Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 1 of 15 PageID #: 1428
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`CHARTER COMMUNICATIONS, INC., et
`al.,
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`Defendants.
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`Case No. 2:23-cv-00059-JRG
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`JURY TRIAL DEMANDED
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`DEFENDANTS CHARTER COMMUNICATIONS, INC., et al. ANSWER AND
`AFFIRMATIVE AND OTHER DEFENSES TO PLAINTIFF TOUCHSTREAM’S
`SECOND AMENDED COMPLAINT
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`Defendants Charter Communications, Inc., Charter Communications Operating, LLC,
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`Spectrum Management Holding Company, LLC, Time Warner Cable Enterprises, LLC,
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`Spectrum Gulf Coast, LLC, and Charter Communications, LLC (collectively “Charter”), through
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`its counsel hereby responds to the Second Amended Complaint for Patent Infringement
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`(“Complaint”) of Plaintiff Touchstream Technologies, Inc. (“Touchstream). Charter denies the
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`allegations and characterizations in the Complaint unless expressly admitted in the following
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`paragraphs. Charter’s specific responses to the numbered allegations of the Complaint are in the
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`below numbered paragraphs as follows:
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`THE PARTIES
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`1.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 1 of the Complaint and therefore denies them.
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`2.
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`Charter admits that Charter Communications, Inc. is a Delaware Corporation with a
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`principal place of business at 400 Washington Blvd, Stamford, Connecticut 06902. Except as
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`expressly admitted, Charter denies the allegations in paragraph 2 of the Complaint.
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`3.
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`Charter admits that the website https://corporate.charter.com/about-charter states,
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`“Charter Communications, Inc. (NASDAQ:CHTR) is a leading broadband connectivity company
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`and cable operator serving more than 32 million customers in 41 states through its Spectrum
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`brand.” Except as expressly admitted, Charter denies the allegations in paragraph 3 of the
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`Complaint.
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`4.
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`Charter admits that Spectrum Golf Coast, LLC is a limited liability company. Except as
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`expressly admitted, Charter denies the allegations in paragraph 4 of the Complaint.
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`5.
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`6.
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`Charter denies the allegations in paragraph 5 of the Complaint, including Footnote 1.
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`Charter admits that Charter Communications, Inc. has been appointed as the manager of
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`different limited liability companies and that a separate and distinct subsidiary leases or owns,
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`and maintains and operates the Spectrum stores in this district. Charter further admits that a
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`separate and distinct subsidiary employs employees in this district, and that separate and distinct
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`subsidiary owns or leases equipment in this district. Except as expressly admitted, Charter
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`denies the allegations in paragraph 6 of the Complaint.
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`7.
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`Charter admits that Charter Communications Operating, LLC is a limited liability
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`company organized under the laws of the State of Delaware with a principal place of business at
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`12405 Powerscourt Drive, St. Louis, Missouri 63131. Except as expressly admitted, Charter
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`denies the allegations in paragraph 7 of the Complaint.
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`8.
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`Charter admits that Spectrum Management Holding Company, LLC is a limited liability
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`company organized under the laws of the State of Delaware with a principal place of business at
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`12405 Powerscourt Drive, St. Louis, Missouri 63131. Except as expressly admitted, Charter
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`denies the allegations in paragraph 8 of the Complaint.
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`9.
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`Charter admits that Time Warner Cable Enterprises LLC is a limited liability company
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`organized under the laws of the State of Delaware, registered with the state of Texas, with a
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`principal place of business at 12405 Powerscourt Drive, St. Louis, Missouri 63131. Charter
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`denies that 12405 Powerscourt Drive is an address in Stamford, Ct. Except as expressly
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`admitted, Charter denies the allegations in paragraph 9 of the Complaint.
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`10.
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`Charter admits that Spectrum Gulf Coast, LLC is a limited liability company organized
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`under the laws of the State of Delaware, registered with the state of Texas, with a principal place
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`of business at 12405 Powerscourt Drive, St. Louis, Missouri, 63131. Except as expressly
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`admitted, Charter denies the allegations in paragraph 10 of the Complaint.
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`11.
