asserted in the Second Amended Complaint;
b.
A declaration that T -Mobile does not infringe any valid and enforceable claim of the '923 patent;
c.
A declaration that the '923 patent is invalid and/or unenforceable;
d.
Judgment against Calypso in favor ofT-Mobile;
e.
Dismissal ofthe Second Amended Complaint with prejudice;
f.
An order declaring that this is an exceptional case under 35 U.S.C. § 285;
g.
An award to T-Mobile ofits costs, expenses, and reasonable attorney fees
order under 35 U.S.C. § 285 and all other applicable statutes, rules, and common law; and
h. Any such other relief as the Court may deem appropriate and just under
the circumstances.
Dated: March 2, 2010 Respectfully submitted,
/s/ Benjamin Hershkowitz Josh A. Krevitt, New York Bar No. 2568228 Lead Attorney Benjamin Hershkowitz, N.Y. Bar No. 2600559 Richard Koehl, N.Y. Bar No. 4193694 GillSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 jkrevitt@gibsondunn.com bhershkowitz@gibsondunn.com rkoehl@gibsondunn.com
Attorneysfor Defendant-Counterclaim Plaintiff T-Mobile USA, Inc.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on March 2,2010.
/s/ Benjamin Hershkowitz
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC.,
Plaintiff,
v.
T-MOBILE USA, INC.,
Defendant.
Case No. 2:08-cv-441-TJW-CE
Jury Trial Demanded
ORDER TO EXTEND TIME
TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFF'S COMPLAINT
Defendant T-Mobile USA, Inc.'s Third Unopposed Motion to Extend Time to Answer or Otherwise Respond to Plaintiff's Complaint (Dkt. No. 13) is GRANTED. Defendant shall answer or otherwise respond to Plaintiff's Complaint by April 6, 2009.
New schedule:
123 T-Mobile Response Deadline 03/12/2010
34 Amended Pleadings Deadline 04/09/2010
34 Discovery Deadline 10/04/2010
122 Markman Hearing 12/09/2010
34 Motions Deadline 12/17/2010
34 Proposed Pretrial Order DDL 04/04/2011
122 Pretrial Conference 11/01/2011
122 Jury Selection 11/07/2011
Case 2:08-cv-00441-TJW-CE Document 122 Filed 02/26/2010 Page 1 of 1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. AND §
DRAGO DAIC §
§
vs. § CASE NO. 2:08-CV-441-TJW-CE
§
T-MOBILE USA, INC. §
ORDER
Pending before the court is the parties’ joint motion for extension of time (Dkt. No. 119). The motion for extension of time is GRANTED. The claim construction hearing is rescheduled for December 9, 2010 at 9:00 a.m., the pretrial conference is rescheduled for November 1, 2011 at 9:30 a.m., and jury selection is rescheduled for November 7, 2011 at 9:00 a.m. Within seven days of this order, the parties shall jointly file a proposed docket control order that conforms to the dates specified above.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., and DRAGO DAIC
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE
Jury Trial Demanded
ORDER GRANTING MOTION TO EXTEND TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO PROSECUTE
Defendant T-Mobile USA, Inc.’s (“T-Mobile”) Unopposed Motion to Extend Time to File Reply in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute is hereby GRANTED. T-Mobile shall file a reply in support of its motion to dismiss by Friday, March 12, 2010.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., and DRAGO DAIC
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded
UNOPPOSED MOTION TO EXTEND TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO PROSECUTE
Defendant T-Mobile USA, Inc. (“T-Mobile”), by its attorneys, respectfully requests an extension of time to file a Reply in support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute, showing the Court as follows:
T-Mobile filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute on February 3, 2010. (D.I. 109).
2. Plaintiffs’ response was due on Thursday, February 18, 2010.
Counsel for Plaintiff Calypso Wireless, Inc. (“Calypso”) requested, and counsel for T-Mobile agreed, to extend the time for Plaintiffs Calypso and Drago Daic (“Daic”) to file a response to the Motion to Dismiss to Tuesday, February 23, 2010. (D.I. 115). The Court granted this request on February 22, 2010. (D.I. 117).
Plaintiffs filed their response in opposition to T-Mobile’s motion on Wednesday, February 24, 2010. (D.I. 120).
T-Mobile’s response to Plaintiffs’ opposition is due Wednesday, March 3, 2010.
T-Mobile requested, and counsel for Plaintiffs Calypso and Daic agreed, to extend
T-Mobile’s time to file a reply to Plaintiffs’ opposition to T-Mobile’s Motion to Dismiss by nine
days to Friday, March 12, 2010.
3. Accordingly, T-Mobile hereby makes an unopposed motion to extend its time to
file a reply in support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and
Failure to Prosecute to Friday, March 12, 2010. This is the first request for an extension of time
to respond to Plaintiffs’ opposition to T-Mobile’s Motion to Dismiss.
Dated: February 25, 2010 Respectfully submitted,
/s/ Anne ChampionJosh A. Krevitt, N.Y. Bar 2568228 Lead Attorney Benjamin Hershkowitz, N.Y. Bar No. 2600559 Richard M. Koehl, N.Y. Bar No. 4193694 Anne Champion, N.Y. Bar No. 4425237 GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 351-4000Facsimile: (212) 351-4035
jkrevitt@gibsondunn.combhershkowitz@gibsondunn.comrkoehl@gibsondunn.com
Attorneys for Defendant T-Mobile USA, Inc.
2
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on February 25, 2010.
/s/ Anne Champion
CERTIFICATE OF CONFERENCE
The undersigned certifies that counsel for the Defendant, Anne Champion, met and conferred with counsel for Plaintiff Calypso Wireless, Inc., Anthony Miller, and counsel for Plaintiff Drago Daic, Timothy Johnson, and obtained their consent to the foregoing motion.
/s/ Anne Champion
3
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., and DRAGO DAIC
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded
[PROPOSED] ORDER GRANTING MOTION TO EXTEND TIME TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO PROSECUTE
Defendant T-Mobile USA, Inc.’s (“T-Mobile”) Unopposed Motion to Extend Time to File Reply in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute is hereby GRANTED. T-Mobile shall file a reply in support of its motion to dismiss by Friday, March 12, 2010.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., §
Plaintiff, §
§
and §
§
DRAGO DAIC, §
Co-Plaintiff and Cross-Claim Defendant, §
§
and JIMMY WILLIAMSON, PC, and § § § Case No. 2:08-CV-00441 Jury Demanded
KELLY D. STEPHENS, §
Third-Party Defendants, §
§
v. §
§
T-Mobile USA, Inc. §
§
Defendant. §
PLAINTIFFS’ RESPONSE TO T-MOBILE’S MOTION TO DISMISS
Come now Plaintiffs Calypso (“Calypso”), Drago Daic, and Jimmy Williamson, P.C.
(“Williamson”),1 and file this Response to T-Mobile USA Inc.’s Motion to Dismiss, and would
respectfully show the Court the following:
1. T-Mobile has moved to dismiss this case for lack of standing. T-Mobile’s motion should be denied as moot because all necessary parties2 are before the Court, and have filed claims of patent infringement against T-Mobile.3 As an owner of U.S. Patent No. 6,680,923 (the “‘923 Patent” or the “Patent-in-Suit”), Calypso had constitutional standing from the inception of this suit. Prudential standing can be and has been remedied with the addition of the co-owners of the Patent-in-Suit. Both the constitutional and prudential prongs of the standing inquiry are therefore satisfied, and T-Mobile’s Motion to Dismiss should be denied as moot.
1 On February 23, 2010, Jimmy Williamson, P.C. filed a cross claim for patent infringement against T-Mobile. See Answer and Cross Claim (Docket No. 118) at 7-10.
There is no dispute here that Calypso owns a 75% undivided interest in the ‘923 Patent, while Daic and Williamson jointly own an undivided 25% interest. See Motion to Dismiss at 5; Joint Stipulation at, e.g., ¶ 12. 3 See Joint Stipulation, ¶ 4; Doc. No. 103 (Second Amended Complaint wherein Calypso and Daic are plaintiffs); Doc. No. 118 (Williamson cross claim).
T-Mobile has also moved the Court to dismiss Calypso’s state law cross claims and third-party claims against Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens. These claims were properly before the Court, and it was a proper use of the Court’s discretion to exercise supplemental jurisdiction over them. That said, Calypso has already agreed that it will dismiss those claims.4 T-Mobile’s request will therefore be moot once Calypso moves to dismiss its cross claims and third-party claims.
T-Mobile has also moved to dismiss this case for lack of prosecution. Dismissal for lack of prosecution is only appropriate where there is a pattern of “contumacious” conduct and where the Court has already imposed lesser sanctions (or found that lesser sanctions would be inadequate). Here, this case has been delayed because (1) a conflict which left Calypso without counsel, (2) a stay granted by the Court, and (3) a dispute that arose between Calypso and Daic. Throughout these delays, Calypso has worked diligently to secure new counsel and to resolve the conflict with Drago Daic. Furthermore, in negotiating a revised scheduling order – as the Parties were instructed to do post-stay – it was T-Mobile that requested moving all of the dates back, not Plaintiffs. This fact makes T-Mobile’s complaint regarding delay disingenuous. This is not a case where dismissal under Rule 41(b) is appropriate.
T-Mobile has moved, in the alternative, to stay this action until Plaintiffs can demonstrate standing, speak with one voice, and until the ownership dispute has been resolved. Each of these conditions is satisfied,5 so again, T-Mobile’s request is moot.
This case is finally in a position to move forward: Ownership of the ‘923 Patent is no longer in
dispute, all of the necessary parties are present claiming infringement by T-Mobile, and Daic and
Williamson have each agreed that Calypso is the party responsible for management of the patent
infringement claim against T-Mobile in this lawsuit in accordance with the terms and provisions
of the 2008 Agreement.6 The Court should deny T-Mobile’s Motion to Dismiss in its entirety,
and allow this case to go forward.
I. Relevant Factual Background
On February 8, 2010, Calypso, Daic, and Williamson filed with the Court a Joint
Stipulation in which they agreed, among other things, that the 2009 Agreement – the contract on
4 See Joint Stipulation, ¶ 5. 5 See generally id. 6 See id., ¶ 8.
which Daic and Williamson had based their claim of ownership as to the Patent-in-Suit – will not be considered an enforceable contract (as is more specifically provided in the Joint Stipulation).7
II. Argument & Authorities
A. T-Mobile’s Motion to Dismiss for Lack of Standing Should Be Dismissed as Moot.
T-Mobile has moved to dismiss on the basis of an alleged lack of standing. In doing so, T-Mobile glossed over an important distinction between constitutional and prudential standing, and ignored the crucial facts (1) Calypso had constitutional standing when it filed this suit, and
(2) that each of the co-owners of the Patent-in-Suit is already before the Court.8 Furthermore, since T-Mobile filed its Motion to Dismiss, the Plaintiffs reached an agreement under which Calypso has agreed to dismiss all of its state-law claims plead in this case against Daic and Williamson, while Williamson agreed to be joined as a patent infringement plaintiff against T-Mobile. T-Mobile’s Motion to Dismiss for lack of standing should therefore be dismissed as moot.
There are two components to the doctrine of standing in patent cases: (1) constitutional and (2) prudential.9 Constitutional standing exists where a plaintiff can establish (1) an injuryin-fact, (2) a causal connection between the injury and the conduct complained of, and (3) that the injury is likely to be redressed by a favorable decision.10 In patent cases, constitutional standing “is derived from the Patent Act, which provides: ‘A patentee shall have remedy by civil
7 See id., ¶1. 8 Prior to filing his cross claim against T-Mobile (Docket No. 118), Jimmy Williamson, P.C. was before the Court as a third-party defendant. 9 See Evident Corp. v. Church & Dwight Co., Inc., 399 F.3d 1310, 1313 (Fed. Cir. 2005) (“The doctrine of standing limits federal judicial power and has both constitutional and prudential components.”). 10 See Intellectual Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333, 1346 (Fed. Cir. 2001), cert. denied 534 U.S. 895, 122 S. Ct. 216, 151 L. Ed. 2d 154 (2001).
action for infringement of his patent.’”11 Furthermore, “[t]he term ‘patentee’ comprises ‘not
only the patentee to whom the patent was issued but also the successors in title to the
patentee.’”12 “Constitutional injury in fact occurs when a party performs at least one prohibited
action with respect to the patented invention that violates these exclusionary rights.”13 At the
time of filing, Calypso was an owner of an undivided, 75% interest in the ‘923 Patent – a fact
that T-Mobile apparently does not dispute. There is therefore no legitimate dispute as to whether
the constitutional standing requirement was and is satisfied here. Further, Daic and
Williamson’s 25% interest is subject to Calypso’s right to control the litigation.14
The prudential component of the standing inquiry relates to the right of defendants to
avoid the possibility of having to defend against multiple suits based on the same alleged
infringement of the same patent.15 According to the Supreme Court:
The presence of the owner of the patent as a party is indispensable, not only to give jurisdiction under the patent laws, but also in most cases to enable the alleged infringer to respond in one action to all claims of infringement for his act, and thus either to defeat all claims in the one action, or by satisfying one adverse decree to bar all subsequent actions.16
Unlike constitutional standing, prudential standing may be remedied by adding necessary
parties.17 T-Mobile’s attempt to claim otherwise – that Calypso needs to prove that all patent
11 Intellectual Prop. Dev., 248 F.3d at 1345 (quoting 35 U.S.C. § 281); see also Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed. Cir. 2007). 12 Intellectual Prop. Dev., 248 F.3d at 1345 (quoting 35 U.S.C. § 100(d)); see also 35 U.S.C. § 281 (A “patentee” is entitled to bring a “civil action for infringement of his patent.”); 35 U.S.C. § 100(d) (“[P]atentee” includes the patentee to whom the patent was issued and the “successors in title to the patentee.”); Enzo Apa & Son, Inc. v. Geapag A.G., 134 F.3d 1090, 1093 (Fed. Cir. 1998) (the “successor[] in title” is the party holding legal title to the patent); Prima Tek II LLC v. A-Roo Co., 222 F.3d 1372, 1377 (Fed. Cir. 2000) (noting the assignee of all substantial rights under the patent becomes the effective patentee and can sue in its own name for infringement). 13 Morrow, 499 F.3d at 1339. 14 See Declaration of Cristian Turrini in Support of Calypso’s Request for Preliminary Injunction (Docket No. 106), filed February 2, 2010; Joint Stipulation, ¶ 8. 15 Schwarz Pharma, Inc. v. Paddock Labs., Inc., 504 F.3d 1371, 1374 (Fed. Cir. 2007). 16 Schwarz Pharma, 504 F.3d 1371, 1374 (Fed. Cir. 2007) (quoting Independent Wireless Telegraph Co. v. Radio Corp. of America, 269 U.S. 459, 46 S. Ct. 166, 70 L. Ed. 357 (1926)). 17“‘[A] plaintiff with constitutional standing may cure prudential standing defects after it files suit.’” Adv. Tech. Incubator, Inc. v. Sharp Corp., No. 2:07-CV-468, 2009 U.S. Dist. LEXIS 69736, *16 (E.D. Tex. August 10, 2009)
owners were parties “from the inception of the suit” – is flatly contrary to case law, and is based on a failure to distinguish between constitutional and prudential standing.18
Here, there are three co-owners of the Patent-in-Suit – Calypso, Daic, and Williamson.19 Each is already a party to this suit,20 and each has filed a claim for infringement against TMobile.21 Furthermore, each has agreed that Calypso will be the party responsible for management of this case against T-Mobile, and Daic and Williamson have already joined in the infringement contentions served by Calypso back in January on T-Mobile.22 Finally, Daic’s and Williamsons’ limited rights to patent-infringement proceeds under the Plaintiffs’ 2008 Agreement does not divest Calypso of prudential standing.23 Thus, there is no question of either constitutional standing or prudential standing, and T-Mobile’s Motion to Dismiss – which hinges
(Love, J.) (quoting VirnetX, Inc. v. Microsoft Corp., No. 6:07-cv-80, 2008 U.S. Dist. LEXIS 94854, at *7 (E.D. Tex. June 3, 2008) (Davis, J.)); Intellectual Property Dev., Inc., 248 F.3d at 1348; IPVenture, Inc. v. Prostar Computer, Inc., 503 F.3d 1324, 1326-27 (Fed. Cir. 2007); Morrow, 499 F.3d 1332, 1344 (Fed. Cir. 2007)); see also Positive Techs., Inc. v. LG Display Co., No. 2:07-CV-67, 2008 U.S. Dist. LEXIS 73087, 2008 WL 4425372, at *3 (E.D. Tex. Sept. 24, 2008) (Ward, J.) (noting that “the Federal Circuit has recognized on many occasions the ability to cure prudential standing defects post filing”)); VirnetX, Inc., 2008 U.S. Dist. LEXIS 94854, at *11-21 (analyzing grantor’s retained equity interest and rights, finding that grantee did not receive all substantial rights, and requiring joinder of grantor pursuant to Rule 19 in light of policy of “avoid[ing] the potential for multiple litigations and multiple recoveries against the same alleged infringer.”); cf. Propat Int’l. Corp. v. Rpost, Inc., 473 F.3d 1187, 1193 (Fed. Cir. 2007) (“[A]n action brought by the exclusive licensee alone may be maintained as long as the licensee joins the patent owner in the course of the litigation.”). 18 The case that T-Mobile relies on deals with constitutional standing, stating that “[l]egal title, which confers standing, must be held at the inception of the lawsuit.” See MHL TEK. LLC v. General Motors Corp., 622 F.Supp. 2d 400, 404 (E.D. Tex. 2009) (Ward, J.) (emphasis added). As explained above, the question of whether a plaintiff holds legal title is a question of constitutional standing, not prudential standing. 19 See Motion to Dismiss at 5. 20 Drago Daic is a named plaintiff. See, e.g., Drago Daic’s Answer to T-Mobile USA, Inc.’s Counterclaims (Docket No. 46), filed September 22, 2009. Williamson has also appeared before the Court (and is represented by the same counsel as Daic). See, e.g., Motion for Protective Order Concerning the Deposition Notice to Jimmy Williamson,
P.C. (Docket No. 94), filed January 18, 2010; Joint Stipulation (Docket No. 111), filed February 8, 2010. Finally, on February 23, 2010, Williamson filed a cross claim for patent infringement against T-Mobile. See Jimmy Williamson, P.C.’s Answer and Cross Claim (Docket No. 118), filed February 23, 2010. 21 See Plaintiffs’ Amended Original Complaint and Demand for Jury Trial (Docket No. 14), filed March 16, 2009; Joint Stipulation (Docket No. 111), filed February 8, 2010, ¶ 4; Jimmy Williamson P.C.’s Answer and Cross Claim (Docket No. 118), filed February 23, 2010. 22 Counsel for Drago Daic and Jimmy Williamson, P.C. have indicated that each joins in the infringement contentions served on T-Mobile by Calypso in January of this year, and has communicated this fact telephonically to counsel for T-Mobile. The Plaintiffs plan to file an amended set of infringement contentions in which Daic and Williamson join either contemporaneously with this brief or shortly thereafter. 23 Vaupel Textilmaschinen KG v. Meccanica Euro Italia, 944 F.2d 870, 875 (Fed. Cir. 1991); Positive Techs., Inc. v. LG Display Co., No. 2:07-CV-67, 2008 U.S. Dist. LEXIS 73087, 2008 WL 4425372, at *3 (E.D. Tex. Sept. 24, 2008) (Ward, J.).
on the notion that “resolution of [the Plaintiffs’] dispute is a necessary prerequisite to federal
jurisdiction over this action…”24 – should be denied as moot.
