1 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

XR COMMUNICATIONS, LLC, dba

VIVATO TECHNOLOGIES,

 Plaintiff, 

v. 

T-MOBILE USA, INC., 

Defendants.

 Civil Action No. 2:23-CV-00204-JRG 

 JURY TRIAL DEMANDED

DEFENDANT’S ANSWER AND DEFENSES TO PLAINTIFF’S COMPLAINT FOR

PATENT INFRINGEMENT

Defendant T-Mobile USA, Inc. (“Defendant” or “T-Mobile”) answers Plaintiff XR 

Communications, LLC dba Vivato Technologies’ (“XR” or “Plaintiff”) Complaint for Patent 

Infringement (“Complaint”) against Defendant as follows. Except as hereinafter specifically 

admitted, qualified, or affirmatively alleged, Defendant denies each and every allegation, matter, 

or thing contained in the Complaint. Any factual allegation admitted below is admitted only as to 

the specific admitted facts, and not as to any purported conclusions, characterizations, or 

implications that might follow from the admitted facts.

INTRODUCTION1

1. T-Mobile admits that the Complaint purports to make a claim for patent 

infringement of U.S. Patent Nos. 8,737,511 (the “’511 Patent”), 10,715,235 (the “’235 Patent”), 

10,594,376 (the “’376 Patent”), 7,177,369 (the “’369 Patent”), and 8,289,939 (the “’939 Patent”), 

1 Headings and subheadings are copied from the Complaint for ease of reference only. These 

headings and subheadings do not require any response and do not constitute an admission or denial 

of any purported fact or allegation. To the extent a response is required to any allegation in the 

Complaint’s headings or subheadings, T-Mobile denies those allegations. 

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and collectively refers to the patents as the “Asserted Patents.” T-Mobile lacks knowledge or 

information sufficient to form a belief as to the ownership of the Asserted Patents. T-Mobile denies 

it has infringed any of the Asserted Patents and denies any remaining allegations in Paragraph 1. 

2. This paragraph includes subjective characterizations to which no response is 

required. To the extent a response is required, T-Mobile lacks knowledge or information sufficient 

to form a belief as to the truth of the allegations of Paragraph 2, and therefore denies them. 

3. To the extent the allegations of this paragraph purport to characterize the contents 

of written documents, those documents speak for themselves. T-Mobile admits that Guglielmo 

Marconi was granted a British Patent (No. 12039), but denies that it occurred in 1896. T-Mobile 

lacks knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations of Paragraph 3, and therefore denies them.

4. This paragraph includes subjective characterizations and assertions that do not 

require a response. To the extent the allegations of this paragraph purport to characterize the 

contents of written documents, those documents speak for themselves. T-Mobile lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 

4, and therefore denies them.

5. This paragraph includes subjective characterizations and assertions that do not 

require a response. To the extent the allegations of this paragraph purport to characterize the 

contents of written documents, those documents speak for themselves. T-Mobile lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 

5, and therefore denies them.

6. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 6, and therefore denies them.

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7. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 7, and therefore denies them.

8. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 8, and therefore denies them.

9. This paragraph contains legal conclusions to which no response is required. TMobile specifically denies that it has committed any acts of infringement in this or any District. 

T-Mobile denies the remaining allegations of Paragraph 9.

THE PARTIES

10. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 10, and therefore denies them. 

11. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 11, and therefore denies them. 

12. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 12, and therefore denies them. 

13. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 13, and therefore denies them. 

14. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 14, and therefore denies them. 

15. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 15, and therefore denies them. 

16. T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations of Paragraph 16, and therefore denies them. 

17. T-Mobile admits that T-Mobile USA, Inc. is a corporation organized and existing 

under the laws of the State of Delaware, with a principal place of business at 12920 S.E. 38th 

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Street, Bellevue, Washington 98006, and has designated Corporation Service Company as its agent 

for service of process. T-Mobile admits that T-Mobile USA, Inc. has been registered to do 

business in the state of Texas under Texas SOS file number 12958406. T-Mobile admits that TMobile USA, Inc. operates a wireless telecommunications network that provides services to 

customers in the Eastern District of Texas. T-Mobile denies the remaining allegations of 

Paragraph 17.

18. T-Mobile admits that T-Mobile US, Inc.2 is a corporation organized and existing 

under the laws of the State of Delaware, with its principal place of business at 12920 S.E. 38th

Street, Bellevue, Washington 98006. It is unclear what Plaintiff means when it avers that T-Mobile 

US, Inc. “is the ultimate parent corporation, either directly or indirectly, of Defendant,” and 

therefore, T-Mobile denies this allegation. 

