Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1305

MOTION for Judgment on the Pleadings GO DADDY'S MOTION FOR JUDGMENT UNDER THE COURT'S ORDER (DKT 1297) RE GO DADDY'S MOTION FOR SUMMARY JUDGMENT OF NONINFRINGEMENT BASED ON ITS LICENSE DEFENSE (DKT 790) by The Go Daddy Group, Inc.. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Text of Proposed Order)(McNabnay, Neil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION

Eolas Technologies Incorporated, et al.
Plaintiffs,
v.
Adobe Systems Inc., et al.
Defendants.

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No. 6:09-cv-00446-LED

GO DADDY’S MOTION FOR JUDGMENT UNDER THE COURT’S ORDER
(DKT. 1297) REGARDING GO DADDY’S MOTION FOR SUMMARY JUDGMENT OF
NONINFRINGEMENT BASED ON ITS LICENSE DEFENSE (DKT. 790)

EXHIBITS
Ex. A: Eolas’s March 5, 2010 P.R. 3-1 Infringement Contentions under the ’985 patent re Go
Daddy.

i

Defendant Go Daddy moves for judgment of noninfringement under the Court’s recent
Order on Go Daddy’s Microsoft license defense motion. (Dkt. 1297). In their infringement contentions, plaintiffs contend that Go Daddy’s Microsoft IIS server software satisfies at least one
limitation of every asserted claim.1 Thus, per the Court’s Order, “the covenant [not to sue] is
triggered” for every one of plaintiffs’ accusations, and Go Daddy is entitled to judgment of noninfringement.
I.

ARGUMENT
In its recent Order on Go Daddy’s motion for summary judgment based on its license de-

fense (Dkt. 790), the Court held that “a Microsoft product [must] be implicated in performing at
least one step of a claimed method before the covenant [not to sue in the Microsoft license] is
triggered.” (Dkt. 1297, at 6). Go Daddy is therefore entitled to a judgment of noninfringement
because, quite simply, plaintiffs contend that Go Daddy’ Microsoft IIS server software satisfies
at least one step of every asserted claim.2
Specifically, plaintiffs assert independent claims 1 and 16 of the ’985 patent against Go
Daddy. As Go Daddy argued at the pre-trial conference, plaintiffs’ contentions include figures
that highlight “Microsoft IIS 6.0” as an accused instrumentality for at least one element of each
of these claims. For example:

1

Plaintiffs served their infringement contentions against Go Daddy, per P.R. 3-1, on
March 5, 2010, and have not amended those contentions since.
2
During the January 24, 2012 oral argument on Go Daddy’s motion, plaintiffs’ counsel
represented to the Court that plaintiffs “mistakenly” mentioned Microsoft IIS in their Go Daddy
infringement contentions in two instances. In fact, plaintiffs’ infringement contentions against
Go Daddy alone expressly identify Microsoft IIS at least fifteen times, and Microsoft IIS is identified as satisfying at least one limitation of every asserted claim. Moreover, plaintiffs have never amended their original 3-1 infringement contentions, which were served on March 5, 2010.

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Eolas’s March 5, 2010 P.R. 3-1 infringement contentions Ex. A, at 28 (’985, limitation 1a) (original highlighting). Similar figures appear for limitations of all asserted claims for every accused
website, examples of which are summarized in the table below:
Preamble
’985 patent
Claim 1

Limitation 1a
Preamble

’985 patent
Claim 16

Limitation 16a

Contentions Re Www.Godaddy.Com
Ex. A at 8
(figure accusing IIS included)
Ex. A, at 28
(figure accusing IIS included)
Ex. A, at 230
(fig. accusing IIS included)
Ex. A, at 243
(fig. accusing IIS incorporated by ref.)

Contentions Re Videos.Godaddy.Com
Ex. A at 21
(figure accusing IIS included)
Ex. A, at 49
(figure accusing IIS included)
Ex. A, at 242
(fig. accusing IIS included)
Ex. A, at 243
(fig. accusing IIS incorporated by ref.)

Other parts of plaintiffs’ contentions also accuse Go Daddy’s Microsoft IIS software of
practicing elements of claims 1 and 16, by accusing actions that are performed by the servers under control of IIS and by accusing the computer readable media that serve the websites:

’985
patent
Claim 1

’985
patent
Claim 16

Contentions Re Both Www.Godaddy.Com and Videos.Godaddy.Com
Go Daddy’s servers transmit a series of communications to client
workstations … Go Daddy’s servers format the communications …

Go Daddy’s websites exist on one or more computer readable media (such as … the hard-disk/volatile memory of the server from
which the Go Daddy’s websites are hosted)

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Evidence from Contentions
Ex. A, at 22 (limitation 1a)
Ex. A, at 55 (limitation 1b)
Ex. A, at 62 (limitation 1c)
Ex. A at 66 (limitation 1d)
Ex. A at 76 (limitation 1e)
Ex. A at 85 (limitation 1f)
Ex. A, at 243 (limitation 16a)
Ex. A, at 243–44 (limitation 16b)
Ex. A, at 244 (limitation 16c)
Ex. A, at 244–45 (limitation 16d)

Ex. A, at 245 (limitation 16e)
Ex. A, at 245–46 (limitation 16f).

Plaintiffs have never amended these contentions or sought leave to do so. Thus, these remain the operative contentions in this case. P.R. 3-6 (a) (“‘Infringement Contentions’ … shall be
deemed to be [a] party’s final contentions” unless amended); P.R. 3-6(b) (leave required to
amend).
Thus, per the Court’s order, “the covenant [not to sue] is triggered” for every one of
plaintiffs’ accusations, and Go Daddy is entitled to a judgment of noninfringement.

Dated: January 30, 2012

Respectfully submitted,
FISH & RICHARDSON P.C.
By: /s/ Neil J. McNabnay
Thomas M. Melsheimer
Email: [e-mail]
Neil J. McNabnay
Email: [e-mail]
Carl E. Bruce
Email: [e-mail]
FISH & RICHARDSON
1717 Main Street, Suite 5000
Dallas, TX 75201
Tel: [phone]
Proshanto Mukherji
Email: [e-mail]
FISH & RICHARDSON
One Marina Park Drive
Boston, MA 02110-1878
Telephone: [phone]
Attorneys for Defendant
THE GO DADDY GROUP, INC.

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of this document via the Court’s CM/ECF system per Local
Rule CV-5(a)(3) on January 30, 2011.
/s/ Neil J. McNabnay
Neil J. McNabnay

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