Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1234

RESPONSE in Opposition re 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 filed by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Text of Proposed Order)(McKool, Mike)

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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. § § § Civil Action No. 6:09-CV-00446-LED § § § § JURY TRIAL § § § § § § § § § § § § § PLAINTIFFS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND EOLAS TECHNOLOGIES INCORPORATED’S RESPONSE IN OPPOSITION TO 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 [DKT. NO. 1202] Plaintiffs The Regents of the University of California and Eolas Technologies Incorporated (collectively “Plaintiffs”) file this Response in Opposition to 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 [Dkt. No. 1202] and in support thereof would show as follows. I. ARGUMENT On January 4, 2011, the parties conducted a meet and confer in an effort to resolve their in limine issues prior to filing any motions. During that meet and confer, Plaintiffs indicated 1 McKool 406788v1 their agreement that they would not make “reference to the cost of defense or argument that the fact that this case is being defended is evidence of the value of the accused features”. Indeed, Plaintiffs proposed their own motion in limine topic to preclude any argument, evidence, testimony, or reference to legal and expert fees and expenses incurred by the parties in prosecuting and defending this litigation and/or incurred in a typical patent litigation, including but not limited to SI267566-578, to which five of the Defendants agreed—including CDW LLC—in modified forms (see Dkt. No. 1191 at pp. 4-5). Accordingly, Plaintiffs agree that the Plaintiffs’ expenditures in litigating this action and Defendants’ expenditures defending this case are no reflection of the value of the accused features, given that a defendant’s decision to defend the case may be based on factors unrelated to how the defendant values the invention and, thus, such evidence is irrelevant. FED. R. EVID. 402. It is also unfairly prejudicial to both Plaintiffs and Defendants. The same cannot be said regarding any evidence regarding the cost or burden of removing the accused features/functionality. Georgia-Pacific factor 11 is “the extent to which the infringer has made use of the invention; and any evidence probative of the value of that use.” See Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1211 (Fed. Cir. 2010) (citation omitted). A number of the Defendants corporate representatives have provided deposition testimony that Defendants receive no value from having included the accused features/functionality in their websites or products. Thus, evidence showing the low cost of removing the accused features/functionality would be clearly relevant, as it is countervailing evidence for such testimony (i.e., if the accused features/functionality provide no value and the cost of removing the accused features/functionality is so low, wouldn’t the Defendants remove such accused features/functionality?) and provides an indication of the value of the accused 2 McKool 406788v1 features/functionality. Defendants cannot argue that the features/functionality bring no value to their accused websites/products, but at the same time, preclude Plaintiffs from presenting evidence—in the form of the Defendants’ own documents and testimony—that removing the accused features/functionality would be relatively inexpensive. Aside from such evidence being clearly relevant to a damages analysis under the Georgia-Pacific factors, the Federal Circuit’s holding in Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683 (Fed. Cir. 2008) demonstrates that such evidence is also relevant to inducement and should not be precluded. There, the court found that “Qualcomm does not dispute that it was on notice of Broadcom’s patents and infringement contentions. And it concedes that it ‘worked closely with its customers to develop and support the accused products, and that Qualcomm did not make changes to those products or give its customers [instructions regarding how to avoid infringement] after this lawsuit was filed.’” Id. at 700 (internal citation omitted) (emphasis added). Based on such evidence, the Federal Circuit held that it would “not disturb the jury’s inference that Qualcomm possessed the specific intent necessary to induce the infringement of Broadcom’s patents.” Id. at 701. Granting Defendant CDW LLC’s Motion would result in the exclusion of evidence that is relevant to the specific intent prong of inducement. II. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court deny 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 [Dkt. No. 1202]. 3 McKool 406788v1 Dated: January 13, 2012. MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 mmckool@mckoolsmith.com Douglas Cawley Texas State Bar No. 04035500 dcawley@mckoolsmith.com Holly Engelmann Texas State Bar No. 24040865 hengelmann@mckoolsmith.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 kburgess@mckoolsmith.com Josh W. Budwin Texas State Bar No. 24050347 jbudwin@mckoolsmith.com Gretchen K. Curran Texas State Bar No. 24055979 gcurran@mckoolsmith.com Matthew B. Rappaport Texas State Bar No. 24070472 mrappaport@mckoolsmith.com J.R. Johnson Texas State Bar No. 24070000 jjohnson@mckoolsmith.com MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Telecopier: (512) 692-8744 4 McKool 406788v1 Robert M. Parker Texas State Bar No. 15498000 rmparker@pbatyler.com Robert Christopher Bunt Texas Bar No. 00787165 rcbunt@pbatyler.com Andrew T. Gorham Texas State Bar No. 24012715 tgorham@pbatyler.com PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: (903) 531-3535 Telecopier: (903) 533-9687 ATTORNEYS FOR PLAINTIFFS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND EOLAS TECHNOLOGIES INCORPORATED CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document, attachment, and exhibits were filed electronically in compliance with Local Rule CV-5(a) and, thus, served on all counsel of record on January 13, 2011. /s/ Gretchen K. Curran Gretchen K. Curran 5 McKool 406788v1

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