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`Charter admits that Charter Communications, LLC is a limited liability company
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`organized under the laws of the State of Delaware with a principal place of business at 12405
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`Powerscourt Drive, St. Louis, Missouri 63131. Charter admits that Charter Communications,
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`LLC may be served at 211 E. 7th Street, Suite 620, Austin, Texas, 78701. Except as expressly
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`admitted, Charter denies the allegations in paragraph 11 of the Complaint.
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`12.
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`Charter admits that Charter Communications, Inc. has been appointed as manager of
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`different limited liability companies and that a separate and distinct subsidiary employs all
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`personnel that market, install, service, repair and/or replace equipment. Except as expressly
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`admitted, Charter denies the allegations in paragraph 12 of the Complaint.
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`NATURE OF THE ACTION
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`13.
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`Charter admits that this is an action for patent infringement arising under the patent laws
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`of the United States, 35 U.S.C. § 271, et seq. Except as expressly admitted, Charter denies the
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`allegations in paragraph 13 of the Complaint.
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`JURISDICTION AND VENUE
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`14.
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`Charter admits that this is an action for patent infringement arising under the patent laws
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`of the United States, 35 U.S.C. § 271, et seq. Charter admits that this Court has subject matter
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`jurisdiction over the allegations as pleaded under 28 U.S.C. §§ 1331, and 1338(a). Except as
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`expressly admitted, Charter denies the allegations in paragraph 14 of the Complaint
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`15.
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`Paragraph 15 of the Complaint calls for a legal conclusion to which no response is
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`required. To the extent a response is required, Charter denies the allegations in paragraph 15 of
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`the Complaint, including in Footnote 2.
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`16.
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`Paragraph 16 of the Complaint calls for a legal conclusion to which no response is
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`required. To the extent a response is required, Charter denies the allegations in paragraph 16 of
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`the Complaint.
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`17.
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`Charter admits that a separate and distinct subsidiary owns or leases, and maintains and
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`operates the properties identified in paragraph 17 of the Complaint. Except as expressly
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`admitted, Charter denies the allegations in paragraph 17 of the Complaint.
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`18.
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`19.
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`Charter denies the allegations in paragraph 18.
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`Charter admits that a separate and distinct subsidiary owns or leases, and maintains and
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`operates the properties identified in paragraph 19 of the Complaint. Except as expressly
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`admitted, Charter denies the allegations in paragraph 19 of the Complaint.
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`Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 5 of 15 PageID #: 1432
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`TOUCHSTREAM’S PATENTS
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`20.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 20 of the Complaint and therefore denies them.
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`21.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 21 of the Complaint and therefore denies them.
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`22.
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`Paragraph 22 of the Complaint calls for a legal conclusion to which no response is
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`required. Charter admits that certain claims of the Touchstream patents recite performance of
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`steps as set forth in the claims. To the extent a response is required, and except as expressly
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`admitted, Charter denies the allegations in paragraph 22 of the Complaint.
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`23.
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`Charter admits that according to the faces of United States Patent No. 8,356,251 (the
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`“’251 Patent”), No. 11,048,751 (the “’751 Patent”), and No. 11,086,934 (the “’934 Patent”)
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`(alternatively, “the Touchstream Patents”), they claim priority to U.S. Provisional Patent
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`Application No. 61/477,998 (filed on April 21, 2011). Except as expressly admitted, Charter
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`denies the allegations in paragraph 23 of the Complaint.
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`24.
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`Charter admits that according to the faces of the Touchstream Patents, the ’251 patent
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`issued on January 12, 2013, the ’751 patent issued on June 29, 2021, and the ’934 patent issued
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`on August 10, 2021. Charter further admits that according to the faces of the Touchstream
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`Patents, the patents were issued to inventor David Strober. Except as expressly admitted,
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`Charter denies the allegations in paragraph 24 of the Complaint.
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`25.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 25 of the Complaint and therefore denies them.
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`BACKGROUND OF THE DISPUTE
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`26.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 26 of the Complaint and therefore denies them.
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`27.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 27 of the Complaint and therefore denies them.
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`28.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 28 of the Complaint and therefore denies them.
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`29.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 29 of the Complaint and therefore denies them.
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`30.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 30 of the Complaint, including Footnote 3, and therefore denies
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`them.
