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Judge grants temporary restraining order
===================================
TEMPORARY RESTRAINING ORDER
It appearing to the court from the evidence submitted that the plaintiff, Calypso Wireless,Inc, is facing an immediate threat of irreparable harm arising hom the pending sale of the Patent-inSuit
on Friday, January 15, 2009, it is ORDERED that Drago Daic, Jimmy Williamson, PC, and Kelly D Stephens (in his capacity as purported tlUstee), together with their officers, agents, servants,employees, attorneys, and all other persons in active concert or participation with them, are temporarily restrained and enjoined from proceeding with any sale or auction of the Patent-in-Suit on Friday, January 15, 2010, or any other time during the pendency of this order The court finds that the sale ofthe Patent-in-Suit under these circumstances would leave Calypso with substantially no assets and that the harm suffered is likely to be irreparable. It is further found that the threat is immediate
This order shall expire on January 27,2010, unless extended by the court for good cause. The court orders that Drago Daic, Jimmy Williamson, P C, and Kelly D Stephens (in his capacity as purported trustee), to appear before the court in Marshall, Texas on Wednesday, January 27,2010, at 9:00 a.m. before the Hon Charles Everingham, United States Magistrate Judge, to show
cause why the court should not issue a preliminary injunction enjoining the sale of the Patent-in-Suit, during the pendency of this case.
The court finds that a bond in the amount of $50,000 is appropriate in this case. This order will be effective upon the posting of the bond.
So ORDERED and SIGNED this 13th day of January, 2010, at 3:57pm -
T JOHN WARD
UNITED TATES DISTRICT JUDGE
Today Calypso filed for a temporary restraining order to stop the proposed sale of the patent by Daic. After reading thru the entire filing (291 pages with exhibits), the judge will of course grant it. Along with filing for the TRO, Calypso is also going to file cross-claims against Daic and 3rd party claims against Williamson and Stephens.
I have posted the first filing which is just the brief. =================================================
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. § Expedited Hearing Requested
§
T-Mobile USA, Inc. §
§
Defendant. §
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
*** Plaintiff Calypso Wireless, Inc. respectfully requests an expedited hearing to prevent the sale of the Patent-in-Suit on Friday, January 15.*** Plaintiff Calypso Wireless, Inc. (“Calypso”) requests that the Court stop Co-Plaintiff Drago Daic from selling the Patent-in-Suit. Mr. Daic (with the help of his partner Jimmy Williamson, P.C. and purported trustee Kelly D. Stephens1) has improperly seized the patent, along with all of Calypso’s other intellectual property, claiming that he has the right to do so under a purported contract with Calypso.2 As explained below, the purported contract is not a valid or enforceable agreement, and Mr. Daic had no right to seize Calypso’s intellectual property. The intellectual property constitutes substantially all of Calypso’s assets. If Mr. Daic is successful in conducting his sale, Calypso will be left with nothing, and will have, 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.
1 Calypso is also filing today a Motion for Leave to File Second Amended and Supplemental Complaint in which Calypso seeks to add cross-claims against Co-Plaintiff Daic and third-party claims against Jimmy Williamson,
P.C. and Kelly D. Stephens). 2 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
Calypso therefore respectfully requests, pursuant to Fed. R. Civ. P. 65(b), that the Court issue a temporary restraining order (a) enjoining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens (in his capacity as purported trustee) from proceeding with any sale or auction of the Patent-in-Suit, along with the ASNAP patents and Baxter patents and technology3, (b) revoking the purported assignment of the Patent-in-Suit (and the other ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s, Williamson’s, and Stephens’ rights and interests in the Patent-in-Suit and other relevant intellectual property, and, in the alternative, (c) prohibiting Daic and Williamson from purchasing or offering to purchase the ASNAP and Baxter patents, in whole or in part from Stephens or any other party.
Absent immediate intervention by the Court, Daic, Williamson, and Stephens will proceed to sell Calypso’s 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 further seeks an expedited preliminary injunction hearing on these same grounds, and, to that end, requests that the Court (a) set a date for a hearing on Calypso’s request for a preliminary injunction, (b) allow Calypso to conduct expedited written and oral discovery, including depositions of Drago Daic, Jimmy Williamson, P.C., and Kelly D. Stephens, and (c)
3 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482, as set out in the 2008 Agreement and the 2009 Non-Agreement. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
order, under Rule 65(b), Drago Daic, Jimmy Williamson, P.C., and Kelley Stephens to appear at the earliest possible time to show cause why a preliminary injunction should not be granted.
I. Brief in Support of Calypso’s Request for Temporary Injunction
A. Introduction
A temporary restraining order (“TRO”) is appropriate where it is necessary to preserve the status quo and to prevent irreparable harm that would otherwise occur before there is time to adjudicate the underlying dispute.4 To prevail, the applicant must demonstrate (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the Defendant; and (4) that the injunction will not disserve the public interest.5 Here, Daic, Williamson, and Stephens have “foreclosed” on Calypso’s entire technology portfolio, assigned it to Stephens as trustee, and are threatening to sell it at auction on January 15, 2010.6 They have no right to do any of this, and are acting pursuant to an alleged contract (the “2009 Non-Agreement”7) that was never agreed to or executed by Calypso’s board of directors.
There is a substantial likelihood that Calypso will prevail because the evidence that there was never any “acceptance, ... meeting of the minds, ... consent to the terms, [or] execution and
4 Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S. Ct. 1113, 39 L. Ed. 2d 435 (1974).
5 See Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir. 1999) (citations omitted); see also Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987).
6 See Turrini Decl., Ex. 1, Notification of Public Disposition of Intellectual Property, dated November 25, 2009.
7 See Turrini Decl., Ex. 2, Amended and Restated Settlement Agreement, dated April 3, 2009 (the “2009 Non-Agreement”).
delivery”8 of the 2009 Non-Agreement is incontrovertible.9 Calypso can show that there is a substantial threat of irreparable injury first because the value of the issued and yet-to-be-issued ASNAP and Baxter Patents – one of which is currently asserted against T-Mobile, and all of which will likely be licensed or the subject of patent litigation in the future – is not something that can be easily predicted or determined,10 and because, without these patents, Calypso would have no business at all.11 Finally, the harm to Daic, Williams, and Stephens of having to wait on the outcome of a hearing on a preliminary injunction to conduct their intended auction pales in comparison to the harm that would befall Calypso if they were allowed to misappropriate and sell all of Calypso’s assets, and the public interest is not disserved by preventing the misappropriation of an entire technology portfolio.
B. Factual Background
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications.12 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.13
8 See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (setting out the elements of contract formation in Texas) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
9 See Turrini Decl., ¶¶ 12-13.
10 See Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (economic harm a valid basis of assertion of irreparably harm where value determination would be speculative) (citing Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom. Claiborne Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)).
11 See id.
12 Turrini Decl., ¶ 4.
13 Id.
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.14 At least, Calypso would be, but for the fact that Daic, Williamson, and Stephens misappropriated all of Calypso’s intellectual property.
In 2004, Daic sued Calypso15 on the basis of one or more undocumented agreements between him and Carlos Mendoza, who ran Calypso at the time.16 Under suspicious circumstances, Drago was able to secure a default judgment in excess of $100 Million against Calypso.17 Under the threat of Daic’s execution of the $100+ Million judgment, Calypso entered into an agreement with Daic and Williamson – the 2008 Agreement18 – 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 ASNAP Patents and the Baxter Patents, which constitute Calypso’s entire technology and intellectual property portfolio.19
Drago Daic did not comply with his obligations under the 2008 Agreement.20 In fact, 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.21 Daic also refused to join in as plaintiff in the present suit for
14 Id. 15 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. 16 Turrini Decl., ¶ 5. 17 Id. 18 See generally, Turrini Decl., Ex. 3. 19 See Note 2 supra. 20 Turrini Decl., ¶ 17.
21 Id.
infringement of the ‘923 Patent.22 As part (25%) owner of the ‘923 Patent, Daic was a necessary party to the suit.23
In the spring of 2009, Daic 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.24 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.25
Calypso and Daic negotiated throughout the spring of 2009 to attempt to resolve Daic’s issues.26 In the end, Daic presented Calypso with a draft of an “Amended and Restated Settlement Agreement,” along with an ultimatum: sign or else.27 Calypso proposed several sets of revisions to Daic’s proposed amended agreement, but each time Calypso was told that Daic would only sign the agreement “as is.”28
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.29 This never happened.30 There were three individuals on the Calypso board of directors in the spring of 2009: (1) Cristian Turrini, (2) Richard Pattin, and
22 Id. 23 See Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1466-67 (Fed. Cir. 1998); see also 35 U.S.C. §§ 116,
261, 262. 24 Turrini Decl., ¶ 16. 25 Id. 26 Turrini Decl., ¶ 9-13. 27 Id., ¶ 9. 28 Id., ¶ 10, 15. 29 See 8 Del. Laws § 271; Turrini Decl., ¶ 13. 30 Turrini Decl., ¶ 12.
