Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1168

NOTICE by Eolas Technologies Incorporated STATUS UPDATE REGARDING THE PARTIES' RELATIVE POSITIONS ON A TRIAL PLAN (McKool, Mike)

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.

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§ Civil Action No. 6:09-CV-00446-LED
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STATUS UPDATE REGARDING THE PARTIES’
RELATIVE POSITIONS ON A TRIAL PLAN

Pursuant to the Court’s Order dated December 15, 2011 (Dkt. No. 1137) Plaintiffs The
Regents of the University of California and Eolas Technologies Incorporated; and Defendants
Adobe Systems Inc., Amazon.com, Inc., CDW Corp., Citigroup Inc., The Go Daddy Group, Inc.,
Google Inc., J.C. Penney Company, Inc., Staples, Inc., Yahoo! Inc., and YouTube, LLC
respectfully submit this status update regarding the parties’ relative positions on a trial plan.

Plaintiffs The Regents of the University of California and Eolas Technologies
Incorporated:

For the reasons discussed in Plaintiffs’ responsive briefing to Amazon and

Yahoo’s motions for separate trial (Dkt. Nos. 1144 and 1163), Plaintiffs propose two trials, the
first consisting of all claims brought by and against Adobe, Amazon, Google/YouTube, JC
Penney, and Staples, and the second consisting of all claims brought by and against Citigroup,
CDW, Go Daddy, and Yahoo. This proposal thus envisions a first trial against five Defendants,
and a second trial against the four remaining Defendants. Plaintiffs additionally propose that,
should any four or more Defendants settle with Plaintiffs prior to the first trial, the five or fewer
remaining Defendants should proceed to trial together. Plaintiffs accuse each Defendant of
infringement based on the use and operation of its own website. Accordingly, Plaintiffs disagree
that the proposed trial grouping suggested by Defendants “might obviate and will certainly
simplify any succeeding trials” and disagrees with Google that any resolution of “browser
issues” is required.
Adobe Systems Inc., Amazon.com, Inc., CDW Corp., Citigroup Inc., The Go Daddy
Group, Inc., Staples, Inc., Yahoo! Inc.: If the Court declines to accord the defendants separate
trials (severance motions have been and will be filed1), Adobe, Amazon, Citi, CDW, Go Daddy,

1

This submission is without waiver or prejudice to any defendants' rights to a separate trial.

1

Staples, and Yahoo! propose that the 10 remaining defendants be divided into 3 groups for trial,
as follows:
1. Adobe, Google, YouTube: while Eolas’ damage claims against Google, YouTube and
Adobe are no longer about Google’s provision of browser technology to others or Adobe’s
provision of content presentation technology to others – instead, Eolas now accuses Google,
YouTube and Adobe on the basis of the operation of their own websites – Eolas continues to
allege that instrumentalities provided by Google and Adobe are implicated in some of the alleged
infringement by the other defendants. It therefore makes sense to resolve Eolas’ issues against
Google, YouTube and Adobe first, as doing so might obviate and will certainly simplify any
succeeding trials. YouTube should be tried together with Google because they are under
common ownership and share counsel.
2. Amazon and Yahoo!: They should not try the case with Adobe and Google for reasons
of record and expressed in their severance motion. Including them with the remaining defendants
creates too large a grouping to be manageable even if defendants are required to accept
groupings. In terms of alleged damages exposure, after Google, Amazon and Yahoo! are the
largest of the remaining defendants and, in addition, share counsel.2
3. The remaining 5 defendants: the case against these parties may never need to be tried
given the proposed phasing. In addition, as explained in Adobe's Motion For Separate Trial Or
To Sever, there are indemnity disputes between some of these defendants and Adobe and other
related considerations which make it potentially prejudicial to Adobe to have its case tried
2

As stated in prior briefing, Amazon is not accused of infringement based on use of Scene7 and
does not use it, so Plaintiffs’ proposed groupings based on that criterion are incorrect and
Amazon would thus not belong in plaintiffs' proposed group one in any event. Furthermore,
should the Court reject three trials and prefer two groups for trial -- the groups should be based
on trial efficiencies. Amazon and Yahoo! note that if included in the second group, they would
not oppose the inclusion of one or two of the website defendants with whom trial efficiencies can
be shared.