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`31.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 31 of the Complaint, including in Footnote 4, and therefore denies
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`them.
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`32.
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`Charter is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations in paragraph 32 of the Complaint and therefore denies them.
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`33.
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`34.
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`Charter denies the allegations in paragraph 33.
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`Charter admits that a meeting between Chris Cholas and Herb Mitschele was scheduled
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`at Time Warner Cable, Inc’s office on December 1, 2011. Except as expressly admitted, Charter
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`denies the allegations in paragraph 34 of the Complaint.
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`35.
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`Charter admits that Chris Cholas attended the January 2012 Consumer Electronic Show.
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`Except as expressly admitted, Charter denies the allegations in paragraph 35 of the Complaint.
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`36.
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`Charter admits that Time Warner Cable Inc. employees Peter Stern and Alan Lui received
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`a forwarded email on August 25, 2012 with a press release which contains the phrases
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`“Showdogg is not an officially patented Technology” and “technology team has applied for
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`additional patents.” Except as expressly admitted, Charter denies the allegations in paragraph 36
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`of the Complaint.
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`37.
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`Charter admits Time Warner Cable Inc. employees Greg King and Greg Von Der Ahe
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`attended a meeting with Jamie Cohen and Herb Mitschele at Time Warner Cable, Inc’s office on
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`June 19, 2013. Except as expressly admitted, Charter denies the allegations in paragraph 37 of
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`the Complaint.
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`38.
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`Charter admits that Touchstream was invited to present for six minutes at an event at
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`Time Warner Cable Inc. on May 29, 2014. Charter specifically denies that Evol8tion was
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`Charter’s agent. Except as expressly admitted, Charter denies the allegations in paragraph 38 of
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`the Complaint.
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`39.
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`Charter denies the allegations in paragraph 39.
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`40. Charter denies the allegations in paragraph 40.
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`41. Charter admits at no point in 2011-2017 did Touchstream reach out to Charter
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`identifying any Touchstream patents or any Charter products, or otherwise suggest that Charter
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`needed a license to any Touchstream patents. Charter further admits that despite the Spectrum
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`TV App product operating since at least 2010, until the filing of this lawsuit, Touchstream did
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`not reach out to Charter identifying any Touchstream patents or any Charter products, or
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`otherwise suggest that Charter needed a license to any Touchstream patents. Charter further
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`admits it did not seek a license to the Touchstream Patents. Except as expressly admitted,
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`Charter denies the allegations in paragraph 41 of the Complaint.
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`42. Charter admits that the Spectrum TV App product was operating at least since 2010.
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`Except as expressly admitted, Charter denies the allegations in paragraph 42, including in
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`Footnote 5.
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`43. Charter admits that the Charter Communications, Inc. Form 10-K document states that
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`Charter and its subsidiaries had 15.1 million video customers as of December 31, 2022. Except
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`as expressly admitted, Charter denies the allegations in paragraph 43 of the Complaint
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`THE ACCUSED SPECTRUM TV FUNCTIONALITIES
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`44. Charter admits that Touchstream purports to accuse certain alleged features of the
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`Spectrum TV mobile application. Except as expressly admitted, Charter denies the allegations in
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`paragraph 44.
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`45. Charter admits that a Charter set top box may be connected to a television. Except as
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`expressly admitted, Charter denies the allegations in paragraph 45.
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`46. Charter admits that a Charter user may download and install the Spectrum TV mobile
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`application. Except as expressly admitted, Charter denies the allegations in paragraph46.
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`47. Charter admits that a Charter user can use the Spectrum TV mobile application to browse
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`content. Except as expressly admitted, Charter denies the allegations in paragraph 47.
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`48. Charter admits that a Charter user can find and select content to view using the Spectrum
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`TV mobile application. Except as expressly admitted, Charter denies the allegations in
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`paragraph 4849. Charter denies the allegations in paragraph 4950. Charter denies the allegations
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`in paragraph 5051. Charter denies the allegations in paragraph 51.
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`Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 9 of 15 PageID #: 1436
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`COUNT I: INFRINGEMENT OF THE ’251 PATENT
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`52. Charter incorporates by reference the answers to paragraphs 1–51 as if set forth fully
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`herein as and for Charter’s answers to this paragraph.