(3) Kathy Daic.31 Kathy Daic is Drago Daic’s wife.\32 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.33
Cristian Turrini and Richard Pattin never agreed together that Calypso should enter into Daic’s proposed agreement.34 In fact, Cristian Turrini repeatedly voiced his disagreement with the idea (and disapproval of the proposed terms of the proposed agreement).35 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).36 Nevertheless, Daic was somehow able to obtain Richard Pattin’s signature, purportedly on behalf of Calypso, on his proposed agreement.37 Pattin had no right, under Calypso’s Bylaws, to purport to execute the 2009 Non-Agreement.38
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).39 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 Non-Agreement, and, implicitly, that the 2009 Non-Agreement is a
31 Id., ¶ 8.
32 Id. 33 Id., ¶ 9. 34 Id., ¶ 7, 9-12. 35 Id.
36 Id., ¶ 7. 37 See generally, Turrini Decl., Ex. 2, 2009 Non-Agreement. 38 See Turrini Decl., ¶¶ 7, 12, Ex. 10, Corporate Bylaws of Calypso Wireless, Inc., ¶ 7. 39 See Daic’s Motion to Substitute a Party and Temporarily Stay the Case, filed Nov. 19, 2009 (Docket No. 57).
valid and enforceable contract.40 Daic 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.41
On November 25, 2009, Calypso received a “Notification of Public Disposition of Intellectual Property (Non-Consumer Transaction)” (the “Notice”) which lists Stephens as the authorized representative of Daic and Williamson.42 The Notice states that “Kelly D. Stephens, as trustee and the owner of all right, title and interest” in the ASNAP and Baxter Patents, and that Stephens plans to sell the ASNAP and Baxter Patents at 12:00 noon on Friday, December 18, 2009.43
C. Legal Authorities and Argument
1. There is a Substantial Likelihood that Calypso Will Prevail on the Merits.
There is a substantial likelihood that Calypso will prevail because there is incontrovertible evidence that the 2009 Non-Agreement – the purported contract upon which Daic and Williamson base their claims to the ASNAP and Baxter Patents – is invalid and unenforceable. “The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding.”44 As described above, the consent of
40 Id.
41 Id., ¶ Ex. 13, Amended Notification of Public Disposition of Intellectual Property (“Notice”), dated Dec. 11, 2009.
42 Id., ¶ Ex. 1, Notification of Public Disposition of Intellectual Property (“Amended Notice”), dated Nov. 25, 2009.
43 See Id., ¶ Ex. 13, Amended Notice, dated Dec. 11, 2009.
44 Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also Bocchi Ams. Assocs. v. Commerce Fresh Mktg., 515 F.3d 383, 392 (5th Cir. 2008) (“To evidence an agreement, the writings must satisfy all the elements of contract formation under Texas law: offer, acceptance, and a ‘meeting of the minds.’”) (citing Prime Prods, Inc., 97 S.W.3d at 636).
Calypso’s board of directors would have been required to enter into the 2009 Non-Agreement. Cristian Turrini – one of two members of the board at the time – did not consent and, to the contrary, expressed his lack of agreement to the terms and his lack of consent to entry into the contract. In fact, the evidence shows that Daic (or his representatives) were informed that Calypso did not accept the terms of the 2009 Non-Agreement, and that Mr. Pattin could not accept without board approval, which he did not have.45 There can be no meeting of the minds where one party (Calypso) does not and is in fact unable to consent, and the other parties (Daic and Williamson) know this.
Here, Daic’s and Williamson’s claims as to the ASNAP and Baxter Patents are based solely and entirely on the 2009 Non-Agreement.46 The actual agreement between Calypso, Daic, and Williamson – the 2008 Agreement – gave Daic and Williamson an undivided 25% stake in the patents; not an executable security interest. Because their purported security interest is based on the 2009 Non-Agreement, and because the 2009 Non-Agreement is invalid, Daic and Williamson therefore have no right to foreclose on the ASNAP and Baxter Patents.
2. Calypso Will Be Harmed Irreparably Absent Relief from the Court.
As a general matter, under Fifth Circuit law, an irreparable injury is one that cannot be remedied by an award of economic damages.47 There are exceptions, however, where “establishment of the dollar value of the loss … especially difficult or speculative,”48 and where
45 See Turrini Decl., ¶¶ 10-13. 46 See id., Ex. 1, Notice, at 1; see also, generally Daic’s Motion to Substitute a Party and Temporarily Stay the Case,
filed Nov. 19, 2009 (Docket No. 57). 47 Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). 48 Mississippi Power & Light, 760 F.2d at 630 n. 12 (citing State of Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179
(5th Cir. 1975)).
denying the injunction “‘would have entailed the virtual disappearance of’ the plaintiff ‘as functional entity.’”49 Both of these exceptions apply here.
The terms “ASNAP Patents” and “Baxter Patents” include a number of different patents, some of which are foreign, some of which are domestic.50 Some of the ASNAP and Baxter Patents have yet to issue, and in some cases, the terms refer simply to facets of the wireless technology that Calypso developed.51 The technology covered by the ASNAP and Baxter Patents is, in light of the practically-viral proliferation and exponential growth of Wi-Fi and Blue Tooth, poised to be a very big deal.52 Companies like T-Mobile already use the technology to allow their customers to transition seamlessly, while using a cell phone, from one wireless network to another.53 Calypso has, of course, attempted at times to put a value on its technology and its patents, but given (1) the sheer number of different patents and pending applications in different jurisdictions, (2) the potential to exploit these patents via product development, licensing, and, if necessary, patent litigation, and (3) the complex and various ways that Daic himself has attempted to assign a value to the ASNAP and Baxter Patents,54 trying to ascertain the value of everything that Daic, Williamson, and Stephens have misappropriated from Calypso; trying to assign a number to the value that the ASNAP and Baxter Patents represent to Calypso now and in the future, would be a highly speculative exercise.
49 Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 630 n. 12 (5th Cir. Miss. 1985) (citing
Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 305 (5th Cir.1979), cert. denied sub nom., Claiborne
Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980)). 50 See Turrini Decl., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement. 51 See id. 52 See Turrini Decl., ¶ 4. 53 See id. 54 See id., Ex. 2, 2008 Agreement, Ex. 3, 2009 Non-Agreement.
The result of such speculation – whatever it would be – is bound to be high, if only because Daic was willing to forgo collecting on a $100 Million default judgment in exchange for just a 25% stake in the ASNAP and Baxter Patents.55 The consequences to Calypso of losing the ASNAP and Baxter Patents would be, in a word, devastating.56 In fact, Calypso has no other patent portfolio, no other technology, and no other assets to fall back on.57 If the ASNAP and Baxter Patents go, then so does Calypso.
It is clear then that if the Court does not grant any injunctive relief, Calypso will be injured, and that the injury will be irreparable.
3. Calypso Has No Adequate Remedy at Law.
If the Court denies the relief Calypso seeks, Calypso will not have an adequate remedy to redress the resulting harm. First, Calypso would have to file suit against Daic, Williamson, Stephens, and any purported successors in interest of the ASNAP and Baxter patents. This alone satisfies the “no adequate remedy” requirement.58 More practically, if Calypso no longer has the ASNAP and Baxter patents, Calypso will have no means of securing any income or funding of any sort, which means it will have no way of pursuing anyone, let alone third parties who purport to purchase the patents. Any “remedy” that is practically impossible to obtain cannot qualify as “adequate.”59 Finally, as discussed above, the harm that would occur would be the destruction of Calypso, along with the investments of all its shareholders, and the future value of Calypso and potential return on the shareholders’ investments. Calypso has no adequate remedy at law
55 See id., Ex. 3, 2008 Agreement at 3. 56 See id., ¶ 14. 57 See id. 58 See, e.g., Wilson v. Illinois S. Ry., 263 U.S. 574, 576-77 (1924). 59 See, e.g., Communications Workers of Am. v. Verizon Communs., Inc., 255 F. Supp. 2d 479, 485 (E.D. Pa. 2003).
because it would be difficult, if not impossible, to determine the monetary value of these damages.60 what the value of that destruction would be.
4. The Balance of Hardships Favors Calypso.
If the Court temporarily restrains Daic, Williamson, and Stephens from going forward with the sale of the ASNAP and Baxter Patents, they will have to wait a matter of weeks until the Court is able to hear Calypso’s Motion for a Preliminary Injunction. If the Court does not restrain Daic, Williamson, and Stephens, Calypso will be forced to drop the current litigation, and close its doors. The balance of these two potential hardships favors Calypso.