B. T-Mobile’s Motion to Dismiss Calypso’s Cross Claims and Third-Party Claims Should Be Denied as Moot.
T-Mobile has also moved the Court to dismiss Calypso’s state law cross claims and third-
party claims against Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens. These claims
were properly before the Court, and it was a proper use of the Court’s discretion to exercise
supplemental jurisdiction over them.25 As stated above, however, Calypso has already agreed
that it will dismiss those claims (and will do so once Jimmy Williamson, P.C. has been added as
a patent-infringement plaintiff).26 T-Mobile’s request will therefore be moot once Calypso
moves to dismiss its cross claims and third-party claims.
C. The Court Should Not Impose the Death Penalty Sanction for Calypso’s Alleged “Failure to Prosecute.”
T-Mobile has also moved for dismissal under Rule 41(b) for want of prosecution.
Dismissal under Rule 41(b) for lack of prosecution – which is, by default, with prejudice – “‘is
an extreme sanction that deprives the litigant of the opportunity to pursue his claim.’”27 The
facts here do not merit such a sanction. Calypso is not solely responsible for the delays in this
24 The case that T-Mobile relies on in support of this proposition is one in which the Federal Circuit, acting sua sponte, dismissed a patent infringement claim for lack of jurisdiction, holding that “it is necessary that plaintiff allege facts that demonstrate that he, and not the defendant, owns the patent rights on which the infringement suit is premised.” Jim Arnold Corp. v. Hydrotech Sys., 109 F.3d 1567, 1571-1572 (Fed. Cir. 1997). There the plaintiff had actually alleged that he was not the patent owner, and had, in fact, plead a state-court cause of action for rescission of the deal that had given the defendant the relevant patent. See id. at 1572 (“[H]is complaint to the state court clearly showed that he had assigned all right, title, and interest in the patents at issue to Hughes; that he had no ownership interest in the patents on which to sue unless and until the state-provided remedy of rescission was granted”). The Jim Arnold case does not, as T-Mobile suggests, stand for the general proposition that any non-patent question that might moot the question of infringement deprives a federal court of jurisdiction. See, e.g., Air Prods. & Chems. v. Reichhold Chems., 755 F.2d 1559, 1563 (Fed. Cir. 1985) (“[T]he fact that a question of contract law must be decided prior to reaching the infringement question does not defeat federal subject matter jurisdiction.”). 25 See 28 U.S.C. § 1367 (supplemental jurisdiction). 26 See Joint Stipulation (Docket No. 111), filed February 8, 2010, ¶ 5. 27 Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985) (quoting McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981)).
case; the delays have not been unreasonable; and the delays are not the result of any untoward or improper conduct by Calypso that amounts to the sort of “contumacious” conduct that merits dismissal under Rule 41(b).
Dismissal under Rule 41(b) is only appropriate where there is evidence of “purposeful delay or contumaciousness …”28 Here there has been no “purposeful delay or contumaciousness.” The Fifth Circuit also considers factors such as whether there was “delay caused by [the] plaintiff himself and not his attorney,” whether there was “actual prejudice to the defendant; or whether there was “delay caused by intentional conduct.”29 Here, at least a portion of the delay was caused by the withdrawal of Calypso’s attorney (as permitted by the Court), there has been no actual prejudice to T-Mobile, and the delay was not caused by intentional conduct.
Even if there were some behavior at issue here, dismissal under Rule 41(b) would not be warranted. The Fifth Circuit requires a district court to “expressly determine[] that lesser sanctions would not prompt diligent prosecution, or … employ[] lesser sanctions that proved to be futile.”30 Thus, even if sanctions were warranted – and they are not – It would be an abuse of the Court’s discretion to proceed immediately to dismissal.31 T-Mobile’s request that this case be dismissed for want of prosecution should therefore be denied.
There has been no purposeful delay here. In fact, most of the delay has been completely out of Calypso’s control. For example, T-Mobile complains that this case has been on file for fourteen months, but fails to note that it filed two unopposed motions to extend the deadline to
28 Long v. Simmons, 77 F.3d 878, 880 (5th Cir. Miss. 1996) (emphasis added). 29 Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). 30 CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); see also Long, 77 F.3d at 556. 31 See Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (finding a dismissal to have been an abuse of discretion in the absence of a record of contumaciousness or the employment of lesser sanctions).
file its answer, and, in fact, did not answer32 for almost five months after Calypso’s original complaint.33 After T-Mobile answered, the Court set the case for a status conference on July 28, 2009,34 and entered its docket control and discovery orders in early August, 2009.35 The first deadline under the Court’s docket control order – for Local P.R. 3-2 and 3-3 disclosures – was not until September 11, 2009.
T-Mobile agreed to this deadline, and even agreed to extend it further, but then counsel for Plaintiffs withdrew due to a conflict.36 The Court stayed the case for a total of 51 days, during which time Calypso struggled to find counsel to replace the attorneys who had represented Calypso on a contingency basis. Before the stay was lifted,37 Co-Plaintiff Drago Daic moved to assign the Patent-in-Suit, which only increased the difficulty of Calypso attempting to obtain replacement counsel, and created additional issues to be resolved – i.e., who owned the Patent-in-Suit, and, on the day after the Court’s 51-day stay ended, moved to substitute Kelly D. Stephens as plaintiff. Calypso, which was finally able to secure counsel in December 200938, moved quickly to try to resolve these questions by securing temporary restraining orders in this Court and in state court.39 On February 8, 2010 – less than a month after Calypso filed its request for a temporary restraining order, and prior to the Court’s scheduled hearing on whether to grant a preliminary injunction – Calypso and Daic resolved the issues, and Daic agreed to undo the purported assignment and cease any further claims on the
32 See T-Mobile USA, Inc.’s Answer and Counterclaims (Docket No. 15) filed April 6, 2009. 33 See Plaintiff’s Original Complaint and Demand for Jury Trial (Docket No. 1) filed November 13, 2008. 34 See Order (Docket No. 22) dated June 22, 2009. 35 See Docket Control Order (Docket No. 34) dated August 13, 2009; Discovery Order (Docket no. 35), dated August 25, 2009. 36 See Plaintiff’s Opposed Motion to Withdraw (Docket No. 40), filed September 18, 2009. 37 See Motion to Substitute a Party and Temporarily Stay the Case (Docket No. 57), filed November 19, 2009, Ex. 2, Patent Assignment (executed on October 17, 2009 by Plaintiff Drago Daic). 38 See Notice of Appearance of Paul Storm (Docket No. 65), filed December 4, 2009; Notice of Appearance of Anthony Miller (Docket No. 66), filed December 4, 2009 39 See Calypso’s Emergency Motion for Clarification of Temporary Restraining Order (Docket No. 98), filed January 20, 2010.
Patent-in-Suit under the 2009 Agreement (as is more specifically provided in the Joint Stipulation).40 Because this case was stayed for 51 days, it is not clear which deadlines have passed. The original deadline for Calypso’s infringement contentions was in September – before the stay
– and the deadline for T-Mobile’s invalidity contentions was December. Both have obviously passed (Calypso has since served infringement contentions), but per the Court’s oral instruction during the hearing on Calypso’s attorney’s Motion to Withdraw, the Parties have conferred and agreed to a revised schedule under which neither deadline has passed, thereby providing a remedy for the delay for which T-Mobile complains.41
This is hardly a story that can be characterized as a pattern of “purposeful delay or contumaciousness …”42 Furthermore, setting aside all the flurry of activity in the last few months, a delay of just about three months (from the ending of the Court’s 51-day stay), is not the sort of delay that justifies a dismissal under Rule 41(b).43 “The word ‘contumacious’ is defined as ‘obstinately disobedient or insubordinate: recalcitrant’”44 Losing one’s counsel to conflict and then having to fight off a claim of ownership of the Patent-in-Suit does not really qualify as “behavior,” let alone behavior that is “obstinately disobedient” or “recalcitrant.” Finally, because the only deadlines that have been missed are Plaintiff’s deadline for filing infringement contentions, this case is not the sort of case where courts typically dismiss claims
40 See Joint Stipulation (Docket No. 111), filed February 8, 2010. 41 On February 22, 2010, the counsel for all parties had agreed on a Joint Motion to Extend Schedule and Reset Markman Hearing and Trial Dates and to Permit the Parties to Renegotiate the Docket Control and Discovery Orders (the “New Proposed Schedule”) extending all dates, including those for Plaintiffs’ Local P.R. 3-2 and 3-3 disclosures. Anne Champion, counsel for T-Mobile, indicated that she would be filing that document on February 23, 2010. 42 Simmons, 77 F.3d at 880 (emphasis added). 43 See, e.g., Morris v. Ocean Systems, Inc., 730 F.2d 248, 252 (5th Cir. 1984) (“The facts before us simply do not exhibit a clear record of either delay or contumacious conduct. Only eight months elapsed from the date of the first status conference on Morris’s suit to the date of its dismissal. … “). 44 Gist v. Lugo, 165 F.R.D. 474, 478 (E.D. Tex. 1996).
under Rule 41(b).45 T-Mobile’s request for a dismissal under Rule 41(b) should therefore be
denied.
D. T-Mobile has moved, in the alternative, to stay this action until Plaintiffs can demonstrate standing and speak with one voice. Each of these conditions is satisfied,46 so again, T-Mobile’s request is moot.
T-Mobile has also requested alternative relief in the form of a stay “until Plaintiffs can
demonstrate standing and speak with one voice.” As explained above, there is no legitimate
dispute that Calypso had constitutional standing at the time of the filing of this suit, and
prudential standing has been remedied. Each of the three co-owners of the Patent-in-Suit is
already a party to this suit,47 and each has filed a claim for infringement against T-Mobile.48
Furthermore, each has agreed that Calypso is the party responsible for management of this case
against T-Mobile, and Daic and Williamson have already joined in the infringement contentions
served by Calypso back in January on T-Mobile.49 Because Plaintiffs can demonstrate standing,
and are speaking through Calypso with one voice, T-Mobile’s request for a stay should be
dismissed as moot.
45 See, e.g., CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 (5th Cir. Tex. 1992) (“[W]here a plaintiff has failed only to comply with a few court orders or rules, we have held that the district court abused its discretion in dismissing the suit with prejudice.”); Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir.1984) (no clear record of delay or contumacious conduct where counsel failed twice to comply with court-imposed deadlines requiring counsel to notify court of plaintiff’s rejection of settlement offers); Burden v. Yates, 644 F.2d 503, 504-05 (5th Cir.1981) (no clear record of delay or contumacious conduct where counsel failed to file three documents on time); McGowan, 659 F.2d at 556-58 (no clear record of delay or contumacious conduct where counsel failed to comply with scheduling and other pretrial orders); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 384-85 (5th Cir.1978) (no clear record of delay or contumacious conduct where counsel failed to answer interrogatories, failed to confer with defendant on pretrial order, and failed to appear at a pretrial conference). 46 See generally Joint Stipulation (Docket No. 111), filed February 8, 2010. 47 Drago Daic is a named plaintiff. See, e.g., Drago Daic’s Answer to T-Mobile USA, Inc.’s Counterclaims (Docket No. 46), filed September 22, 2009. Williamson has also appeared before the Court (and is represented by the same counsel as Daic) and has filed a cross claim for patent infringement against T-Mobile. See Jimmy Williamson P.C.’s Answer and Cross Claim (Docket No. 118), filed February 23, 2010. 48 See Plaintiffs’ Amended Original Complaint and Demand for Jury Trial (Docket No. 14), filed March 16, 2009; Joint Stipulation (Docket No. 111), filed February 8, 2010, ¶ 4; see also Jimmy Williamson P.C.’s Answer and Cross Claim (Docket No. 118), filed February 23, 2010.49 Counsel for Drago Daic and Jimmy Williamson, P.C. have indicated that each joins in the infringement contentions served on T-Mobile by Calypso in January of this year, and has communicated this fact telephonically to counsel for T-Mobile.
III. Conclusion & Prayer
For the foregoing reasons, Plaintiffs respectfully request that the Court deny T-Mobile’s Motion to Dismiss and grant Plaintiffs any and all further relief to which they may be entitled.
Dated: February 23, 2010 Respectfully submitted,
/s/ Anthony Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
ATTORNEYS FOR CALYPSO
WIRELESS, INC.
Agreed to by:
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
Matthew C. Juren
State Bar No. 24065530
Matthews, Lawson & Bowick, PLLC
2000 Bering Drive, Suite 700
Houston, Texas 77057
(713) 355-4200 (Telephone)
(713) 355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com
tjohnson@matthewsfirm.com
mjuren@matthewsfirm.com
ATTORNEYS FOR PLAINTIFFS
JIMMY WILLIAMSON, P.C.
AND DRAGO DAIC
CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2010, I caused a true and correct copy of the foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to Local Rule CV-5(a)(3). Jimmy Williamson, P.C. and Kelly D. Stephens are represented by attorneys who are already counsel of record (the same attorneys who represent Drago Daic), and will therefore be served via the Court’s CM/ECF system.
/s/ Anthony Miller Anthony Miller
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded
JOINT MOTION TO EXTEND SCHEDULE AND RESET MARKMAN HEARING AND TRIAL DATES AND TO PERMIT THE PARTIES TO RENEGOTIATE THE DOCKET CONTROL AND DISCOVERY ORDERS
Plaintiffs Calypso Wireless, Inc. (“Calypso”) and Drago Daic (“Daic”) and Defendant T-Mobile USA, Inc. (“T-Mobile”), by and through their respective attorneys, respectfully submit this Joint Motion to Extend Schedule and Reset Markman Hearing and Trial Dates and to Permit the Parties to Renegotiate the Docket Control and Discovery Orders. Due to the stays caused by withdrawal of Plaintiffs’ counsel and subsequent disputes between Plaintiffs regarding ownership of the patent-in-suit, the parties respectfully submit that it would be prejudicial as well as inefficient to maintain the current schedule. The parties show the Court as follows:
On August 13, 2009, this Court entered a Docket Control Order (“DCO”) for the above-captioned case, setting the Markman hearing and trial dates for June 15, 2010 and May 2, 2011, respectively. (D.I. 34).
The Court also entered a Discovery Order on August 21, 2009. (D.I. 35). The Discovery Order provided, among other things, that the parties were to file their respective Initial
Disclosures on September 25, 2009, and were to produce all documents relevant to the pleaded claims or defenses in this action by October 4, 2010. (Id.).
Pursuant to the DCO, Plaintiffs were to serve their L.P.R. 3-1 and 3-2 Disclosures (“Infringement Contentions”) on September 11, 2009, and Defendant was to serve its L.P.R. 3-3 and 3-4 Disclosures (“Invalidity Contentions”) three months later, on December 11, 2009. (D.I. 34).
Plaintiffs did not serve their infringement contentions by September 11, 2009, in accordance with the terms of the DCO. Instead, on September 16, 2009, counsel for Plaintiffs filed a motion to withdraw as counsel, (D.I. 36), and on September 18, 2009, Plaintiffs requested that the case be stayed for 90 days while they sought to retain new counsel. (D.I. 41).
On September 28, 2009, the court granted counsel’s motion to withdraw and stayed the case for 30 days to permit Plaintiffs’ to find new counsel. (D.I. 48). At that time, the Court also ordered the parties to renegotiate a schedule once the stay was lifted.
On October 20, 2009, Calypso requested that the stay be extended an additional 60 days.
On October 23, 2009, the Court stayed the case for an additional 21 days in light of Calypso’s inability to retain new counsel. (D.I. 54).
8. New counsel for Daic made an appearance on October 23, 2009. (D.I. 53).
On November 12, 2009, Calypso requested that the stay be extended until December 4, 2009.
On December 4, 2009, the Court denied Calypso’s request for a further stay of the case and ordered that it retain counsel within 5 days. (D.I. 64). New counsel for Calypso made an appearance that day. (D.I. 65).
On November 19, 2009, Daic filed a motion to substitute a party and temporarily stay the case. (D.I. 57). Daic subsequently withdrew this motion on December 11, 2009. (D.I. 74).
On January 13, 2010, Calypso served infringement contentions on T-Mobile. Calypso did not serve the documents required under Local P.R. 3-2, and the infringement contentions were signed only by Calypso.1
On January 13, 2010, Calypso filed a motion for a temporary restraining order and preliminary injunction. (D.I. 89). The Court granted this motion that same day. (D.I. 91).
Also on January 13, 2010, Calypso filed a motion for leave to file a second amended complaint, adding cross-claims against its co-Plaintiff Daic and third-party claims against Jimmy Williamson, P.C. and Kelly Stephens. (D.I. 88). The Court granted this motion on January 25, 2010. (D.I. 101).
On February 2, 2010, Calypso filed a brief in support of its Motion for a Preliminary Injunction. (D.I. 106). Calypso subsequently withdrew this motion on February 9, 2010. (D.I. 112).