JURISDICTION AND VENUE

19. T-Mobile admits that the Complaint purports to state a claim for patent 

infringement arising under Title 35 of the United States Code. T-Mobile specifically denies that it 

has committed any act of infringement of the Asserted Patents. T-Mobile admits that this Court 

has subject matter jurisdiction over patent-law claims generally pursuant to 28 U.S.C. §§ 1331 and 

1338(a), but denies that Plaintiff is entitled to any relief. Except as expressly admitted, T-Mobile 

denies the remaining allegations set forth in Paragraph 19. 

20. To the extent that the allegations of Paragraph 20 of the Complaint set forth legal 

conclusions, no response is required. For purposes of this action only, T-Mobile does not challenge 

that T-Mobile is subject to specific personal jurisdiction within this District. T-Mobile admits that 

2 T-Mobile US, Inc. is a holding company that does not provide any products, services, or 

networks, and it is not a named Defendant in this case.

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T-Mobile USA, Inc. operates a wireless telecommunications network that provides services to 

customers in the Eastern District of Texas. T-Mobile specifically denies that it has committed any 

act of infringement. T-Mobile denies the remaining allegations set forth in Paragraph 20. 

21. To the extent that the allegations of Paragraph 21 of the Complaint set forth legal 

conclusions, no response is required. T-Mobile admits that T-Mobile USA, Inc. operates a wireless 

telecommunications network that provides services to customers in the Eastern District of Texas. 

T-Mobile denies that T-Mobile USA, Inc. placed products and/or services into the stream of 

commerce that practice the Asserted Patents. T-Mobile specifically denies that it has committed 

any act of infringement. T-Mobile denies the remaining allegations set forth in Paragraph 21. 

22. To the extent that the allegations of Paragraph 22 of the Complaint set forth legal 

conclusions, no response is required. T-Mobile denies that it engages in any acts of infringement 

in this District or elsewhere. T-Mobile, however, does not contest whether venue in this District 

is proper pursuant to 28 U.S.C. § 1400(b) for purposes of this action only; but it does deny that 

this is the most convenient forum in which to try this case. T-Mobile admits that T-Mobile USA, 

Inc. operates a wireless telecommunications network that provides services to customers and has 

retail stores in the Eastern District of Texas. T-Mobile denies the remaining allegations set forth 

in Paragraph 22. 

23. T-Mobile admits that T-Mobile USA, Inc. operates a wireless telecommunications 

network that provides services to customers in the Eastern District of Texas. T-Mobile denies the 

remaining allegations set forth in Paragraph 23.

24. To the extent that the allegations of Paragraph 24 of the Complaint set forth legal 

conclusions, no response is required. T-Mobile admits that for purposes of that action only, it did 

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not contest venue in the Cobblestone matter identified in this paragraph. T-Mobile denies the 

remaining allegations set forth in Paragraph 24.

25. To the extent the allegations of this paragraph purport to characterize the contents 

of written documents, those documents speak for themselves. T-Mobile admits that T-Mobile 

USA, Inc. operates a wireless telecommunications network that provides services to customers in 

the Eastern District of Texas. T-Mobile denies all remaining allegations of Paragraph 25.

COUNT I

INFRINGEMENT OF U.S. PATENT NO. 8,737,511 

26. No response is required to Plaintiff’s reference and incorporation of Paragraphs 

above. To the extent a response is deemed required, T-Mobile repeats and incorporates by 

reference, as if fully set forth herein, their answers to Paragraphs 1-25, as set forth above.

27. T-Mobile admits that Exhibit 1 to the Complaint purports to be a true and correct 

copy of U.S. Patent No. 8,737,511 (the “’511 Patent”) entitled “Directed MIMO 

Communications.” T-Mobile lacks knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations of Paragraph 27, and therefore denies them. 

28. T-Mobile denies the allegations in Paragraph 28 of the Complaint. 

29. T-Mobile denies the allegations in Paragraph 29 of the Complaint. 

30. T-Mobile denies the allegations in Paragraph 30 of the Complaint. 

31. T-Mobile admits that Exhibit 2 attached to the Complaint purports to be a claim 

chart related to the ’511 Patent. T-Mobile denies the remaining allegations in Paragraph 31 of the 

Complaint. 