5. Granting a TRO Will Not Disserve the Public Interest.
The closest thing to a legitimate public interest in this situation is the interest of all of Calypso’s shareholders. Granting the TRO will not harm these members of the public. Denying it, however, would deprive them of any opportunity to recoup their investment in Calypso.
II. Conclusion & Prayer
For all of the foregoing reasons, Plaintiff Calypso Wireless, Inc. respectfully requests, pursuant to Fed. R. Civ. P. 65, that the Court grant the foregoing Motion and issue:
1. An order temporarily restraining Co-Plaintiff Drago Daic and Third-Party Defendants Jimmy Williamson, P.C. (“Williamson”) and Kelly D. Stephens from proceeding with the auction and sale of the Patent-in-Suit61, along with the ASNAP patents and Baxter patents and technology62;
60 See, e.g., Winston v. General Drivers, Warehousemen & Helpers Local Un., 879 F.Supp. 719, 725 (W.D.Ky. 1995).
61 U.S. Patent No. 6,680,923.
62 The terms “ASNAP Patents” and “Baxter Patents” as used herein refer to patents, patent applications, and related materials and technologies, including the Patent-in-Suit, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482. True and correct copies of the 2008 Agreement and the 2009 Non-Agreement are attached as Exhibits 2 and 3 to the Declaration of Cristian Turrini (“Turrini Decl.”), which is attached hereto as Exhibit A and hereby incorporated by reference.
2. An order revoking the purported assignment of the Patent-in-Suit (and the other
ASNAP patents and Baxter patents) by Daic and Williamson to Stephens until the Court fully
adjudicates the merits of Calypso’s disputes with Daic and Stephens as to Calypso’s, Daic’s,
Williamson’s, and Stephens’ rights and interest in the Patent-in-Suit and other relevant
intellectual property; and
3. In the alternative, an order prohibiting Daic and Williamson from purchasing or
offering to purchase the ASNAP and Baxter patents, in whole or in part, from Stephens or any
other party.
Dated: January 13, 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 13, 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/ Anthony Miller Anthony Miller
Nevermind. The trustee was to take the place of Calypso in the T-mobile case. That has been withdrawn. The sale of the patent by Drago is another matter. If somehow Pattin gave Drago the right to sell the patent in that bogus agreement he signed, then we have another battle to fight, but Pattin did not have BOD authority to sign it in the first place as you can see in the email trails.
Read the filing I posted where Drago rescinded his motion to substitute a trustee for Calypso in order to sell the patent.
Remember Drago's filing of a motion to subsitute his buddy in place of Calypso and stay the case until he could sell the patent?
Well today he withdrew that motion. Pretty fast crawfishing, wonder why?
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.
§
§
§
PLAINTIFF DRAGO DAIC’S NOTICE OF WITHDRAWAL OF MOTION
Please take notice that Plaintiff Drago Daic (“Daic”) hereby withdraws Daic’s Motion to Substitute a Party and Temporarily stay the Case, filed herein on November 19, 2009 (Doc. No. 57).
Dated: December 10, 2009 Respectfully submitted,
/s Timothy W. Johnson s/
Guy E. Matthews (lead counsel)
State Bar No. 13207000
Timothy W. Johnson
State Bar No. 24002366
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
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. §
CALYPSO’S RESPONSE TO T-MOBILE’S MOTION TO STRIKE AND MOTION FOR LEAVE TO FILE ANSWER TO COUNTERCLAIMS
Comes now Plaintiff Calypso Wireless, Inc. (“Calypso”) and files this Response to Defendant T-Mobile USA, Inc.’s (“T-Mobile”) Opposed Motion to Strike Plaintiffs’ Answers to T-Mobile’s Counterclaims (“Motion to Strike”) and Motion for Leave to File Answer to Counterclaims, and would respectfully show the Court the following:
I. Introduction
T-Mobile’s Motion to Strike should be denied, and Calypso’s Motion for Leave should granted, because (1) Calypso’s delay in filing its Answer to T-Mobile’s Counterclaims was the result of excusable neglect, (2) T-Mobile’s Motion to Strike is pointless and moot (because the questions of infringement, validity, and enforceability would remain at issue regardless), and (3) T-Mobile has shown no actual prejudice.
On November 13, 2008, Calypso sued T-Mobile for infringement of U.S. Patent No. 6,680,923 (the “‘923 Patent”). Five months later, on April 6, 2009, T-Mobile filed an Answer in which T-Mobile plead the defenses of (1) non-infringement, (2) invalidity, and (3) unenforceability.1 T-Mobile also plead counterclaims for (1) non-infringement, (2) invalidity, and (3) unenforceability.2 Five months after that, on September 22, 2009, Calypso and Plaintiff Drago Daic (“Daic”) filed answers to T-Mobile’s Counterclaims.3 Another two months passed, and T-Mobile filed the present Motion to Strike in which it asks that the Court to strike Calypso’s Answer. T-Mobile does not seek (a) to have either of Calypso’s original or amended Complaints struck, or (b) default judgment on any of its (T-Mobile’s) counterclaims. It is not clear what practical impact granting T-Mobile’s Motion to Strike would have, given that these same issues – i.e., infringement, validity, and enforceability of the ‘923 Patent – would remain in dispute regardless. Nor is it clear what harm T-Mobile believes it has suffered, or why it took two months for T-Mobile to move to strike Calypso’s Answer.
Calypso does not deny that it did not file its Answer to T-Mobile’s counterclaims in a timely manner, or that, when it did file an Answer, it did so without seeking leave of the Court. As explained below, however, Calypso’s delay was the result of a simple, good-faith mistake of its then-attorney, Mr. Edwin A. Easterby. This kind of mistake is precisely the sort of thing that the Supreme Court has held (in the lead case cited by T-Mobile, no less) constitutes “excusable neglect.” Given this fact and the lack of any actual prejudice to T-Mobile, Calypso respectfully submits that the Court should deny T-Mobile’s Motion to Strike, and grant retroactive leave to Calypso with respect to its Answer.
1 See Docket No. 15, ¶¶ 12-15, 17-40.
2 See id., ¶¶ 7-14.
3 See Calypso’s Answer to T-Mobile USA, Inc.’s Countercliams [sic] (“Calypso’s Answer”), September 22, 2009 (Docket No. 47); Drago Daic’s Answer to T-Mobile USA, Inc.’s Countercliams [sic] (“Drago’s Answer”), September 22, 2009 (Docket No. 46).Docket No. 47. T-Mobile also asks the Court to strike Co-Plaintiff Drago Daic’s Answer to T-Mobile USA, Inc.’s Counterclaims (Docket No. 48). Calypso and Mr. Daic are no longer represented by the same counsel, and this Response is made only with respect to Calypso’s Answer. Calypso respectfully submits, however, that the reasoning in this Response applies equally to Daic’s Answer, and that the Court should deny T-Mobile’s Motion to Strike with respect to Daic’s Answer as well.
Calypso further submits that the Court should deny T-Mobile’s Motion to Strike (1) because T-Mobile has not suffered any harm, and (2) because, even if T-Mobile had requested (or plans at some point in the future to request) default judgment on the issues of infringement, validity, and enforceability, the proper course would not be to allow T-Mobile to take advantage of a procedural rule to win the case, but rather to allow the Parties to resolve this case on the merits.
II. Arguments and Authorities
The decision to grant or deny a motion to strike is vested in the trial judge’s sound discretion.4 “Courts generally disfavor motions to strike, however, because they propose a drastic remedy.”5 “While Rule 37(c)(1) allows striking of a defendants answer in appropriate circumstances, so Draconian a sanction should be sparingly applied, since it abrogates the search for truth on the merits.”6 Calypso respectfully submits that, for the following reasons, the Court should deny T-Mobile’s Motion to Strike, and grant Calypso’s Motion for Leave.
A. Calypso’s Delay in Filing an Answer Was the Result of Excusable Neglect.
T-Mobile argues that Calypso cannot make a showing of excusable neglect. That is not correct. In T-Mobile’s lead-off case on the question of excusable neglect – Pioneer Inv. Servs. Co. v. Brunswick Associates.7 – a bankruptcy court found no excusable neglect where a party failed to file a claim in a bankruptcy proceeding because of an attorney’s error.8 The Court of
4 Canady, 307 F. Supp. 2d at 7-8 (D.D.C. 2004) (citing Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 66465 (7th Cir. 1992)); see also Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988).
5 Id. (citing Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty., Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981)); see also Wright & Miller, Federal Practice and Procedure, 5C FED. PRAC. & PROC. 2d § 1380 at 783; Morse v. Weingarten, 777 F. Supp. 312, 319 (S.D.N.Y. 1991); Mirshak v. Joyce, 652 F. Supp. 359, 370 (N.D. Ill. 1987); Schramm v. Krischell, 84 F.R.D. 294, 299 (D. Conn. 1979).
