Das letzte Pacer-filing zu der Fish-Klage:
http://www.agoracom.com/ir/patriot/message/510547
wolf re: FISH ORIGINAL ANSWER AND COUNTERCLAIM Posted by wolfpackvolt on October 24, 2006 at 8:48PM In response to wolf re: Fish by sdlittle Nothing new in Pacer relating PTSC vs Fish. Mediation commenced on September 11, 2006 and is continuing while the proceedings are stayed.
(See Below) ORIGINAL ANSWER AND COUNTERCLAIM Defendants Russell H. Fish III and Janet L. Fish
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION Patriot Scientific Corporation, Plaintiff vs.
Civil Action No. 3:06-cv-1203-K Russell H. Fish III, and Janet L. Fish, trustee of the Fish Family Trust, Defendants.
ORIGINAL ANSWER AND COUNTERCLAIM Defendants Russell H. Fish III and Janet L. Fish (?Defendants?) here answer Plaintiff?s Complaint for Declaratory Relief: 1. Defendants lacks sufficient information to admit or deny the truth of the allegations in Paragraph 1 and therefore deny them. 2. Defendants admit the allegations in Paragraph . 3. Defendants admit that Janet L. Fish is a citizen and resident of Texas, and was the trustee of the Fish Family Trust until March 9, 2006. Defendants deny the remaining allegations in Paragraph 3. 4. Defendants admit that the Court in the Northern District of Texas, Dallas Division, has subject matter jurisdiction over this action, but deny that Defendants have done anything improper or that Plaintiff?s claims have any merit, and deny any remaining allegations in Paragraph 4. Case 3:06-cv-01203 Document 39 Filed 09/08/2006 Page 1 of 11 1-DA/2029305.1 - 2 - 5. Defendants admit that venue is proper in the Northern District of Texas, Dallas Division, but deny the remaining allegations in Paragraph 5. 6. Defendants lack sufficient information to admit or deny the truth of the allegations in Paragraph 6. 7. Defendants admit that Plaintiff filed numerous patent infringement suits across the country, in which Beatie & Osborn, LLP represented Plaintiff. Defendants lack sufficient information to admit or deny the truth of the remaining allegations in Paragraph 7, and therefore deny them. 8. Defendants deny that Russell H. Fish III (?Fish?) assigned any patent rights to Nanotronics. Nanotronics acquired certain rights to certain patents in which Fish is a named inventor (the ?Fish Patents?) from the Fish Family Trust pursuant to an agreeement. Under that agreement, the Fish Family Trust also retained certain rights to those patents. Defendants lack sufficient information to admit or deny the truth of the remaining allegations in Paragraph 8, and therefore deny them. 9. Defendants admit that Plaintiff initiated litigation against Charles Moore and TPL seeking a declaration that Mr. Moore was not an inventor of certain inventions claimed in the Fish Patents. Defendants lack sufficient information to admit or deny the truth of the remaining allegations in Paragraph 9, and therefore deny them. 10. Defendants admit that Plaintiff and its legal counsel, Beatie & Osborn, doggedly pursued Fish to obtain technical information and his cooperation in connection with Plaintiff?s efforts to enforce its rights in the Fish Patents against various technology companies. Defendants deny that Fish owns any stock in Plaintiff. Defendants admit that, on or about July 27, 2004, Plaintiff, Fish, and the Fish Family Trust entered into an agreement (the ?Fish Agreement?), underwhich Plaintiff agreed to pay Fish and the Fish Family Trust a percentage of proceeds Plaintiff received relating to the Fish Patents. Defendants deny that Fish or the Fish Family Trust drafted the Fish Agreement. To the contrary, it was drafted by Plaintiff or its counsel. Defendants lack sufficient information to admit or deny the truth of any remaining allegations in Paragraph 10, and therefore deny them. 11. Defendants deny the allegations to the extent they are contrary to or inconsistent with the terms of the Fish Agreement. Defendants deny any remaining allegations in Paragraph 11. 12. Defendants incorporate and restate their responses to the allegations of Paragraphs 13. Defendants admit that a dispute has arisen between Fish and the Fish Family Trust, on one hand, and Plaintiff, on the other hand, due to Plaintiff?s failure to honor its obligations under the Fish Agreement. Defendant Fish denies the allegations in Paragraphs 13(a) through 13(g). To the extent relevant, Defendant Janet Fish also denies the allegations in Paragraphs 13(a) through 13(g). 14. Defendants admit that Fish and the Fish Family Trust deny any allegation by Plaintiff that the Fish Agreement is not enforceable for any reason. Defendants admit that Fish and the Fish Family Trust contend that Plaintiff has failed to honor its payment obligations under the Fish Agreement. Defendants deny any remaining allegations in Paragraph 14. 