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`53. Charter denies the allegations in paragraph 53.
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`54. Charter denies the allegations in paragraph 54.
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`55. Charter denies the allegations in paragraph 55.
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`56. Charter denies the allegations in paragraph 56.
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`COUNT II: INFRINGEMENT OF THE ’751 PATENT
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`57. Charter incorporates by reference the answers to paragraphs 1–56 as if set forth fully
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`herein as and for Charter’s answers to this paragraph.
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`58. Charter denies the allegations in paragraph 58.
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`59. Charter denies the allegations in paragraph 59.
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`60. Charter denies the allegations in paragraph 60.
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`61. Charter denies the allegations in paragraph 61.
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`COUNT III: INFRINGEMENT OF THE ’934 PATENT
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`62. Charter incorporates by reference the answers to paragraphs 1–61 as if set forth fully
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`herein as and for Charter’s answers to this paragraph.
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`63.
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`Charter denies the allegations in paragraph 63.
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`64. Charter denies the allegations in paragraph 64.
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`65. Charter denies the allegations in paragraph 65.
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`66.
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`Charter denies the allegations in paragraph 66.
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`Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 10 of 15 PageID #: 1437
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`RESPONSE TO JURY DEMAND
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`67. Touchstream’s demand for a jury trial does not require a response by Charter.
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`Charter also request a jury trial of all issues triable to a jury in this action
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`PRAYER FOR RELIEF
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`Charter denies that Touchstream is entitled to any of the requested relief and denies any
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`and all allegations contained within the Prayer for Relief of the Complaint.
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`AFFIRMATIVE AND OTHER DEFENSES
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`Subject to the responses above, Charter contends and asserts the following affirmative and
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`other defenses in response to the allegations in the Complaint. By asserting these affirmative
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`defenses, Charter does not admit that it bears the burden of proof on any issue and do not accept
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`any burden it would not otherwise bear. In addition to the affirmative and other defenses described
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`below, and subject to the responses above, Charter intends to conduct discovery and specifically
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`reserve all rights to assert additional affirmative and other defenses, including inequitable conduct,
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`consistent with the facts that become known through the course of discovery or otherwise.
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`FIRST AFFIRMATIVE DEFENSE
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`NON-INFRINGEMENT OF THE ’251 PATENT, THE ’751 PATENT, AND THE ’934
`PATENT
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`Charter has not infringed and does not directly or indirectly infringe (either literally or
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`under the doctrine of equivalents) any valid and enforceable claim of the’251 Patent, the ’751
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`Patent, and the ’934 Patent under any theory of infringement.
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`SECOND AFFIRMATIVE DEFENSE
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`INVALIDITY OF THE ’251 PATENT, THE ’751 PATENT, AND THE ’934 PATENT
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`One or more claims of the ’251 Patent, the ’751 Patent, and the ’934 Patent are invalid for
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`failure to comply with one or more of the requirements for patentability set forth in Title 35 of the
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`U.S. Code, including §§ 101, 102, 103, and 112, and/or invalid under any other ground provided
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`by 35 U.S.C. § 282, and/or based on other judicially-created bases for invalidity.
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`THIRD AFFIRMATIVE DEFENSE
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`NOT AN EXCEPTIONAL CASE
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`Touchstream is not entitled to a finding that this case is exceptional or to attorneys’ fees
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`under 35 U.S.C. § 285, or pursuant to this Court’s inherent power.
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`FOURTH AFFIRMATIVE DEFENSE
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`EQUITABLE DEFENSES
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`Touchstream’s claims for relief are barred or limited in whole or in part by equitable
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`defenses, including waiver, estoppel, implied license, and/or unclean hands.
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`FIFTH AFFIRMATIVE DEFENSE
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`LACK OF VENUE
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`Touchstream’s Complaint should be dismissed based on improper venue because neither
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`Charter Communications, Inc., Charter Communications Operating, LLC, Spectrum Management
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`Holding Company, LLC, Time Warner Cable Enterprises, LLC, Spectrum Gulf Coast, LLC, nor
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`Charter Communications, LLC resides in nor has a regular and established place of business in the
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`Eastern District of Texas.