6 Starter Corp. v. Converse, Inc., Case No. 95 Civ. 3678, 1996 U.S. Dist. LEXIS 17892, *9 (S.D.N.Y. Dec. 2, 1996) (unpublished decision).
7 507 U.S. 380, 394 (1993).
8 See In re Pioneer Inv. Servs. Co., 943 F.2d 673, 677 (6th Cir. 1991), aff’d, 507 U.S. 380 (1993).
Appeals for the Sixth Circuit found that the bankruptcy court “inappropriately penalized the plaintiffs for the errors of their counsel,” and reasoned that, “absent prejudice to the plaintiff or culpable conduct on the part of the defendant, the policy of hearing claims on the merits weighs in favor of allowing the claims to go forward.”9 The Court of Appeals also noted that “‘[d]efault judgments should not be used to discipline attorneys; it is the client who suffers by being deprived of his day in court.’”10 The Supreme Court – in the particular case opinion cited by T-Mobile – upheld the Court of Appeals’ ruling, reasoning that “‘excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence,” and that “the lack of any prejudice to the debtor or to the interests of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh strongly in favor of permitting the tardy claim.”11 The Supreme Court noted that, “n assessing what constitutes ‘excusable neglect’ under Rule 13(f), the lower courts have looked, inter alia, to the good faith of the claimant, the extent of the delay, and the danger of prejudice to the opposing party.”12
Here, Calypso failed to file a timely answer to T-Mobile’s Counterclaims because its attorney – Mr. Edwin A. Easterby – mistakenly believed that the draft answer he prepared had been filed.13 Mr. Easterby explains in his Declaration that he prepared a draft of the answer14, gave it to his legal assistant, and thereafter labored under the good-faith assumption that his legal
9 Id. at 678. 10 In re Pioneer, 943 F.2d at 678 (quoting INVST Financial Group Inc. v. Chem Nuclear Systems, Inc., 815 F.2d
391, 398-99 (6th Cir.), cert. denied, Garratt v. INVST Financial Group Inc., 484 U.S. 927 (1987) 11 Pioneer, 507 U.S. at 394. 12 Id. at 392. 13 See Declaration of Edwin A. Easterby (“Easterby Decl.”), attached hereto as Exhibit A. 14 The draft Answer was apparently for Calypso and Diac together.
assistant filed it.15 Mr. Easterby disputes any suggestion that he was aware that the answer did not actually get filed, and explains that he attended the status conference on July 28, 2009 and conferred with counsel for T-Mobile numerous times over the summer of 2009, and counsel for T-Mobile never said a thing.16 Mr. Easterby had no idea that the Answer was not filed until September 22, 2009 – the date of the Court’s hearing on Williams Kherkher’s Motion to Withdraw.17 Mr. Easterby filed Answers for Calypso and Daic that same day.18
This case thus involves the same sort of circumstances found by the Supreme Court to constitute “excusable neglect” in the very case that T-Mobile cites. T-Mobile has not shown that it suffered any actual prejudice (How could it, when the questions of infringement, validity, and enforceability are already in dispute per Calypso’s live Complaint and T-Mobile’s Answer?), and the time it took Calypso to get an answer on file (five months) is just the same as the time it took for T-Mobile to file its answer (five months).19 “[T]he determination [of when an excuse is acceptable] is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”20 Calypso respectfully requests that the Court not grant this “drastic remedy”21 to T-Mobile; that the Court not impose “so Draconian a sanction,” thereby
15 See Easterby Decl., ¶ 2.
16 See id., ¶¶ 3-5.
17 See Easterby Decl., ¶ 3.
18 See Calypso’s Answer (Docket No. 47); Daic’s Answer (Docket No. 46).
19 Calypso filed its original complaint on November 13, 2009, and an amended complaint on March 16, 2009. T-Mobile may argue therefore that it was not really five months. Calypso submits that, given that T-Mobile is (presumably) seeking here to dismiss Calypso’s entire case rather than hearing it on the merits, the Court’s decision here should not turn on the fact that T-Mobile’s answer was technically filed in response to Calypso’s amended answer (in which Calypso added a co-plaintiff).
20 Id. at 395.
21 Id. (citing Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty., Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981)); see also Wright & Miller, Federal Practice and Procedure, 5C FED. PRAC. & PROC. 2d § 1380 at 783; Morse v. Weingarten, 777 F. Supp. 312, 319 (S.D.N.Y. 1991); Mirshak v. Joyce, 652 F. Supp. 359, 370 (N.D. Ill. 1987); Schramm v. Krischell, 84 F.R.D. 294, 299 (D. Conn. 1979).
“abrogat[ing] the search for truth on the merits.”22 Calypso therefore requests that the Court (1) deny T-Mobile’s Motion to Strike, and (2) grant retroactive leave to Calypso23 with respect to the Answer to T-Mobile USA, Inc.’s Counterclaims that it filed on September 22, 2009.
B. The Court Should Also Deny T-Mobile’s Motion to Strike Because It is Pointless and Moot.
For T-Mobile’s Motion to Strike to have any practical impact, T-Mobile would have had to request some form or method of default disposition of the issues of infringement, validity, and enforceability of the ‘923 Patent.24 But T-Mobile did not, presumably because even T-Mobile realizes that to do so would require the Court also to dismiss Calypso’s original Complaint which, along with T-Mobile’s Answer, put the questions of infringement, validity, and enforceability at issue.25 T-Mobile has no basis for requesting any such dismissal.
A party “is not entitled to a default judgment as a matter of right, even where the [opposing party] is technically in default.”26 Rather, a default judgment is left to the sound discretion of the court.27 In choosing whether to exercise that discretion to dismiss claims, courts are to consider, among other things, the court may consider “whether material issues of fact are
22 Starter Corp. v. Converse, Inc., Case No. 95 Civ. 3678, 1996 U.S. Dist. LEXIS 17892, *9 (S.D.N.Y. Dec. 2, 1996) (unpublished decision). A copy of this case is attached hereto as Exhibit B.
23 Calypso understands that Drago Daic will file his own response to T-Mobile’s Motion to Strike, but submits that it would be appropriate for the Court to deny T-Mobile’s Motion to Strike as to both Calypso and Daic without further briefing.
24 The point in moving to strike an answer is, usually, to obtain a default judgment on the issues that would otherwise be in dispute had the answer not been filed. See, e.g., Canady, 307 F. Supp. at 8 (“The defendants would like to strike the plaintiffs’ answer so that the court can declare the plaintiffs in default and proceed toward default judgment.”).
25 The live pleadings on Calypso’s claims are Plaintiffs’ Amended Original Complaint and Demand for Jury Trial (“Amended Complaint”), filed March 16, 2009 (Docket No. 14) and T-Mobile’s Answer and Counterclaims, filed April 6, 2009 (Docket No. 15).
26 Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996).
27 Lindsey v. Prive Corporation, 161 F.3d 886, 893 (5th Cir. 1998).
at issue…”28 Here, there are material issues of fact at issue – the very same material issues of fact that underlie T-Mobile’s counterclaims – which were put in dispute by Calypso’s Complaint and T-Mobile’s Answer, and which would remain in dispute even if the Court were to dismiss Calypso’s Answer to T-Mobile’s Counterclaims. Calypso respectfully submits that T-Mobile’s Motion to Strike is pointless and moot, inasmuch as there are material issues of fact that are (and that will remain) in dispute, and that the Court should therefore deny T-Mobile’s Motion to Strike.
C. The Court Should Deny T-Mobile’s Motion to Strike Because T-Mobile Has Not Suffered Substantial Prejudice.
“A motion to strike is a drastic remedy which is disfavored by the courts and infrequently granted.”29 “Even where technically appropriate and well-founded, motions to strike defenses as insufficient are often denied in absence of a showing of prejudice to the moving party.”30 Calypso’s delay has not caused any actual harm to T-Mobile. “[W]hether there has been substantial prejudice” is one of the questions the Court must consider in determining whether to exercise its discretion to strike Calypso’s Answer to T-Mobile’s Counterclaims.31 Here, T-Mobile asserts that it has been prejudiced, but declines actually to identify how it has been prejudiced, or to identify what actual harm it has suffered. Calypso therefore respectfully submits that the Court should deny T-Mobile’s Motion to Strike.
28 Id.
29 Clark v. Milam, 152 F.R.D. 66, 70 (S.D. W. Va. 1993) (citing First Financial Sav. Bank v. Am. Bankers Ins. Co.,
783 F. Supp. 963, 966 (E.D.N.C. 1991); U.S. v. Fairchild Indus. Inc., 766 F. Supp. 405, 408 (D. Md. 1991));
United States v. Fairchild Indus., Inc., 766 F. Supp. 405, 408 (D. Md. 1991).
30 Clark, 152 F.R.D. at 70 (internal quotations and citations omitted).
31 Lindsey, 161 F.3d at 893; see also, e.g., United States v. Mraz, 274 F.Supp.2d 750, 756 (D.Md. 2003) (emphasis
added) (denying plaintiff’s motion for default judgment where there was no prejudice from defendant’s late
answer).