2

together with parties who use Adobe technology (along with other, non-Adobe technology) to
provide the functionalities which Eolas accuses of infringement.
Google Inc. and YouTube, LLC:

Defendants Google Inc., and YouTube LLC

(collectively, “Google”) provide this submission pursuant to the Court’s December 15, 2010
Order to the parties (D.I. 1137). Google’s submission is without waiver or prejudice to its rights
to a separate trial, which Google believes is warranted in this action. Google plans to file a
motion requesting a separate trial promptly.
Google agrees with the defense group that, given the number of defendants (10), asserted
claims (22), and accused products (over 100), three trials would be more appropriate than the
two trials proposed by Eolas. However, Google believes that the best division would be as
follows: One trial with Google/YouTube, and two other trials along the lines proposed by Adobe
except in two groups instead of three. As noted in the recently-filed motions for separate trials,
Google is the only remaining browser manufacturer left in the case and, as a result, will need to
address unique issues related to non-infringement and damages. Resolving the browser issues
separately will be more efficient and far less confusing for the jury.
Should the Court decide to hold only two trials more in line with Eolas’s proposed
groupings—a first group comprised of Adobe, Amazon, Google, JC Penney, and Staples, and a
second group comprised of the remaining defendants—Google should be in the second group,
not the first. This is true regardless of which group is tried first. Google does not use Adobe’s
Scene 7 technology which, though disputed factually by other defendants, was Eolas’s basis for
grouping the defendants in its first group. D.I. 1144 at 14. Rather, the majority of Eolas’s
infringement allegations against Google, and almost the entirety of its damages case against
Google, accuse websites that use AJAX or JavaScript technology (and Flash within JavaScript).

3

These accused technologies are more closely tied to the accused technology of Eolas’ second
group of defendants as opposed to the first group.
J.C. Penney Company, Inc.:

JC Penney's position regarding the trial plan is that it does

not oppose a three trial structure as proposed by the other defendants, but opposes any trial plan
where it is not tried together with Adobe (the supplier of its accused technology), and
specifically opposes being grouped in a third trial without Adobe.

All defendants oppose Plaintiffs’ further suggestion that, once having scheduled two (or more)
trials, the Court should collapse them back into one in the event five or fewer defendants happen
to remain. This would be impossible to implement logistically while holding any specific dates,
because defendants might settle on the eve of any given trial and thus whether there would be
one trial instead of two (or more) and, if so, who would be in it might not be known until the eve
of trial. In addition, since the mix of defendants remaining cannot be known in advance, whether
they can fairly be grouped at all and, if so, how is likewise impossible to know in advance.
Plaintiffs’ further suggestion would therefore only compound the prejudice to Defendants and is
yet another reason why many defendants maintain that only individual trials are appropriate.

4

Dated: January 4, 2012.

MCKOOL SMITH, P.C.
/s/ Mike McKool
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
Holly Engelmann
Texas State Bar No. 24020864
[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]
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]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]

Robert M. Parker
Texas State Bar No. 15498000
[e-mail]
Robert Christopher Bunt
Texas Bar No. 00787165
[e-mail]
Andrew T. Gorham
Texas State Bar No. 24012715
[e-mail]
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
[phone]
[phone]- Facsimile
ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES INC.
AND THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic services on January 4, 2012. Local Rule CV-5(a)(3)(A).

/s/ John B. Campbell
John B. Campbell

CERTIFICATE OF CONFERENCE
On January 4, 2012, counsel for each of the parties conferred regarding their relative
positions on a trial plan. The Parties’ positions are reflected herein.

/s/ John Campbell