15. Defendants admit that Fish presented demands for payment to Plaintiff under the Fish Agreement. Defendants also admit that Fish and the Fish Family Trust, through its trustee Robert C. Anderson, have asserted claims for breach of contract and associated damages in the lawsuit styled ?Russell H. Fish III and Robert C. Anderson, as trustee of the Fish Family Trust v. Patriot Scientific Corporation,? Civil Action No. 3-06-cv-0815-K, pending in the Northern District of Texas, Dallas Division. Defendants lack sufficient information to admit or deny the truth of the remaining allegations in Paragraph 15. 16. Defendants deny the allegations in Paragraph 16. 17. Defendants deny any allegations contained in Paragraphs 1-6 in Plaintiff?s ?claim for relief? and 46?59, and deny that Plaintiff is entitled to any relief requested. Affirmative Defenses 18. Plaintiff?s complaint fails to state a claim upon which relief can be granted against Janet L. Fish or the Fish Family Trust because Janet L. Fish is not and was not the trustee of the Fish Family Trust when this action was filed by Plaintiff or anytime thereafter. 19. Plaintiff lacks in personam jurisdiction over the Fish Family Trust because it has refused to substitute the actual trustee despite repeated notice thereof. 20. This case should be dismissed for failure by Plaintiff to join an indispensible party 21. Without conceding it is defendant?s burden, Plaintiff is not entitled to relief because the Agreement is valid and enforceable, and Plaintiff has breached the Agreement. COUNTERCLAIM BY RUSSELL H. FISH III Defendant/Counterclaimant Russell H. Fish III complains of Patriot Scientific Corporation (?PSC?) and asserts a counterclaim as follows: A. Parties 1. Russell H. Fish, III is a Texas citizen who resides in Dallas County. 2. PSC is a corporation organized and existing under the laws of the state of Delaware, with its principal place of business in the state of California. PSC does not maintain a regular place of business in the State of Texas and does not have a designated agent for service of process in Texas. Therefore, PSC is deemed to have designated the Texas Secretary of State as its agent for service of process. The Texas Secretary of State may be served by certified mail and may forward process to PSC?s home office, care of its Chief Executive Officer, David Pohl, at Carlsbad Corporate Plaza, 6183 Paseo Del Norte, Suite 180, Carlsbad, California 92011. B. Jurisdiction and Venue 3. This Court has subject matter jurisdiction with respect to this case under 28 U.S.C. § 1332 due to diversity of citizenship of the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 4. Venue is proper in this judicial district under 28 U.S.C. § 1391(a) because a substantial part of the events or omissions giving rise to this case occurred in this judicial district and because PSC resides in this judicial district under 28 U.S.C. § 1391(c). C. Background 5. Mr. Fish is an inventor on, inter alia, several United States patents in which PSC is the record owner of an undivided interest. Those patents include U.S. Patent Nos. 5,530,890; 5,440,749; 5,604,915; 5,659,703; 5,784,584; 5,809,336; and 6,598,148 (collectively the ?Fish Patents?). 6. Robert Anderson is the sole trustee of The Fish Family Trust. Mr. Anderson is a Texas citizen who resides in Travis County. The Fish Family Trust is a Texas entity. 7. PSC commenced a litigation and licensing program with regard to the Fish Patents. 8. PSC, Mr. Fish and The Fish Family Trust entered into a written agreement on or about July 27, 2004 (the ?Fish Agreement?), which is performable and was in fact performed at least in part in Dallas, Texas. 9. In connection with the Fish Agreement, PSC contracted by mail or otherwise with Mr. Fish and the Fish Family Trust. In connection with its performance under the Fish Agreement, PSC sent its representatives to Dallas, Texas to perform certain activities with Mr. Fish. 10. Pursuant to the Fish Agreement, PSC contracted to pay Mr. Fish and the Fish Family Trust ?from gross proceeds of any payment (whether in kind or otherwise) received relating to the Patents, whether in satisfaction of a judgment, in settlement of litigation, for a license or covenant not to sue, or otherwise relating to a resolution in its litigation and licensing program, without deduction for any attorneys? fees, expenses or court costs relating to such litigation or licensing program (collectively, the ?Proceeds?).? 11. The Fish Agreement provides that PSC was to pay Mr. Fish eleven and one-half percent of the Proceeds until Mr. Fish had received a threshold amount that has not yet been reached. The Fish Agreement also provides that PSC will pay Mr. Fish on a quarterly basis. All conditions precedent have been satisfied by Mr. Fish. 12. The Fish Agreement provides further that PSC was to pay The Fish Family Trust one percent of the Proceeds until the Fish Family Trust had received a threshold amount that has not yet been reached. The Fish Agreement also provides that PSC will pay the Fish Family Trust on a quarterly basis. All conditions precedent have been satisfied by the Fish Family Trust. 