III. Conclusion & Prayer
For the above reasons, Calypso respectfully requests that the Court deny T-Mobile’s Motion to Strike, grant Calypso’s Motion for Leave to File with respect to its Answer to T-Mobile USA, Inc.’s Counterclaims filed on September 22, 2009 (Docket No. 47), and grant Calypso any and all other further relief to which Calypso may be entitled.
Dated: December 7, 2009 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
CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2009, 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
200958133 - DAIC, DRAGO vs. DAIC, KATHLEEN S.
Case (Cause) Summary
File Date 9/10/2009
Case (Cause) Location 257th District Court
Case (Cause) Status Active - Civil
Case (Cause) Type DIVORCE
Next/Last Setting Date N/A
Court Details
Court 257th
Address 1115 Congress (Floor: 6)
Houston, TX 77002
Phone:7137556950
JudgeName JUDY WARNE
Court Type Family
DAIC, DRAGO PLAINTIFF - CIVIL
DAIC, KATHLEEN S. DEFENDANT - CIVIL
Exhibit F & G....I only copied one email...it was from Turrini to Pattin off Exhibit F...the others looked to be duplicates of ones on the other exhibits....
Subject: Re: Fw: RE: changes in the doc's this is what Calypso can
live with
To: Richard Pattin <rpattin@yahoo.com>
Richard,
I cannot sign the agreement the way it's currently drafted because it is not in the best interest of the shareholders and the company as a whole. Calypso Wireless, Inc. cannot be responsible for the totality of the judgment, pay the whole amount in cash plus interest, give additional shares and have them retain the shares they received from the other defendants as some kind of additional gift. If they are willing to negotiate something better for the company I will be more than happy to
review it and decide on it. Please know that as you and I discussed, this is not the best deal for the company, f urthermore, it is not a deal that can be decided in less than 48 hours because it is so paramount to the company's future.
You know we both struggle to find the best solution for the company and made our best efforts. Unfortunately, our proposals to them to pay the full amount but receive consideration for the shares given, pay 50% up to 50 million and then 10% or even 15% until the judgment is fully paid was rejected. I feel that was a reasonable compromise we presented.
Sincerely,
Cristian Turrini
On Thu, Apr 2, 2009 at 6:59 PM, Richard Pattin <rpattin@yahoo.com> wrote:
> Cristian,
>>
they will not go .
>>
Richard
>>
--- On Thu, 4/2/09, Cyndi Rusnak <cyndi@jimrnywilliamson.com> wrote:
>
> From: Cyndi Rusnak <cyndi@jimmywilliamson.com>
> Subject: RE: changes in the doc·s this is what Calypso can live
> with
> To: "Richard Pattin" <rpattin@yahoo. com>
> Cc: drago@globalicinc.com
> Date: Thursday, April 2, 2009, 4:34 PM
>
> I've talked to Drago and it looks like we don't have a deal unless > signed as was previously agreed. You are welcome to call Drago if you like.
>
>
>
> Cyndi Moss Rusnak
>
> Williamson & Rusnak
>>
Exhibit E....I did not copy every email...
From: Richard Pattin [mailto:rpattinra2yahoo.com]
Sent: Thw-sday, April 02, 20094:24 PM
To: Cyndi Rusnak
SUbject: RE: changes in the doc's this is what Calypso can live with
Cyndi, Cristian will not sign the agreements the way they read currently. Without Cristian, Calypso doesn't have board approval. He will sign the amended version that was sent over earlier. Calypso should be given consideration for the share that have been paid to you, that amount can be deducted from the judgement, and we are not saying we don't want to pay the judgement. It is just is a different format.. ... 50% up to 50m, and the 3.5m
needs to be deducted directly of the 50m.
Richard
--- On Thu, 4/2/09, Cyndi Rusnak <cvndi(ij)jimmvwilliamsolt.col1l> wrote:
From: Cyndi Rusnak <cyndi@),jillunywilliamson.com>
Subject: RE: changes in the doc's this is what Calypso can live with
To: 11Richard Pattin" <rpattin@),yahoo.com>
Date: Thursday, April 2, 2009,3:22 PM
The changes not acceptable - the final documents are being put together and will be emailed shortly. They must be signed today.
Cyndi Moss Rusnak
Exhibit D.....
---------- Forwarded message ----------
From: Richard Pattin <rpattin(a),yahoo.com>
Date: Wed, Apr 1,2009 at 6:49 PM
Subject: the new deal Calypso 09
To: Cristian Turrini <cctunini{a),gmail.com>, Kathy Daic <kathy(a),gJobalicinc.com>
Hello Board Members,
This is the new deal that has been presented to Calypso Wireless. If this is the final deal that we are willing to except, then we will need to have a board meeting and vote on this deal. Upon passing we will have to execute the documents. Let me know your thoughts???????????
Regards,
Richard
Kathy, I know that you will sustain from voting 011 this matter.
Exhibit C........
---------- Forwarded message ---------From:
<rpattin@yahoo.com>
Date: Fri, Apr 3, 2009 at 11:28 AM
Subject: Re: Waver of Notice ...
To: Cristian Turrini <ccturrini@gmail.com>
Call me regarding there new terns
------Original Message-----From:
Cristian Turrini
To: Kathy
Cc: Cristian Turrini
Cc: Richard Pattin
Subject: Re: Waver of Notice ...
Sent: Apr 3, 2009 11:15 AM
I also hereby waive the necessary nOLlce to discuss the items posted on the Agenda sent by Richard Pattin yesterday. Please confirm me that the meeting will take place .
.Sincerely,
Cristian Turrini
On Fri, Apr 3, 2009 at 12:08 PM, Kathy <kathy@healthreach2000.com> wrote:
> To Richard Pattin and Cristian Turrini:
>>
I hereby waive notice of Board meeting to be held today via conference call.
>
> Thank you.
>
> Regards!
> I-\athy Daic
Sent from my Verizon Wireless BlackBerry
Exhibit B.....
---------- Forwarded message ---------From:
Kathy <kathy@healthreach2000.com>
Date: Thu, Apr 2, 2009 at 7:48 PM
Subject: Re: Notice of Special Board Meeting w Notice of Wavier
To: Cristian Turrini <ccturrini@gmail.com>
To Richard and Cristian,
As e-mailed you both a few moments ago. My area has had no }~.T&T Internet access all day and I did not receive any text or phone call about any conf. call ....
Thank you.
Kathy
----- Original l'1essage ----- From: "Cristian Turrini"
<ccturrini@gmail.com>
To: <rpattin@yahoo.com>
Cc: "Kathy" <kathy@healthreach2000.com>
Sent: Thursday, April 02, 2009 2:47 PM
Subject: Re: Notice of Special Board Meeting w Notice of Wavier
to tell you that I am very sattisfied with the resolutions
the meeting this afternoon. I believe it's a fair for all
involved. Thank you for arranging the meeting and please let
the response you receive. >
>
>
>>
> Thank you,
>>
Cristian Turrini
>>
On Thu, Apr 2, 2009 at 1:27 PM, Cristian Turrini <ccturrini@gmail.com>
wrote:
»»
ok got it, thank you Richard
»
»
On Thu, Apr 2, 2009 at 1:26 PM, <rpattin@yahoo.com> wrote:
18
Case 2:08-cv-00441-TJW-CE Document 67-5 Filed 12/04/2009 Page 2 of 19
CALYPSO 0019
»>
»> Jimmy Williams has a 25/ interest also. He was added to the T-Mob deal and its is Jimmy that is the hold up. He will not turn over his interest without Drago interest.
»> Richard
»> Sent from my Verizon Wireless BlackBerry
»>
»> -----Original Message-----
»> From: Cristian Turrini <ccturrini@gmail.com>
»>
»> Date: Thu, 2 Apr 2009 13:11:47
»> To: <rpattin@yahoo.com>
»> Cc: Kathy Daic<kathy@globalicinc.com>
»> Subject: Re: Notice of Special Board Meeting w Notice of Wavier
»>
»>
»> Dear Richard and Kathy
»>
»> I will be able to participate in the call today at the requested time. »> I do have several questions in preparation for that meeting. How do »> you conclude that Ir ••• the patent will not be turned over to »> Calypso ... " The ovmership of the patent is 25% Daic and 75% Calypso »> and that has not changed since April of last year. There is nothing »> to "turn over" that I am aware of. I have heard that there have been »> discussions about this issue for the last several months but have »> nothing in terms of agreements that were reached. Please let me know
»> if this is correct.
»>
»> Has T-mobile made a statement to us that they will make a Motion to »> Dismiss? and if they have, have they indicated whether it will be »> vJith or without prejudice? and lastly, has Drago indicated he will »> "foreclose on the patent"? vvhat do you, Kathy and Richard, think is »> the best deal for Calypso?
