Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`Civil Action No. 6:21-cv-642-ADA
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`vs.
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`DIALPAD, INC.,
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`Defendant.
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`
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`JURY TRIAL DEMANDED
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`FLYP’S ANSWER TO DIALPAD’S COUNTERCLAIMS
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`Plaintiff and Counterclaim Defendant Flypsi, Inc. (“Flyp”) hereby responds to Defendant
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`and Counterclaim Plaintiff Dialpad, Inc.’s (“Dialpad”) Counterclaims (Dkt. No. 14) as follows:
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`Flyp denies each and every allegation in the Counterclaims that is not expressly admitted
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`below. Any factual allegation admitted below is admitted only as to the specific admitted facts, not
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`as to any purported conclusions, characterizations, implications, or speculations that may arguably
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`follow from the admitted facts. Flyp denies that Dialpad is entitled to the relief requested or any
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`other.
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`COUNTERCLAIMS FOR DECLARATORY JUDGMENT
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`
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`The first unnumbered paragraph of the Counterclaims is an introductory paragraph for
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`which no response is required.
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`THE PARTIES
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`1.
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`Upon information and belief, Flyp admits the allegations of fact set forth in
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`paragraph 1 of Dialpad’s Counterclaims.
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
`
`
`FLYPSI, INC. (D/B/A FLYP),
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`
`
`
`
`
`
`Plaintiff,
`
`Civil Action No. 6:21-cv-642-ADA
`
`vs.
`
`DIALPAD, INC.,
`
`Defendant.
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`FLYP’S ANSWER TO DIALPAD’S COUNTERCLAIMS
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`Plaintiff and Counterclaim Defendant Flypsi, Inc. (“Flyp”) hereby responds to Defendant
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`and Counterclaim Plaintiff Dialpad, Inc.’s (“Dialpad”) Counterclaims (Dkt. No. 14) as follows:
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`Flyp denies each and every allegation in the Counterclaims that is not expressly admitted
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`below. Any factual allegation admitted below is admitted only as to the specific admitted facts, not
`
`as to any purported conclusions, characterizations, implications, or speculations that may arguably
`
`follow from the admitted facts. Flyp denies that Dialpad is entitled to the relief requested or any
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`other.
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`COUNTERCLAIMS FOR DECLARATORY JUDGMENT
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`
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`The first unnumbered paragraph of the Counterclaims is an introductory paragraph for
`
`which no response is required.
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`THE PARTIES
`
`1.
`
`Upon information and belief, Flyp admits the allegations of fact set forth in
`
`paragraph 1 of Dialpad’s Counterclaims.
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`1
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 2 of 12
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`2.
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`Flyp admits the allegations of fact set forth in paragraph 2 of Dialpad’s
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`Counterclaims.
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`JURISDICTION AND VENUE
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`3.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits that Dialpad purports that its Counterclaims
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`arise under the patent laws of the United States, 35 U.S.C. §§ 1 et seq., and the Declaratory
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`Judgment Act, 28 U.S.C. §§ 2201–02.
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`4.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits that this Court has subject matter
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`jurisdiction over Dialpad’s Counterclaims under 28 U.S.C. §§ 1331, 1338, and 2201–02.
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`5.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits that this Court has personal jurisdiction
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`over Flyp due, in part, to its filing this action against Dialpad.
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`6.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits that venue for Dialpad’s Counterclaims is
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`proper in this District due, in part, to its filing this action against Dialpad.
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`COUNTERCLAIM COUNT I
`Declaratory Judgment of [Alleged] Noninfringement of U.S. Patent No. 9,667,770
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`7.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`8.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`8 of Dialpad’s Counterclaims.
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`2
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 3 of 12
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`9.
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`Flyp admits that Dialpad provides a telephone service in the United States. Flyp
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`lacks sufficient knowledge or information to form a belief as to the truth of the remaining
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`allegations in paragraph 9 and, on that basis, denies all such allegations.
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`10.
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`Flyp denies the allegations of fact set forth in paragraph 10 of Dialpad’s
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`Counterclaims.
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`11.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`11 of Dialpad’s Counterclaims.
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`12.
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`noninfringement. Flyp denies that Dialpad is entitled to any such relief.
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`13.
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`Flyp denies the allegations of fact set forth in paragraph 13 of Dialpad’s
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`Counterclaims.
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`COUNTERCLAIM COUNT II
`Declaratory Judgment of [Alleged] Invalidity of U.S. Patent No. 9,667,770
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`14.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`15.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`15 of Dialpad’s Counterclaims.