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`SIXTH AFFIRMATIVE DEFENSE
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`LICENSE
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`Touchstream’s claims for relief may be barred, in whole or in part, by one or more express
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`and/or implied licenses.
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`Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 12 of 15 PageID #: 1439
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`SEVENTH AFFIRMATIVE DEFENSE
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`LIMITATIONS ON DAMAGES, MARKING, & NOTICE
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`Touchstream is barred in whole or in part from recovering damages under 35 U.S.C. §§
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`286 and 287.
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`EIGHTH AFFIRMATIVE DEFENSE
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`PROSECUTION HISTORY ESTOPPEL
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`Touchstream is estopped from arguing and has waived arguments that the claims of the
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`’251 Patent, the ’751 Patent, and the ’934 Patent cover any accused products or processes by virtue
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`of amendments, positions, and arguments made to the USPTO when obtaining the patents.
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`NINTH AFFIRMATIVE DEFENSE
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`LACK OF DAMAGES
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`Touchstream is not entitled to an award of damages because Touchstream has not
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`sustained lost profits and is not entitled to a reasonable royalty.
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`TENTH AFFIRMATIVE DEFENSE
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`NO IRREPERABLE HARM
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`Plaintiff’s claims for injunctive relief are barred because there exists an adequate remedy
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`at law for Plaintiff’s allegations and Plaintiff’s claims otherwise fail to meet the requirements for
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`such relief.
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`ELEVENTH AFFIRMATIVE DEFENSE
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`SUBSTANTIAL NON-INFRINGING USES
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`The accused products, features and functionalities have substantial non-infringing uses that
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`do not infringe the claims of the Touchstream Patents.
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`TWELFTH AFFIRMATIVE DEFENSE
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`FAILURE TO STATE A CLAIM
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`Touchstream’s Second Amended Complaint fails to state a claim upon which relief may
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`be granted.
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`RESERVATION OF RIGHTS
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`Charter reserves the right to amend its Answer to add additional defenses under Rule 8(c)
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`of the Federal Rules of Civil Procedure, the Patent Laws of the United States, and any other
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`defenses, at law and/or equity (including, but not limited to, additional instances of inequitable
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`conduct and/or patent misuse), as they become known throughout the course of discovery in this
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`case. Assertion of a defense is not a concession that Charter has the burden of proving the matter
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`asserted.
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`EXCEPTIONAL CASE
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`On information and belief, this is an exceptional case entitling Charter to an award of its
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`attorneys’ fees incurred in connection with defending and prosecuting this action pursuant to
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`35 U.S.C. § 285.
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`Dated: May 30, 2024
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`Respectfully submitted,
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`/s/ Daniel L. Reisner
`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Phone: (903) 705-1117
`Fax: (903) 581-2543
`ddacus@dacusfirm.com
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`Daniel L. Reisner
`David Benyacar
`Melissa A. Brown
`Robert Stout
`ARNOLD & PORTER KAY SCHOLER LLP
`250 West 55th Street
`New York, New York 10019-9710
`Telephone: (212) 836-8000
`Facsimile: (212) 836-8689
`Email: daniel.reisner@arnoldporter.com
`Email: david.benyacar@arnoldporter.com
`Email: mellissa.brown@arnoldporter.com
`Email: robert.stout@arnoldporter.com
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`Dina Hayes
`ARNOLD & PORTER KAY SCHOLER LLP
`70 W Madison Street, #4200
`Chicago, IL 60602
`Telephone: (312) 583-2300
`Facsimile: (312) 583-2360
`Email: dina.hayes@arnoldporter.com
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`Attorneys for Defendants Charter
`Communications, Inc., Charter
`Communications Operating, LLC, Spectrum
`Management Holding Company, LLC, Time
`Warner Cable Enterprises LLC, Spectrum
`Gulf Coast, LLC, and Charter
`Communications, LLC
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`Case 2:23-cv-00059-JRG Document 58 Filed 05/30/24 Page 15 of 15 PageID #: 1442
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 30, 2024, a true and correct copy of the above and foregoing
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`document has been served to all counsel of record via the Court’s CM/ECF system.
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`/s/ Daniel L. Reisner
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