Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1050

MOTION FOR LEAVE TO SUPPLEMENT THEIR P.R. 3-1 INFRINGEMENT CONTENTIONS WITH RESPECT TO FRITO-LAY, INC.'S HAPPINESS.LAYS.COM by Eolas Technologies Incorporated. (Attachments: # 1 Declaration of Thomas Fasone III, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Text of Proposed Order)(McKool, Mike)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated,
Plaintiff,
vs.
Adobe Systems Inc., et al.,
Defendants.

§
§
§ Civil Action No. 6:09-CV-00446-LED
§
§
§
§ JURYTRIAL
§
§

DECLARATION OF THOMAS FASONE III IN SUPPORT OF PLAINTIFFS'
MOTION FOR LEAVE TO SUPPLEMENT THEIR P.R. 3-1 INFRINGEMENT
CONTENTIONS FOR HAPPINESS.LA YS. COM
I, Thomas Fasone III, do state and declare as follows:
1.

I am an attorney with the law finn of McKool Smith PC (McKool Smith), counsel

for Plaintiffs The Regents of the University of California and Eolas Technologies Incorporated
(collectively "Plaintiffs") in this action. I make this declaration in support of Plaintiffs' Motion
For Leave to Supplement Their Infringement Contentions, filed herewith.

Unless otherwise

stated, the matters contained in this declaration are of my own personal knowledge and, if called
as a witness, I could and would testify competently to the matters set forth herein.
2.

Plaintiffs first learned about the webpage happiness. lays. com during the stay

between Plaintiffs and Frito-Lay in 2011 during July and August 2011.
3.

Attached hereto as Exhibit 1 is a true and correct copy of Plaintiffs' P.R. 3-1

Infringement Contentions, served on Frito-Lay on March 5, 2010, in this matter.

McKool 401020v4

4.

Attached hereto as Exhibit 2 is a true and correct copy Plaintiffs' Request for

Production Pursuant to Paragraph 11 of the Discovery Order, served on Frito-Lay on April 2,
2010, in this matter.
5.

Attached hereto as Exhibit 3 is a true and correct copy of an e-mail that I sent to

Mr. Joyner, Mr. Vee and Mr. McSwane, counsel for Frito-Lay, dated October 6, 2011, in this
matter.
6.

Attached hereto as Exhibit 4 is a true and correct copy of an e-mail that I sent to

Mr. Vee, counsel for Frito-Lay, dated September 28, 2011, in this matter.
7.

Attached hereto as Exhibit 5 is a true and correct copy of Plaintiff s Second Set of

Interrogatories (No.3) To Be Answered By Frito-Lay, served on September 12, 2011, in this
matter.
8.

Attached hereto as Exhibit 6 is a true and correct copy of Plaintiffs First

Amended Second Set of Interrogatories (No.3) To Be Answered By Frito-Lay, served on
September 28, 2011, in this matter.
9.

Attached hereto as Exhibit 7 is a true and correct copy of an e-mail that I sent to

Mr. Vee and Mr. Joyner, counsel for Frito-Lay, dated September 23,2011, in this matter.
10.

Attached hereto as Exhibit 8 is a true and correct copy of an e-mail from Mr. Vee,

counsel for Frito-Lay to me, dated September 27,2011, in this matter.
11.

Attached hereto as Exhibit 9 is a true and correct copy of an e-mail from Mr. Vee,

counsel for Frito-Lay to Ms. Engelmann and me, dated October 11, 2011, following a response
from Ms. Engelmann to Mr. Yee on October 12, 2011, in this matter.
12.

Attached hereto as Exhibit 10 is a true and correct copy of a letter that I sent to

Mr. Vee and Mr. Joyner, counsel for Frito-Lay, dated October 14, 2011, in this matter.

McKoo1401020v4

13.

Attached hereto as Exhibit 11 is a true and correct copy of a Frito-Lay Press

Release entitled "Lay's Unveils Happiness Exhibit Spotlighting Simple Moments of Happiness
as Captured in Consumer Photos," dated March 15, 2011 available at www.fritolay.comlaboutus/press-re1ease-20 100315 .html.
I declare under penalty of perjury that the foregoing is true and correct and that this

McKool401020v4