32. T-Mobile denies the allegations in Paragraph 32 of the Complaint. 

33. T-Mobile denies the allegations in Paragraph 33 of the Complaint. 

34. T-Mobile denies the allegations in Paragraph 34 of the Complaint. 

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35. T-Mobile denies the allegations in Paragraph 35 of the Complaint.

COUNT II

INFRINGEMENT OF U.S. PATENT NO. 10,715,235 

36. No response is required to Plaintiff’s reference and incorporation of Paragraphs 

above. To the extent a response is deemed required, T-Mobile repeats and incorporates by 

reference, as if fully set forth herein, their answers to Paragraphs 1-35, as set forth above.

37. T-Mobile admits that Exhibit 3 to the Complaint purports to be a true and correct 

copy of U.S. Patent No. 10,715,235 (the “’235 Patent”) entitled “Directed Wireless 

Communications.” T-Mobile lacks knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations of Paragraph 37, and therefore denies them. 

38. T-Mobile denies the allegations in Paragraph 38 of the Complaint. 

39. T-Mobile denies the allegations in Paragraph 39 of the Complaint. 

40. T-Mobile denies the allegations in Paragraph 40 of the Complaint. 

41. T-Mobile admits that Exhibit 4 attached to the Complaint purports to be a claim 

chart related to the ’235 Patent. T-Mobile denies the remaining allegations in Paragraph 41 of the 

Complaint. 

42. T-Mobile denies the allegations in Paragraph 42 of the Complaint. 

43. T-Mobile denies the allegations in Paragraph 43 of the Complaint. 

44. T-Mobile denies the allegations in Paragraph 44 of the Complaint. 

45. T-Mobile denies the allegations in Paragraph 45 of the Complaint.

COUNT III

INFRINGEMENT OF U.S. PATENT NO. 10,594,376 

46. No response is required to Plaintiff’s reference and incorporation of the Paragraphs 

above. To the extent a response is deemed required, T-Mobile repeats and incorporates by 

reference, as if fully set forth herein, their answers to Paragraphs 1- 45, as set forth above.

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47. T-Mobile admits that Exhibit 5 to the Complaint purports to be a true and correct 

copy of U.S. Patent No. 10,594,376 (the “’376 Patent”) entitled “Directed Wireless 

Communications.” T-Mobile lacks knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations of Paragraph 47, and therefore denies them. 

48. T-Mobile denies the allegations in Paragraph 48 of the Complaint. 

49. T-Mobile denies the allegations in Paragraph 49 of the Complaint. 

50. T-Mobile denies the allegations in Paragraph 50 of the Complaint. 

51. T-Mobile admits that Exhibit 6 attached to the Complaint purports to be a claim 

chart related to the ’376 Patent. T-Mobile denies the remaining allegations in Paragraph 51 of the 

Complaint. 

52. T-Mobile denies the allegations in Paragraph 52 of the Complaint. 

53. T-Mobile denies the allegations in Paragraph 53 of the Complaint. 

54. T-Mobile denies the allegations in Paragraph 54 of the Complaint. 

55. T-Mobile denies the allegations in Paragraph 55 of the Complaint.

COUNT IV

INFRINGEMENT OF U.S. PATENT NO. 7,177,369 

56. No response is required to Plaintiff’s reference and incorporation of Paragraphs 

above. To the extent a response is deemed required, T-Mobile repeats and incorporates by 

reference, as if fully set forth herein, their answers to Paragraphs 1-56, as set forth above.

57. T-Mobile admits that Exhibit 7 to the Complaint purports to be a true and correct 

copy of U.S. Patent No. 7,177,369 (the “’369 Patent”) entitled “Multipath Communication 

Methods and Apparatuses.” T-Mobile lacks knowledge or information sufficient to form a belief 

as to the truth of the remaining allegations of Paragraph 57, and therefore denies them. 

58. T-Mobile denies the allegations in Paragraph 58 of the Complaint. 

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59. T-Mobile denies the allegations in Paragraph 59 of the Complaint. 

60. T-Mobile denies the allegations in Paragraph 60 of the Complaint. 

61. T-Mobile admits that Exhibit 8 attached to the Complaint purports to be a claim 

chart related to the ’369 Patent. T-Mobile denies the remaining allegations in Paragraph 61 of the 

Complaint.

