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)

EXHIBIT 1

McKoOL SMITH
A PROFESSION AL CQRI'QRA TION' A lTORNEYS

Josh W. Bud win
Direct Dial: (51 2) 692-8727
[e-mail]

300 West Sixth Street, Su ite 1700
Austin, Texas 7870)

Telephone: (5 12) 692·8700
Tclcco picr: (5 12) 692·8744

March 5, 2010

VIA E-MAIL (w/o enclosures) and U.S. Mail (wI enclosures)
Christopher M. Joe
Buether Joe & Carpenter
700 Pacific, Suite 2390
Dalias, TX 7520 I
Re:

Eolas Technologies Incorporated v. Adobe Systems, Inc., el. al; C ivil Action No.
6:09-CV-00446-L ED; United Di strict Court of Texas; Eastern District.

Dear Mr. Joe:
In compliance with P.R. 3-1 and 3-2 and the Court's Docket Contro l Order, Eolas
Technologies Incorporated ("EoJas") hereby submits its "Disclosure of Asserted Claims and
Preliminary Infringement Contentions" and accom panying document producti on.
Pursuant to P.R. 2·2, some of the document production accompanying Eolas' «Discl osure
of Asserted Claims and Preli minary Infringement Contentions" is marked «Highly Confidential."
All documents labe led or designated as "Highly Confidential" shall be deemed "Confidential"
within the meaning of P.R. 2-2 and thereby limited to outside attorneys of record and the
employees of such outside attorneys.

I.

Asserted C laims and Priority Dates
Eol as asserts the following claims against Frito·Lay. Inc.:
U.S. Patent No. 5,838,906: claims 1-14.
U.S . Patent No. 7,599,985: claims 1-47.

Eolas has endeavored to identify the asserted claims on a per·accused instrumentality
basis in the chart in Section II , infra.
Each of the claims asserted with respect to U.S. Patent Nos. 5,838,906 ("the ' 906 patent")
and 7,599,985 ("the '985 patent") are entitled to a priority date at least as early as October 17,
1994.

March 5, 2010
Page 2 of3

II.

Accused Instrumentalities

The accused instrumentalities are specifically identified in the claim charts included on
the DVD enclosed herewith as exhibits 1-2.

Chart
Exhibit
No,
1.

Defendant

Frito-Lay

2.

III.

Chart

Infringement
Theory

906 - Frito-Lay - Chart l (see also
instrumentalities identified therein) (accused of
infringing claims 1-14 of the '906 patent and
claims 1-47 of the ' 985 patent)
985 - Frito-Lay - Chart I (see also
instrumentalities identified therein) (accused of
infringing claims 1-14 of the '906 patent and
claims 1-47 of the ' 985 patent)

Direct/Indirect (i.e. ,
contributory
infringement and/or
inducement)/DOE

Directlf ndirect/DOE

Infringement Theory
The infringement theories for each of the accused instrumentalities arc specifically

identified in the claim charts attached hereto. The infringement theory for each of the accused
instrumentalities is also summarized in the chart in Section II above.
In the alternative, Eo las contends that any element found not to be literally infringed is
infringed under the doctrine of equivalents because the differences between the claimed
inventions and the accused instrumentalities, if any , are insubstantial. Eolas also contends that
Frito-Lay, Inc. directly infringes the asserted claims by making, using, offering for sale, se lling,
and importing in to the United States the accused instrumentalities as well as indirectly infringes
by contributing to and/or inducing others (e.g., Frito-Lay, Inc.'s customers or its customers'
customers) to directly infringe those claims. Eolas further contends that Frito-Lay, Inc.'s
infringement is deliberate and willful entitling Eolas to an injunction, enhanced damages, and
attorneys ' fees.

IV.

Claim Charts

The claim charts attached hereto as Exhibits 1-2 identify where each element of each
asserted claim is found within each of the accused instrumentalities, as required under Patent
Rule 3-I(c).

V.

Eolas' Embodiments of the Claimed Inventions

The inventions claimed in some or all of the claims of the '906 and/or ' 985 patent are
embodied in some or all versions of the fo llowing products: Visible Embryo Project and/or
AnatLab System.

March 5, 2010
Page 3 of3

VI.

Document Production Pursuant to P.R. 3-2

In addition to the DVD containing the claim charts, submitted herewith are 2 DVDs
containing Eolas' document production, which include, among other things, documents produced
pursuant to P.R. 3-2. The following li sts the specific documents that correspond to each category
of P.R. 3-2:
P.R. 3-2(a) Documents: nonc.
P.R. 3-2(b) Documents: EOLASTX-E-OOOOOOOOOI and EOLASTX-OOOOOOOOOI EOLASTX-00000003 12. See also Appendices A and B to the specification of the '906
patent (included within the P.R. 3-2(c) documents identified infra).
P.R. 3-2(c) Documents: EOLASTX-0000000313 - EOLASTX-0000009875.

Additionally, because no Protective Order has been entered in thi s case, source code
related to products that may embody some or all of the claims of Eolas' patents will be made
avai lable in accordance with the agreement of the parties for source code production and the date
for such production.
Eolas has used its best efforts to identify all responsive P.R. 3-2 documents and only
those documents. However, given the volume of documents, some documents may have been
inadvertently listed or inadvertently omitted. To the extent such deficiencies are identified, Eolas
will supplement its production according ly.
If you have any questions, please do not hesitate to contact me.
Sincerely,

Enclosures
cc: Without Production and Enclosures:
[e-mail]
Brian Carpenter ([e-mail])
Eric W. Buether ([e-mail])