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)

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EXHIBIT 1 McKoOL SMITH A PROFESSION AL CQRI'QRA TION' A lTORNEYS Josh W. Bud win Direct Dial: (51 2) 692-8727 jbudwin@mckoolsmith.com 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: Frito-JCP-RAC-Eolas@gtlaw.com Brian Carpenter (Brian.Carpenter@BJCIPLaw.com) Eric W. Buether (Eric.Buether@BJCIPLaw.com)

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