Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 1 of 8 PageID# 374

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1 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 1 of 8 PageID# 374 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION AFILIAS PLC Plaintiff, v. Case No. 1:15-CV LMB-JFA ARCHITELOS, INC. and ALEXA RAAD, Defendants. PLAINTIFF AFILIAS PLC S ANSWER TO DEFENDANTS COUNTERCLAIMS AND AFFIRMATIVE DEFENSES Plaintiff Afilias PLC ( Afilias ) files this Answer to Defendants Counterclaims (the Counterclaims ) and respectfully shows the following: Admitted. ANSWER THE PARTIES 112. Afilias lacks sufficient information to admit or deny the allegations of paragraph 112 of the Counterclaims and, on that basis, denies them Admitted. JURISDICTION AND VENUE 114. Afilias admits this Court has jurisdiction over this dispute under 28 U.S.C and Afilias admits that the amount in controversy with respect to the claims Afilias has asserted exceeds $75,000. Afilias denies the remaining allegations of paragraph 114 of the Counterclaims. 1 Afilias numbered the paragraphs of this Answer to correspond with the numbered paragraphs in the Counterclaims.

2 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 2 of 8 PageID# This Paragraph asserts a legal conclusion and therefore does not require a response. FACTUAL BACKGROUND 116. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations of paragraph 116 of the Counterclaims Afilias admits that, based on information available from the Delaware Department of State, Architelos, Inc. ( Architelos ) was incorporated on January 27, Afilias admits that Architelos provides services related to top-level domain names and the NameSentry antiabuse service. Afilias lacks sufficient information to admit or deny the remaining allegations of paragraph 117 of the Counterclaims and, on that basis, denies them Afilias admits that the face of U.S. patent application no. 13/069,929 (the 929 application ) indicates that it was filed on March 23, 2011, and published on September 27, Afilias admits that the face of the 929 application lists Alexa Raad as the inventor. Afilias admits that the face of U.S. patent no. 8,800,044 (the 044 patent ) indicates that it issued from the 929 application on August 5, Afilias denies the remaining allegations of paragraph 118 of the Counterclaims Afilias admits that Architelos provides the NameSentry product. Afilias lacks sufficient information to admit or deny the remaining allegations of paragraph 119 of the Counterclaims and, on that basis, denies them Afilias admits that Architelos offers a domain name abuse service under the trade name NameSentry. Afilias lacks sufficient information to admit or deny the remaining allegations of paragraph 120 of the Counterclaims and, on that basis, denies them. 2

3 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 3 of 8 PageID# Afilias lacks sufficient information to admit or deny the allegations of paragraph 121 of the Counterclaims and, on that basis, denies them Afilias lacks sufficient information to admit or deny the allegations of paragraph 122 of the Counterclaims and, on that basis, denies them Afilias admits that the face of U.S patent 8,938,801 (the 801 patent ) indicates that (i) it is assigned to Architelos, (ii) it lists Michael William Young, Stephen Van Egmond, and Greg Aaron as inventors, (iii) it issued from application no. 13/416,688 (the 688 application ) on January 20, 2015, and (iv) the 688 application was filed on March 9, 2012, and published on September 12, Afilias denies the remaining allegations of paragraph 123 of the Counterclaims Afilias admits that it is a top-level domain registry. Afilias admits that it had approximately $77 million in revenues in Afilias admits that it and its subsidiaries employ approximately 150 people. Afilias denies the remaining allegations of paragraph 124 of the Counterclaims Denied Afilias admits that it has, at times, been represented by counsel with the Canadian law firm Gowlings Lafleur Henderson LLP. Afilias admits that counsel filed assignment documents with the United States Patent and Trademark Office (the USPTO ) during the prosecution of the 688 application. Afilias denies the remaining allegations of paragraph 126 of the Counterclaims Afilias admits that it has, at times, been represented by counsel with the law firm of Haynes and Boone, LLP, and that Haynes and Boone represents Afilias in this lawsuit. Afilias admits that counsel with Haynes and Boone filed certain documents with the USPTO 3

4 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 4 of 8 PageID# 377 during the prosecution of the 688 application. Afilias denies the remaining allegations of paragraph 127 of the Counterclaims Afilias admits that on December 10, 2014, counsel filed continuation patent application no. 14/566,351 (the 351 application ) claiming priority to the 688 application, of which notice is not required. Afilias admits that Architelos has filed a protest to the 351 application. Afilias denies the remaining allegations of paragraph 128 of the Counterclaims Denied. FIRST COUNTERCLAIM (TORTIOUS INTRFERENCE WITH CONTRACT) 130. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations of paragraph 130 of the Counterclaims Afilias admits that it discovered U.S. patent application publication no. 2013/ (the 209 publication ) in or around May Afilias admits that the face of the 209 publication states that it relates to the 688 application. Afilias denies the remaining allegations of paragraph 131 of the Counterclaims Afilias admits that it has been aware of Architelos NameSentry service since May Afilias lacks sufficient information to admit or deny the remaining allegations of paragraph 132 of the Counterclaims and, on that basis, denies them Denied Denied. 4

