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 5

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated,
Plaintiff,
vs.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., Argosy Publishing, Inc.,
Blockbuster Inc., CDW Corp.,
Citigroup Inc., eBay Inc., Frito-Lay, Inc.,
The Go Daddy Group, Inc., Google Inc.,
J.C. Penney Company, Inc., JPMorgan
Chase & Co., New Frontier Media, Inc.,
Office Depot, Inc., Perot Systems Corp.,
Playboy Enterprises International, Inc.,
Rent-A-Center, Inc., Staples, Inc., Sun
Microsystems Inc., Texas Instruments Inc.,
Yahoo! Inc., and YouTube, LLC
Defendants.

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

PLAINTIFF EOLAS’ SECOND SET OF INTERROGATORIES
(NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY, INC.
Plaintiff Eolas Technologies Incorporated (“Eolas”) serves this Second Set of
Interrogatories (No. 3) on Defendant Frito-Lay, Inc. (“Frito-Lay”). The answer should be served
upon counsel for Eolas as provided by Fed. R. Civ. P. 33.
I.
1.

INSTRUCTIONS

For the following interrogatories the information sought is that which is current to

the date of your response.

The following interrogatories are of a continuing nature and

supplemental responses are required in accordance with Federal Rule of Civil Procedure 26(e).
2.

If any information is withheld on the basis of a claim of privilege or work

product, then the answer shall: generally identify the information withheld by subject matter,
author, addressees, and carbon copy recipient(s); state the basis for withholding the information;
and identify the person(s) knowledgeable about the subject matter of the withheld information.
EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 1

3.

If any documents referred to in your response to these interrogatories were, but

are no longer in your possession, custody, or control, state what disposition was made of them
and when. If any documents referred to in response to these interrogatories have been lost or
destroyed, describe in detail the circumstances of such loss or destruction and identify each lost
or destroyed document (and all files that contained such documents).
4.

If the procedure for answering interrogatories as authorized by Fed. R. Civ. P.

33(d) is used, for each interrogatory and subpart thereof, specify the production (i.e., Bates)
numbers of the specific document or group of documents accompanying your response.
II.

DEFINITIONS

The following terms and definitions shall apply to these Interrogatories:
1.

“And” as used herein shall mean and/or.

2.

“Identify,” when used with reference to:

(a)

an individual person, means to state his full name, present or last known

employer, job title, present or last known residence addresses and telephone number, and present
or last known business addresses and telephone number.
(b)

a business entity, means to state the full name and address of the entity and the

names and positions of the individual or individuals connected with such entity who have
knowledge of the information requested.
(c)

a document, means to state the type of document (letter, memorandum, etc.), its

date, author(s) or originator(s), addressee(s), all individuals who received copies of the
document, the identity of persons known or presumed by you to have present possession, custody
or control thereof, and a brief description of the subject matter and present location. The
foregoing is unnecessary if the document is being produced to Eolas in lieu of the answer to an
Interrogatory. If the document has already been produced, “identify” means to provide the

EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 2

production number of the document.
3.

“Person” shall refer to any natural person, firm, association, partnership,

corporation, group, organization or other form of legal business entity.
4.

“Frito-Lay” means Frito-Lay, Inc., and includes any officers, directors, partners,

associates, employees, staff members, agents, representatives, attorneys, subsidiaries foreign or
domestic, parents, affiliates, divisions, successors, predecessors, and any other related entities,
and specifically includes all assets or companies that have been acquired by Frito-Lay or with
respect to which it has succeeded to rights or obligations.
5.

“You,” or “Your” means Frito-Lay, and includes any officers, directors, partners,

associates, employees, staff members, agents, representatives, attorneys, subsidiaries foreign or
domestic, parents, affiliates, divisions, successors, predecessors, and any other related entities,
and specifically includes all assets or companies that Frito-Lay has acquired or with respect to
which Frito-Lay has succeeded to rights or obligations.
6.

As used herein, the term “document” means and includes, but is not limited to, the

following items, whether typed, printed, handwritten, drawn, created, recorded, stored, or
reproduced by any means or process and whether or not a claim of privilege or other bar to
discovery is asserted: notes, letters, memoranda, correspondence, e-mail, drafts, books,
telegrams, telexes, telephone bills, telephone logs, notebooks, charts, tables, lists, graphs,
agendas, outlines, schedules, plans, studies, applications, policies, procedures, rules, guidelines,
manuals, handbooks, evaluations, worksheets, minutes, bids, bid forms, promissory notes,
memoranda of understanding, statements of work, requests for proposal, requests for quotation,
letters of intent, contracts, agreements, journal ledgers, accounting ledgers, invoices,
spreadsheets, loan agreements, tabulations, compilations, financial statements, income
statements, balance sheets, checks, registers, pro-formas, budgets, projections, strategic plans,
EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 3