»>
»> I personally believe since this issue is of paramount omportance to »> the company we allow the corporate attorney hired by you time to »> review the agreements and to suggest or at least comment on them in »> writing for the protection of the shareholders as a whole. I will »> suggest discussing these issues today in the meeting and leaving the »> vote for tomorrow at the same time after we have the recommendation »> of Corporate Counsel. Please let me know if this is acceptable.
»>
»> Thank You
»>
»> Cristian Turrini.
»>
»>
»> On Thu, Apr 2, 2009 at 11:06 AM, <rpattin@yahoo.com> wrote:
»»
»» Hello Fellow Board Members,
»»
»» Today we have to have a meeting to discuss and vote on the »» Settlement Agreement that is before us. If we do not approve this
»» agreement then the patent will not be turned over to Calypso and »» T-Mobile will make a motion to dismiss, thus Daic will foreclose on »» the patent. I know it is not the best deal for Calypso but, it will »» give Calypso an opportunity to survive and move forward. Calypso is »» in a tight spot currently, v~e are with no time nor money. If you »» fellow board members have a better solution, please present it on the call at 1:00pm CDT today ..
»»
»» conference call number 712-432-0850 access code 210995#
»»
»» Regards,
»» Richard S Pattin
Statement made by Cristian Turrini....some of the words didn't copy exactly correctly....
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
DECLARATION OF CRISTIAN TURRINI
IN SUPPORT OF CALYPSO’S RESPONSE IN OPPOSITION
TO MOTION TO SUBSTITUTE A PARTY AND
TEMPORARILY STAY THE CASE
I, Cristian Turrini, declare and state as follows:
1. My name is Cristian Turrini. I am over the age of 18 and competent to make this
declaration. The facts stated in this declaration are within my personal knowledge and
are true and correct. I would testify to the matters stated herein under oath if called upon
to do so.
2. I am currently CEO of Plaintiff Calypso Wireless, Inc. (“Calypso”), a position I have
held since May 12, 2008 as well as President, a position I have held since July 28, 2009.
I am also a shareholder and member of the board of directors for Calypso. I have been on
the board of directors since May 12, 2008.
3. A true and correct copy of the Amended and Restated Settlement Agreement (the “2009 Agreement”), allegedly executed on April 3, 2009, is attached hereto as Exhibit A. The 2009 Agreement was never agreed to by Calypso, and never properly executed.
4. In order to enter into a contract such as the 2009 Agreement, the majority of Calypso’s
board of directors would have had to consent to the contract, and a board resolution
would have to have been passed. Neither of these occurred.
5. In April 2009, Calypso’s board of directors included myself, Calypso then President
Richard Pattin, and Kathy Daic (Plaintiff Drago Daic’s wife). Mrs. Daic resigned on
April 3, 2009.
6. Mrs. Daic did not participate in the first scheduled meeting stating later via email that she had no internet connection. Mrs. Daic later waived notice of the second board meeting via email. True and correct copies of e-mails from Mrs. Daic to me and Mr. Pattin, dated April 2, 2009, 7:48 p.m. and April 3, 2009, 12:08 a.m., in which Mrs. Daic stated why she failed to attend the first meeting and on the second waived notice are attached hereto as Exhibits B and C. I learned from Mr. Pattin that Mrs. Daic would be abstaining from participating in the negotiation and consideration of the 2009 Agreement, leaving that to me and Mr. Pattin. From the time I became aware of the document 48 hours before and up to the “deadline of April 3, 2009, Mr. Pattin and I reviewed the draft of the 2009 Agreement prepared by Drago Daic (or on his behalf). We found the terms to be unreasonable, one-sided, and impossible to meet. A true and correct copy of an e-mail
from Mr. Pattin to me and Mrs. Daic, dated April 1, 2009, 6:49 p.m., in which Mr. Pattin
acknowledged that Mrs. Daic would “sustain [sic] from voting on this matter,” is attached
hereto as Exhibit D.
7. Mr. Pattin and I provided revised drafts of the 2009 Agreement to Mr. Daic’s
representatives, which drafts contained revisions that we felt we could live with. Mr.
Daic rejected each of our proposals, explaining that he would only sign the version that
he had originally drafted. A true and correct copy of an e-mail chain between Mr. Pattin
and Cyndi Rusnak (Mr. Daic’s represenative) is attached hereto as Exhibit E. These emails show Ms. Rusnak repeatedly stating that Mr. Daic refused to accept any changes
whatsoever.
8. Mr. Daic imposed a deadline of 5:00 p.m. Central on April 3, 2009 to sign the contract.
At approximately 4:30 p.m. Central time that day, I wrote an e-mail to Mr. Pattin in
which I informed him that I, as one of two participating members of Calypso’s board of
directors, did not consent to the signing of the 2009 Agreement. A true and correct copy
of that e-mail is attached hereto as Exhibit F. I sent the e-mail from Florida, and so the
time stamp on the e-mail appears in Eastern time.
9. Notwithstanding my clear, express, and written indication that I did not consent, and
without board approval, Mr. Pattin apparently went ahead and signed the 2009
Agreement. See Exhibit A.
10. Mr. Daic was aware that Calypso needed board approval and a board resolution in order to enter into the 2009 Agreement, and he knew that, without my consent, Calypso would not have that requisite board approval. See Exhibit E (e-mail from Mr. Pattin to Ms. Rusnak, April 2, 2009, 4:24 p.m.) (“Cristian will not sign the agreements the way they read currently. Without Cristian, Calypso doesn’t have board approval.”).
11. Mr. Daic insisted that Calypso agree to his terms, and threatened to foreclose on the ‘923 Patent, and, in conjunction with Mr. Jimmy Williamson, to refuse to cooperate as a
proper plaintiff in the current action, and to enforce his $100+ Million default judgment
against us if we did not. A true and correct copy of an e-mail from Mr. Pattin to me and
Mrs. Daic, dated April 2, 2009, 11:06 a.m., is attached hereto as Exhibit G. This e-mail
relates part of Mr. Daic’s threat: “f we [Calypso’s board] do not approve this
agreement [the 2009 Agreement] then the patent will not be turned over to Calypso and
T-Mobile will make a motion to dismiss, thus Daic will foreclose on the patent,” and
acknowledges that Calypso was under extreme duress to sign off on Mr. Daic’s proposed
deal: “I know it is not the best deal for Calypso but, it will give Calypso an opportunity to
survive and move forward. Calypso is in a tight spot currelltly, we are with no time nor money."
12. The 2009 Agreement purports to require, among other things, that Calypso deliver 13.4 Million shares of Calypso stock. At the 'lillie the 2009 Agreement was allegedly
executed, Calypso had only approximately 2.5 Million shares available for distribution. The only way to increase this number would have been to call a shareholder meeting. This would req~Jire a week to prepare a 14A SEC required filing, a 10 working day review by the SEC and, if approved by the SEC with no revisions (Rare), another 10 days of minimlUll required notioe for a shareholders meeting (60 days or more is typical) then, if all increase in authori:zed shares is granted (ONLY the shareholders can increase the authorized shares), then another minimum of a week for the transfer Agelit to issue the shares. The whole process would take a minimum of 38 days and the typical tiliieframe is measured hl months, sometimes years, rather than days. It would have beeli impossible for us to comply with this requirement. BecatlSe his wife was 011 the board, and becallse Mr. Daic was himself a shareholder (who oftell expressed his concerns about not wanting his shares to be diluted), Mr. Daio was or should have been aware of these issues. In fact, it is my suspicion that Mr. Daic inoluded this provision in the 2009 Agreement solely so that he could set Calypso up to default and thereby obtain Calypso's patents.
13. Regarding the restrictions On the 7 Million shares, Calypso Wireless was also unable to provide on opinion letter to Messrs. Daic and Williamson because Calypso was precluded from raising the funds necessary to do so as a result of their actions. The value of those shares, however, are minimal, but Messrs Daic and Williamson have not attempted to mitigate their damages in any way. In fact, they are and always have been able to lift the restriction on their own; there exists no requirement that Calypso perfOlID this for them. Additionally, Drago and Williamson did 110t provide notice of this alleged default until well after they had already again clouded the title to the patents. In other wordS they assigned themselves the patents, then deolared default for this item.
14. I declare pursuant to 28 U.S.C. § 1746 and under penalty of perjury ~"!Q.~r the laws of the United States that the foregoing is trlle alld correct. "".~---'—
I 5. Executed this 3rd day of December, 2009, at Salt Lake Cristian
Calypso's filing ex exhibits...I did not copy over all the footnotes.
