Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1093

RESPONSE in Opposition re 1050 MOTION FOR LEAVE TO SUPPLEMENT THEIR P.R. 3-1 INFRINGEMENT CONTENTIONS WITH RESPECT TO FRITO-LAY, INC.'S HAPPINESS.LAYS.COM filed by Frito-Lay, Inc.. (Attachments: # 1 Declaration of J. Yee, # 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 Exhibit 12, # 14 Exhibit 13, # 15 Text of Proposed Order)(McSwane, Douglas)

EXHIBIT 9

IN THE UNTED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated,

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§

Plaintiff,

§ Civil Action No. 6:09-CV-00446-LED

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.,
Offce 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

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§

§ JUY TRIAL
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§
§
§
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§

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§

§

Defendants.

§

PLAITIFF'S FIRT SET OF INTERROGATORIES (NOS. 1-2) TO BE ANSWERED

BY DEFENDANT FRTO-LA Y
Plaintiff Eolas Technologies Incorporated ("Eolas" or "Plaintiff') fies this Second Set of

Interrogatories to Defendant Frito-Lay ("Frito-Lay"). The answers should be served upon
counsel for Eolas as provided by Fed. R. Civ. P. 33.

I. INSTRUCTIONS
1. 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,

EOLAS' FmST SET OF

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INTERROGATORIES To DEFENDANT FRO-LA Y

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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.

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 destrction and identify each lost
or destroyed document (and all fies 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 ofthe 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
EOLAS' FmsT SET OF INTERROGATORIS To DEFENDANT FRITO-LA Y

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unnecessary ifthe document is being produced to Eolas in lieu of

. If

the answer to an Interrogatory.

the document has already been produced, "identify" means to provide the production number

of the document.
3. "Person" shall refer to any natural person, firm, association, partnership,

corporation, group, organization or other form oflegal business entity.

4. Frito-Lay means Frito-Lay, Inc., and includes any offcers, directors, parters,
associates, employees, staff members, agents, representatives, attorneys, subsidiaries foreign or

domestic, parents, affliates, 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 "Y out' means Frito-Lay, and includes any offcers, directors, parters,
associates, employees, staff members, agents, representatives, attorneys, subsidiaries foreign or

domestic, parents, affliates, 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 Adobe 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, draft, books,
telegrams, telexes, telephone bils, 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, mVOlces,

EOLAS' FmST SET OF INTERROGATORIES TO DEFENDANT FRTO-LA Y PAGE 3
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spreadsheets, loan agreements, tabulations, compilations, financial statements, income

statements, balance sheets, checks, registers, pro-formas, budgets, projections, strategic plans,

calendars, diaries, appointment books, records and sumaries of meetings, telephone
conversations or interviews, investigative reports, consultant report, 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 softare, sales

force automations systems, engineering notebooks, lab notebooks, drawings, sketches, designs,

ilustrations, 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, bils of material, product literature, advertising documents, competitive analyses, market

share studies, presentations, price lists, product lists, customer lists, catalogs, sales reports,

anual reports, government filings, press releases, patents, patent applications (including
abandoned applications), fie histories, prior art, prior art searches or reports, foreign patent
applications, trademark applications, trademark searches, source code, server code, object code,

machine code, source fies, librar fies, data files, text fies, program fies, directory fies, and
computer applications, systems or softare, including my fie systems back up, and all other

writings or draft 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 - Chartl" and "985 - Frito-Lay - Chartl" attched to Eolas' P.R. 32 submission. This includes, but is not limited to the following:
EOLAS' FmST SET OF INTERROGATORIS To DEFENDANT FRlTO-LA Y

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. Frito-Lav.com

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 -cvideo;: tag, -caudio;: tag or some other method for including

interactive multimedia and graphical content on the web without having to resort to proprietar
plugins and APIs.

14. AJAX means a group of interrelated web development methods used on the clientside to create interactive web applications. With Ajax, web applications can retrieve data from
the server asynchronously in the background without intedering 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 XMHttRequest object. Despite the
name, the use of XM is not needed, and the requests need not be asynchronous.

EOLAS' FmsT SET OF INERROGATORIS To DEFENDANT FRO-LA Y

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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.

m. INTERROGATORIES

INTERROGATORY NO.1 TO DEFENDANT FRITO-LAY:
For each asserted claim of Eolas' patents-in-suit, on a c1aim-by-claim, Accused Product-

by-Accused Product, and Accused Feature-by-Accused Feature basis, state your contention, if
any, as to why each Accused Product does not infringe each asserted claim of

Eolas' patents-in-

suit. Your response should further include the identity of the person most knowledgeable about
your response to this interrogatory and any documents related to your response to this
interrogatory.

INTERROGATORY NO.2 TO DEFENDANT FRITO-LAY:
For each asserted claim of

Eolas' patents-in-suit, on a claim-by-c1aim, Accused Product-

by-Accused Product, and Accused Feature-by-Accused Feature basis, describe (i) Your efforts

taen prior to the filing ofthis suit to ensure the Accused Product did not infringe the claim, (ii)
Your efforts taken after the filing of

this suit to ensure that the Accused Product did not infringe

the claim, (iii) the identity of the person most knowledgeable about your response to this
interrogatory, and (iv) any documents related to your response to this interrogatory.

EOLAS' FmsT SET OF INTERROGATORIES To DEFENDANT FRlO-LA Y

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Dated: April

5, 2011.

McKoOL SMITH, P.C.

/s! Matt Rappaport
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
mmckoolígmckoolsmith.com
Douglas Cawley

Texas State Bar No. 04035500
dcawlevapmckoolsmith.com
McKoOL SMITH, P.C.
300 Crescent Court, Suite 1500

Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]

Kevin L. Burgess
Texas State Bar No. 24006927
kburgessíamckoo I sm ith.com

John B. Campbell

Texas State Bar No. 24036314
icampbellígmckoolsmith.com
Josh W. Budwin
Texas State Bar No. 24050347
ibudwiníamckoolsmith.com
Gretchen K. Harting
Texas State Bar No. 24055979
ghartingapmckoolsmith.com
Matthew B. Rappaport
Texas State Bar No. 24070472
mrappaportígmckoolsmith.com
McKoOL SMIH, P.c.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]

ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES INC.

Austin 66738v 1

CERTIFCATE OF SERVICE
The undersigned certifies that the foregoing document was served via electronic mail on
all counsel of

record on this the 5th day of April, 2011.

/s/ Matt Rappaport
Matt Rappaport

Austin 66738vl