On February 8, 2010, Plaintiffs submitted a Joint Stipulation in which Plaintiffs agreed, among other things, that Drago Daic and Jimmy Williamson, P.C. would cease their attempt to sell Calypso’s intellectual property, including the Patent-in-Suit, and undo a purported assignment thereof. Plaintiffs then moved to cancel the preliminary injunction hearing scheduled for February 10, 2010. (D.I. 111).
1 The parties agree that T-Mobile does not waive any objections it may have to the sufficiency of Plaintiffs’ disclosures pursuant to Local P.R. 3-1 and 3-2, which cannot be fully determined until Plaintiffs have completed their disclosures pursuant to Local P.R. 3-2.
On February 9, 2010, the Court cancelled the preliminary injunction hearing and granted Calypso’s motion to withdraw its motion for a preliminary injunction. (D.I. 113).
Counsel for the parties have met and conferred on February 5, 2010, regarding a schedule going forward and have determined that Plaintiffs will be able to complete their L.P.R. 3-1 and 3-2 disclosures by March 15, 2010.
In order to avoid prejudice to T-Mobile, the parties agree that T-Mobile should be allotted at least as much time to serve its responsive L.P.R. 3-3 and 3-4 disclosures as it was allotted under the original schedule governing the case, three months.
The parties further agree that it would promote the efficient resolution of this case to begin claim construction deadlines after infringement contentions and invalidity contentions had been exchanged, so that the parties may use such discovery to narrow the claims to be asserted and the terms to be construed.
Accordingly, the parties hereby propose that Plaintiffs Calypso and Daic shall serve their full L.P.R. 3-1 and 3-2 disclosures on March 1, 2010.
The parties further propose that Defendant shall serve its L.P.R. 3-3 and 3-4 Disclosures on June 15, 2010.
Additionally, the parties propose that claim construction deadlines shall begin on August 1, 2010, likewise mirroring the time periods set forth in the DCO.
Owing to the nearly six-month delay in the start of discovery thus far, the parties hereby request a new Markman hearing date that will establish claim construction deadlines that fall after infringement contentions and invalidity contentions have been exchanged, in August 2010.
The parties also request a new trial date be set that takes into account the almost six-month delay in discovery so far, so as to permit the parties sufficient time to conduct fact and expert discovery, as well as to file dispositive motions and pretrial motions, if necessary.
The parties hereby request that the Court issue new Markman and trial dates and grant the parties leave to submit a new Docket Control Order and a new Discovery Order that will reflect these new Markman and trial dates.
The parties respectfully request that the parties be permitted to submit the new Docket Control Order and Discovery Order within two weeks after the Court issues the new Markman and trial dates.
T-Mobile joins in this request without prejudice to its pending Motion to Transfer Venue to the Western District of Washington, (D.I. 17), Motion to Strike Plaintiffs’ Answer to T-Mobile’s Counterclaims, (D.I. 58), and its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute, (D.I. 109). February 24, 2010 Respectfully submitted,
/s/ Timothy W. Johnson /s/ Anne Champion Guy E. Matthews (lead attorney) Josh A. Krevitt (lead attorney) State Bar. No. 13207000 N.Y. Bar No. 2568228 Timothy W. Johnson Benjamin Hershkowitz State Bar No. 24002366 N.Y. Bar No. 2600559 Matthew C. Juren Anne Champion State Bar No. 24065530 N.Y. Bar No. 4425237
MATTHEWS, LAWSON & GIBSON, DUNN & CRUTCHER LLP
BOWICK, PLLC 200 Park Avenue 2000 Bering Drive, Suite 700 New York, New York 10166 Houston, Texas 77057 Telephone: (212) 351-4000
Telephone: (713) 355-4200 Facsimile: (212) 351-4035
Facsimile: (713) 355-9689 jkrevitt@gibsondunn.com gmatthews@matthewsfirm.com bhershkowitz@gibsondunn.com tjohnson@matthewsfirm.com achampion@gibsondunn.com mjuren@matthewsfirm.com
Attorneys for Plaintiff Drago Daic Attorneys for Defendant T-Mobile USA, Inc.
/s/ Anthony P. Miller Paul V. Storm (lead counsel) State Bar. No. 19325350 Anthony P. Miller State Bar No. 24041484 Michael Leach State Bar No. 24065598 STORM LLP 901 Main Street, Suite 7100 Dallas, Texas 75202 Telephone: (214) 347-4700 Facsimile: (214) 347-4799 paulstorm@stormllp.com amiller@stormllp.com mleach@stormllp.com
Attorneys for Plaintiff Calypso Wireless, Inc.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on February 24, 2010.
/s/ Anne Champion
CERTIFICATE OF CONFERENCE
The undersigned certifies that Anthony Miller, counsel for the Plaintiff Calypso Wireless, Inc., Timothy Johnson, counsel for Plaintiff Drago Daic, and undersigned counsel for Defendant T-Mobile USA, Inc. met and conferred regarding this joint motion and agreed upon its submission.
/s/ Anne Champion
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded
[PROPOSED] ORDER GRANTING JOINT MOTION TO EXTEND SCHEDULE AND RESET MARKMAN HEARING AND TRIAL DATES AND TO PERMIT THE PARTIES TO RENEGOTIATE THE DOCKET CONTROL AND DISCOVERY ORDERS
Upon consideration of the joint motion of Plaintiffs Calypso Wireless, Inc. (“Calypso”) and Drago Daic (“Daic”) and Defendant T-Mobile USA, Inc. (“T-Mobile”), to reset the Markman and trial dates and to permit the parties to submit a new Docket Control Order and a new Discovery Order, this Court finds good cause for the motion and hereby orders the parties to submit new Docket Control and Discovery Orders within two weeks after this Court issues new dates for the Markman hearing and trial dates in this action.
Note - Williamson also joins Calypso in suit against T-Mobile.
==============================================
For reference, re=posting Calypso's Amended Complaint against Daic/Williamson
-----------------------------------
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., §
Plaintiff, §
§
and §
§
DRAGO DAIC, §
Co-Plaintiff and Cross-Claim Defendant, §
§
and JIMMY WILLIAMSON, PC, and § § § Case No. 2:08-CV-00441 Jury Demanded
KELLY D. STEPHENS, §
Third-Party Defendants, §
§
v. §
§
T-Mobile USA, Inc. §
§
Defendant. §
PLAINTIFF CALYPSO’S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
COMES NOW, Plaintiff and Cross-Claimant CALYPSO WIRELESS, INC. (“Calypso”), complaining of T-MOBILE USA, INC. (“T-Mobile”), and files these cross-claims against Plaintiff and Cross-Defendant DRAGO DAIC (“Daic”) and third-party claims against JIMMY WILLIAMSON, P.C. (“Williamson”) (Daic and Williamson are referred to collectively herein as “D&W”) and KELLY D. STEPHENS of the Law Offices of Kelly D. Stephens (“Stephens”) (collectively “The Ownership Defendants”), and for cause of action would respectfully show the following:
I. Nature of the Action
This is an action for infringement of United States Patent 6,680,923 (the “‘923 Patent”) by T-Mobile.
This is also an action for a declaration of rights regarding a purported contract between Calypso and the Ownership Defendants, for a declaration of rights regarding the ‘923 Patent, for breach of contract, and for tortious interference.
II. Parties
Calypso is a Delaware corporation with its principal place of business in Montgomery County, Texas.
Defendant T-Mobile USA, Inc. (hereinafter “Defendant” or “T-Mobile”) is a Washington Corporation and may be served with citation by serving its registered agent for service of process Corporation Service Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701-3232. T-Mobile has already appeared as a defendant in this matter, and may therefore be served by any of the methods of service set out in Fed. R. Civ. P. 5(b)(2).
Plaintiff and Cross-Defendant Drago Daic is an individual, who is a citizen of the State of Texas, residing in Harris County, Texas. Daic has already appeared as a plaintiff in this matter, and may therefore be served by any of the methods of service set out in Fed. R. Civ. P. 5(b)(2).
Jimmy Williamson, P.C. is a professional corporation with its principal place of business at 4310 Yoakum Blvd., Houston, Texas 77006. Williamson may be served at this address.
Kelly D. Stephens of the Law Offices of Kelly D. Stephens is an individual attorney, purporting to act as trustee as to certain intellectual properties, who practices in Houston, Texas. Stephens may be served at his business address, which is The Law Offices of Kelly D. Stephens, 2000 Bering Drive, Suite 265, Houston, Texas 77057.
III. Jurisdiction
This Court has jurisdiction over Calypso’s patent infringement claims pursuant to the patent laws of the United States, 35 U.S.C. § 1 et seq., and pursuant to 28 U.S.C. § 1338.
The Court has jurisdiction over questions of patent ownership, assignments, and security interests under the United States Patent Act, 35 U.S.C. §§ 1 et seq., and pursuant to 28
U.S.C. § 1338(a).
The Court also has jurisdiction over questions of the validity and enforceability of the Amended and Restated Settlement Agreement, purportedly executed April 3, 2009 (the “2009 Duress Agreement”), as well as questions regarding The Ownership Defendants’ bad acts, which questions turn on the construction of federal securities laws and an evaluation of the scope of the Parties’ duties thereunder.
The Court also has supplemental jurisdiction over Calypso’s cross-claims under 28 U.S.C. § 1367, because Calypso’s cross-claims are so related to the claims within the Court’s original jurisdiction that they form part of the same case or controversy under Article 3 of the United States Constitution.
The Court also has supplemental jurisdiction over Calypso’s third-party claims against Williamson and Stephens under 28 U.S.C. § 1367, because Calypso’s third-party claims are so related to the claims within the Court’s original jurisdiction that they form part of the same case or controversy under Article 3 of the United States Constitution.
The Court has personal jurisdiction over T-Mobile because T-Mobile actively markets and conducts business in the Eastern District of Texas, such that T-Mobile’s appearance in this case does not offend traditional notions of fair play and substantial justice. T-Mobile has also already appeared as a defendant in this case.
The Court has personal jurisdiction over Drago Daic because he has appeared as a plaintiff in this case.
The Court has personal jurisdiction over the remaining Ownership Defendants because each is a Texas resident and conducts business in Texas.
Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b), 1391(c) because certain of the acts complained herein occurred in this judicial district. T-Mobile actively sells its infringing products and services within this judicial district. Venue is also proper in this judicial district pursuant to § 1400(b), under the theory of ancillary venue.
17. Calypso’s cross-claims and third-party claims are appropriate under Fed. R. Civ.
P. 13 and 14, and are within the subject matter jurisdiction of the Court because the claims relate to title of the patent that is at issue in the present action.
IV. General Allegations
On January 20, 2004, U.S. Patent No. 6,680,923 B1, entitled “Communication System And Method” (“the ‘923 patent”), was duly and legally issued to inventor Robert Leon. A true and correct copy of the ‘923 patent is attached hereto as Exhibit 1.
Calypso is the owner by assignment of the ‘923 patent, with full and exclusive right to bring suit to enforce it.
Daic is a shareholder and creditor of Calypso. Daic and Williamson are owners by assignment of certain ownership rights in the ‘923 patent.
The ‘923 patent relates to Seamless fixed mobile convergence, which allows a seamless “hand off” between cellular networks and Wireless Local Area Networks.
Upon information and belief, T-Mobile has infringed and continues to infringe the ‘923 patent. The infringing acts include, but are not limited to, the manufacture, use, offering for sale, sale and/or importation of software/firmware, hardware, and services embodying the
inventions of the Patent-in-suit. T-Mobile is liable for infringement of the ‘923 patent pursuant to 35 U.S.C. § 271.
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications. Calypso’s ground-breaking innovations include the ASNAP technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such Wi-Fi routers. Calypso’s ASNAP technology is protected by a portfolio of patents, including the ‘923 Patent.
Calypso has, in the last couple of years, undergone significant changes in leadership, including the replacement of Calypso’s president and CEO, and several members of Calypso’s board of directors. Prior to April 2008, the company was run by an individual named Carlos Mendoza. Mendoza is no longer with the company.
In 2002, Mendoza allegedly entered into one or more agreements with an individual called Drago Daic. Mendoza and Daic apparently made a series of outlandish promises to one another involving, among other things, varying numbers of shares of company stock and, allegedly, a promise that Daic could force the United States Patent Office to grant a patent.
In 2004, Daic sued Calypso on the basis of one or more of these undocumented agreements between him and Mendoza (Drago Daic, Curtis Scott Howell d/b/a Tribeca, Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless, Inc., Carlos Mendoza and David Davila, Cause No. 2004-63048, in the 151st District Court of Harris County, Texas). According to Mendoza, Daic threatened to expose alleged self-dealing by Mendoza if he appeared to try to defend the suit. Mendoza, who has spent time in foreign jails for similar
activities, declined to appear, and Daic was able to secure a default judgment in excess of $100 Million against Calypso.
In early 2008, a group of Calypso shareholders, bought out Mendoza. Mendoza is no longer associated with Calypso, and has apparently returned to Latin America. All of Calypso’s previous officers and directors resigned, and Richard Pattin was named interim President, CEO, and sole director.
In April 2008, under new leadership, Calypso set about trying to clean up the mess created by Mendoza and Daic. (It was not until June 2009, however, after the return of Cristian Turrini and Dave William’s appointment as President of the company, that Calypso was able to limit Daic’s involvement and interference with the day-to-day affairs of the company.) Under the threat of Daic’s execution of the $100+ Million judgment, Calypso purportedly entered into an agreement (the “2008 Agreement,” a true and correct copy of which is attached hereto as Exhibit 2) under which, among other things, Daic and Williamson took a security interest in the ‘923 Patent in the form of a 25% ownership stake in the patent.
The 25% security interest purportedly granted in the 2008 Agreement covered two categories of intellectual property: the “ASNAP Patents” and the “Baxter Patents.”
30. The ASNAP Patents include, according to the 2008 Agreement, the ‘923 Patent,
U.S. Patent Application Serial No. 11/040,482, and PCT No. PCT/US01/07528, and:
all patents and applications throughout the world that claim priority to, directly or indirectly, or from which the foregoing claim priority, directly or indirectly; [and] all substitutions for and divisions, continuations, continuations-in-part, renewals, reissues, patent cooperation treaty applications, foreign applications, national phase entries, and extensions of the foregoing patents and applications throughout the world, and including patent applications and applications throughout the world for like protection that have now been or may in the future be granted on the invention disclosed in any of the forgoing patents or applications, including without limitation, those obtained or permissible under past, present, and future laws and statutes and ... all right, title, and interest in and to any and all rights and causes of action based on, arising out of, related to, or on account of past, present, and future unauthorized use and/or infringement of any and all of the foregoing, including but not limited to all past, present, and future awards, damages, and remedies related thereto or arising therefrom.
The Baxter Patents include, according to the 2008 Agreement:
United States Patents No. 6,385,306, No. 6,765,996, No. 6,839,412 and No. 7,031,439; [and] all patents and applications throughout the world that claim priority to (directly or indirectly) the foregoing, or from which the foregoing claim priority (directly or indirectly); [and] all substitutions for and divisions, continuations, continuations-in-part, renewals, reissues, patent cooperation treaty applications, foreign applications, national phase entries, and extensions of the foregoing patents and applications throughout the world, and including patent applications and applications throughout the world for like protection that have now been or may in the future be granted on the invention disclosed in any of the foregoing patents or applications, including without limitation, those obtained or permissible under past, present, and future laws and statutes; and ... all right, title, and interest in and to any and all rights and causes of action based on, arising out of, related to, or on account of past, present, and future unauthorized use and/or infringement of the [sic] any and all of the foregoing, including but not limited to all past, present, and future awards, damages, and remedies related thereto or arising therefrom.
Drago Daic did not comply with his obligations under the 2008 Agreement. He
made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the
day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso
attempted to enter into.
Daic also refused to join in as plaintiff in the present suit for infringement of the
In the spring of 2009, D&W complained that Calypso had breached the 2008
‘923 Patent. As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.
Agreement by, among other things, failing to consummate the deals or bring in investors – things
he himself had prevented. Daic threatened to enforce his $100+ Million default judgment, to
take the ‘923 Patent away from Calypso, along with the other patents in Calypso’s ASNAP
portfolio, and to refuse to cooperate in the current suit for patent infringement.
Calypso and D&W negotiated throughout the spring of 2009 to attempt to resolve D&W’s issues. In the end, D&W presented Calypso with a draft of the 2009 Duress Agreement, a true and correct copy of which is attached hereto as Exhibit 3.
Calypso proposed several sets of revisions to D&W’s proposed amended agreement, but each time Calypso was told that D&W would only sign the agreement “as is,” and reminded of the various threats that D&W had made (which are described in a paragraph above).
To enter into a contract such as the 2009 Duress Agreement, a majority of Calypso’s board of directors would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement. Daic and Williamson knew this fact, but the board of directors never gave its approval.
There were three individuals on the Calypso board of directors in the spring of 2009: (1) Cristian Turrini, (2) Richard Pattin, and (3) Kathy Daic. Kathy Daic is Drago Daic’s wife. She resigned her board position on April 3, 2009 – the same date as the purported execution of the 2009 Duress Agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.
Cristian Turrini and Richard Pattin never agreed together that Calypso should enter into the 2009 Duress Agreement. In fact, Cristian Turrini repeatedly voiced his disagreement with the idea (and disapproval of the proposed terms of the 2009 Duress Agreement). This was communicated to D&W, along with the fact that Calypso could not enter into the 2009 Duress Agreement without Turrini’s consent. D&W therefore knew or should have known that there could be no valid 2009 Duress Agreement unless Cristian Turrini consented to Calypso’s entry into the agreement.
Although Richard Pattin signed the 2009 Duress Agreement, he did not have an authority to do so. Calypso’s Bylaws state that as the President, he “shall see that all orders and resolutions of the Board of Directors are carried into effect.” (Article IX, Section 7 of Calypso’s Bylaws). The signing of the 2009 Duress Agreement was never approved by the Board of Directors. In fact, as described above, the board member Cristian Turrini specifically and explicitly instructed Pattin, in writing, not to sign the 2009 Duress Agreement.