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`16.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`16 of Dialpad’s Counterclaims.
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`17.
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`invalidity. Flyp denies that Dialpad is entitled to any such relief.
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`3
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 4 of 12
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`18.
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`Flyp denies the allegations of fact set forth in paragraph 18 of Dialpad’s
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`Counterclaims.
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`19.
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`Flyp denies the allegations of fact set forth in paragraph 19 of Dialpad’s
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`Counterclaims.
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`COUNTERCLAIM COUNT III
`Declaratory Judgment of [Alleged] Noninfringement of U.S. Patent No. 10,051,105
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`20.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`21.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`21 of Dialpad’s Counterclaims.
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`22.
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`Flyp admits that Dialpad provides a telephone service in the United States. Flyp
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`lacks sufficient knowledge or information to form a belief as to the truth of the remaining
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`allegations in paragraph 22 and, on that basis, denies all such allegations.
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`23.
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`Flyp denies the allegations of fact set forth in paragraph 23 of Dialpad’s
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`Counterclaims.
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`24.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`24 of Dialpad’s Counterclaims.
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`25.
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`noninfringement. Flyp denies that Dialpad is entitled to any such relief.
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`26.
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`Flyp denies the allegations of fact set forth in paragraph 26 of Dialpad’s
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`Counterclaims.
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`4
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 5 of 12
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`COUNTERCLAIM COUNT IV
`Declaratory Judgment of [Alleged] Invalidity of U.S. Patent No. 10,051,105
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`27.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`28.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`28 of Dialpad’s Counterclaims.
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`29.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`29 of Dialpad’s Counterclaims.
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`30.
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`Flyp denies the allegations of fact set forth in paragraph 30 of Dialpad’s
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`Counterclaims.
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`31.
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`invalidity. Flyp denies that Dialpad is entitled to any such relief.
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`32.
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`Flyp denies the allegations of fact set forth in paragraph 32 of Dialpad’s
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`Counterclaims.
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`COUNTERCLAIM COUNT V
`Declaratory Judgment of [Alleged] Noninfringement of U.S. Patent No. 10,334,094
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`33.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`34.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`34 of Dialpad’s Counterclaims.
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`5
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 6 of 12
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`35.
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`Flyp admits that Dialpad provides a telephone service in the United States. Flyp
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`lacks sufficient knowledge or information to form a belief as to the truth of the remaining
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`allegations in paragraph 35 and, on that basis, denies all such allegations.
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`36.
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`Flyp denies the allegations of fact set forth in paragraph 36 of Dialpad’s
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`Counterclaims.
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`37.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`37 of Dialpad’s Counterclaims.
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`38.
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`noninfringement. Flyp denies that Dialpad is entitled to any such relief.
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`39.
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`Flyp denies the allegations of fact set forth in paragraph 39 of Dialpad’s
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`Counterclaims.
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`COUNTERCLAIM COUNT VI
`Declaratory Judgment of [Alleged] Invalidity of U.S. Patent No. 10,334,094
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`40.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`41.
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`Flyp denies the allegations of fact set forth in paragraph 41 of Dialpad’s
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`Counterclaims.
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`42.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`42 of Dialpad’s Counterclaims.
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`43.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`43 of Dialpad’s Counterclaims.
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`6
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 7 of 12
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`44.
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`45.
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`[BLANK – No response required]
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`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`invalidity. Flyp denies that Dialpad is entitled to any such relief.
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`46.
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`Flyp denies the allegations of fact set forth in paragraph 46 of Dialpad’s
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`Counterclaims.
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`COUNTERCLAIM COUNT VII
`Declaratory Judgment of [Alleged] Noninfringement of U.S. Patent No. 11,012,554
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`47.
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`Flyp incorporates by reference the preceding paragraphs as though fully set forth
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`herein.
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`48.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`48 of Dialpad’s Counterclaims.
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`49.
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`Flyp admits that Dialpad provides a telephone service in the United States. Flyp
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`lacks sufficient knowledge or information to form a belief as to the truth of the remaining
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`allegations in paragraph 49 and, on that basis, denies all such allegations.
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`50.
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`Flyp denies the allegations of fact set forth in paragraph 50 of Dialpad’s
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`Counterclaims.
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`51.
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`This paragraph states legal conclusions to which no answer is required. To the
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`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
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`51 of Dialpad’s Counterclaims.
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`52.