62. T-Mobile denies the allegations in Paragraph 62 of the Complaint. 

63. T-Mobile denies the allegations in Paragraph 63 of the Complaint. 

64. T-Mobile denies the allegations in Paragraph 64 of the Complaint. 

65. T-Mobile denies the allegations in Paragraph 65 of the Complaint.

COUNT V

INFRINGEMENT OF U.S. PATENT NO. 9,289,9393 

66. No response is required to Plaintiff’s reference and incorporation of Paragraphs 

above. To the extent a response is deemed required, T-Mobile repeats and incorporates by 

reference, as if fully set forth herein, their answers to Paragraphs 1-66, as set forth above.

67. T-Mobile denies that Exhibit 9 to the Complaint attaches a true and correct copy of 

U.S. Patent No. 9,289,939. T-Mobile admits that Exhibit 9 to the Complaint purports to be a true 

and correct copy of U.S. Patent No. 8,289,939 (the “’939 Patent”) entitled “Signal Communication 

Coordination.” T-Mobile lacks knowledge or information sufficient to form a belief as to the truth 

of the remaining allegations of Paragraph 67, and therefore denies them. 

68. T-Mobile denies the allegations in Paragraph 68 of the Complaint. 

69. T-Mobile denies the allegations in Paragraph 69 of the Complaint. 

70. T-Mobile denies the allegations in Paragraph 70 of the Complaint. 

3 T-Mobile copies Plaintiff’s Headings for ease of reference, but notes that the Asserted Patent in 

Count V is U.S. Patent No. 8,289,939, not 9,289,939.

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71. T-Mobile admits that Exhibit 2 attached to the Complaint purports to be a claim 

chart related to the ’939 Patent. T-Mobile denies the remaining allegations in Paragraph 71 of the 

Complaint. 

72. T-Mobile denies the allegations in Paragraph 72 of the Complaint. 

73. T-Mobile denies the allegations in Paragraph 73 of the Complaint. 

74. T-Mobile denies the allegations in Paragraph 74 of the Complaint. 

75. T-Mobile denies the allegations in Paragraph 75 of the Complaint.

PRAYER FOR RELIEF

These Paragraphs set forth the statement of relief requested by Plaintiff to which no 

response is required. T-Mobile denies that Plaintiff is entitled to any relief and specifically denies 

all the allegations and prayers for relief contained in Paragraphs (a) through (f) of Plaintiff’s Prayer 

for Relief.

DEFENSES

Subject to the responses above, T-Mobile alleges and asserts the following defenses in 

response to the allegations, without admitting or acknowledging that T-Mobile bears the burden 

of proof as to any of them or that any must be pleaded as defenses. T-Mobile specifically reserves 

all rights to allege additional defenses that become known through the course of discovery.

FIRST DEFENSE

(NO INFRINGEMENT)

76. T-Mobile has not infringed and does not infringe any valid and enforceable claim 

of the Asserted Patents, in any manner under any section of 35 U.S.C. § 271, including 35 U.S.C. 

§271(a), (b), and/or (c), willfully or otherwise. T-Mobile has not performed any act and is not 

proposing to perform any act in violation of any rights validly belong to Plaintiff.

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77. T-Mobile does not indirectly infringe any asserted claim and, in particular, does not 

induce any third party to perform all of the required steps of any asserted method claims while 

using any of the accused products. 

78. T-Mobile has not infringed and does not infringe either literally or by the doctrine 

of equivalents. 

79. T-Mobile does not supply any component that contributes to infringement of any 

valid claim of the Asserted Patents. 

SECOND DEFENSE

(INVALIDITY)

80. The asserted claims of the Asserted Patents are invalid for failure to satisfy the 

requirements of 35 U.S.C. § 100, et seq., including, but not limited to, one or more of the following: 

35 U.S.C. §§ 101, 102, 103, and/or 112. For example, each claim is invalid in view of the 

references cited by the Examiner and arguments made by the Applicants during prosecution of the 

applications that issued as the Asserted Patents. 

THIRD DEFENSE

(NOTICE, DAMAGES, AND COSTS)

81. Plaintiff’s claims for damages are statutorily limited under 35 U.S.C. §§ 252, 286, 

287, or 307. To the extent Plaintiff or its licensees have failed to comply with the marking and 

notice requirements of 35 U.S.C. § 287(a), Plaintiff’s requested relief is barred, in whole or in part, 

for any damages arising from T-Mobile’s alleged infringement prior to at least the date of the filing 

of the original Complaint or otherwise limited by 35 U.S.C. § 286.