13. Under the terms of the Fish Agreement and as part of the consideration therefore, the Fish Family Trust and Mr. Fish extinguished a right to license the Fish Patents that existed under a prior technology transfer agreement relating to those Fish Patents. 14. On information and belief, defendant PSC has received significant payments which are Proceeds, but which PSC has not included in the amounts from which Mr. Fish and The Fish Family Trust are entitled to eleven and one-half percent and one percent, respectively. The Proceeds include amounts received by PSC from Intel, AMD, HP, Fujitsu, Sony, Pentax, Seiko, and Nikon, among others. The amounts for which Mr. Fish and The Fish Family Trust have not been compensated are due and owing, and PSC is in default because of PSC?s obligation to pay Mr. Fish and The Fish Family Trust on a quarterly basis. 15. PSC also is an intended beneficiary of a patent infringement lawsuit on the Fish Patents filed in the State of Texas. D. Count I ? Breach of Contract (Breach of the Fish Agreement) 16. Mr. Fish incorporates paragraphs 1-15 as though fully set forth herein. 17. PSC has repudiated the Fish Agreement and has refused to honor its obligations thereunder. 18. Mr. Fish has been damaged by PSC?s acts. 19. PSC owes more than $75,000 to Mr. Fish under the Fish Agreement (excluding interest and costs), in an amount to be determined at trial. E. Count II ? Third-Party Beneficiary 20. Mr. Fish incorporates paragraphs 1-19 as though fully set forth herein. 21. In the event the Fish Agreement is unenforceable as to Mr. Fish as a contracting party (which Mr. Fish denies), the Fish Agreement remains enforceable as to the Fish Family Trust. 22. The Fish Agreement expressly states an intent to confer a benefit to Mr. Fish. 23. Mr. Fish is a third-party beneficiary under the Fish Agreement and is thus entitled to enforce the Fish Agreement to receive eleven and one-half percent of the Proceeds thereunder. 24. PSC has repudiated the Fish Agreement and has refused to honor its obligations thereunder. 25. Mr. Fish has been damaged by PSC?s acts in excess of $75,000 (excluding interest and costs), in an amount to be determined at trial. F. Count III ? Breach of Contract (April 2003 Agreement) 26. Mr. Fish incorporates paragraphs 1-25 as though fully set forth herein. 27. In April of 2003, the Fish Family Trust and Mr. Fish entered into an agreement with PSC under which PSC agreed to pay them a varying percentage of all revenues resulting from, inter alia, any licenses, judgments or settlements relating to the Fish Patents (hereafter, the ?April 2003 Agreement?). 28. In the Fish Agreement (entered into on July 27, 2004), PSC, Mr. Fish, and the Fish Family Trust extinguished the April 2003 Agreement. 29. Only to the extent, arguendo, the Fish Agreement is totally void and unenforceable (which Mr. Fish denies), the April 2003 Agreement is valid and enforceable against PSC. 30. To the extent, arguendo, the Fish Agreement is totally void and unenforceable (which Mr. Fish denies), the Fish Family Trust?s right to license the Fish Patents is revived. 31. All conditions precedent for the April 2003 Agreement have been satisfied. 32. PSC has failed to pay the Fish Family Trust and Mr. Fish under the terms of the April 2003 Agreement. 33. Mr. Fish has been damaged by PSC?s acts. 34. PSC owes in excess of $75,000 to Mr. Fish under the April 2003 Agreement (exclusive of interest and costs), in an amount to be determined at trial. G. Attorney Fees 35. Mr. Fish is entitled to recover reasonable and necessary attorney fees under Texas Civil Practice and Remedies Code Chapter 38 because this is a suit for a claim listed in § 38.001. Demand for payment was presented to PSC but has not been tendered although more than 30 days have passed since the demand was made. Prayer WHEREFORE, Russell H. Fish III and Janet L. Fish request that: 1. Judgment be rendered against PSC for damages within the jurisdictional limits of the Court. 2. Judgment be rendered against PSC for prejudgment and post-judgment interest as provided by law, and for costs of suit. 3. Mr. Fish and Janet L. Fish have judgment awarding their reasonable and necessary attorney fees incurred in connection with this suit. 4. Such other and further relief, at law or in equity, be granted to which Mr. Fish and Janet L. Fish may be justly entitled. Russell H. Fish III and Janet L. Fish demand a jury trial on all issues so triable in this action. Respectfully submitted, __s/Jerry R. Selinger_______________ Jerry R. Selinger
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