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)

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EXHIBIT 9 IN THE UNTED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION Eolas Technologies Incorporated, § § 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 § § § § JUY TRIAL § § § § § § § § § § § § 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 NOS.1-2 Austin 66738vl INTERROGATORIES To DEFENDANT FRO-LA Y PAGE 1 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 Nos.1-2 Austin 66738v 1 PAGE 2 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 Nos.I-2 Austin 66738vl 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 NOS.I-2 Austin 66738v i PAGE 4 . 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 Nos.I-2 Austin 66738vI PAGES 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 NOS.I-2 Austin 66738v i PAGE 6 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: (214) 978-4000 Telecopier: (214) 978-4044 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: (512) 692-8700 Telecopier: (512) 692-8744 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

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