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`Flyp admits that by its Counterclaim Dialpad seeks a declaratory judgment of
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`noninfringement. Flyp denies that Dialpad is entitled to any such relief.
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`53.
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`Flyp denies the allegations of fact set forth in paragraph 53 of Dialpad’s
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`Counterclaims.
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`7
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 8 of 12
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`COUNTERCLAIM COUNT VIII
`Declaratory Judgment of [Alleged] Invalidity of U.S. Patent No. 11,012,554
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`54.
`
`Flyp incorporates by reference the preceding paragraphs as though fully set forth
`
`herein.
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`55.
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`This paragraph states legal conclusions to which no answer is required. To the
`
`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
`
`55 of Dialpad’s Counterclaims.
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`56.
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`This paragraph states legal conclusions to which no answer is required. To the
`
`extent an answer is deemed to be required, Flyp admits the allegations of fact set forth in paragraph
`
`56 of Dialpad’s Counterclaims.
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`57.
`
`Flyp denies the allegations of fact set forth in paragraph 57 of Dialpad’s
`
`Counterclaims.
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`58.
`
`Flyp admits that by its Counterclaim, Dialpad seeks a declaratory judgment of
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`invalidity. Flyp denies that Dialpad is entitled to any such relief.
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`59.
`
`Flyp denies the allegations of fact set forth in paragraph 59 of Dialpad’s
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`Counterclaims.
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`DEMAND FOR JURY TRIAL
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`Flyp admits that Dialpad demands a trial by jury of all issues so triable in this action.
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`* * *
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`Flyp’s investigation of its defenses is ongoing. Flyp reserves all affirmative defenses under
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`Rule 8(c) of the Federal Rules of Civil Procedure, the patent laws of the United States, and any
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`other defenses at law or in equity that may exist now or that may be available in the future because
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`of discovery and further factual investigation in this action.
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`8
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 9 of 12
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`PRAYER FOR RELIEF
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`Flyp denies that Dialpad is entitled to any relief and specifically denies the allegations and
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`requests for relief in paragraphs A–M under the heading “PRAYER FOR RELIEF.”
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`WHEREFORE, Flyp respectfully requests that this Court enter judgment in its favor and
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`grant the following relief:
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`A.
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`B.
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`adjudge that each of Dialpad’s Counterclaims is dismissed with prejudice;
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`adjudge that Dialpad is not entitled to the relief sought, or any other relief, on the
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`Counterclaims;
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`C.
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`D.
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`adjudge that Dialpad infringes the Asserted Patents;
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`adjudge that Dialpad’s infringement of the Asserted Patents was willful and that
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`Dialpad’s continued infringement of the Asserted Patents is willful;
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`E.
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`F.
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`adjudge that each and every claim of the Asserted Patents is valid and enforceable;
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`award Flyp damages in an amount adequate to compensate Flyp for Dialpad’s
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`infringement of the Asserted Patents, but in no event less than a reasonable royalty under 35 U.S.C.
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`§ 284;
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`G.
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`H.
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`award enhanced damages in accordance with 35 U.S.C. § 284;
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`award Flyp prejudgment and postjudgment interest to the full extent allowed under
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`the law, as well as its costs;
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`I.
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`enter an order finding that this is an exceptional case and awarding Flyp its
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`reasonable attorneys’ fees pursuant to 35 U.S.C. § 285;
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`J.
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`enter a permanent injunction against all Dialpad products found to infringe the
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`Asserted Patents;
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`K.
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`award, in lieu of an injunction, a compulsory forward royalty;
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`9
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 10 of 12
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`L.
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`M.
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`order an accounting of damages; and
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`award such other relief as the Court may deem appropriate and just under the
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`circumstances.
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`10
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 11 of 12
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`DATED: September 3, 2021
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`
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`Respectfully submitted,
`
`/s/ Thomas M. Melsheimer
`Thomas M. Melsheimer
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M. Brett Johnson
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`Chad Walker
`Texas Bar No. 24056484
`cbwalker@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
`
`Matthew R. McCullough
`California Bar No. 301330
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
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`ATTORNEYS FOR PLAINTIFF
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`Case 6:21-cv-00642-ADA Document 18 Filed 09/03/21 Page 12 of 12
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`/s/ Michael A. Bittner
`Michael A. Bittner
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in
`compliance with Local Rule CV-5. Therefore, this document was served on all counsel who are
`deemed to have consented to electronic service. Administrative Policies and Procedures for
`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14.
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`12
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