calendars, diaries, appointment books, records and summaries of meetings, telephone
conversations or interviews, investigative reports, consultant reports, credit reports, requests for
information, proposals, videotapes, audio tapes, recordings, computer tapes, computer disks,
DVDs, CDs, computer printouts and data stored on any computer-accessible media, databases,
call tracking systems, defect tracking systems, consumer relationship systems or software, sales
force automations systems, engineering notebooks, lab notebooks, drawings, sketches, designs,
illustrations, diagrams, schematics, engineering drawings, blueprints, CAD, project schedules,
design reviews, project reviews, status reports, bug reports, change logs, test results, data books,
data sheets, user manuals, installation guides, patch release notes, white papers, application
notes, bills of material, product literature, advertising documents, competitive analyses, market
share studies, presentations, price lists, product lists, customer lists, catalogs, sales reports,
annual reports, government filings, press releases, patents, patent applications (including
abandoned applications), file histories, prior art, prior art searches or reports, foreign patent
applications, trademark applications, trademark searches, source code, server code, object code,
machine code, source files, library files, data files, text files, program files, directory files, and
computer applications, systems or software, including my file systems back up, and all other
writings or drafts thereof as defined in Federal Rule of Civil Procedure 34(a) and Federal Rule of
Evidence § 1001 and all non-identical copies of the items described above.
7.

As used herein, the term “Accused Products” means, but is not limited to, the

following:
The websites (including the servers hosting those websites) and functionality
identified in the charts titled “906 – Frito-Lay - Chart1” and “985 – Frito-Lay Chart1” attached to Eolas’ P.R. 3-2 submission. This includes, but is not limited
to the following:
x
x

fritolay.com
happiness.fritolay.com

EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 4

8.

Embedded Interactive Media means embedded audio, visual, and/or video content

that allows a user to pause, play, fast-forward, rewind, advance, and/or vary the volume of the
content.
9.

Embedded Interactive Ads means embedded advertising content that allows a user

to scroll through different ads or otherwise interact with the ad.
10.

Flash and Shockwave means Adobe Flash and Adobe Shockwave (formerly

Macromedia Flash and Macromedia Shockwave) used to add animation, video, and/or
interactivity to web pages.
11.

QuickTime means the multimedia framework developed by Apple Inc., capable of

handling various formats of digital video, picture, sound, panoramic images, and interactivity.
12.

Java means applets written in any Java platform (including JavaFX) used to add

animation, video, and/or interactivity to web pages.
13.

HTML5 means HTML used to add animation, video, audio, and/or interactivity to

web pages through the use of the <video> tag, <audio> tag or some other method for including
interactive multimedia and graphical content on the web without having to resort to proprietary
plugins and APIs.
14.

AJAX means a group of interrelated web development methods used on the

client-side to create interactive web applications. With Ajax, web applications can retrieve data
from the server asynchronously in the background without interfering with the display and
behavior of the existing page (i.e., there is no need to “refresh” the page to update the
information displayed).

Data is usually (but not necessarily) retrieved using the

XMLHttpRequest object. Despite the name, the use of XML is not needed, and the requests need
not be asynchronous.
EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 5

15.

Interactive Product Viewer means any product viewer that provides zoom and/or

pan functionality for viewing the image.
16.

As used herein, the term “Accused Feature” means and includes, but is not limited

to, the use and/or support of (a) Embedded Interactive Media (including, but not limited to,
Flash, Shockwave, QuickTime, Java, and HTML5), (b) Embedded Interactive Ads, (c) AJAX or
AJAX-like functionality, and (d) Interactive Product Viewers.
III.

INTERROGATORIES

INTERROGATORY NO. 3 TO DEFENDANT FRITO-LAY:
Identify all print, television, internet, and radio ads Frito-Lay has run in the United States
since 2003 wherein the accused products and/or the accused features of the accused products are
advertised, mentioned, displayed, used in, or otherwise referenced during each print, television,
internet, and radio ad, also describing when, how often, and in which markets the print,
television, internet, and radio ads were run, and also providing links to the print, television,
internet, and radio ads and copies of the print, television, internet, and radio ads on DVD.

EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 6

Dated: September 12, 2011

Respectfully submitted,
MCKOOL SMITH, P.C.
/s/ Tom Fasone
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]

MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
John B. Campbell
Texas State Bar No. 24036314
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Curran
Texas State Bar No. 24055979
[e-mail]
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]

MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]

ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES, INC.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served via electronic mail on
all counsel of record on this the 12th day of September, 2011.
/s/ Tom Fasone
Tom Fasone

EOLAS’ SECOND SET OF INTERROGATORIES (NO. 3) TO BE ANSWERED BY DEFENDANT FRITO-LAY
McKool 398151v1

PAGE 7