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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION
)
)
Plaintiff,
)
)
vs.
)
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Adobe Systems Inc., Amazon.com, Inc., Apple
)
Inc., Argosy Publishing, Inc., Blockbuster Inc.,
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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
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Inc., Yahoo! Inc. and YouTube, LLC,
)
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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
[e-mail]
Julianne Hartzell
[e-mail]
John R. Labbé
[e-mail]
Scott A. Sanderson
[e-mail]
6300 Willis Tower
233 South Wacker Drive
Chicago, IL 60606-6357
Telephone: [phone]
Facsimile: [phone]
Brian Craft
[e-mail]
Eric H. Findlay
[e-mail]
FINDLAY CRAFT, LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, Texas 75703
Telephone: [phone]
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