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Case 4:10-cv-01887 Document 67

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

TECHRADIUM, INC. PLAINTIFF,


V.

1. ATHOC, INC. 2. BROADBLAST, INC. 3. EDULINK SYSTEMS, INC. 4. FIRST CALL NETWORK, INC. 5. GROUPCAST, LLC 6. PARLANT TECHNOLOGY, INC. 7. RELIANCE COMMUNICATIONS, INC. 8. SAF-T-NET, INC. 9. SWN COMMUNICATIONS, INC. 10. SWIFTREACH NETWORKS, INC. 11. TWENTY-FIRST CENTURY COMMUNICATIONS, INC. DEFENDANTS.

Civil Action No.2:09-cv-275 Jury Demanded

PARLANT TECHNOLOGY, INC.S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS TO TECHRADIUM, INC.S FIRST AMENDED COMPLAINT

Defendant Parlant Technology, Inc. ("Parlant") submits its Answer and Affirmative Defenses to the First Amended Complaint (the "FAC") of plaintiff TechRadium, Inc. ("TechRadium"). Parlant denies the allegations of the FAC unless expressly admitted in the following paragraphs.

PARLANT TECHNOLOGY, INC.S ANSWER AND AFFIRMATIVE DEFENSES TO FIRST AMENDED COMPLAINT PAGE 1
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PARTIES 1. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 1

and therefore denies them. 2. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 2

and therefore denies them. 3. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 3

and therefore denies them. 4. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 4

and therefore denies them. 5. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 5

and therefore denies them. 6. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 4

and therefore denies them. 7. 8. Parlant admits the allegations of Paragraph 7. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 8

and therefore denies them. 9. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 9

and therefore denies them.

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10.

Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

10 and therefore denies them. 11. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

11 and therefore denies them. 12. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

12 and therefore denies them. JURISDICTION AND VENUE 13. Parlant admits that plaintiff purports to bring an action arising under federal laws

relating to patents and unfair competition so that the Court has subject matter jurisdiction over the action. Except as otherwise admitted, Parlant denies the allegations of Paragraph 13. 14. Parlant avers that it does not contest the Court's personal jurisdiction over Parlant

and therefore admits that the Court has personal jurisdiction over Parlant. Parlant denies that it has committed acts of patent infringement in the Eastern District of Texas or anywhere else. With respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 14 and therefore denies them. 15. Parlant denies the allegations of Paragraph 15 relating to venue to the extent

addressed to Parlant. With respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 15 and therefore denies them. 16. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

16 and therefore denies them.

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17.

Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

17 and therefore denies them. 18. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

18 and therefore denies them. 19. Parlant admits that copies of the three referenced patents are attached to the FAC

and indicate the dates of issuance alleged. Except as otherwise admitted, Parlant denies the allegations of Paragraph 19. 20. Parlant denies the allegations of Paragraph 20 to the extent directed to Parlant.

With respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 20 and therefore denies them. CLAIM FOR INFRINGEMENT OF THE '389 PATENT 21. 22. Paragraph 21 does not require a response by Parlant. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

22 and therefore denies them. 23. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

23 and therefore denies them. 24. Parlant denies the allegations of Paragraph 24 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 24 and therefore denies them.

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CLAIM FOR INFRINGEMENT OF THE '183 PATENT 25. 26. Paragraph 25 does not require a response by Parlant. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

26 and therefore denies them. 27. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

27 and therefore denies them. 28. Parlant denies the allegations of Paragraph 28 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 28 and therefore denies them. CLAIM FOR INFRINGEMENT OF THE '165 PATENT 29. 30. Paragraph 29 does not require a response by Parlant. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

30 and therefore denies them. 31. Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph

31 and therefore denies them. 32. Parlant denies the allegations of Paragraph 32 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 32 and therefore denies them.

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ALLEGATIONS COMMON TO ALL COUNTS OF INFRINGEMENT 33. Parlant denies the allegations of Paragraph 33 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 33 and therefore denies them. 34. Parlant denies the allegations of Paragraph 34 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 34 and therefore denies them. DAMAGES 35. Parlant denies the allegations of Paragraph 35 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 35 and therefore denies them. 36. Parlant denies the allegations of Paragraph 36 that are directed to Parlant. With

respect to the allegations addressing other defendants, Parlant lacks knowledge sufficient to admit or deny the allegations of Paragraph 36 and therefore denies them. ATTORNEYS FEES 37. Parlant denies the allegations of Paragraph 37. CONDITIONS PRECEDENT 38. Parlant denies the allegations of Paragraph 38. JURY DEMAND 39. Paragraph 39 does not require a response by Parlant.