Among the terms of the 2009 Duress Agreement were several that Daic (as a shareholder and spouse of a former member of the board of directors) knew would be impossible for Calypso to comply with, including one provision that required Calypso to issue 13.4 Million shares of Calypso stock to Daic within two weeks of the purported execution of the 2009 Duress Agreement.
Neither the board of directors nor Richard Pattin had the requisite to authority issue the 13.4 Million shares without first obtaining shareholder approval (which, of course, was not done). Now that Calypso has not complied (for reasons of impossibility as well as the fact that Calypso never executed or agreed to the 2009 Duress Agreement), Daic is claiming that the 2009 Duress Agreement has been breached, and that he is entitled to foreclose on a security interest in the ‘923 Patent purportedly given to him by the terms of the 2009 Duress Agreement.
On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated by him as plaintiff under Fed. R. Civ. P. 25(c). In his Motion, Daic claims that he and Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ‘923 Patent) under the 2009 Duress Agreement, and, implicitly, that the 2009 Duress Agreement is a valid and enforceable contract. D&W purportedly assigned the
ASNAP and Baxter Patents (which include the ‘923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.
Actual controversies exist as to the existence, validity, and enforceability of the 2009 Duress Agreement, as well as to D&W’s rights vis-à-vis the ‘923 Patent. These controversies are ripe for adjudication by this Court.
Calypso now therefore seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201, 2202, that the 2009 Duress Agreement is invalid and unenforceable.
Calypso also seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201, 2202, that Calypso is the sole title holder of the ’923 Patent.
Calypso also seeks a preliminary and permanent injunction to prevent any further attempts by Daic and Stephens to exercise or act upon Daic’s and Williamson’s alleged rights with respect to or interests in Calypso’s ‘923 Patent, and to prevent Daic from continuing to breach the terms of the 2008 Agreement.
Calypso also seeks damages and attorney’s fees relating to D&W’s breaches of the 2008 Agreement.
Calypso also seeks damages for Daic’s tortuous interference with Calypso’s business relationships and prospective contracts.
V. Causes of Action
A. Claim for Patent Infringement
Calypso repeats and re-alleges the allegations of paragraphs 1 through 49 above as if fully set forth herein.
In violation of 35 U.S.C. § 271, T-Mobile has infringed and its continuing to infringe, literally and/or under the doctrine of equivalents, the ‘923 patent by practicing one or more claims of the ‘923 patent in its manufacture, use, offering for sale, sale and/or importation
of software/firmware, hardware, and services embodying the inventions of the patent-in-suit. Calypso served its infringement contentions on January 11, 2010, and hereby incorporates those contentions by reference.
Upon information and belief, T-Mobile’s acts have been willful and with full knowledge of the legally protected status of the ‘923 patent.
Calypso has been damaged by T-Mobile’s infringement and, unless T-Mobile obtains a license for the ‘923 patent, or is enjoined by the Court, T-Mobile will continue its infringing activity and Calypso will continue to be damaged.
B. Declaratory Judgment as to the 2009 Duress Agreement
Calypso repeats and re-alleges the allegations of paragraphs 1 through 53 above as if fully set forth herein.
Calypso seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201, 2202, that the 2009 Duress Agreement is invalid and unenforceable.
As described above, an actual controversy exists as to the existence, validity, and enforceability of the 2009 Duress Agreement. This controversy is ripe for adjudication by this Court.
As described above, there was (1) no valid acceptance of the offer(s) made by D&W in providing the draft of the 2009 Duress Agreement to Calypso, (2) no meeting of the minds as to an agreement, particularly the one purportedly contained in the 2009 Duress Agreement, and (3) no consent by Calypso or no authority by Mr. Pattin to consent to the terms of the 2009 Duress Agreement. Because each of these is necessary in order for a contract to exist, the 2009 Duress Agreement does not evidence a contract between Calypso and D&W, and Calypso is not obligated to comply with any of the terms of the 2009 Duress Agreement.
As described above, the 2009 Duress Agreement is procedurally and substantively unconscionable. The 2009 Duress Agreement is unconscionable because (1) D&W engaged in overreaching and unethical behavior in attempting to force Calypso to accept the agreement, and
(2) Calypso had no viable alternative but to enter into the 2009 Duress Agreement due to lack of its bargaining power and ability to change or even negotiate the contract terms. The 2009 Duress Agreement is also unconscionable because the 2009 Duress Agreement is utterly lopsided, lacking any reasonable or subjective parity between the values allegedly exchanged. Because the 2009 Duress Agreement is unconscionable, it is invalid and unenforceable.
As described above, D&W threatened to misappropriate the ASNAP and Baxter patents, including the ‘923 Patent, and refused to cooperate in the current patent infringement suit, taking unjust advantage of Calypso’s economic duress to coerce Calypso to enter into the 2009 Duress Agreement. Daic’s behavior destroyed Calypso’s free agency, and caused an imminent economic restraint. Calypso had no means of protecting itself against such behavior. D&W thus forced Pattin to sign the 2009 Duress Agreement, purportedly on behalf of Calypso, and the 2009 Duress Agreement is therefore invalid and unenforceable.
Unless and until enjoined by this Court, D&W will continue to attempt to assert their alleged rights under the 2009 Duress Agreement.
Calypso is therefore entitled to a declaration that the 2009 Duress Agreement is invalid and unenforceable, and preliminary and permanent injunctive relief to prevent D&W from continuing to assert their alleged rights under the 2009 Duress Agreement.
C. Declaratory Judgment as to the ‘923 Patent
Calypso repeats and re-alleges the allegations of paragraphs 1 through 61 above as if fully set forth herein.
Calypso seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201, 2202, that Calypso is the sole title holder of the ’923 Patent.
As described above, an actual controversy exists as to Daic’s, Williamson’s, and Stephens’ rights vis-à-vis the ‘923 Patent. This controversy is ripe for adjudication by this Court.
Because, as described above, the 2009 Duress Agreement, upon which Daic bases D&W’s claims as to the ‘923 Patent, is invalid and unenforceable, D&W’s claims as to Calypso’s ’923 Patent are baseless.
Unless and until enjoined by this Court, D&W (with the aid of purported “trustee” Stephens) will continue to attempt to assert their alleged rights to the ‘923 Patent, causing Calypso irreparable harm.
Calypso is therefore entitled to a declaration that Calypso is the title holder of an undivided interest in the ’923 Patent, and preliminary and permanent injunctive relief to prevent D&W from continuing to assert their alleged rights to the ‘923 Patent.
Calypso is also entitled to preliminary and permanent injunctive relief against Daic, Williamson, and Stephens to prevent them from taking further steps to harm Calypso’s rights and interests in the ’923 Patent.
D. Breach of Contract of the 2008 Agreement
Calypso repeats and re-alleges the allegations of paragraphs 1 through 68 above as if fully set forth herein.
If the 2008 Settlement Agreement is enforceable, D&W breached the terms of the 2008 Settlement Agreement by, among other things, interfering with and preventing Calypso from entering into arrangements and agreements with other companies to exploit Calypso’s ’923
Patent. Daic further breached the 2008 Agreement by refusing to take required steps or to cooperate with the prosecution of the current litigation.
Calypso suffered damages directly and proximately caused by D&W’s breach of the 2008 Settlement Agreement stemming from the cloud of title with respect to the ’923 Patent, as well as other damages associated with Daic’s breach.
Calypso has incurred significant attorney’s fees in dealing with the consequences of D&W’s breaches, and in bringing these claims against D&W.
Unless and until enjoined by this Court, D&W will continue to breach the 2008 Agreement, causing Calypso irreparable harm.
74. Calypso is therefore entitled to damages and attorney’s fees (under at least TEX.
CIV. PRAC. & REM. CODE § 38.001 et seq.) relating to D&W’s breach of the 2008 Agreement, as well as preliminary and permanent injunctive relief to prevent D&W from continuing to breach the 2008 Agreement.
E. Tortious Interference with Prospective Contracts
Calypso repeats and re-alleges the allegations of paragraphs 1 through 74 above as if fully set forth herein.
D&W were strangers to third party negotiations between Calypso and other companies, including financial institutions and third-party companies such as Acacia Patent Acquisition Corporation (“APAC”). D&W knew or learned that the formation of contracts with each of these entities was reasonably probable. D&W were also aware of Calypso’s continuing business relationships with these entities.
D&W intentionally interfered with these business relationships and incipient contracts, thereby preventing the continuation of such business relationships, the formation of such contracts, and proximately damaging Calypso.
D&W’s actions were tortious and illegal for a variety of reasons, including that they were fraudulent, deceptive, disparaging, and larcenous.
79. Calypso suffered damages as a result of D&W’s tortious interference.
Unless and until enjoined by this Court, D&W will continue to interfere tortiously with Calypso’s business relationships, existing contracts, and prospective contracts, causing Calypso irreparable harm.
Calypso is therefore entitled to damages relating to D&W’s tortious interference, as well as preliminary and permanent injunctive relief to prevent D&W from continuing to interfere with Calypso’s business relationships and prospective contracts.
F. Conversion of the Calypso’s Intellectual Property
Calypso repeats and re-alleges the allegations of paragraphs 1 through 81 above as if fully set forth herein.
83. Calypso is the assignee and owner (of an undivided interest in) the ’923 Patent.
By and through their actions, Daic, Williamson, and Stephens converted title of the ’923 Patent by purporting to assign them to Stephens as “trustee,” and offering them up for sale.
Daic, Williamson, and Stephens have acted and are continuing to act voluntarily to permanently deprive Calypso of title to the ’923 Patent, and their actions amount to unlawful appropriation of the ‘923 Patent, with apparent intent to deprive Calypso of the patent permanently.
Calypso suffered damages directly and proximately caused by Daic’s, Williamson’s, and Stephens’ misappropriation of the ’923 Patent, to wit, the loss of the patent.
Unless and until enjoined by this Court, Daic, Williamson, and Stephens will sell the ’923 Patent, causing Calypso irreparable harm.
88. Calypso is therefore entitled to damages relating to Daic’s, Williamson’s, and
Stephens’ misappropriation of the ’923 Patent, as well as preliminary and permanent injunctive
relief requiring Daic, Williamson, and Stephens to undo their purported assignment of the patent
and to prevent Daic, Williamson, and Stephens from selling the patent.
VI. Conditions Precedent
89. All conditions precedent have been performed or have occurred.
VII. Jury Demand
90. Under Fed. R. Civ. P. 38(b) Calypso demands a trial by jury of all issues raised by
this Second Amended and Supplemental Complaint which are triable by jury.
VIII. Attorney’s Fees
91. Calypso is entitled to an award of attorneys fees and costs under TEX. CIV. PRAC.
& REM. CODE § 38.001 et. seq.
IX. Prayer
92. Calypso respectfully prays for the following relief:
a.
A preliminary and permanent injunction against T-Mobile, its officers, agents, servants, employees, attorneys, all parent and subsidiary companies, all assignees and successors in interest and those persons in active concert or participation with T-Mobile and enjoining them from continuing acts of infringement of Calypso’s ‘923 Patent;
b.
All actual damages due from T-Mobile;
c.
A trebling of said damages due from T-Mobile pursuant to 35 U.S.C. §204;
d.
Attorney’s fees due from T-Mobile pursuant to 35 U.S.C. §205;
e.
All costs of court due from T-Mobile;
f.
A declaration that the 2009 Duress Agreement is invalid and unenforceable;
g.
A declaration that Calypso is the title holder of an undivided interest in the ’923 Patent;
h. Damages relating to D&W’s breach of the 2008 Agreement;
i. Damages relating to D&W’s tortious interference;
j. Damages relating to Daic’s, misappropriation of the ’923 Patent; Williamson’s, and Stephens’
k. Preliminary and permanent injunctive reliefcontinuing to breach the 2008 Agreement; to prevent D&W from
l. Preliminary and permanent injunctive relief to prevent D&W from
continuing to assert their alleged rights under the 2009 Duress Agreement;
m.
Preliminary and permanent injunctive relief to prevent D&W from continuing to assert their alleged rights to the ‘923 Patent;
n.
Preliminary and permanent injunctive relief against Daic, Williamson, and Stephens to prevent them from taking further steps to harm Calypso’s rights and interests in the ’923 Patent;
o.
Preliminary and permanent injunctive relief to prevent D&W from continuing to interfere with Calypso’s business relationships and prospective contracts;
p.
Preliminary and permanent injunctive relief requiring Daic, Williamson, and Stephens to vacate their purported assignment of the ‘923 Patent and to prevent Daic, Williamson, and Stephens from selling the ‘923 Patent;
q.
Attorney’s fees from the Ownership Defendants (under at least TEX. CIV. PRAC. & REM. CODE § 38.001 et seq.);
r.
All costs of court due from the Ownership Defendants; and
s.
Any such other relief that this Court deems just and proper.
Dated: January 25, 2010 Respectfully submitted,
/s/ Paul V. Storm Paul V. Storm (lead counsel) paulstorm@stormllp.com
State Bar No. 19325350 Anthony P. Miller amiller@stormllp.com
State Bar No. 24041484 Michael Leach mleach@stormllp.com
State Bar No. 24065598 Storm LLP 901 Main Street Suite 7100 Dallas, Texas 75202 214-347-4700 (Main) 214-347-4799 (Facsimile)
CERTIFICATE OF SERVICE
I hereby certify that on January 25, 2010, I caused a true and correct copy of the foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to Local Rule CV-5(a)(3).
/s/ Paul V. Storm Paul V. Storm
Williamson responds to Calypso Amended Complaint filed against Daic/Williamson
==============================================
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC., § Plaintiff, § and § DRAGO DAIC, Co-Plaintiff and § Cross-Claim Defendant, § And § Jimmy Williamson, PC, § Defendant and Cross-Claim Plaintiff §
§ § Case No. 2:08-CV-00441
v. § § Jury Demanded T-MOBILE USA, INC. §
§ Defendant. §
JIMMY WILLIAMSON, P.C.’s ANSWER AND CROSS CLAIM
COMES NOW, JIMMY WILLIAMSON, P.C., (“WILLIAMSON”) and answers Plaintiff’s Second Amended and Supplemental Complaint (DE#103) and brings a Cross-Claim against T-MOBILE USA, Inc. as follows:
WILLIAMSON admits the allegations set forth in paragraph 1.
WILLIAMSON admits that Calypso seeks a declaratory judgment but denies any further allegation set forth paragraph 2, and denies that Calypso is entitled to any relief sought against WILLIAMSON.
WILLIAMSON admits that Calypso is a Delaware corporation but denies the remaining allegations set forth in paragraph 3.
WILLIAMSON admits the allegations set forth in paragraph 4.
WILLIAMSON admits the allegations set forth in paragraph 5.
WILLIAMSON admits the allegations set forth in paragraph 6.
7. WILLIAMSON admits the allegations set forth in paragraph 7.
8. WILLIAMSON admits the allegations set forth in paragraph 8.
9. WILLIAMSON denies the allegations set forth in paragraph 9.
10. WILLIAMSON denies the allegations set forth in paragraph 10.
11. WILLIAMSON denies the allegations set forth in paragraph 11.
12. WILLIAMSON denies the allegations set forth in paragraph 12.
13. WILLIAMSON admits the allegations set forth in paragraph 13.
14. WILLIAMSON admits the allegations set forth in paragraph 14.
15. WILLIAMSON admits the allegations set forth in paragraph 15.
16. WILLIAMSON admits the allegations set forth in paragraph 16.
17. WILLIAMSON denies the allegations set forth in paragraph 17.
18. WILLIAMSON admits the allegations set forth in paragraph 18.
19. With respect to the allegations set forth in paragraph 19, WILLIAMSON admits that Calypso is an owner of the ‘923 Patent. WILLIAMSON also admits that Calypso has a right to bring suit to enforce the ‘923 Patent. All other allegations set forth in paragraph 19 are denied by WILLIAMSON.
20. WILLIAMSON admits the allegations set forth in paragraph 20.
21. WILLIAMSON admits the allegations of paragraph 21.
22. The allegations set forth in paragraph 22 are not directed to WILLIAMSON; however, WILLIAMSON joins in these allegations.
23. WILLIAMSON admits the allegations set forth in 23.
24. WILLIAMSON denies the allegations set forth in paragraph 24.
WILLIAMSON denies the allegations set forth in paragraph 25.
With respect to the allegations of paragraph 26, WILLIAMSON admits that Daic sued Calypso. All other allegations set forth in paragraph 26 are denied.
Regarding the allegations set forth in paragraph 27, WILLIAMSON admits that Richard Pattin was named as President and CEO of Calypso. WILLIAMSON is without sufficient knowledge to admit or deny and, therefore, denies the remaining allegations set forth in paragraph 27.
WILLIAMSON denies the allegations set forth in paragraph 28.
WILLIAMSON admits that the 2008 Agreement covered two categories of intellectual property, the ASNAP Patents and the Baxter Patents. The remaining allegations of paragraph 29 are denied.
WILLIAMSON admits the allegation set forth in paragraph 30.
WILLIAMSON admits the allegation set forth in paragraph 31.
WILLIAMSON denies the allegations set forth in paragraph 32.
WILLIAMSON admits that Daic is a necessary party to this suit, but denies the remaining allegations set forth in paragraph 33.
With respect to the allegation set forth in paragraph 34, WILLIAMSON admits that Calypso was given notice of its breach and Williamson's and Daic's intent to enforce the 2008 Agreement. WILLIAMSON denies the remaining allegations set forth in paragraph 34.
WILLIAMSON admits the agreement dated April 3, 2009 was negotiated with Calypso, but denies the remaining allegations set forth in paragraph 35.
WILLIAMSON denies the allegations set forth in paragraph 36.
WILLIAMSON denies the allegations set forth in paragraph 37.
With respect to the allegations set forth in paragraph 38, WILLIAMSON admits that Cristian Turrini, Richard Pattin and Kathy Daic was each at some point in 2009 a director. WILLIAMSON admits that Mrs. Daic resigned her board position on or about April 3, 2009. WILLIAMSON admits that she did not participate in the board’s consideration of the Agreement or the negotiations of the terms of the Agreement. All other allegations set forth in paragraph 38 are hereby denied.
WILLIAMSON denies the allegations set forth in paragraph 39.
