Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1202

Opposed MOTION in Limine CORRECTED - to Exclude Plaintiffs' Suggestion, Argument or Evidence That CDW Could Completely Remove or Disable Accused Features at Minimal Cost by CDW Corporation. (Attachments: # 1 Text of Proposed Order)(Labbe, John)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION ) ) 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. ) ) ) Eolas Technologies Incorporated, Civil Action No. 6:09-cv-446 Honorable Judge Leonard E. Davis JURY TRIAL DEMANDED DEFENDANT CDW LLC’S MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ SUGGESTION, ARGUMENT OR EVIDENCE THAT CDW COULD COMPLETELY REMOVE OR DISABLE ACCUSED FEATURES AT MINIMAL COST1 The Court should preclude Plaintiff from suggesting, arguing, or presenting evidence that Defendant CDW could remove or disable accused functionality at minimal cost, rather than incur the costs of defending against Plaintiffs’ infringement allegations. CDW’s motion in limine is directed to arguments anticipated from Plaintiffs that CDW could inexpensively completely remove or disable the accused functionality (as distinct from altering or replacing that functionality with non-infringing alternatives), and that CDW’s failure to do so is evidence of the value of the accused features. Plaintiff’s have already agreed that CDW’s decision to defend 1 CDW initially filed this motion at Docket No. 1192. CDW now files this corrected motion to include a Certificate of Conference that CDW inadvertently omitted in its earlier filing. CDW is also filing a revised Proposed Order. against their allegations of infringement may not be presented as evidence of the value of the accused features. In light of Plaintiffs’ agreement, CDW’s decision to challenge Plaintiffs’ claims of infringement cannot be advanced as evidence of the value, if any, of the accused features. This motion is not intended to preclude evidence concerning non-infringing alternatives. CONCLUSION The Court should grant CDW’s Motion in Limine and exclude Plaintiffs’ suggestion, argument or evidence that CDW could completely remove or disable accused features at minimal cost. Dated: January 9, 2012 Respectfully submitted, MARSHALL, GERSTEIN & BORUN LLP By: /s/ John R. Labbé Thomas L. Duston tduston@marshallip.com Julianne Hartzell jhartzell@marshallip.com John R. Labbé jlabbe@marshallip.com Scott A. Sanderson ssanderson@marshallip.com 6300 Willis Tower 233 South Wacker Drive Chicago, IL 60606-6357 Telephone: (312) 474-6300 Facsimile: (312) 474-0448 Brian Craft bcraft@findlaycraft.com Eric H. Findlay efindlay@findlaycraft.com FINDLAY CRAFT, LLP 6760 Old Jacksonville Highway, Suite 101 Tyler, Texas 75703 Telephone: (903) 534-1100 Attorneys for Defendant CDW LLC 2 CERTIFICATE OF CONFERENCE I hereby certify that the parties met and conferred regarding the relief requested in this Motion in Limine on January 4, 2012 and thereafter in follow-up email correspondence. The parties were unable to reach a resolution as to the relief requested in this motion in limine. /s/ John R. Labbé John R. Labbé CERTIFICATE OF SERVICE I, John R. Labbé, an attorney, hereby certify that I caused a copy of the foregoing DEFENDANT CDW LLC’S MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ SUGGESTION, ARGUMENT OR EVIDENCE THAT CDW COULD COMPLETELY REMOVE OR DISABLE ACCUSED FEATURES AT MINIMAL COST to be served on all counsel of record via electronic mail via the Court’s ECF system. /s/ John R. Labbé John R. Labbé

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