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
CALYPSO’S RESPONSE IN OPPOSITION TO DRAGO DAIC’S MOTION
TO SUBSTITUTE A PARTY AND TEMPORARILY STAY THE CASE
Comes now Plaintiff Calypso Wireless, Inc. (“Calypso”) and files this Response in Opposition to Drago Daic’s (“Daic”) Motion to Substitute a Party and Temporarily Stay the Case (the “Motion”), and would respectfully show the following:
I. Substitution under Fed. R. Civ. P. 25(c) Because a Dispute Exists as to Daic’s Alleged Status as a Successor in Interest.
Substitution (or addition) of a plaintiff under Fed. R. Civ. P. is a matter within the Court’s discretion. Rule 25(c) “does not require that anything be done after an interest has been transferred.” In this case, however, there was no transfer of any interest at all, because the alleged transfer of ownership of the Patent-in-Suit was based on an invalid and unenforceable
contract. In fact, Calypso will soon file cross-claims against Daic seeking, among other things, a declaration that the 2009 Agreement is invalid and unenforceable. Calypso respectfully
submits that the proper method of determining who owns and controls the ‘923 Patent is to try these issues before a jury, rather than as an exercise of the Court’s discretion under Fed. R. Civ. P. 25. Daic, on the other hand, would have the Court make this determination without evidence or even the hearing required by Rule 25. Granting Daic’s requested substitution would be an
abuse of the Court’s discretion, and would unfairly and improperly sanction Daic’s attempted misappropriation of the ‘923 Patent. The Court should therefore deny Daic’s Motion.
II. The 2009 Agreement Is Not Valid or Enforceable.
The 2009 Agreement – which is the basis of Daic’s alleged right to foreclose on the ‘923 Patent – is not a valid agreement because it was never properly executed (or even agreed to),
because the one signature obtained was given under duress, and because the alleged breach on which Daic bases his claim to the ‘923 Patent was of a term that was impossible to perform at the time of the purported agreement – and Daic knew it.
A. The 2009 Agreement Was Never Agreed to and Was Never Properly
Executed.
The 2009 Agreement was never agreed to by Calypso’s board of directors, as was required for the company to enter into any contract, let alone one as onerous and one-sided as the
2009 Agreement. In early April 2009 – when the 2009 Agreement was supposedly executed – there were three board members: (1) Cristian Turrini, (2) Kathy Daic (Drago Daic’s wife), and
(3) Richard Pattin. Of the three, Mrs. Daic resigned that afternoon, and Mr. Turrini declined to give his approval. Only Mr. Pattin signed. He did so under duress (as explained below), and, more importantly, after being informed explicitly and in writing that Mr. Turrini did not consent to the 2009 Agreement. He had no authority to sign the 2009 Agreement on behalf of Calypso, and both he and Drago Daic were well aware of this fact. There was therefore (1) no valid acceptance of Daic’s contract, (2) no meeting of the minds, and (3) no consent to the terms of the 2009 Agreement – each of which is a necessary element of proof of a contract. Daic’s argument that “Calypso and Daic are parties to an Amended And Restated Settlement Agreement dated April 3, 2009 [the 2009 Agreement]” is false, and unsupported by evidence, as is his argument that “[t]itle to … the Patent-In-Suit, has been transferred to the Trustee pursuant to a Security Agreement [contained in the 2009 Agreement].” There has been no transfer of interest, and substitution of either Daic or his “Trustee” under Fed. R. Civ. P. 25(c) is not proper here.
B. The One, Non-binding Signature that Appears on the 2009 Agreement Was Given under Duress.
Even if Richard Pattin’s lone signature were somehow enough to bind Calypso to the terms of the 2009 Agreement, the agreement is unenforceable because Mr. Pattin’s signature was obtained under duress. The e-mail traffic between the only Calypso board members who participated in the evaluation of the 2009 Agreement – Messers. Turrini and Pattin – makes clear that neither was willing to sign the 2009 Agreement. Mr. Turrini and Mr. Pattin proposed multiple sets of changes to the 2009 Agreement in an effort to secure an agreement that was not so onerous and one-sided. Drago Daic, however, refused to make any of the changes, and instead threatened (1) foreclose on Calypso’s entire patent portfolio, (2) to enforce his more than $100 Million default judgment (which he had obtained solely due to the ineptitude and selfdealing of Calypso’s original management), and (3) to refuse to cooperate, with his partner, Mr. Jimmy Williamson, as a necessary plaintiff (having an ownership interest under the 2008 Agreement) in the current action. If Daic had carried out any of his threats, Calypso would have been left with more than $100 Million in debt, no assets, and no way to continue as a business. In other words, Calypso would have been destroyed. If that is not duress, what is? Daic had no legal right to do any of the things he threatened. He claimed, of course, that he was entitled to take Calypso’s patents and enforce his default judgment because Calypso had not paid him the money he was supposed to receive under the 2008 Agreement. The reality, however, is that, in violation of the 2008 Agreement, Daic had tortiously interfered with and sabotaged every deal and effort by Calypso to secure the funding that would have allowed Calypso to comply with its obligations therein. Thus, even if Mr. Pattin’s lone signature satisfied the elements of (1) acceptance, (2) consent as to terms, and (3) meeting of the minds, and there was a valid contract, the 2009 Agreement is not enforceable because Mr. Pattin was forced to sign it under duress. Because the 2009 Agreement is unenforceable, Mr. Daic has no right to transfer any interest of the ‘923 Patent, and the Court should deny his Motion.
C. Daic’s Motion to Substitute Should Be Denied Because It Is Predicated on an Alleged Breach of an Impossible Term in the 2009 Agreement.
Daic claims that he was entitled to foreclose on the ‘923 Patent because Calypso failed to deliver shares of Calypso stock as was allegedly required by the 2009 Agreement. The 2009 Agreement, which was drafted entirely by Daic (or his lawyers), calls for – among other things – the delivery of 13.4 Million shares within two weeks of its execution. Having been intimately involved (and having a spouse on Calypso’s board of directors), Daic either knew or should have known that this was impossible because (1) Calypso did not have anything like that number of shares available, and (2) creating a sufficient number of shares would have required a meeting of Calypso’s 1467 shareholders of record (along with likely twice that again in beneficial owners of shares) and certain SEC filings, which would have taken more than the allotted two weeks. Daic knew or should have known that it would have been impossible to comply with this term. In fact, the only reasonable conclusion is that Daic included this term in the 2009 Agreement solely because he knew it would lead to a breach, which would enable him to obtain – as he has been attempting to do for years – Calypso’s patents. Calypso should be excused from complying with this term of the 2009 Agreement under the doctrine of impossibility. At the very least, the Court should not grant Daic’s Rule 25 Motion, which is predicated on an alleged violation of this impossible term, without a full and fair hearing.
III. Conclusion & Prayer
For the foregoing reasons, Calypso respectfully requests that the Court deny Daic’s Motion to Substitute a Party and Temporarily Stay the Case, and grant Calypso any and all other relief to which it may be entitled.
Dated: December 4, 2009 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
CERTIFICATE OF SERVICE
I hereby certify that on December 4, 2009, 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
Case 2:08-cv-00441-TJW-CE Document 67 Filed 12/04/2009 Page 7 of 7
Fellow shareholders...on Friday, Calypso formally began proceedings to rid itself once and for all of Drago, Williamson and the rest of the blood suckers that have been bleeding this promising company over the years. The company has hired a very strong patent firm, Storm LLC out of Dallas and Paul Storm in particular, to not only defend the 923 patent against T-Mobile and other infringers, but more importantly to also go after Drago et al all the way back to and including the original bogus $100MM judgement awarded to Drago et al.
http://www.stormllp.com/main.php?page=attorneys&att=paulstorm
I have downloaded the filing from the Eastern District and will attempt to paste some of it but it's very long. The filing itself was actually made in response to a ridiculous filing made by Drago et al attempting to rid Calypso of its ownership of the patent based on a supposed default by Calypso under the bogus agreement signed by Richard Pattin. There are so many reasons why this is ridiculous, beginning with the fact that Pattin had no authority to sign the bogus agreement in the first place, but you can read more for yourselves.
In short, this day has been a long time coming. Big thanks go to Dave Williams and the other board members (ex Pattin) for making this happen.
Been a while. Had to step back in to make sure you got the real message....
Part 1 - The Committee has not been furnished with executed Minutes of Board action or Board Resolution(s) relating to this issue at this time. The Committee is investigating the validity of this agreement with counsel. A copy of this exhibit is attached herewith as Exhibit I.
(In short, Pattin did not have authority to sign this deal without a BOD Resolution and he has not provided one to date. Kathy Daic could not have voted due to conflict of interest and Turrini has told me that he was opposed to it so I suspect this there was no Resolution and this agreement be voided in due course IMO).
FYI, don't know why, but Calypso's attorneys agreed to give T-Mobile 60 more days to file a response to Calypso's lawsuit. Saw that in the court filings using PACER. T-Mobile was due to file response by Dec 29, but Calypso gave them until late Feb. Certainly hope there were good reasons for Calypso's attorneys to give the extension besides just b/c T-Mobile's attorneys wanted it.