WILLIAMSON denies the allegations set forth in paragraph 40.
WILLIAMSON denies the allegations set forth in paragraph 41.
WILLIAMSON admits that Daic claimed a breach of the 2009 Agreement, and an entitlement to foreclose on the security interest under the 2009 Agreement. All further allegations set forth in paragraph 42 WILLIAMSON hereby denies.
WILLIAMSON admits the allegation set forth in paragraph 43.
WILLIAMSON admits that there is a controversy between the parties. All further allegations set forth in paragraph 44 WILLIAMSON hereby denies.
WILLIAMSON admits that Calypso seeks a declaratory judgment, WILLIMSON denies all further allegations set forth in paragraph.
WILLIAMSON admits that Calypso seeks a declaratory judgment, WILLIAMSON denies all other allegations set forth in paragraph 46.
WILLIAMSON denies the allegations set forth in paragraph 47.
WILLIAMSON denies the allegations set forth in paragraph 48.
WILLIAMSON denies the allegations set forth in paragraph 49.
WILLIAMSON repeats and re-alleges its answer to the allegations of Calypso set forth in paragraphs 1 – 49 above.
The allegations set forth in paragraph 51 are not directed to WILLIAMSON; however, WILLIAMSON joins with Calypso in its allegations against T-Mobile with respect to infringement of the ‘923 Patent.
The allegations set forth in paragraph 52 are not directed to WILLIAMSON; however, WILLIAMSON joins with Calypso with respect to its allegations against T-Mobile.
The allegations set forth in paragraph 53 are not directed towards WILLIAMSON; however, WILLIAMSON joins with Calypso with respect to its allegations against T-Mobile.
With respect to the allegations set forth in paragraph 54, WILLIAMSON repeats the answers given for those allegations set forth in paragraphs 1 – 53 above.
WILLIAMSON admits that Calypso seeks a declaratory judgment, all other allegations set forth in paragraph 55 are denied.
WILLIAMSON denies the allegations set forth in paragraph 56.
WILLIAMSON denies the allegations set forth in paragraph 57.
WILLIAMSON denies the allegations set forth in paragraph 58.
WILLIAMSON denies the allegations set forth in paragraph 59.
WILLIAMSON denies the allegations set forth in paragraph 60.
WILLIAMSON denies the allegations set forth in paragraph 61.
WILLIAMSON repeats and answers the allegations of paragraphs 1 – 61 above as fully set forth herein.
63. WILLIAMSON admits that Calypso seeks a declaratory judgment. WILLIAMSON denies the remaining allegations of paragraph 63.
64. WILLIAMSON admits that a controversy exists. WILLIAMSON denies all other allegations set forth in paragraph 64.
65. WILLIAMSON denies the allegations set forth in paragraph 65.
66. WILLIAMSON denies the allegations set forth in paragraph 66.
67. WILLIAMSON denies the allegations set forth in paragraph 67.
68. WILLIAMSON denies the allegations set forth in paragraph 68.
69. WILLIAMSON repeats and re-answers the allegations of paragraphs 1-68 above as if fully set forth herein.
70. WILLIAMSON denies the allegations set forth in paragraph 70.
71. WILLIAMSON denies the allegations set forth in paragraph 71.
72. WILLIAMSON denies the allegations set forth in paragraph 72.
73. WILLIAMSON denies the allegations set forth in paragraph 73.
74. WILLIAMSON denies the allegations set forth in paragraph 74.
75. WILLIAMSON repeats and re-answers the allegations of paragraphs 1 – 74 above as if fully set forth herein in response to the allegations of paragraph 75.
76. WILLIAMSON denies the allegations set forth in paragraph 76.
77. WILLIAMSON denies the allegations set forth in paragraph 77.
78. WILLIAMSON denies the allegations set forth in paragraph 78.
79. WILLIAMSON denies the allegations set forth in paragraph 79.
80. WILLIAMSON denies the allegations set forth in paragraph 80.
81. WILLIAMSON denies the allegations set forth in paragraph 81.
WILLIAMSON repeats and re-answers the allegations of paragraphs 1 – 81 above as fully set forth herein in response to the allegations set forth in paragraph 82.
WILLIAMSON admits that Calypso is an owner of the ‘923 Patent.
WILLIAMSON denies the allegations set forth in paragraph 84.
WILLIAMSON denies the allegations set forth in paragraph 85.
WILLIAMSON denies the allegations set forth in paragraph 86.
WILLIAMSON denies the allegations set forth in paragraph 87.
WILLIAMSON denies the allegations set forth in paragraph 88.
WILLIAMSON denies the allegations set forth in paragraph 89.
WILLIAMSON admits that Calypso demands a trial by jury, Paragraph 90 does not contain any allegations directed toward WILLIAMSON, and therefore WILLIAMSON does not deny or admit these allegations.
WILLIAMSON denies the allegations set forth in paragraph 91.
WILLIAMSON denies that Calypso is entitled to the relief requested in its Prayer, paragraphs f – s with respect to allegations and causes of action directed towards WILLIAMSON.
WILLIAMSON CROSS-CLAIM FOR PATENT INFRINGEMENT
AGAINST T-MOBILE USA, INC.
93. COMES NOW, WILLIAMSON, complaining of T-Mobile USA, INC. (“T-Mobile”), and pursuant to Fed. R. Civ. P. 13(g) brings the following Cross-Claim and would respectfully show the following:
I. JURISDICTION & VENUE
This Court has jurisdiction over WILLIAMSON’s patent infringement claims pursuant to the patent laws of the United States, 35 U.S.C. §§ 1 et seq., and pursuant to 28 U.S.C. § 1338.
This Court has personal jurisdiction over T-Mobile as T-Mobile has answered and entered an appearance. Further this Court has personal jurisdiction over T-Mobile because T-Mobile actively markets and conducts business in the Eastern District of Texas, such that T-Mobile’s appearance in this case does not offend traditional notions of fair play and substantial justice.
Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b), 1391(c) and 1400(b) because certain acts complained herein occurred in this judicial district. T-Mobile has already admitted that venue is proper in this judicial district. Further, T-Mobile actively sells its infringing products and services within this judicial district and the surrounding districts and throughout the State of Texas.
II. GENERAL ALLEGATIONS
On January 20, 2004, U.S. Patent No. 6,680,923 B1, entitled “Communication System and Method” (“the ‘923 Patent”), was duly and legally issued to inventor Robert Leon.
WILLIAMSON is an assignee of an undivided interest in the ‘923 Patent.
The ‘923 Patent relates to seamless fixed mobile convergence, which allows a seamless “hands off” between cellular networks and wireless local area networks.
T-Mobile has infringed and continues to infringe the ‘923 Patent. The infringing acts include, but are not limited to, the manufacture, use, offering for sale, sale or
importation of software/firmware, hardware and services embodying the inventions of the ‘923 Patent. T-Mobile is liable for infringement of the ‘923 Patent pursuant to 35 U.S.C. § 271.
III. CLAIM FOR PATENT INFRINGEMENT
Plaintiffs repeat and re-allege the allegations of paragraphs 1-7 above as if fully set forth herein.
The ‘923 Patent is valid and presumed valid under 35 U.S.C. § 282.
T-Mobile has been and is infringing, literally or under the doctrine of equivalents, one or more claims of the ‘923 Patent, directly or indirectly pursuant to 35 U.S.C. § 271(a), (b), (c) or (f) by making, using, selling or offering for sale products and services that come within or are operated within the scope of one or more claims of the ‘923 Patent. In particular, the accused product and service is the “T-Mobile @Home Hotspot” and WiFi Calling service.
Upon information and belief, T-Mobile’s acts have been willful and with full knowledge of the ‘923 Patent and WILLIAMSON is accordingly entitled to enhanced damages pursuant to 35 U.S.C. § 284.
WILLIAMSON has been damaged by T-Mobile’s infringement and, unless T-Mobile obtains a license for the ‘923 Patent, or is enjoined by the Court, T-Mobile will continue its infringing activity and WILLIAMSON will continue to be damaged.
IV. JURY DEMANDED
Pursuant to Fed. R. Civ. P. 38(b), WILLIAMSON demands a trial by jury of all issues raised by this claim that are so triable.
V. PRAYER
WILLIAMSON respectfully requests the following relief:
a.
A preliminary and permanent injunction against T-Mobile, its officers, agents, servants, employees, attorneys, all parent and subsidiary companies, all assignees and successors in interest and those persons in active concert or participation with T-Mobile and enjoining them from continuing acts of infringement of the ‘923 Patent;
b.
All actual damages;
c.
Enhanced actual damages pursuant to 35 U.S.C. § 284;
d.
Attorneys’ fees pursuant to 35 U.S.C. § 285;
e.
All costs of court; and
f.
Any other relief that the Court deems just and proper.
Dated: February 23, 2010 Respectfully submitted,
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel) State Bar No. 13207000 Timothy W. Johnson State Bar No. 24002366 Matthew C. Juren State Bar No. 24065530 Matthews, Lawson & Bowick, PLLC 2000 Bering Drive, Suite 700 Houston, Texas 77057
(713)
355-4200 (Telephone)
(713)
355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com tjohnson@matthewsfirm.com mjuren@matthewsfirm.com
ATTORNEYS FOR JIMMY WILLIAMSON,
P.C.
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 23rd day of February, 2010. Any other counsel of record will be served by first class mail on this same date.
/s Timothy W. Johnson s/
Timothy W. Johnson
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE
Jury Trial Demanded
ORDER TO EXTEND TIME TO ANSWER PLAINTIFF CALYPSO WIRELESS, INC.’S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
Defendant T-Mobile USA, Inc.'s Unopposed Motion to Extend Time to Answer Plaintiff Calypso Wireless, Inc.'s Second Amended and Supplemental Complaint is GRANTED. Defendant shall answer Calypso’s Second Amended and Supplemental Complaint, to the extent that pleading has not been superseded, by Tuesday, March 2, 2010.
Signed 22nd day of February 2010.
CALYPSO WIRELESS, INC.,
Plaintiff,
and
DRAGO DAIC,
Co-Plaintiff and Cross-Claim Defendant,
and
JIMMY WILLIAMSON, PC, and
KELLY D. STEPHENS,
Third-Party Defendants,
v.
T-Mobile USA, Inc.
Defendant.
§
§
Case No. 2:08-CV-00441
Jury Demanded
ORDER ON UNOPPOSED MOTION FOR EXTENSION OF DEADLINE
Pending before the court is the Calypso’s and Daic’s Unopposed Motion for Extension of Deadline to Respond to Motion to Dismiss. The Motion is GRANTED. The deadline for Calypso and Daic to respond to Defendant T-Mobile USA Inc.’s Motion to Dismiss (Docket No. 109) is hereby extended from February 18, 2010 to February 23, 2010.
Signed 22nd day of February 2010
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC.,
Plaintiff,
and
DRAGO DAIC,
Co-Plaintiff and Cross-Claim Defendant,
and
JIMMY WILLIAMSON, PC, and
KELLY D. STEPHENS,
Third-Party Defendants,
v.
T-Mobile USA, Inc.
Defendant.
§
§
Case No. 2:08-CV-00441
Jury Demanded
UNOPPOSED MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO DISMISS
Calypso Wireless, Inc. (“Calypso”) and Drago Daic hereby request that the Court extend the deadline for Calypso and Daic to file a response to T-Mobile USA, Inc.’s (“T-Mobile”) Motion to Dismiss (Docket No. 109). The current deadline, under Local Rules CV-6 and CV-7 is Thursday, February 17, 2010. Counsel for Calypso conferred with counsel for T-Mobile, who indicated that T-Mobile consents to an extension of three days to Tuesday, February 23, 2010.
Dated: February 17, 2010 Respectfully submitted,
/s/ Anthony Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
ATTORNEYS FOR CALYPSO
WIRELESS, INC.
Agreed to by:
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
Matthew C. Juren
State Bar No. 24065530
Matthews, Lawson & Bowick, PLLC
2000 Bering Drive, Suite 700
Houston, Texas 77057
(713) 355-4200 (Telephone)
(713) 355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com
tjohnson@matthewsfirm.com
mjuren@matthewsfirm.com
ATTORNEYS FOR PLAINTIFF
JIMMY WILLIAMSON, P.C.
CERTIFICATE OF CONFERENCE
I hereby certify that on February 17, 2010, I conferred via e-mail with Anne Champion, counsel for Defendant T-Mobile USA, Inc. to request an extension of the February 18, 2010 deadline to respond to T-Mobile’s Motion to Dismiss (Docket No. 109) to February 23, 2010. Ms. Champion indicated that T-Mobile consents to this extension.
/s/ Anthony Miller
Anthony Miller
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-cv-441-TJW-CE
Jury Trial Demanded
UNOPPOSED MOTION TO EXTEND TIME TO ANSWER CALYPSO WIRELESS, INC.’S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
Defendant T-Mobile USA, Inc. (“T-Mobile”), by its attorneys, respectfully requests an extension of time to answer the Second Amended and Supplemental Complaint of Plaintiff Calypso Wireless, Inc. (“Calypso”). Because Calypso has indicated that the pleading will be superseded by a new Complaint, the parties have agreed as follows:
1. Calypso filed a motion for leave to file its Second Amended Complaint on January 13, 2010, seeking to add cross-claims against its co-Plaintiff, Drago Daic, and third-party claims against Jimmy Williamson, P.C. (“Williamson”) and Kelly Stephens, a trustee to whom Daic and Williamson had allegedly assigned the patent. (D.I. 88).
2. The Court granted Calypso’s motion on January 25, 2010. (D.I. 101). Calypso filed its Second Amended Complaint that day. (D.I. 103).
3. On February 2, 2010, plaintiffs Calypso and Daic, as well as third-party defendant Williamson, filed a joint stipulation that provided, among other things, that Calypso intended to withdraw its cross-claims against its co-plaintiff Daic, and its third-party claims against Williamson and Stephens. (D.I. 111 ¶ 5).
4. Calypso, Daic, and Williamson also stipulated Williamson would be added a plaintiff to this action “on a motion to be filed by Calypso and/or jointly by Calypso, Daic and/or Williamson P.C.” (D.I. 111 ¶ 4).
5. Accordingly, Calypso has indicated that its Second Amended and Supplemental Complaint will be superseded, and Plaintiffs have stated their intention to file a new pleading, adding Williamson as a plaintiff.
6. Pursuant to Rule 12(a)(1) of the Federal Rules of Civil Procedure, T-Mobile’s answer to Calypso’s Second Amended and Supplemental Complaint is due on February 16, 2010. Plaintiffs have not yet filed their motion to add Williamson as a Plaintiff or otherwise formally withdrawn Calypso’s Second Amended and Supplemental Complaint.
7. Accordingly, T-Mobile has requested, and Calypso and Daic have agreed, to extend T-Mobile’s time to file a response to Calypso’s Second Amended Complaint for 14 days.
8. Accordingly, T-Mobile hereby makes an unopposed motion to extend its time to answer Calypso’s Second Amended and Supplemental Complaint for 14 days. This is the first such request for relief T-Mobile has made with respect to the Second Amended and Supplemental Complaint.
Dated: February 16, 2010 Respectfully submitted,
/s/Anne Champion
Josh A. Krevitt, N.Y. Bar 2568228
Benjamin Hershkowitz, N.Y. Bar 2600559
Anne Champion, N.Y. Bar 4425237
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
jkrevitt@gibsondunn.com
bhershkowitz@gibsondunn.com
achampion@gibsondunn.com
Attorneys for Defendant T-Mobile USA, Inc.
2
Case 2:08-cv-00441-TJW-CE Document 114 Filed 02/16/2010 Page 2 of 3
Judge cancels 2/10 hearing, no longer needed
========================================
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§§§§§§§§§§
Case No. 2:08-CV-00441
Jury Demanded
ORDER ON JOINT EMERGENCY MOTION TO CANCEL HEARING ON
PRELIMINARY INJUNCTION AND WITHDRAWAL OF MOTION FOR SAME
Pending before the Court is Plaintiff Calypso Wireless, Inc.’s (“Calypso”), Cross-Defendant Drago Daic’s, and Third-Party Defendants Jimmy Williamson, P.C.’s and Kelly D.Stephens’ Joint Emergency Motion to Cancel Hearing on Preliminary Injunction and Withdrawal of Motion for Same (Dkt. No. 112). The Motion is GRANTED. The preliminary injunction hearing set for February 10, 2010 is hereby canceled, and Calypso’s Motion for Preliminary
Injunction (Dkt. No. 106) is hereby withdrawn.
Big victory for Calypso filed today
======================================
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
§
§
§
§
§
§ Case No. 2:08-CV-00441
v. §
§ Jury Demanded
T-MOBILE USA, INC.
Defendant.