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PRAYER 40. Parlant denies that plaintiff is entitled to any relief requested in the Prayer. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 41. Parlant is not infringing, and has not infringed, either directly, contributorily, or

by inducement, any claim of the patents-in-suit. SECOND AFFIRMATIVE DEFENSE 42. On information and belief, the patents-in-suit, by reasons of statements and

representations made by the inventor or its assignor(s) to the United States Patent and Trademark Office during the prosecution of applications for issuance of the patents-in-suit, or by reason of prior acts, plaintiff is estopped from asserting any interpretation of any of the claims of the patent-in-suit that would be broad enough to cover any of Parlant's products or services. THIRD AFFIRMATIVE DEFENSE 43. On information and belief, the patents-in-suit are invalid for failure to satisfy the

conditions of patentability as specified under one or more section of Title 35 of the U.S. Code, including, without limitation, 35 U.S.C. 102, 103 and/or 112. FOURTH AFFIRMATIVE DEFENSE 44. On information and belief, plaintiff is barred in whole or in part from asserting the

patents-in-suit against Parlant by the doctrine of laches, or waiver, or both. FIFTH AFFIRMATIVE DEFENSE 45. Parlant alleges that, based upon the conclusory terms and allegations of the

Complaint, it cannot fully anticipate all affirmative defenses that may be applicable to this

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action. Accordingly, Parlant expressly reserves the right to assert further defenses if, and to the extent, such defenses become available and known to Parlant. PARLANT'S COUNTERCLAIMS FOR DECLARATORY RELIEF For its counterclaims against TechRadium, Parlant alleges the following: 1. Parlant is a corporation organized and existing under the laws of the State of Utah

with its principal place of business in Provo, Utah. 2. On information and belief, TechRadium is a corporation organized and existing

under the laws of the state of Texas with its principal place of business in Sugarland, Texas. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over this counterclaim pursuant to 35

U.S.C. 101 et seq., and 28 U.S.C. 1331, 1338, and 2201, as they arise under the patent laws of the United States. 4. 1400. COUNT I (For Declaratory Judgment of Non-Infringement) 5. Parlant repeats and realleges each and every allegation contained in paragraphs 1Venue is proper in this district under 28 U.S.C. 1391(b) and (c), and 28 U.S.C.

4 of this counterclaim as if fully set forth herein.

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6.

On information and belief, TechRadium represents that it owns United Stated

Patent Nos. 7,130,389, 7,496,183 and 7,519,165 (the patents-in-suit), and has asserted that certain acts by Parlant infringe these patents. 7. Parlant is not infringing, and has not infringed, directly, by inducement,

contributorily, or in any way, any claim of the patents-in-suit. 8. To resolve the legal and factual questions raised by TechRadium, and to afford

relief from the uncertainty and controversy that TechRadium's accusations have precipitated, Parlant is entitled to a declaratory judgment that it does not infringe any claim of the patents-insuit. COUNT II (For Declaratory Judgment of Invalidity) 9. Parlant repeats and realleges each and every allegation contained in paragraphs 1-

8 of this counterclaim as if fully set forth herein. 10. The claims of the patents-in-suit are invalid under one or more sections of Title 35

of the United States Code, including, without limitation, 35 U.S.C. 102, 103 or 112. 11. To resolve the legal and factual questions raised by TechRadium, and to afford

relief from the uncertainty and controversy that TechRadium's accusations have precipitated, Parlant is entitled to a declaratory judgment that the claims of the patents-in-suit are invalid. PRAYER FOR RELIEF WHEREFORE, Parlant respectfully requests that this Court enter judgment in its favor and grant the following relief: 9
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a. A declaration that Parlant does not infringe any claim of U.S. Patent Nos. 7,130,389, 7,496,183 and 7,519,165; b. A declaration that U.S. Patent Nos. 7,130,389, 7,496,183 and 7,519,165 are invalid; c. Dismissal of TechRadium's claims in their entirety with prejudice; d. A declaration that TechRadium take nothing by way of its First Amended Complaint; e. An order finding that this is an exceptional case and awarding Parlant its reasonable attorneys fees pursuant to 35 U.S.C. 285 and all other applicable statutes, rules, and common law; f. An order awarding Parlant costs pursuant to 35 U.S.C. 284; and g. An order awarding such additional relief as the Court may deem just and proper under the circumstances.

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JURY DEMAND Parlant demands trial by jury of all issues so triable. Dated: December 18, 2009 Respectfully submitted,

/s/ James Wesley Kinnear with permission by Charles Ainsworth James Wesley Kinnear (admitted in the Eastern District of Texas) California State Bar No. 124771 JEFFER, MANGELS, BUTLER & MARMARO LLP Two Embarcadero Center, Suite 500 San Francisco, CC 94111 Tel: 415.398.8080 Fax: 800.219.2807 jwk@jmbm.com

Charles Ainsworth Texas State Bar No. 00783521 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, TX 75702 Tel: 903.531.3535 Fax: 903.533.9687 charley@pbatyler.com ATTORNEYS FOR DEFENDANT AND COUNTERCLAIMANT PARLANT TECHNOLOGY, INC.

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CERTIFICATE OF SERVICE I hereby certify that the all counsel of record, who are deemed to have consented to electronic service are being served this 18th day of December, 2009, with a copy of this document via the Courts CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. /s/ Charles Ainsworth Charles Ainsworth

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