82. Plaintiff is barred from recovering costs in connection with this action under 35 

U.S.C. § 288.

83. Plaintiff’s claims for relief are limited by the doctrines of full compensation, 

exhaustion, and/or first sale, and Plaintiff is not entitled to a double recovery. 

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FOURTH DEFENSE

(PROSECUTION HISTORY ESTOPPEL)

84. Plaintiff’s claims are barred by the doctrine of prosecution history estoppel based 

on statements, representations, and admissions made during the prosecution of the patent 

applications resulting in the Asserted Patents before the United States Patent and Trademark Office 

and/or during the prosecution of related patent applications.

FIFTH DEFENSE

(FAILURE TO STATE A CLAIM)

85. The Complaint fails to state a claim upon which relief can be granted. 

SIXTH DEFENSE

(LICENSE, IMPLIED LICENSE, AND/OR EXHAUSTION)

86. Plaintiff’s claims for patent infringement are precluded in whole or in part (i) to the 

extent that any allegedly infringing products or components thereof are supplied, directly or 

indirectly, to T-Mobile by any entity or entities having express or implied licenses or covenant not 

to sue or assert to the Asserted Patents and/or (ii) under the doctrine of patent exhaustion. 

Additionally, Plaintiff’s claims for patent infringement are precluded in whole or in part to any 

direct licenses or agreements/covenants not to sue that pertain to T-Mobile. 

SEVENTH DEFENSE

(INEQUITABLE CONDUCT)

87. Plaintiff’s enforcement of at least the ’235 Patent, the ’376 Patent, and the ’939 

Patent is barred by inequitable conduct, as follows:

88. The ’235, ’376, and ’939 Patents all ultimately arose from applications originally 

filed in 2003 as Application Serial Numbers 10/700,329 for the ʼ235 and ʼ376 Patents and 

10/700,342, for the ʼ939 Patent.

89. By fall of 2007, the ’329 and ’342 applications were owned by Vivato Networks, 

Inc.

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90. In November 2007, Aequitas Capital Management, Inc. (“Aequitas Capital”) 

agreed to loan up to $1,000,000 to Vivato Networks, with an initial advance of $300,000, secured 

in part by the patent applications.

91. In December 2007, Vivato Networks merged with Catcher Holdings, Inc. 

(“Catcher”), and transferred the patent applications to Vivato Networks Holdings, Inc. (“Vivato 

Holdings”). Vivato Holdings granted Catcher the exclusive right to prosecute the applications. On 

April 1, 2008, Catcher ceased operations and terminated all employees due to a lack of working 

capital.

92. In late April or early May 2008, Brooks withdrew as the attorney of record for the 

’329 and ’342 applications.

93. In June 2008, Aequitas Equipment Finance, LLC (“Aequitas”), assignee of 

Aequitas Capital’s security interest in the applications, sought to foreclose on the ’329 and ’342 

applications, each of which became abandoned between June and July 2008 for failure to respond 

to office actions from the United States Patent and Trademark Office (“USPTO”).

94. In April 2009, Aequitas obtained a foreclosure judgment against Vivato Networks 

and Vivato Holdings, and took titled of the abandoned applications through a sheriff’s sale.

95. In fall 2009, Carl J. Schwedler, attorney for Aequitas, filed petitions to revive the 

’329 and ’342 applications. As part of each of those petitions, Schwedler represented that the 

entire period of delay from the due date for filing a reply to the pending USPTO office actions to 

the date of the petitions, was unintentional under 37 C.F.R. § 1.137(b)(4).

96. Upon information and belief, Schwedler’s representation that the delay in 

prosecuting the applications was unintentional was false.

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97. The USPTO granted the petitions filed by Aequitas to revive the ’342 application, 

but denied the petition to revive the ’329 application. In December 2009, Aequitas sold its patent 

portfolio (including the revived ’342 application and the still-abandoned ’329 application) to 

Plaintiff XR.

98. In 2010, XR took responsibility for prosecuting the patent applications.

99. On November 8, 2010, Daniel P. Burke, an attorney for XR, filed a renewed petition 

to revive the ’329 application. In doing so, Burke represented to the USPTO that the entire period 

of delay from the due date for filing a reply to the pending USPTO office action to the date of the 

petition was unintentional.

100. Upon information and belief, Burke’s representation that delay in prosecuting the 

applications was unintentional was false, and XR itself would not have had knowledge of the 

circumstances surrounding the abandonment of the applications.