§
§
§
JOINT STIPULATION
This Stipulation is made by, between and among Drago Draic ("Daic"), Calypso Wireless, Inc. ("Calypso") and Jimmy Williamson, P.C. ("Williamson P.C."). WHEREAS, Daic and other parties sued Calypso and other parties in a lawsuit styled Drago Daic, et al v. Calypso Wireless, Inc., et al, Cause No. 2004-63048 in the 151st District Court of Harris County, Texas (the "Daic Lawsuit"); WHEREAS, a Final Judgment was entered in the Daic Lawsuit, in favor of Daic and against Calypso and other parties on or about December 8, 2006 (the "Daic Judgment");
WHEREAS, Daic and Calypso entered into a Settlement Agreement dated April 3, 2008 in an effort to resolve disputes between them (the "2008 Agreement"); WHEREAS, an Amended and Restated Settlement Agreement dated April 3, 2009 (the "2009 Agreement") was subsequently signed by Daic, and for Williamson P.C. by Cyndi Rusnak as its authorized representative, and for Calypso by Richard S. Pattin, its President;
WHEREAS, Calypso contends, in pleadings filed by Calypso in the matter of Calypso Wireless, Inc., et al v. T-Mobile USA, Inc., Case No. 2:08-cv-00441, in the U.S. District Court for the Eastern District of Texas, Marshall Division (the "T-Mobile
Lawsuit"), that the 2009 Agreement is not an enforceable contract;
WHEREAS, Calypso claims ownership of U.S. Patent No. 6,680,923 (the "'923 Patent"), which is also the patent asserted against the Defendant in the T-Mobile Lawsuit, as well as ownership of U.S. Nos. 6,385,306, 6,795,996, 6,839,412 and 7,031,439, PCT
No. PCT/US01/07528 and U.S. Patent Application No. 11,040,482 (all being collectively identified with the '923 Patent herein as the "Calypso IP");
WHEREAS, the T-Mobile Lawsuit was filed before April 3, 2009 naming Calypso as the sole plaintiff;
WHEREAS, Daic was named an additional plaintiff in the T-Mobile Lawsuit by amended complaint filed before April 3, 2009;
WHEREAS, Williamson P.C. has not been named an additional plaintiff in the TMobile Lawsuit since it was filed;
WHEREAS, the Defendant in the T-Mobile Lawsuit has moved for dismissal asserting a possible or perceived defect of parties or lack of standing because of steps previously taken to enforce the 2009 Agreement and/or because of the terms and provisions of the 2008 Agreement;
WHEREAS, if the 2009 Agreement is considered an enforceable contract, it would not be necessary for Williamson P.C. or any other person to be joined as an additional plaintiff in the T-Mobile Lawsuit in order to cure any possible, arguable or
perceived defect of parties or issue of standing;
WHEREAS, Calypso contends, in pleadings filed by Calypso in the matter of Calypso Wireless, Inc. v. Drago Daic, et al, Cause No. 2010-02545, in the 333rd Judicial District Court of Harris County, Texas (the "Pending State Court Lawsuit"), that the 2009
Agreement is not an enforceable contract;
WHEREAS, Calypso also contends, in both the T-Mobile Lawsuit and the Pending State Court Lawsuit that Daic and/or Williamson P.C. are not entitled to obtain or transfer ownership of the Calypso IP under the 2008 Agreement;
WHEREAS, Calypso, Daic and Williamson P.C. desire to, without prejudice, reduce their respective litigation costs and to avoid or reduce disruption of the patent infringement claims asserted in the T-Mobile Lawsuit;
NOW, THEREFORE, Calypso, Daic and Williamson P.C. hereby stipulate and agree as follows:
1. Daic and Williamson P.C. agree, without prejudice, that each will not contest the conclusion asserted by Calypso in the T-Mobile Lawsuit and the Pending State Court Lawsuit that the 2009 Agreement is not an enforceable contract; and, therefore, Calypso, Daic and Williamson P.C. stipulate and agree that the 2009 Agreement shall not hereafter be considered an enforceable contract. This includes, without limitation, any other and further agreements included or referenced as exhibits in
the 2009 Agreement and/or executed in conjunction with execution of the 2009 Agreement.
2. Calypso, Daic and Williamson P.C. will not take or proceed with any action to enforce the 2009 Agreement, including any action by Daic and/or Williamson P.C. under the 2009 Agreement to transfer or sell any of the Calypso IP.
3. Without prejudice to any claim or defense any of Calypso, Daic and/or Williamson P.C. has or may have, with respect to the 2008 Agreement, whether or not presently or previously asserted in the T-Mobile Lawsuit or the Pending State Court Lawsuit, Calypso, Daic and Williamson P.C. agree that the 2008 Agreement is subject to enforcement as if the 2009 Agreement had not ever been signed.
4. To cure any possible, arguable or perceived defect of parties or issue of standing in the T-Mobile Lawsuit, in view of the terms and provisions of the 2008 Agreement, Williamson P.C. will be joined as an additional plaintiff on motion to be filed
by Calypso and/or jointly by Calypso, Daic and/or Williamson P.C.
5. Calypso, Daic and Williamson P.C. will resolve any and all existing disputes relating to the 2008 Agreement and/or to ownership of the Calypso IP in the Pending State Court Lawsuit. Calypso's claims, cross-claims and/or third-party claims
filed in the T-Mobile Lawsuit against Daic, Williamson P.C. and/or Kelly Stephens will be dismissed, without prejudice, by stipulation of dismissal or by motion of Calypso unopposed by at least Daic and Williamson P.C. Calypso's claims regarding Kelly
Stephens and/or the 2009 Agreement in the Pending State Court Lawsuit will also be dismissed without prejudice, by stipulation, unopposed motion or amended pleading.
6. Daic and Williamson P.C. will not act to transfer, sell or foreclose upon, any of the Calypso IP under the terms and provisions of the 2008 Agreement, prior to the earlier of an adjudication of Calypso's claims relating to the 2008 Agreement in the Pending State Court Lawsuit, or the dismissal of Calypso's claims in the Pending State Court Lawsuit, or entry of an Order in the Pending State Court Lawsuit authorizing Daic
and/or Williamson P.C. to obtain ownership or possession of, or to transfer, sell or foreclose upon any of the Calypso IP.
7. Calypso will not act to transfer, sell or otherwise encumber the Calypso IP prior to the earlier of an adjudication of Calypso's claims relating to the 2008 Agreement in the Pending State Court Lawsuit, or the dismissal of Calypso's claims in the Pending State Court Lawsuit, or entry of an Order in the Pending State Court Lawsuit authorizing Calypso to obtain ownership or possession of, or to transfer, sell or foreclose upon any of
the Calypso IP. This paragraph does not limit Calypso’s right or ability — subject to the terms of the 2008 Agreement — to transfer any of the Calypso IP to third parties (e.g., TMobile).
8. At and from the date this Stipulation is signed by Daic, Calypso and Williamson P.C., Calypso will be the party responsible for management of the T-Mobile Lawsuit in accordance with the terms and provisions of the 2008 Agreement.
9. Should Calypso's present attorneys of record withdraw from representing Calypso before trial in the T-Mobile Lawsuit, Daic and Williamson P.C. shall have the right to manage the claims asserted against T-Mobile for purposes of proceeding with the
T-Mobile Lawsuit.
10. Calypso, Daic and Williamson P.C. jointly agree to request the Courts to cancel the preliminary injunction hearing previously scheduled in the T-Mobile Lawsuit for February 10, 2010, and the temporary injunction hearing scheduled in the State Court Lawsuit for February 12, 2010. Daic and Williamson P.C. also agree that the $50,000 and $25,000 bonds posted by Calypso in the T-Mobile Lawsuit and State Court Lawsuit, may be refunded to Calypso, and to make any filing with the Courts as may be necessary for the bonds to be refunded to Calypso.
11. Calypso, Daic and Williamson P.C. jointly agree to join Williamson P.C. as an additional plaintiff, along with Calypso and Daic, in the T-Mobile Lawsuit.
12. Any and all documents necessary to restore ownership and record ownership of the Calypso IP to the state existing prior to execution of the 2009 Agreement will be executed and/or recorded by or at the direction of Calypso, Daic and/or Williamson, P.C., including, without limitation, such documents as are reasonably
necessary to restore to Calypso, Daic and/or Williamson P.C. any ownership or interest transferred or purportedly transferred to Kelly Stephens, Trustee, on or about November 19, 2009.
13. Nothing herein shall be construed to reflect, express, contain or require any admission of liability or wrongdoing by any party, nor with respect to the merits of all or any part of one party's claim against any other party in or in connection with the TMobile Lawsuit or the Pending State Court Lawsuit.
14. Calypso, Daic and Williamson P.C agree to sign, approve and/or file with the appropriate authority(ies) such other and further documents as may reasonably be necessary to give effect to the foregoing provisions of this Stipulation.
Dated: February 8, 2010 Respectfully submitted,
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
Matthew C. Juren
State Bar No. 24065530
Matthews, Lawson & Bowick, PLLC
2000 Bering Drive, Suite 700
Houston, Texas 77057
(713) 355-4200 (Telephone)
(713) 355-9689 (Facsimile)
Email: gmatthews@matthewsfirm.com
tjohnson@matthewsfirm.com
mjuren@matthewsfirm.com
ATTORNEYS FOR PLAINTIF
DRAGO DAIC and for WILLIAMSON P.C.
/s/ Anthony Miller___________________
Paul V. Storm (lead counsel)
State Bar No. 19325350
Anthony P. Miller
State Bar No. 24065598
Michael Leach
State Bar No. 24065598
Storm, LLP
901 Main Street, Suite 7100
Dallas, TX 75202
(214) 347-4700
(214) 347-4799
Email: paulstorm@stormllp.com
amiller@stormllp.com
mleach@stormllp.com
ATTORNEYS FOR PLAINTIFF CALYPSO
WIRELESS, INC.
Case 2:08-cv-00441-TJW-CE Document 111 Filed 02/08/2010 Page 7 of 8
8
CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant
to Local Rule CV-5(a)(3). Kelly D. Stephens and Jimmy Williamson, P.C. are
represented by the same attorneys who represent Drago Daic, and so will also be served
via the Court’s CM/ECF system.
/s/ Anthony Miller
Anthony Miller
Case 2:08-cv-00441-TJW-CE Document 111 Filed 02/08/2010 Page 8 of 8
T-Mobile files motion to dismiss the case. Will not post the whole filing, too long, but table of contents gives jist of arguments. Daic et al actions have now put the T-Mobile lasuit in jeopardy.
===============================================
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,
Plaintiffs-Counterclaim Defendants,
v.
T-MOBILE USA, INC.,
Defendant-Counterclaim Plaintiff.
Case No. 2:08-CV-441-TJW-CE
Jury Trial Demanded
DEFENDANT T-MOBILE USA, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO PROSECUTE
Case 2:08-cv-00441-TJW-CE Document 109 Filed 02/03/2010 Page 1 of 35
i
TABLE OF CONTENTS
A. Plaintiffs Have Engaged in a Long-Running Dispute Including Prior Litigations Over Ownership and Control of the Patent-in-Suit...............................3
1. Prior State Court Litigation Between Plaintiffs and Others Regarding the Patent-in-Suit
2. The 2008 Settlement Agreement Between Plaintiffs Granted Daic and Williamson an Ownership Interest in the Patent-in-Suit
B. Calypso Filed this Action Knowing It Did Not Have Standing to Sue for Infringement of the Patent-in-Suit
C. Calypso and Daic’s Failure to Correct Standing
1. The First Amended Complaint Still Did Not Join All of the Patent Owners as Plaintiffs
2. The 2009 Agreements Among Plaintiffs and Others Regarding Patent Ownership
D. Plaintiffs’ Continuing Patent Ownership Dispute
1. The Alleged Ownership by the Non-Party Trustee and Daic’s Motion to Substitute and Plan to Auction the Patent-in-Suit
2. Calypso’s Recent Motions and State Court Suit and Alleged Ownership by Non-Party Williamson
III. THIS ACTION SHOULD BE DISMISSED BECAUSE THERE IS NO ORIGINAL JURISDICTION
A. Plaintiffs Still Lack Standing to Sue for Patent Infringement
1. Calypso Lacked Standing When It Brought Suit
2. Plaintiffs Failed to Correct the Standing Problem with the Amended Complaint
3. Even with the Second Amended and Supplemental Complaint, Plaintiffs Currently Lack Standing
B. Calypso’s Cross-Claims and Third-Party Claims Should Be Dismissed for Lack of Subject Matter Jurisdiction
1. The State-Law Claims Do Not Form Part of the Same Case or Controversy with Plaintiffs’ Infringement Case Against T-Mobile and Therefore Should Be Dismissed for Lack of Jurisdiction
2. Even if the State-Law Claims Did Form Part of the Same Case or Controversy with the Patent Infringement Case, this Court Should Decline Supplemental Jurisdiction.
a) The Novel and Complex State Law Issues Warrant Denial of Supplemental Jurisdiction
b) Because the Ownership Dispute Predominates Over the Patent Infringement Allegations, Supplemental Jurisdiction Should Be Denied
c) Original Jurisdiction Is Lacking and Therefore Supplemental Jurisdiction Should Be Denied
d) This Court Should Decline Supplemental Jurisdiction in Favor of Duplicative Proceedings Already Proceeding in State Court
C. Calypso’s Cross-Claims and Third-Party Claims Should Be Dismissed as Defective
IV. THE CASE AGAINST T-MOBILE SHOULD BE DISMISSED FOR FAILURE TO PROSECUTE
V. ALTERNATIVELY, THIS ACTION SHOULD BE STAYED UNTIL PLAINTIFFS CAN DEMONSTRATE STANDING AND SPEAK WITH ONE VOICE
Excerpts from Turrini Declaration is Support of Preliminary Injunction
======================
18. List of Daic Interferences:
a. Acacia Patent Acquisition Corporation (“APAC”), Calypso was presented an agreement to license its patents to APAC in exchange for a $5,000,000.00 advance plus 50% of all recoveries by APAC in way of licensing or litigation. Daic rejected this proposition and used his veto power by stating the contract made Calypso look desperate and that he would not allow Calypso to license the
patent for 10 years to APAC.
b. Dan Wise and introductions to VONAGE, I presented the board with an opportunity from Mr. Wise to raise $10,000,000 for Calypso and also an introduction to VONAGE’s CEO and Chairman. Mr. Daic’s wife refused to sign any agreements with Mr. Wise and did not make herself available to the numerous requests for conference calls.
c. Mario Cytrymbaum, Mr. Cytrymbaum offered to invest in Calypso in exchange for a 10% interest per year and the option to convert the loan for Calypso stock at .5 cents per share. Mr. Daic refused to accept such investment because, as with the VONAGE proposal, it was going to dilute his position as a Calypso sshareholder. Mr. Daic offered other solutions to the company such as introductions to banks he owned and other financiers who would not demand a conversion for Calypso stock. However, he then never made those “introductions.”
d. RIVADA, Mr. Daic and his wife had refused an agreement that was presented to the company for a collaboration agreement that had the potential to bring revenues in excess of $5,000,000 per year. Mrs. Daic stated that Daic’s attorneys had rejected the deal but the attorneys when asked stated they had no knowledge
of the agreement and were never sent a copy of the proposed agreement by RIVADA.
e. Interferences with Shareholders meeting and increase of authorized shares to allow equity investment, Mr. Daic in his capacity of a substantial shareholder rejected the increase of the authorized shares because it would have “diluted” him. Even though it was imperative that the company increase the authorize
shares to be able to fulfill its obligations of the 2008 Agreement, Mr. Daic refused to accept such proposal and repeatedly threatened to foreclose on the patents.
f. Probably the first interference with company’s affairs and decisions was Mr. Daic’s inclusion of his wife as a member of the Board to make sure his interests and ideas would be met. During the negotiations of the 2008 Agreement, Mr. Daic stated as part of his acceptance of the Agreement that his wife be made a member
of the board or that he had a seat for another person of his choosing.
g. Mr. Daic interfered with and breach the 2008 Agreement by refusing to allow his name to be added to the lawsuit until Calypso agreed to enter into negotiations as to the terms of the “2009” Duress Agreement. This refusal was from November
13, 2008 until March 16, 2009, and delayed the lawsuit for 4 months.
Calypso files for Preliminary Injunction against Daic et al. ~300 pages. Some excerpts follow.
==========================================
Plaintiff Calypso Wireless, Inc. (“Calypso”) requests that the Court stop Co-Plaintiff Drago Daic from selling the Patent-in-Suit by entering a preliminary injunction to extend the temporary restraining order the Court entered on January 13, 2010.1 Mr. Daic (with the help of his partner Jimmy Williamson, P.C. and purported trustee Kelly D. Stephens) (together the “Daic Parties”) have improperly seized the patent, along with all of Calypso’s other intellectual property (together the “Calypso IP”), claiming that he has the right to do so under a purported contract with Calypso.2 As explained below, that purported contract is not a valid or enforceable agreement, and even if it were, Mr. Daic had no right to seize Calypso’s intellectual property.
Furthermore, Mr. Daic has no such right under the agreement that is actually pending between him and Calypso. Because the Calypso IP constitutes substantially all of Calypso’s assets and the ‘923 Patent is the most valuable single patent, a successful seizure and sale by the Daic Parties would leave Calypso with essentially no assets, and, as a practical matter (owing to the fact that, with no assets, it has no way of securing necessary additional funding), no way to remedy this wrong. Thus, absent immediate intervention by the Court, the Daic Parties will proceed to sell Calypso’s ‘923 Patent and likely the entire portfolio of patents and technology (presumably to Daic and Williamson), thereby depriving Calypso of any means of producing income, and, in effect, destroying Calypso and destroying the investments of its shareholders.
Calypso therefore respectfully requests, pursuant to Fed. R. Civ. P. 65, that the Court enter a preliminary injunction similar in scope to the Court’s January 13, 2010 temporary restraining order in order to prevent the Daic Parties from attempting to proceed with any sale or auction of the Patent-in-Suit during the pendency of this case.
MOTION AND BRIEF IN SUPPORT OF PRELIMINARY INJUNCTION
The Court has ruled Calypso may only make claims in this Court that relate to the Patentin-Suit — U.S. Patent No. 6,680,923 (the “’923 Patent”). Calypso complied with the Court’s order by amending its Second Amended and Supplemental Complaint accordingly, and Calypso is seeking here a preliminary injunction only as to the ’923 Patent. As a practical matter, however, the Court’s decision on whether the Daic Parties have a contractual right to seize and sell the ’923 Patent will impact, and in fact, be determinative of the Daic Parties’ purported right to sell all of the Calypso IP. If the Court were to find in favor of the Daic Parties, the harm to Calypso would be more than the loss of the ’923 Patent — it would be the loss of substantially all of Calypso’s assets and, likely, the destruction of Calypso.
B. Factual Background
Calypso was founded in 1998, and has been, from its inception, a pioneer in the field of wireless communications.17 Calypso’s ground-breaking innovations include the development of technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such as Wi-Fi routers. This technology is set to explode in the marketplace – companies like T-Mobile USA, Inc. are already using it – and Calypso is well-positioned to exploit this coming growth. At least, Calypso would be, but for the fact of Daic’s, Williamson’s, and Stephens’ attempted misappropriation of all of Calypso’s intellectual property.
In 2002, the owner and principal of Calypso – Carlos Mendoza – allegedly entered into one or more agreements with Drago Daic, under which Mr. Daic would provide “consulting” services in exchange for shares of Calypso stock. In 2004, Mr. Daic sued Calypso for nondelivery of the shares. Mr. Mendoza appeared in the suit, but did little more than that (Mr. Mendoza apparently explained that Daic had threatened him if he testified), and ultimately Mr. Daic and his attorney Jimmy Williamson were able to conduct a very brief trial without anyone from Calypso in the courtroom.
