Williamson responds to Calypso Amended Complaint filed against Daic/Williamson
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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, § 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
AI
