Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1268

Opposed MOTION TO CORRECT THE CAPTION by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Text of Proposed Order)(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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JURY TRIAL
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PLAINTIFFS’ OPPOSED MOTION TO CORRECT THE CAPTION
Plaintiffs The Regents of the University of California and Eolas Technologies
Incorporated (collectively “Plaintiffs”) file this Opposed Motion to Correct the Caption as
reflected in the proposed order attached hereto and would show as follows:
BACKGROUND
On October 6, 2009, Plaintiff Eolas Technologies Incorporated, as a sole plaintiff and
exclusive licensee of the patents-at-issue in this case, filed its Original Complaint against
Defendants Adobe Systems Inc., Amazon.com, Inc., Apple 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

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Microsystems Inc., Texas Instruments Inc., Yahoo! Inc., and YouTube, LLC in this Court. [Dkt.
No. 1].

The captions in the First Amended Complaint [Dkt. No. 285], Second Amended

Complaint [Dkt. No. 517], and Third Amended Complaint [Dkt. No. 891] all reflect that Eolas
Technologies Incorporated is the sole plaintiff and that claims against all of those named
defendants are still included in this action. Since the filing of the October 6, 2009 Complaint,
however, this Court has granted Eolas’ joint motions to dismiss (with respect to Blockbuster Inc.,
sever)/stipulations of dismissal for Apple Inc. [Dkt. No. 910], Blockbuster Inc. [Dkt. No. 445],
eBay Inc. [Dkt. No. 835], Frito-Lay, Inc. [Dkt. No. 1116], JPMorgan Chase & Co. [Dkt. No.
662], New Frontier Media, Inc. [Dkt. No. 672], Office Depot, Inc. [Dkt. No. 788], Perot Systems
Corp. [Dkt. No. 705], Playboy Enterprises International, Inc. [Dkt. No. 720], Rent-A-Center, Inc.
[Dkt. No. 758], Sun Microsystems Inc. [Dkt. No. 692], and Texas Instruments Inc. [Dkt. No.
708]. Most recently, this Court granted Eolas’ Motion for Leave to File Amended Complaint to
Add The Regents of the University of California as Co-Plaintiff. [Dkt. No. 988].
ARGUMENT
In light of the Court’s previous granting of Eolas’ joint motions to dismiss or
sever/stipulations of dismissal and the Court’s most recent granting of Eolas’ Motion, which
added The Regents of the University of California as a co-plaintiff to this case, in order to
accurately reflect (i) that the owner of the patents-at-issue is a plaintiff in this case and, thus,
should be listed as the first plaintiff in the caption; and (ii) the current parties remaining in this
case, Plaintiffs respectfully request that the Court order the Clerk of the Court to amend the
caption in the present action to reflect that The Regents of the University of California and Eolas
Technologies Incorporated are co-plaintiffs in this case and to reflect that claims against
Defendants Apple Inc., Blockbuster Inc., eBay Inc., Frito-Lay, Inc., JPMorgan Chase & Co.,

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New Frontier Media, Inc., Office Depot, Inc., Perot Systems Corp., Playboy Enterprises
International, Inc., Rent-A-Center, Inc., Sun Microsystems Inc., and Texas Instruments Inc. have
been dismissed. See, e.g., Hernandez v. United States, No. EP-11-CV-027-DB, 2011 U.S. Dist.
LEXIS 90234, at *31-32 (W.D. Tex. Aug. 11, 2011) (“IT IS FURTHER ORDERED that the
Clerk of the Court AMEND the caption in the present action to reflect that claims against
Defendant Jesus Mesa, Jr. and all unknown Defendants are no longer included within the abovecaptioned cause.”); Marcair, Inc. v. United States, No. 4:07cv77, 2007 U.S. Dist. LEXIS 50607,
at *6 (E.D. Tex. July 12, 2007) (“The Court, in granting the United States’ Motion to Amend
Caption, orders that the caption in this cause be amended to reflect the proper party defendant
and directs the Clerk of the Court to make this change in the record such that the United States of
America is listed as the sole defendant.”); EEOC v. Allied Aviation Serv., No. 3:05-CV-1379-L,
2006 U.S. Dist. LEXIS 35657, at *4 (N.D. Tex. May 31, 2006) (“For the reasons stated herein,
Proposed Intervenors’ Motion to Intervene is granted. The clerk of court is directed to amend the
caption of this case to reflect Eric Mitchel, Francisco Ochoa, Christopher DiGiorgio, Carl
Gaines, Mark Barret, Andrew Cervantes, Tristian Fernandez, Henry Firth, Walter Kelley,
Wilborn Lyles, David McCoy, Scotty Mills, Michael Nelson, Jerome Sloan, Josh Toram Sr.,
Anthony Walker, Mark Webster, and Willie Winters as Plaintiffs/Intervenors.”).
On January 21, 2012, Plaintiffs met and conferred with Defendants regarding the relief
requested in this Motion. While Defendants are amenable to the caption being corrected to
accurately reflect that The Regents of the University of California is a co-plaintiff in this case
and the remaining Defendants in this case, they oppose the caption setting forth The Regents of
the University of California as the first-named Plaintiff.

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There can be no argument regarding whether The Regents of the University of California
is the owner of the patents-at-issue. Nor can there be any argument regarding whether Eolas
Technologies Incorporated is the exclusive licensee of those patents. In “[t]he Parties’ Statement
of Uncontested Facts” in Section V of the Joint Proposed Pretrial Order the parties jointly filed
on January 16, 2010, the parties indicated as follows:
7.
The ’906 patent and the ’985 patent are owned by
assignment by the University of California. Eolas has an exclusive
license to the ’906 patent and the ’985 patent that includes, without
limitation, the following: (a) all exclusionary rights under the
patents, including, but not limited to, (i) the exclusive right to
exclude others from making, using, offering for sale, or selling
products embodying the patented inventions throughout the United
States or importing such products into the United States, and (ii)
the exclusive right to exclude others from using and otherwise
practicing methods embodying the patented inventions throughout
the United States; and (b) the exclusive right to sue and seek
damages for infringement of any of the exclusionary rights
identified above.
[Dkt. No. 1244 at p. 61]. Accordingly, listing The Regents of the University of California before
Eolas Technologies Incorporated in the caption would be an accurate reflection of the status of
those parties in relation to the patents-at-issue in this case—owner and exclusive licensee,
respectively. Defendants’ withheld consent to the relief requested in this Motion based on
Plaintiffs seeking to list first in the caption the owner of the patents-at-issue is, thus, baseless and
unreasonable.
CONCLUSION
Plaintiffs respectfully request that this Court grant Plaintiffs’ Motion to Correct the
Caption in this action and adopt the amended caption contained in this Motion and the Proposed
Order to this Motion.

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Dated: January 22, 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. 24040865
[e-mail]
J.R. Johnson
Texas State Bar No. 24070000
[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]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]

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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 PLAINTIFFS
EOLAS TECHNOLOGIES INC.
AND THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA

CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Plaintiffs conferred with counsel for Defendants on
January 21, 2012, who indicated they are opposed to the relief sought in this Motion, to the
extent Plaintiffs seek to have the caption corrected to list The Regents of the University of
California as the first-named Plaintiff.
/s/ Gretchen K. Curran
Gretchen K. Curran
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been served on all counsel of record via the Court’s ECF system on January 22, 2012.
/s/ Gretchen K. Curran
Gretchen K. Curran

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