The trial lasted “in the nature of an hour,” during which the only witnesses were Mr. Daic and Mr. Williamson. Although the “consulting” that Mr. Daic performed never amounted to anything — the ’923 Patent had already been applied for and Mr. Daic brought in no new investments — the trial court awarded damages in excess of $85 Million, plus attorney’s fees of over $30 Million (reasoning, contrary to well-established precedent, that it should add a contingency award on top of the damages award).24 The damages award was based on a peak share price — on one day, two years before the suit was filed — of $6.05 (the stock actually closed at $4.70 that day). On the day the judgment was entered, the shares were actually only worth $.05 and the average share price for the entire period that Calypso has been a public company is only fifty-two cents ($.52).
In this way, Drago Daic and Jimmy Williamson secured well over $100 Million worth of leverage that they have used repeatedly in the intervening years to extract an ever-increasing number of shares and payments from Calypso. Calypso, having ridded itself of Mr. Mendoza, was forced to enter into the 2008 Agreement – under which, among other things, Daic and Williamson took a security interest in the ’923 Patent in the form of a 25% o wnership stake in the Calypso IP.
Drago Daic did not comply with his obligations under the 2008 Agreement. In fact, he made every effort, in violation of his obligations under that contract, to interfere with the day-today operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into. Daic prevented Calypso from securing investments or licenses that would have enabled Calypso to obtain the funding necessary to pay him off, and vetoed any attempt by Calypso to issue the stock shares necessary to comply with the provisions in the 2008 Agreement that required Calypso to deliver to him millions of new shares from among its “authorized and unissued shares.” He accomplished this by, among other things, putting his wife — Kath Daic — on the Calypso board of directors, and threatening to use his (and Mr. Williamson’s) substantial number of Calypso shares to veto any actions that Calypso might have taken at a shareholder meeting.
Daic also insisted that Calypso sue T-Mobile, but then initially
refused to join in as plaintiff in the present suit for infringement of the ’923 Patent.33 As part (25%) owner of the ’923 Patent, Daic was a necessary party to the suit.
In the spring of 2009, Daic complained that Calypso had breached the 2008 Agreement by, among other things, failing pay the promissory notes and failing to deliver shares of Calypso stock – things he himself had made impossible. Daic threatened to enforce his $100+ Million default judgment, to take the ’923 Patent away from Calypso, along with the other ASNAP and Baxter Patents, and refused to cooperate in the current suit for patent infringement.
Calypso president Richard Pattin attempted to negotiate with Daic throughout the spring of 2009 to attempt to resolve Daic’s issues.37 In the end, Daic presented Calypso with a draft of
an “Amended and Restated Settlement Agreement,” along with an ultimatum: sign or else. Calypso proposed revisions to Daic’s draft of the amended agreement, but each time Calypso was told that Daic would only sign the agreement “as is.” To enter into a contract such as the Daic’s proposed agreement, Calypso’s board of
directors and shareholders would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement. This never happened. There were three individuals on the Calypso board of directors in the spring of 2009: (1) Cristian Turrini, (2) Richard Pattin, and (3) Kathy Daic. Kathy Daic is Drago Daic’s wife. She resigned her board position on April 3, 2009 – the same date as the purported execution of Daic’s purported agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.
Cristian Turrini and Richard Pattin never agreed together that Calypso should enter into Daic’s proposed agreement. In fact, Cristian Turrini repeatedly voiced his disagreement with the idea (and disapproval of the proposed terms of the proposed agreement). This was communicated to Daic, along with the fact that Calypso could not enter into the proposed agreement without Turrini’s consent (i.e., the rest of the board of directors’ consent).
Nevertheless, Daic was somehow able to obtain Richard Pattin’s signature, purportedly on behalf of Calypso, on his proposed agreement.48 Pattin had no right – which he acknowledged49 –
under Calypso’s Bylaws, to purport to execute the 2009 Duress Agreement.50 On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated by him as plaintiff under Fed. R. Civ. P. 25(c).51 In his Motion, Daic claims that he and Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ’923 Patent) under the 2009 Duress Agreement, and, implicitly, that the 2009 Duress Agreement is a valid and enforceable contract.52 Daic purportedly assigned the ASNAP and Baxter Patents (including the ’923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.53
2nd amended complaint filed by Calypso.
==============================================
IV. General Allegations
18. On January 20, 2004, U.S. Patent No. 6,680,923 B1, entitled “Communication
System And Method” (“the ‘923 patent”), was duly and legally issued to inventor Robert Leon. A true and correct copy of the ‘923 patent is attached hereto as Exhibit 1.
19. Calypso is the owner by assignment of the ‘923 patent, with full and exclusive
right to bring suit to enforce it.
20. Daic is a shareholder and creditor of Calypso. Daic and Williamson are owners
by assignment of certain ownership rights in the ‘923 patent.
21. The ‘923 patent relates to Seamless fixed mobile convergence, which allows a
seamless “hand off” between cellular networks and Wireless Local Area Networks.
22. Upon information and belief, T-Mobile has infringed and continues to infringe the
‘923 patent. The infringing acts include, but are not limited to, the manufacture, use, offering for sale, sale and/or importation of software/firmware, hardware, and services embodying the inventions of the Patent-in-suit. T-Mobile is liable for infringement of the ‘923 patent pursuant to 35 U.S.C. § 271.
23. Calypso was founded in 1998, and has, from its inception, been a pioneer in the
field of wireless communications. Calypso’s ground-breaking innovations include the ASNAP technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such Wi-Fi routers. Calypso’s ASNAP technology is protected by a portfolio of patents, including the ‘923 Patent.
24. Calypso has, in the last couple of years, undergone significant changes in leadership, including the replacement of Calypso’s president and CEO, and several members of
Calypso’s board of directors. Prior to April 2008, the company was run by an individual named Carlos Mendoza. Mendoza is no longer with the company.
25. In 2002, Mendoza allegedly entered into one or more agreements with an
individual called Drago Daic. Mendoza and Daic apparently made a series of outlandish
promises to one another involving, among other things, varying numbers of shares of company stock and, allegedly, a promise that Daic could force the United States Patent Office to grant a patent.
26. In 2004, Daic sued Calypso on the basis of one or more of these undocumented
agreements between him and Mendoza (Drago Daic, Curtis Scott Howell d/b/a Tribeca,
Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless, Inc., Carlos Mendoza and David Davila, Cause No. 2004-63048, in the 151st District Court of Harris County, Texas). According to Mendoza, Daic threatened to expose alleged self-dealing by Mendoza if he appeared to try to defend the suit. Mendoza, who has spent time in foreign jails for similar activities, declined to appear, and Daic was able to secure a default judgment in excess of $100 Million against Calypso.
27. In early 2008, a group of Calypso shareholders, bought out Mendoza. Mendoza is
no longer associated with Calypso, and has apparently returned to Latin America. All of
Calypso’s previous officers and directors resigned, and Richard Pattin was named interim
President, CEO, and sole director.
28. In April 2008, under new leadership, Calypso set about trying to clean up the
mess created by Mendoza and Daic. (It was not until June 2009, however, after the return of Cristian Turrini and Dave William’s appointment as President of the company, that Calypso was able to limit Daic’s involvement and interference with the day-to-day affairs of the company.) Under the threat of Daic’s execution of the $100+ Million judgment, Calypso purportedly entered into an agreement (the “2008 Agreement,” a true and correct copy of which is attached hereto as Exhibit 2) under which, among other things, Daic and Williamson took a security interest in the ‘923 Patent in the form of a 25% ownership stake in the patent.
29. The 25% security interest purportedly granted in the 2008 Agreement covered
two categories of intellectual property: the “ASNAP Patents” and the “Baxter Patents.”
30. The ASNAP Patents include, according to the 2008 Agreement, the ‘923 Patent,
U.S. Patent Application Serial No. 11/040,482, and PCT No. PCT/US01/07528, and:
all patents and applications throughout the world that claim priority to, directly or
indirectly, or from which the foregoing claim priority, directly or indirectly; [and]
all substitutions for and divisions, continuations, continuations-in-part, renewals,
reissues, patent cooperation treaty applications, foreign applications, national
phase entries, and extensions of the foregoing patents and applications throughout
the world, and including patent applications and applications throughout the
world for like protection that have now been or may in the future be granted on
the invention disclosed in any of the forgoing patents or applications, including
without limitation, those obtained or permissible under past, present, and future
laws and statutes and ... all right, title, and interest in and to any and all rights and
causes of action based on, arising out of, related to, or on account of past, present,
and future unauthorized use and/or infringement of any and all of the foregoing,
including but not limited to all past, present, and future awards, damages, and
remedies related thereto or arising therefrom.
31. The Baxter Patents include, according to the 2008 Agreement:
United States Patents No. 6,385,306, No. 6,765,996, No. 6,839,412 and No.
7,031,439; [and] all patents and applications throughout the world that claim
priority to (directly or indirectly) the foregoing, or from which the foregoing
claim priority (directly or indirectly); [and] all substitutions for and divisions,
continuations, continuations-in-part, renewals, reissues, patent cooperation treaty
applications, foreign applications, national phase entries, and extensions of the
foregoing patents and applications throughout the world, and including patent
applications and applications throughout the world for like protection that have
now been or may in the future be granted on the invention disclosed in any of the
foregoing patents or applications, including without limitation, those obtained or
permissible under past, present, and future laws and statutes; and ... all right, title,
and interest in and to any and all rights and causes of action based on, arising out
of, related to, or on account of past, present, and future unauthorized use and/or
infringement of the [sic] any and all of the foregoing, including but not limited to
all past, present, and future awards, damages, and remedies related thereto or
arising therefrom.
32. Drago Daic did not comply with his obligations under the 2008 Agreement. He
made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.
33. Daic also refused to join in as plaintiff in the present suit for infringement of the
‘923 Patent. As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.
34. In the spring of 2009, D&W complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented. Daic threatened to enforce his $100+ Million default judgment, to take the ‘923 Patent away from Calypso, along with the other patents in Calypso’s ASNAP portfolio, and to refuse to cooperate in the current suit for patent infringement.
35. Calypso and D&W negotiated throughout the spring of 2009 to attempt to resolve
D&W’s issues. In the end, D&W presented Calypso with a draft of the 2009 Duress Agreement, a true and correct copy of which is attached hereto as Exhibit 3.
36. Calypso proposed several sets of revisions to D&W’s proposed amended
agreement, but each time Calypso was told that D&W would only sign the agreement “as is,” and reminded of the various threats that D&W had made (which are described in a paragraph above).
37. To enter into a contract such as the 2009 Duress Agreement, a majority of Calypso’s board of directors would have had to approve of the terms of the agreement and of Calypso’s entry into the agreement. Daic and Williamson knew this fact, but the board of
directors never gave its approval.
38. There were three individuals on the Calypso board of directors in the spring of
2009: (1) Cristian Turrini, (2) Richard Pattin, and (3) Kathy Daic. Kathy Daic is Drago Daic’s wife. She resigned her board position on April 3, 2009 – the same date as the purported execution of the 2009 Duress Agreement – and did not participate in the board’s consideration of the agreement or the negotiations of the terms of the agreement.
39. Cristian Turrini and Richard Pattin never agreed together that Calypso should
enter into the 2009 Duress Agreement. In fact, Cristian Turrini repeatedly voiced his
disagreement with the idea (and disapproval of the proposed terms of the 2009 Duress
Agreement). This was communicated to D&W, along with the fact that Calypso could not enter into the 2009 Duress Agreement without Turrini’s consent. D&W therefore knew or should have known that there could be no valid 2009 Duress Agreement unless Cristian Turrini consented to Calypso’s entry into the agreement.
40. Although Richard Pattin signed the 2009 Duress Agreement, he did not have an
authority to do so. Calypso’s Bylaws state that as the President, he “shall see that all orders and resolutions of the Board of Directors are carried into effect.” (Article IX, Section 7 of Calypso’s Bylaws). The signing of the 2009 Duress Agreement was never approved by the Board of Directors. In fact, as described above, the board member Cristian Turrini specifically and explicitly instructed Pattin, in writing, not to sign the 2009 Duress Agreement.
41. Among the terms of the 2009 Duress Agreement were several that Daic (as a
shareholder and spouse of a former member of the board of directors) knew would be impossible for Calypso to comply with, including one provision that required Calypso to issue 13.4 Million shares of Calypso stock to Daic within two weeks of the purported execution of the 2009 Duress Agreement.
42. Neither the board of directors nor Richard Pattin had the requisite to authority
issue the 13.4 Million shares without first obtaining shareholder approval (which, of course, was not done). Now that Calypso has not complied (for reasons of impossibility as well as the fact that Calypso never executed or agreed to the 2009 Duress Agreement), Daic is claiming that the 2009 Duress Agreement has been breached, and that he is entitled to foreclose on a security interest in the ‘923 Patent purportedly given to him by the terms of the 2009 Duress Agreement.
43. On November 19, 2009, Daic filed a Motion to Substitute a Party and Temporarily Stay the Case with this Court, asking that the Court substitute a trustee designated
by him as plaintiff under Fed. R. Civ. P. 25(c). In his Motion, Daic claims that he and
Williamson have certain rights vis-à-vis the ASNAP Patents and Baxter Patents (which include the Patent-in-Suit, i.e., the ‘923 Patent) under the 2009 Duress Agreement, and, implicitly, that the 2009 Duress Agreement is a valid and enforceable contract. D&W purportedly assigned the ASNAP and Baxter Patents (which include the ‘923 Patent) to Stephens, who is purportedly acting as trustee, and who is preparing to sell the patents at auction.
44. Actual controversies exist as to the existence, validity, and enforceability of the
2009 Duress Agreement, as well as to D&W’s rights vis-à-vis the ‘923 Patent. These
controversies are ripe for adjudication by this Court.
45. Calypso now therefore seeks declaratory judgment, under Fed. R. Civ. P. 57 and
28 U.S.C. §§ 2201, 2202, that the 2009 Duress Agreement is invalid and unenforceable.
46. Calypso also seeks declaratory judgment, under Fed. R. Civ. P. 57 and 28 U.S.C.
§§ 2201, 2202, that Calypso is the sole title holder of the ’923 Patent.
47. Calypso also seeks a preliminary and permanent injunction to prevent any further
attempts by Daic and Stephens to exercise or act upon Daic’s and Williamson’s alleged rights with respect to or interests in Calypso’s ‘923 Patent, and to prevent Daic from continuing to breach the terms of the 2008 Agreement.
48. Calypso also seeks damages and attorney’s fees relating to D&W’s breaches of
the 2008 Agreement.
49. Calypso also seeks damages for Daic’s tortuous interference with Calypso’s
business relationships and prospective contracts.
Judge issues summons to Williamson, Stephens. Document sealed.
====================================
E-GOV SEALED SUMMONS Issued as to Jimmy Williamson, P.C., Kelly D. Stephens. (Attachments: # (1) Jimmy Williamson)(ehs, )
Judge grants Calypso's leave to file cross-claims against Plaintiff and Cross-Defendant DRAGO DAIC (“Daic”) and third-party claims against JIMMY WILLIAMSON, P.C. (“Williamson”) (Daic and Williamson are referred to collectively herein as “D&W”) and KELLY D. STEPHENS of the Law Offices of Kelly D. Stephens (“Stephens”)(collectively “The Ownership Defendants”.
Calypso was also going to add the Baxter Patents to this but judge said no, stick with just 923 patent for now. This is a big win for Calypso.
==============================
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC. AND §
DRAGO DAIC §
§
vs. § CASE NO. 2:08-CV-441-TJW-CE
§
T-MOBILE USA, INC. §
ORDER
Pending before the court is the plaintiff Calypso Wireless, Inc.’s (“Calypso”) motion for leave to file second amended and supplemental complaint (Dkt. No. 88). The second amended complaint adds cross-claims against the co-plaintiff Drago Daic and third parties Jimmy Williamson, P.C. and Kelly D. Stephens. Calypso’s cross-claims seek a declaratory judgment that Calypso, not Mr. Daic, is the sole owner of several patents, including U.S. Patent No. 6,680,923 (“the ‘923 patent”), which is the patent that the defendant T-Mobile USA, Inc. is accused of infringing.
Calypso’s motion is GRANTED in part and DENIED in part. Calypso may add cross-claims asserting ownership of the ‘923 patent. But Calypso may not bring claims regarding ownership of other patents that the defendant has not allegedly infringed.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§§§§§§§§§§
Case No. 2:08-CV-00441
Jury Demanded
NOTICE OF COMPLIANCE REGARDING DISCLOSURE OF WITNESSES FOR HEARING ON PRELIMINARY INJUNCTION
Plaintiff Calypso Wireless, Inc. (“Calypso”) has complied with the Court’s oral instruction on January 19, 2010 that Calypso disclose to Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens by 12:00 noon on January 21 the names of any witnesses that Calypso may call live at the February 10, 2010 preliminary injunction hearing. Calypso informed counsel for Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens that Calypso may call Cristian Turrini.
Dated: January 21, 2010 Respectfully submitted,
/s/ Paul V. Storm
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Dallas, Texas 75202
Phone: (214) 347-4700
Fax: (214) 347-4799
Case 2:08-cv-00441-TJW-CE Document 99 Filed 01/21/2010 Page 1 of 2
2
CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to
Local Rule CV-5(a)(3). Vernon Lawson, who is counsel for Co-Plaintiff Drago Daic and will
therefore be served via the Court’s CM/ECF system, has indicated that his firm represents both
Jimmy Williamson, P.C. and Kelly D. Stephens. Both will therefore be served as a result of
Calypso’s electronic filing of the foregoing.
/s/ Anthony Miller
Anthony Miller
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC. AND §
DRAGO DAIC §
§
vs. § CASE NO. 2:08-CV-441-TJW-CE
§
T-MOBILE USA, INC. §
ORDER
Pending before the court are the plaintiff Drago Daic’s motions for protective order concerning deposition notices to Drago Daic and Jimmy Williamson, P.C. (Dkt. Nos. 93 & 94). The court held a telephonic hearing regarding these motions on Tuesday, January 19, 2010. The court GRANTS in part and DENIES in part Mr. Daic’s motions. Based upon the motions and arguments of counsel during the hearing, the court orders the following:
C The show cause / preliminary injunction hearing scheduled for Wednesday, January 27, 2010 at 9:00 am is rescheduled for Wednesday, February 10, 2010 at 2:30 pm.