Heard it was postponed due to not being able to get the proxies out in time. I'm sure they'll reschedule. I suggested they have the meeting anyway without the proxies just so we could hear from management.
My read of your link says it's just part of T-Mobile being served. Although I noticed that if they don't show up the judge could rule in calypso's favor.
I was just wondering what part a summons would play in a patent case. My layman's take on a summons is that the court is summoning someone to show up?
A summons has been issued isn the T-Mobile case
but PACER says the document is not available to view. This is all that was visible.
E-GOV SEALED SUMMONS Issued as to T-Mobile USA Inc. (ch, ) (Entered: 11/17/2008)
IntoMobile.com Article about lawsuit:
http://www.intomobile.com/
T-Mobile Sued for HotSpot@Home Patent Infringement
By Simon Sage on Friday, November 14th, 2008 at 7:06 am PST
In T-Mobile, UMA
T-Mobile could find themselves in some hot water as patent-holder Calypso Wireless begins legal actions to protect their cellular-to-Wi-Fi handoff technology. T-Mobile’s HotSpot@Home lets subscribers have unlimited calling when using their Wi-Fi-capable handset within their home Wi-Fi network, or when using one of T-Mobile’s thousands of hotspots across the U.S. The tricky part is making sure you can move from one network to another without an interruption service (i.e. dropping calls when going from Wi-Fi to cell, or vice versa).
Patent number 6,680,923 details how a device could seamlessly switch between two networks while maintaining the same connection, which could prove to be bad news for other UMA service providers, like Rogers and their Talkspot program. It’s a growingly-popular service, and Calypso in a good position to cash in with infringement claims.
“This is a significant turning point for Calypso, as we believe it will open the doors for hundreds of millions of dollars in licensing opportunities. Calypso has invested significantly in the discovery, development and continued advancement of FMC. When others make use of our patented technology, we will continue to take aggressive action including the enforcement of our legal
I can see at least a dime next few days. Dumb ass sellers or had GTC orders in and are going to be pissed.
Lawsuit news hitting everywhere, including on Deutsche Telekom AG Yahoo site and MSNBC:
http://www.msnbc.msn.com/id/27712273/
http://www.cellular-news.com/story/34638.php
http://news.moneycentral.msn.com/provider/providerarticle.aspx?feed=MW&date=20081114&id=9378860
http://finance.google.com/finance?q=NYSE:DT
http://www.earthtimes.org/articles/show/calypso-wireless-inc-files-patent-infringement-suit-against-t-mobile-usa-inc,622371.shtml
http://www.marketwatch.com/news/story/Calypso-Wireless-Inc-Files-Patent/story.aspx?guid=%7B64FC6999-A6B9-482E-B77A-BA455D2D915C%7D
http://www.ibtimes.com/prnews/20081114/calypso-wireless-inc-files-patent-infringement-suit-against-t-mobile-usa-inc.htm
http://www.telecompaper.com/news/article.aspx?cid=645474
http://www.tradingmarkets.com/.site/news/Stock%20News/2024323/
http://www.tmcnet.com/usubmit/2008/11/14/3787578.htm
http://www.newstin.com/tag/us/87761792
http://www.itbusinessnet.com/articles/viewarticle.jsp?id=581679&afterinter=true
http://newsblaze.com/story/2008111400303300001.mwir/topstory.html
http://finance.alphatrade.com/story/2008-11-14/MRW/200811140330MRKTWIREUSPR____0452414.html
FYI, I found 58 patents that reference the CLYW asnap patent. I sorted them by assignee and got these names. Some did not list assignee, so it does not add up to 58.
Durham Logistics LLC (Las Vegas, NV)
Harris Corporation (Mebourne, FL)
Harris Corporation (Melbourne, FL)
International Business Machines Corporation (Armonk, NY)
Kineto Wireless, Inc (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (Milpitas, CA)
KINETO WIRELESS, INC. (San Jose, CA)
Kineto, Wireless, Inc. (Milpitas, CA)
Lucent Technologies Inc. (Murray Hill, NJ)
Motorola, Inc. (Schaumburg, IL)
NextWave Solutions, LLP (Costa Rica, Escazu)
NextWave Solutions, LP (Costa Rica, Escazu)
Nokia Corporation (Finland, Espoo)
Nokia Corporation (Finland, Espoo)
Nokia Corporation (Finland, Espoo)
Nokia Corporation (Finland, Espoo)
ROSETTA-WIRELESS CORPORATION (Oakbrook Terrace, IL)
Sony Corporation (Japan, Tokyo)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum L.P. (Overland Park, KS)
Sprint Spectrum, L.P. (Overland Park, KS)
Tatara Systems, Inc. (Acton, MA)
Telefonaktiebolaget LM Ericsson (publ) (Sweden, Stockholm)
Texas Instruments Incorporated (Dallas, TX)
Does not mean these companies are infringing, just gives an indication of how valuable asnap patent might be. 58 references is pretty good.
As a comparison, look at PTSC. They own some very basic microprocessing patents:
· U.S. 5,809,336: Clocking CPU and I/O Separately
· U.S. 6,598,148: Use of Multiple Cores and Embedded Memory
· U.S. 5,784,584: Multiple Instruction Fetch
I checked the # of references on their patents and got 35, 11, 15 – much less than for asnap. PTSC trades ~16c but has been >$1, and they are going after infringers like CLYW but they only keep 50% and their patents expire 2015.
If CLYW ever gets a first license, I suspect it will start a long roll.
Given SEC had no further comments we can go ahead with sh meeting. That's a good thing. Excited to hear the behind the scenes progress they are making and hopefully some will be already announced by then
In short, Baxter is not living up to the contract and he's punching himself in the face with the USPTO stunt and corresponding about it with shareholders.
All I know is that Calypso has had a stock cert for the remaining shares with Baxter's name on it sitting in their offices for a very long time. Sounds like he's an amateur crying for renegotiation thru stunts like he pulled with the USPTO, which by the way was illegal. Here's an idea - be a man and live up to your contract. He better get a lawyer.
Buhs is lying or just ignorant. The patents have not reverted to Baxter. The USPTO does not know any better. All they do is process whatever paperwork comes in. They do not check with the other party to make sure the paperwork is correct. I know, I asked the USPTO. Calypso and Baxter are working it out.
CLYW up 25% on strong volume, gapped to 4c
CLYW up 25% today. >600,000 shares, gapped to 4c
CLYW up 25% today on strong volume
Hey IR, please email me. bulbar2@hotmail.com
IR - have not received your email yet, thanks in advance.
IR_Independent-
Saw your post on Calypso board. How did you come upon CLYW? Please email me at bulbar2@hotmail.com if you would. Thanks.
CLYW
http://www.calypsowireless.us/joomla/
Trading only 3c. Owns seminal ASNAP patent for seamless cellular switching and just announced hiring of prominent law firm to represent Calypso on infringement suits against huge carriers who are all infringing, including T-Mobile and others.
Also going after licesning deals for ASNAP and voice to text patents. Did field trial with Nokia-Siemens late last year and expect license deal to come from that.
New management took over in March and have turned company around. Made a recent run from 3c to 50c and will probably do that again and higher.
Shareholder meeting announced and expect licensing deals to come out then.
CLYW
http://www.calypsowireless.us/joomla/
Trading only 3c. Owns seminal ASNAP patent for seamless cellular switching and just announced hiring of prominent law firm to represent Calypso on infringement suits against huge carriers who are all infringing, including T-Mobile and others.
Also going after licesning deals for ASNAP and voice to text patents. Did field trial with Nokia-Siemens late last year and expect license deal to come from that.
New management took over in March and have turned company around. Made a recent run from 3c to 50c and will probably do that again and higher.
Shareholder meeting announced and expect licensing deals to come out then.
CLYW
http://www.calypsowireless.us/joomla/
Trading only 3c. Owns seminal ASNAP patent for seamless cellular switching and just announced hiring of prominent law firm to represent Calypso on infringement suits against huge carriers who are all infringing, including T-Mobile and others.
Also going after licesning deals for ASNAP and voice to text patents. Did field trial with Nokia-Siemens late last year and expect license deal to come from that.
New management took over in March and have turned company around. Made a recent run from 3c to 50c and will probably do that again and higher.
Shareholder meeting announced and expect licensing deals to come out then.
CLYW 3c should run again to 50c:
http://www.calypsowireless.us/joomla/
New management announced yesterday retainment of high profile law firm to go after T-Mobile and other carriers for ASNAP patent infringement.
CLYW 3c. Look for another run to 50c
http://www.calypsowireless.us/joomla/
New management announced yesterday retainment of high profile law firm to go after T-Mobile and other carriers for ASNAP patent infringement.