5 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 5 of 8 PageID# 378 SECOND COUNTERCLAIM (TORTIOUS INTERFERENCE WITH EXISTING CONTRACT, CONTRACT EXPECTANCY, PROSPECTIVE BUSINESS RELATIONSHIP AND ECONOMIC ADVANTAGE) 135. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations of paragraph 135 of the Counterclaims Afilias admits that it is aware of Architelos NameSentry service. Afilias lacks sufficient information to admit or deny the remaining allegations of paragraph 136 of the Counterclaims and, on that basis, denies them Denied Denied. THIRD COUNTERCLAIM (SLANDER OF TITLE) 139. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations of paragraph 139 of the Counterclaims Denied Afilias admits that certain documents filed in the USPTO are publicly available. Afilias denies the remaining allegations of paragraph 141 of the Counterclaims Denied Denied. FOURTH COUNTERCLAIM (CONVERSION) 144. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations 5

6 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 6 of 8 PageID# 379 of paragraph 144 of the Counterclaims Denied. FIFTH COUNTERCLAIM (DECLARATORY JUDGMENT) 146. Afilias incorporates herein by reference its preceding responses to paragraphs of the Counterclaims as if fully set forth herein. Afilias denies the remaining allegations of paragraph 146 of the Counterclaims Afilias admits that it and Defendants dispute the ownership of: (i) the 044 patent, the 801 patent; (ii) all applications claiming priority to the 044 patent or the 801 patent; (iii) the technology and other inventions disclosed in the 044 patent or the 801 patent; (iv) patent application nos. EP , EP , and CA ; and (v) the technology and other inventions disclosed in patent application nos. EP , EP , and CA Afilias denies the remaining allegations of paragraph 147 of the Counterclaims. RELIEF Afilias denies that Defendants are entitled to any relief of any kind or at all, including all relief sought in the Counterclaims. Afilias denies that Defendants have suffered or are entitled to damages of any kind or at all, including all damages sought in the Counterclaims. AFFIRMATIVE DEFENSES In addition to the defenses described below, Afilias expressly reserves the right to allege additional defenses as they become known to Afilias through the course of discovery. First Affirmative Defense Unclean Hands Defendants claims are barred, in whole or in part, by the doctrine of unclean hands. As alleged in the Complaint, Defendants acted wrongfully by, among other things, misappropriating Afilias trade-secret information. Thus, Defendants own bad actions bar them from recovering 6

7 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 7 of 8 PageID# 380 on any of the Counterclaims. Second Affirmative Defense Failure to Mitigate Damages Defendants claims are barred, in whole or in part, by their failure to mitigate their damages, if any. Defendants took no steps and made no effort to mitigate the damages they claim in the Counterclaims. Thus, because Defendants failed to mitigate their own damages (if any), they cannot recover any amounts from Afilias. Third Affirmative Defense Limitation of Punitive Damages Defendants claims for punitive damages are limited by the Due Process Clause of the U.S. Constitution and Virginia Code and (B). Dated: April 3, 2015 Respectfully submitted, /s/ Scott A. Cunning II Richard A. Ripley (pro hac vice) richard.ripley@haynesboone.com Philip G. Hampton, II (pro hac vice) phil.hampton@haynesboone.com Scott A. Cunning, II (VA Bar No ) scott.cunning@haynesboone.com HAYNES AND BOONE, LLP th Street, NW, Suite 500 Washington, DC Telephone: (202) Facsimile: (202) Charles M. Jones II (pro hac vice) charlie.jones@haynesboone.com HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas Telephone: (214) Facsimile: (214) Attorneys for Plaintiff Afilias PLC 7

8 Case 1:15-cv LMB-JFA Document 37 Filed 04/03/15 Page 8 of 8 PageID# 381 CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of April, 2015, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Alan A. Wright H.C. PARK & ASSOCIATES, PLC 1894 Preston White Drive Reston, VA /s/ Scott A. Cunning II Scott A. Cunning, II (VA Bar No ) Attorney for Plaintiff Afilias PLC HAYNES AND BOONE, LLP th Street, NW, Suite 500 Washington, DC Telephone: (202) Facsimile: (202) scott.cunning@haynesboone.com Attorneys for Plaintiff Afilias PLC