C The plaintiff Calypso Wireless, Inc. (“Calypso”) must identify its hearing witnesses by Thursday, January 21, 2010 at 12:00 pm. Calypso must produce its witnesses for deposition by Tuesday, January 26, 2010 at 5:00 pm.
C The parties opposing the restraining order must identify their hearing witnesses by Monday, January 25, 2010 at 12:00 pm. The parties opposing the restraining order must produce their
witnesses for deposition by Friday, January 29, 2010 at 5:00 pm.
EMERGENCY MOTION FOR CLARIFICATION OF TEMPORARY RESTRAINING ORDER
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§§§§§§§§§§
Case No. 2:08-CV-00441
Expedited Hearing Requested
EMERGENCY MOTION FOR CLARIFICATION OF TEMPORARY RESTRAINING ORDER
On January 13, 2010, Plaintiff Calypso Wireless, Inc. (“Calypso”) moved for, and the Court granted, a temporary restraining order (“TRO”) to prevent Co-Plaintiff Drago Daic, Jimmy Williamson P.C., and Kelly D. Stephens (the “Daic Parties”) from destroying Calypso by auctioning off substantially all of Calypso’s assets.1 Specifically, the Court ordered “that Drago Daic, Jimmy Williamson, P C, and Kelly D. Stephens (in his capacity as purported trustee) … are temporarily restrained and enjoined from proceeding with any sale or auction of the Patentin-Suit … during the pendency of this order.”2 The Court stated, as the reason for granting the TRO, “that the sale of the Patent-in-Suit under these circumstances would leave Calypso with substantially no assets and that the harm suffered is likely to be irreparable.”3
Notwithstanding the issuance of this Court’s TRO, the Daic Parties took the position that they were free to sell all of Calypso’s patents except the specific one that has been asserted in this case.4
The Daic Parties made clear that they intended to proceed to auction all of Calypso’s patents except the ‘923 Patent. Calypso disagreed, but in view of the criticality and timing, Calypso filed for and received at temporary restraining order from a Texas state court in Houston regarding the remainder of the portfolio. The issues governing the rights and responsibilities of
the parties with respect to the ‘923 Patent are identical to the issues regarding those rights with respect to the remainder of the portfolio because they are both governed by the same questions of contract interpretation and questions of fact. Calypso desires to dismiss without prejudice the state court action, but the Daic Parties have made clear that they will sell the entirety of Calypso’s portfolio (except for the ‘923 Patent) if the state court TRO is dissolved, notwithstanding the existence of this Court’s TRO. Calypso seeks clarification, or, if necessary, modification of the Court’s TRO to encompass Calypso’s entire portfolio; not solely the ‘923 Patent.
In contrast to the Daic Parties, Calypso read the Court’s TRO as applying to all of the patents and intellectual property rights (the “Calypso IP”) seized by the Daic Parties, because the
Court’s stated rationale relates directly to the fact that Calypso requested the TRO on the grounds that the Daic Parties had “improperly seized the patent[-in-suit], along with all of
Calypso’s other intellectual property,”5 which “constitutes substantially all of Calypso’s assets,” the sale of which would result in Calypso being “left with nothing, and [having], as a practical matter (owing to the fact that, with no assets, it has no way of securing necessary additional funding), no way to remedy this wrong.” Calypso reasoned that if the Court, after reading Calypso’s motion, concluded “that the sale of the Patent-in-Suit under these circumstances would leave Calypso with substantially no assets and that the harm suffered is likely to be
irreparable,”6 then the logical conclusion is that the TRO applies not just to one of the patents, but to the entire portfolio that “constitutes substantially all of Calypso’s assets.” If this were not the case, the TRO would fail to protect Calypso from the very harm that the Court found to be “irreparable” and “threat[ened] immediately.”7
On the morning of January 14, 2010, however, Calypso contacted the Daic Parties regarding the Daic Parties’ plans, and the Daic Parties indicated that, notwithstanding the Court’s TRO, they intended to proceed with the auction, albeit without the ‘923 Patent. Having been informed that Judge Ward was not in chambers the rest of the week, and concerned that it had one shot at preventing the destruction of the company, Calypso went to state Court that same day (January 14) and, on the morning of the auction (January 15), secured a second TRO preventing the sale of all of the Calypso IP. Acting out of an abundance of caution – which only seemed prudent given the stakes here – Calypso paid an additional $25,000 bond to secure the protection it already thought it had.
As explained above, Calypso believes that the reasonable and logical reading of this Court’s TRO – the only reading under which the TRO would actually provide the relief it purports to grant and prevent the destruction of Calypso – is a reading in which the Daic Parties are barred from proceeding with the auction of all of the Calypso IP, rather than just the ‘923
Patent. Should the Court disagree, however, Calypso respectfully requests that the Court expand the scope of the TRO to cover the entire proposed auction of Calypso’s IP. Doing so would prevent the irreparable and immediate harm (i.e., the “circumstances [that] would leave Calypso with substantially no assets”8) that the Court already found, and make the TRO effective to do what it purports to do (i.e., prevent the destruction of Calypso). It would also prevent a potential conflict in rulings between this Court and the Houston state court, which will be dismissed
without prejudice if this Court grants the relief requested herein.
At the upcoming preliminary injunction hearing, this Court is already set to consider the question of whether the Daic Parties have any right to seize (and try to auction) at least the ‘923
Patent. As explained in Calypso’s original request for the TRO9, the Daic Parties based their claim of right to seize the ‘923 Patent (along with all the rest of the Calypso IP) on a purported
contract – the “2009 Duress Agreement” – the validity and enforceability of which Calypso disputes.10 The 2009 Duress Agreement purports to set out the parties’ rights as to all of
Calypso’s intellectual property. Thus, if the Court makes a determination as to the Daic Parties’ rights to the ‘923 Patent under the 2009 Duress Agreement, the Court will also be making a
determination as to the Daic Parties’ rights as to all of the Calypso IP.
The state court, in considering whether to grant a temporary injunction to enjoin to the Daic Parties from selling the Calypso IP (including the ‘923 Patent), will have to consider the
2009 Duress Agreement, and will make a determination as to the parties’ rights in that patent (which of course, is something of an important issue for purposes of the patent infringement claims against T-Mobile USA, Inc.). The fundamental problem here is that a preliminary injunction would not be “a final judgment on the merits,” and thus any determination the Court makes would therefore not have 8 Court’s TRO at res judicata effect on the state court’s consideration of the same question (or vice versa).
Because this Court’s hearing is now delayed, the parties face a situation11 where we must proceed in two different forums to obtain potentially conflicting and non-preclusive rulings as to
the Daic Parties’ rights under the 2009 Duress Agreement. This could be prevented (in the event that the Court disagrees with Calypso’s reading of its TRO) by expanding the TRO to prevent the
auction of all of Calypso’s intellectual property, which would afford Calypso the protection it needs (a) to survive, while (b) dismissing its state court claims against the Daic Parties. The
alternative is for Calypso and the Daic Parties to proceed with the state court hearing, which may result in a temporary injunction against the Daic Parties, along with a non-preclusive ruling as to the Daic Parties’ rights to all of Calypso’s intellectual property (including the ‘923 Patent) under
the 2009 Duress Agreement, or dismiss the state court proceeding and face the possible sale of most of its patent portfolio.
This situation is a mess. Calypso regrets that it had to seek additional relief in state court. If the Daic Parties had not taken an unreasonable position in the face of a federal TRO enjoining them from proceeding with their auction, going to state court would not have been necessary. As it was, however, Calypso had no choice; the alternative was to lose most its assets. Calypso respectfully requests the Court’s assistance in either (a) clarifying that the January 13, 2010 TRO prevents the sale of Calypso’s entire patent portfolio, or (b) expanding the TRO, if necessary, so that it actually provides the relief it purports to provide.
11 Calypso acknowledges that, but for the fact that Calypso sought a state court TRO, this would not be the case. Calypso respectfully submits, however, that the Daic Parties, with their unreasonable and imprudent reading of the Court’s TRO, are equally at fault. Calypso did not want or think it appropriate to seek relief in state court. If Calypso had thought it appropriate to let a state court deal with questions underlying the current action against Defendant T-Mobile USA, Inc., Calypso would have filed in state court in the first place.
Dated: January 20, 2010 Respectfully submitted,
/s/ Anthony Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
CERTIFICATE OF CONFERENCE
Counsel for Calypso Wireless, Inc. contacted counsel for Drago Daic, Jimmy
Williamson, P.C., and Kelly D. Stephens. Vernon Lawson indicated that they are opposed to this
motion. Counsel for Calypso Wireless, Inc. also contacted counsel for T-Mobile USA, Inc., who
indicated that T-Mobile USA, Inc. is not opposed.
CERTIFICATE OF SERVICE
I hereby certify that on January 20, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via the Court’s CM/ECF system, pursuant to
Local Rule CV-5(a)(3). Vernon Lawson, who is counsel for Co-Plaintiff Drago Daic and will
therefore be served via the Court’s CM/ECF system, has indicated that his firm represents both
Jimmy Williamson, P.C. and Kelly D. Stephens. Both will therefore be served as a result of
Calypso’s electronic filing of the foregoing motion.
/s/ Anthony Miller
Anthony Miller
Case 2:08-cv-00441-TJW-CE Document 98 Filed 01/20/2010 Page 6 of 6
New order signed by judge that extends the temporary restraining order by another 2 weeks in Calypso's favor.
Full docket text for document 96:
ORDER - pursuant to Rule 65(b)(2), the court extends the duration of the temporary restraining order for an additional 14 days. The temporary restraining order will expire on February 10, 2010.. Signed by Judge T. John Ward on 1/20/10. (ehs, )
--------------------------------------------------------------------------------
Daic tries to avoid deposition by Calypso:
PLAINTIFF DAIC’S MOTION FOR PROTECTIVE ORDER CONCERNING
THE DEPOSITION NOTICE TO DRAGO DAIC
Pursuant to Federal Rule of Civil Procedure 26(c)(1), Plaintiff Drago Daic (“Daic”) respectfully requests that the Court enter a protective order protecting Daic from a deposition noticed by Plaintiff Calypso Wireless, Inc.’s (“Calypso”) on the afternoon of
Friday, January 15, 2009, for Tuesday January 20, 2009. laintiff Daic has good cause for this motion and would respectfully show the Court as follows:
(did not copy the rest)
AMENDED NOTICE OF ORAL DEPOSITION OF JIMMY WILLIAMSON, P.C.
To: Jimmy Williamson, P.C., by and through its attorney of record, Guy Matthews, Matthews, Lawson & Bowick, PLLC, 2000 Bering Drive, Suite 700, Houston, Texas 77057
Please take notice that, under Federal Rule of Civil Procedure 30(b)(6), Plaintiff Calypso Wireless, Inc. (“Calypso”) will take the oral deposition of Jimmy Williamson, P.C. beginning on Tuesday, January 19, 2010, starting at 9:00 a.m., at:
711 Louisiana Street, Suite 2010
Pennzoil Place, South Tower
Houston, Texas 77002
Jimmy Williamson P.C. (“Williamson”) is directed to designate a person or persons to testify on its behalf regarding:
1. Williamson’s involvement and/or investment in Calypso;
2. Drago Daic, Curtis Scott Howell d/b/a Tribeca, Champion Classic, Inc. and U.S. Lights, Inc. v. Calypso Wireless, Inc., Carlos Mendoza and David Davila, Cause No. 2004-
63048, in the 151st District Court of Harris County, Texas;
3. The April 3, 2008 Settlement Agreement between Calypso and Drago Daic;
4. The April 3, 2009 Amended and Restated Settlement Agreement between Calypso and Drago Daic;
5. Any alleged breaches by any party of either of the agreements in paragraphs 4 or 5 above;
6. The purported Patent Assignment, attached as Exhibit 12 to the Declaration of Cristian Turrini, filed in support of Calypso’s Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Memorandum in Support;
7. All facts surrounding the public auction that Williamson and/or Kelly D. Stephens intended to conduct on January 15, 2010, as described in the Notification of Public Disposition of Intellectual Property (Non-Consumer Transaction) attached as Exhibit 13 to the Declaration of Cristian Turrini, filed in support of Calypso’s Emergency Motion for Temporary Restraining
Order and Preliminary Injunction and Memorandum in Support.
Under Federal Rules of Civil Procedure 30(b)(5) and 34, Williamson is requested to produce any and all documents in its possession relating to any of the above topics, as well as
any and all documents that it intends to rely on in the January 29, 2010 hearing before Judge Ward.
The deposition will be taken before a court reporter, and will continue from day-to-day until complete.
Dated: January 15, 2010 Respectfully submitted,
/s/ Anthony Miller
Paul V. Storm (lead counsel)
paulstorm@stormllp.com
State Bar No. 19325350
Anthony P. Miller
amiller@stormllp.com
State Bar No. 24041484
Michael Leach
mleach@stormllp.com
State Bar No. 24065598
Storm LLP
901 Main Street, Suite 7100
Phone: 214-347-4700
Fax: 214-347-4799
CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2010, I caused a true and correct copy of the
foregoing to be served on all counsel of record via e-mail.
/s/ Anthony Miller
Anthony Miller
Jimmy Williamson tried to avoid deposition by Calypso:
MOTION FOR PROTECTIVE ORDER CONCERNING
THE DEPOSITION NOTICE TO JIMMY WILLIAMSON, P.C.
Pursuant to Federal Rule of Civil Procedure 26(c)(1), Jimmy Williamson, P.C. (“JWPC”) respectfully requests that the Court enter an order protecting JWPC from Plaintiff Calypso Wireless, Inc.’s (“Calypso”) deposition notice issued on the afternoon
of January 15, 2010 and setting a deposition for January 19, 2010 at 9:00 a.m. JWPC has good cause for this motion and would respectfully show the Court as follows:
(did not copy & paste the rest)
Daic hires another lawyer to help represent him in T-Mobil case:
CALYPSO WIRELESS, INC. & §
DRAGO DAIC, §
§
Plaintiffs-Counterclaim Defendants, §
§
v. § Cause No. 2:08cv00441-TJW-CE
§
T-MOBILE USA, INC., § Jury Trial Demanded
§
Defendant-Counterclaim Plaintiff. §
NOTICE OF APPEARANCE OF ASSOCIATE COUNSEL
TO THE HONORABLE COURT:
DRAGO DAIC (“DAIC”) files this Notice of Appearance of Counsel and shows:
1. DAIC desires to designate Andy Tindel of the ProvostUmphrey Law Firm, L.L.P., as Associate Counsel for DAIC in the above referenced civil action.
2. Andy Tindel is a member in good standing of the bar of the United States District Court for the Eastern District of Texas. The information required by E. Dist. Tex. Loc. Ct. R. CV-11 for Associate Counsel is as follows:
ANDY TINDEL
State Bar No. 20054500
ProvostUmphrey Law Firm, L.L.P.
112 East Line Street, Suite 304
Tyler, Texas 75702
Tel: (903) 596-0900
Fax: (903) 596-0909
Email: atindel@andytindel.com
All notices, orders or other filings concerning the above referenced civil action may be delivered to Andy Tindel at the above address.
3. Vernon Lawson will remain as Lead Attorney for DAIC.
PREMISES CONSIDERED, DRAGO DAIC, requests the Court to take notice of the appearance of Andy Tindel as an Associate Counsel for DAIC in the above referenced civil action.
Dated: January 19, 2010
Respectfully submitted,
ANDY TINDEL
State Bar No. 20054500
PROVOSTUMPHREY LAW FIRM, L. L. P.
112 East Line Street, Suite 304
Tyler, Texas 75702
Tel: (903) 596-0900
Fax: (903) 596-0909
Email: atindel@andytindel.com
ASSOCIATE COUNSEL FOR
DRAGO DAIC
8K:
ITEM 8.01 - OTHER ITEMS.
As previously reported in the Company's last 8K on December 24, 2009, the Company has taken steps to halt the actions of Drago Daic et al in their attempts to take the Company's intellectual property. This has resulted in Temporary Restraining Orders (TRO) being issued against Daic, Williamson and their "Receiver", Kelly Stephens. On 1/14/2010, the Eastern District of Texas Federal Court issued a TRO stopping these actions on the '923 patent until 1/27/2010, at which time a hearing will be held to decide if further Court Restraints are warranted. On 1/15/2010, the Superior Court of Harris County, Texas issued a TRO stopping the actions on the remainder of the patents until 1/29/2010, at which time a hearing will be held to decide if further restraints are warranted.
The Company has also asked the court to allow Calypso to file an Amended Complaint joining Williamson and Stephens as parties to the T-Mobile lawsuit and making various claims against them. Shareholders interested in reviewing the progress of the court filings are again advised that updated information is immediately available from the Pacer website for a nominal charge. Any further questions should be directed to the Company and not the Company's Lawfirm. The possibility that unsolicited callers may in fact represent the Company's opponents in action prohibits our attorneys from discussing these matters in this manner.
http://investorshub.advfn.com/boards/read_msg.aspx?message_id=45466709
Sosa has a link to all the files
Bond has been posted
=======================
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§§§§§§§§§§
Case No. 2:08-CV-00441
PLAINTIFF CALYPSO WIRELESS, INC.’S NOTICE OF COMPLIANCE
Plaintiff Calypso Wireless, Inc. hereby files this notice to inform the Court that on this 14th day of January, 2010, in accordance with the terms of the Temporary Restraining Order
issued in this action on January 13, 2010 (ECF Doc. No. 91), it posted with the Eastern District of Texas the $50,000.00 bond required to render the Court’s Order (ECF Doc. No. 91) effective.
Attached hereto as Exhibits A and B, respectively, are true and correct copies of Receipt for Payment No. 8-2-0000180, as issued by the Clerk of the Eastern District of Texas in regard to the posting of the above-referenced bond, and the Temporary Restraining Order (ECF Doc. No. 91) issued January 13, 2010 in this action.