Eolas Technologies Incorporated v. Adobe Systems Incorporated et al
Filing
1190
NOTICE by The Go Daddy Group, Inc. re 1189 SEALED PATENT MOTION in Limine Statement by Go Daddy, CDW and JC Penney Regarding Defendants Motion in Limine, Issue No. 4 (Mukherji, Proshanto)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EOLAS TECHNOLOGIES, INC. AND THE
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Plaintiffs,
v.
Civil Action No. 6:09-CV-446 LED
JURY TRIAL DEMANDED
ADOBE SYSTEMS INC., ET AL.,
Defendants.
STATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’
MOTION IN LIMINE, ISSUE NO. 4
Defendants The Go Daddy Group, Inc., CDW LLC, and J.C. Penney Corporation, Inc.
(collectively “the Microsoft Server Defendants”), who use Microsoft software such as Microsoft
IIS to provide their accused websites, do not join Defendants’ Motion in Limine, Issue No. 4 to
the extent it seeks to exclude the license and settlement agreement between Plaintiffs and Microsoft or discussion thereof. These agreements are critical to the Microsoft Server Defendants’
noninfringement defenses. Thus, the Microsoft Server Defendants ask that any order excluding
these agreements not apply in any trial involving the Microsoft Server Defendants.
All three Microsoft Server Defendants have filed motions for summary judgment of noninfringement (D.I. 790, 876) on the ground that the Microsoft license authorizes them to provide
their accused websites and authorizes visitors to view them. Plaintiffs have not filed a cross motion for summary judgment. Accordingly, if the Court denies the Microsoft Server Defendants’
summary judgment motions due to a finding of genuine issues of material fact, then the MiSTATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’ MOTION IN LIMINE,
ISSUE NO. 4 - Page 1
crosoft license defense must be tried to the jury. Although Plaintiffs have posited that this defense may be tried to the bench, they have not explained why, if summary judgment is denied, a
bench trial of any factual disputes related to this particular defense would be appropriate.
Moreover, in addition to forming the basis for the Microsoft Server Defendants’ license
defense, the Microsoft license and settlement agreements will also be important at trial as a defense against Plaintiffs’ claims that these defendants induce visitors to their websites to infringe
the patents-in-suit. “[I]nducement requires that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another's infringement.” DSU Med. Corp.
v. JMS Co., Ltd., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (internal citations and quotations omitted). It likewise “requires knowledge that the induced acts constitute patent infringement.” Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011). A reasonable belief that the
induced acts are noninfringing negates this element. See, e.g., Ecolab, Inc. v. FMC Corp., 569
F.3d 1335, 1351 (Fed. Cir. 2009); Kinetic Concepts, Inc. v. Blue Sky Medical Group, Inc., 554
F.3d 1010, 1024–25 (Fed. Cir. 2009); DSU Medical Corp., 471 F.3d at 1307. The Microsoft
Server Defendants’ reasonable belief that visitors to their sites were licensed will be an important
defense to Plaintiffs’ inducement claim.
The Microsoft license and settlement agreements would therefore be highly relevant to
the Microsoft Server Defendants’ defenses should they go to trial, and the Court should not exclude this evidence in any trial involving these defendants.
STATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’ MOTION IN LIMINE,
ISSUE NO. 4 - Page 2
Dated: January 7, 2012
Respectfully submitted,
/s/ Proshanto Mukherji
Thomas M. Melsheimer
Neil J. McNabnay
Carl Bruce
Fish & Richardson
1717 Main Street
Suite 5000
Dallas, TX 75201
214.474.5070
melsheimer@fr.com
mcnabnay@fr.com
bruce@fr.com
Proshanto Mukherji
Fish & Richardson
225 Franklin Street
Boston, MA 02110
617.542.5070
mukherji@fr.com
Attorneys for Defendant
THE GO DADDY GROUP, INC.
/s/ Christopher M. Joe
Christopher M. Joe
Brian Carpenter
Eric W. Buether
Buether Joe & Carpenter
1700 Pacific, Suite 2390
Dallas, TX 75201
214-466-1270
Chris.Joe@BJCIPLaw.com
Eric.Buether@BJCIPLaw.com
Brian.Carpenter@BJCIPLaw.com
Attorneys for Defendant
J.C. PENNEY CORPORATION,
INC.
/s/ Thomas L. Duston
Thomas L. Duston
Julianne Hartzell
Scott A. Sanderson
Anthony S. Gabrielson
Marshall Gerstein & Borun
233 S. Wacker Drive
6300 Willis Tower
Chicago, IL 60606
STATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’ MOTION IN LIMINE,
ISSUE NO. 4 - Page 3
312.474.6300
tduston@marshallip.com
jhartzell@marshallip.com
ssanderson@marshallip.com
agabrielson@marshallip.com
Eric Hugh Findlay
Brian Craft
Findlay Craft
6760 Old Jacksonville Highway
Suite 101
Tyler, TX 75703
903.534.1100
efindlay@findlaycraft.com
bcraft@findlaycraft.com
Attorneys for Defendant
CDW LLC
STATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’ MOTION IN LIMINE,
ISSUE NO. 4 - Page 4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on January 6, 2012 to all counsel of record who are deemed to have
consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
/s/ Proshanto Mukherji
11146665.doc
STATEMENT BY GO DADDY, CDW AND JC PENNEY REGARDING DEFENDANTS’ MOTION IN LIMINE,
ISSUE NO. 4 - Page 5
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