101. Upon information and belief, the delay that resulted in abandonment of the ’329 

and ’342 applications was not unintentional.

102. Catcher’s SEC filings reflect that, at least as of September 2007, it likely had 

sufficient funds to pay for prosecution of the applications. Moreover, Catcher’s wholly-owned 

subsidiary Vivato Networks had received an agreement for a $1,000,000 loan in November 2007 

(with $300,000 advances), which could have been used to pay for prosecution of the ’329 and ’342 

applications. 

103. Therefore, upon information and belief, Aequitas and XR falsely certified that the 

entire period of delay in replying to the PTO was unintentional. 

104. Upon information and belief, the false representations that the entire period of delay 

in responding to the USPTO with respect to the ’329, and ’342 applications was unintentional were 

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made with intent to deceive the USPTO into granting the petitions to revive. Specifically, upon 

information and belief, the following petitions to revive (and requests for reconsideration) 

contained knowingly false statements made with intent to deceive, and were material to the 

USPTO’s decision to revive the applications and ultimately issue the Patents-in-Suit: 

a. The petition to revive the ’329 application, filed on August 28, 2009 by 

Schwedler;

b. The petition to revive the ’342 application, filed on November 3, 2009 by 

Schwedler;

c. The request for reconsideration of the dismissal of the petition to revive the 

’329 application, filed on November 18, 2009 by Schwedler; and

d. The renewed petition to revive the ’329 application, filed on November 8, 

2010 by Burke.

105. Upon information and belief, the false representations that the entire period of delay 

in responding to the USPTO with respect to the ’329 and ’342 applications was unintentional were 

material to the USPTO, because without that false representation the USPTO would not have 

ultimately granted the petitions to revive and the ’235, ’376, and ’939 Patents never would have 

issued. 

106. Accordingly, upon information and belief, Aequitas, XR and their counsel engaged 

in inequitable conduct in reviving the ’329 and ’342 applications.

EIGHTH DEFENSE

(STATUTORY LIMITATIONS)

107. To the extent certain equipment accused of infringing the Asserted Patents are used 

by and/or manufactured for the United States Government and/or public good, Plaintiff’s claims 

involving T-Mobile may not be pursued in this Court and are subject to other limitations pursuant 

to 28 U.S.C. § 1498.

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NINTH DEFENSE

(NO ENTITLEMENT TO INJUNCTIVE RELIEF)

108. XR is not entitled to injunctive relief. Under eBay v. MercExchange, LLC, 547 

U.S. 388 (2006), any alleged injury to XR would not be immediate or irreparable, XR would have 

an adequate remedy at law, and the balance of hardships does not warrant injunctive relief. 

RESERVATION OF DEFENSES

T-Mobile hereby reserves the right to supplement defenses as discovery proceeds in this 

case.

PRAYER FOR RELIEF

WHEREFORE, T-Mobile prays for judgment as follows:

a. A judgment dismissing Plaintiff’s Complaint with prejudice;

b. A judgment in favor of T-Mobile on all of their Defenses;

c. A judgment that T-Mobile has not infringed, contributed to the infringement of, or 

induced others to infringe, either directly or indirectly, any valid claims of the 

Asserted Patents;

d. A judgment that the Asserted Patents are invalid;

e. A judgment that the Asserted Patents are unenforceable;

f. An award to T-Mobile of their fees and expenses of litigation;

g. A judgment limiting or barring Plaintiff’s ability to enforce the Asserted Patents 

in equity;

h Such other and further relief as this Court may deem just and proper.

DEMAND FOR JURY TRIAL

In accordance with Rule 38 of the Federal Rules of Civil Procedure and Local Rule CV-38, 

Defendants respectfully demand a jury trial of all issues triable to a jury in this action.

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Dated: July 14, 2023 Respectfully submitted, 

Melissa R. Smith

Texas Bar No. 24001351

GILLAM & SMITH, LLP 

303 South Washington Avenue

Marshall, Texas 75670

Telephone: (903) 934-8450

Facsimile: (903) 934-9257

melissa@gillamsmithlaw.com

Counsel for Defendant T-Mobile USA, Inc. 

/s/ Melissa R. Smith 

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CERTIFICATE OF SERVICE

The undersigned certifies that all counsel of record who are deemed to 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 July 14, 2023. 

Melissa R. Smith 

/s/ Melissa R. Smith 

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