Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1318

REPLY to Response to Motion re 1301 Opposed MOTION for Leave to File a Brief Re The Term "Browser Application" filed by Adobe Systems Incorporated, Amazon.com Inc., Google Inc., J.C. Penney Corporation, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Exhibit F - Academic Dictionary)(Wolff, Jason)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

EOLAS TECHNOLOGIES, INC., AND THE
REGENTS OF THE UNIVERSITY OF
CALIFORNIA
Plaintiffs,
v.

Civil Action No. 6:09-CV-446 LED
JURY TRIAL DEMANDED

ADOBE SYSTEMS INC., ET AL.,
Defendants.

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER
APPLICATION”

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION”

Plaintiffs’ have narrowed their construction of the “browser application” as follows:
Defendants’ Construction
a program used to [view or]
browse electronic documents

Plaintiffs’ New Construction
A client program that presents an interface and processes
requests on behalf of a user to display, and traverse
hyperlinks within, hypertext and/or hypermedia documents
that are located in the [Internet] World Wide Web.1

The “World Wide Web” is a subset of the “Internet” and neither limitation (nor the others which
Plaintiffs try to import) from the specification is appropriate.2,3 In addition to the substantial
evidence that runs counter to Plaintiffs’ proposed construction, Plaintiffs’ approach with respect
to “browser” also conflicts with the broad constructions afforded other related terms, such as
“hypermedia document,” “network server,” and “client workstation.”
Plaintiffs’ attempt to bolster their argument by reliance on other claim language fails.
There is no dispute that the claims require a “hypermedia document.” But a browser need not be
specifically a web browser in order to view a hypermedia document. In addition to the intrinsic
evidence, Defendants’ extrinsic evidence from the time of filing of the patent—to which
Plaintiffs do not respond on the merits4—shows that “browser application” had a plain ordinary
meaning in the art at the time that was much broader than “web browser.” Other
contemporaneous dictionaries from the time of the patents’ conception and filing also confirm
that a “browser” would be understood by those in the field of computer science as “a program
1

Brackets are a deletion, underlining is an addition.
’906 patent at 5:24-38.
3
See, e.g., D.I. 581 at 6 (arguing, regarding “embed text format,” that “In their brief, Defendants
suggest that this term should be limited to the example of the ‘special’ EMBED tag described in
the preferred embodiment. D.Br. at 11. But Defendants point to no clear and unequivocal
disavowal of claim scope, and the Federal Circuit has ‘repeatedly warned against confining the
claims to [preferred] embodiments.’”).
4
Plaintiffs instead object to Defendants’ exemplary extrinsic evidence as pre-dating the patent
filing. However, Plaintiffs then proceed to cite to extrinsic evidence from long after the filing
date of the patents, while ignoring that, even today, their own inventors understand the term
“browser application” broadly and that the usage of the term in the 1993-1994 time frame by the
Regents themselves is in keeping with Defendants’ construction. See, e.g., Exs. C, D, and E.
2

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 1

that is designed to facilitate browsing of data or programs by finding the desired data, displaying
it in understandable form, and so on.”5 It is not limited to the Internet, the World Wide Web,
HTTP or HTML.
To respond briefly to Plaintiffs’ other arguments, the Federal Circuit was not asked to
and did not construe the term “browser application.” The Federal Circuit’s discussion is dicta
regarding the preferred embodiment and merely indicates the context on which the parties to the
prior case focused the appeal. Plaintiffs cite to no evidence that the term “browser application”
was construed by the Court or even offered for construction. Second, the intrinsic evidence is
exemplary and non-limiting. There is no definition or disclaimer here, rendering Plaintiffs’
attempt to cherry pick selected limitations inappropriate.6 In fact, even the preferred
embodiments cited by Plaintiffs do not limit the location of files to the “World Wide Web.”
Plaintiffs suggest that if the Court did not so limit the claims, the “browser” would not work
because it would “not be capable of executing in this manner, or parsing HTML files, if it were
not a web browser.”7 But the asserted claims are not limited to HTML files; “HTML” appears
only in certain dependent claims, and those claims refer to text formats not the file type.8
Finally, Defendants’ construction does not nullify the term “browser application.” While
it is possible many applications in isolation could be considered “browser applications,” the
claims are read as a whole and contain many other limitations, e.g., “hypermedia document,”
“text format, embed text format,” that practically limit the scope of the claimed browser
applications. The phrase “or view” was not intended to expand the scope of the definition.

5

See Ex. F (1992) at 318 (“a program that is designed to facilitate browsing of data or programs
by finding the desired data, displaying it in understandable form, and so on.”).
6
Phillips v. AWH Corp., 415 F.3d 1303 at 1323 (Fed. Cir. 2005).
7
D.I. 1307 at 2.
8
See, e.g., ’985 patent, claim 3.
DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 2

Dated: February 3, 2012

Respectfully submitted,
FISH & RICHARDSON P.C.
By: /s/ Jason W. Wolff
Frank E. Scherkenbach
E-mail: [e-mail]
Proshanto Mukherji
Email: [e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02110-1878
[phone] (Telephone)
[phone] (Facsimile)
David J. Healey
E-mail: [e-mail]
FISH & RICHARDSON P.C.
1 Houston Center
1221 McKinney Street, Suite 2800
Houston, TX 77010
[phone] (Telephone)
[phone] (Facsimile)
Jason W. Wolff
E-mail: [e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
[phone] (Telephone)
[phone] (Facsimile)
Michael E. Florey
Email: [e-mail]
FISH & RICHARDSON P.C.
3200 RBC Plaza
60 South Sixth Street
Minneapolis, MN 55402
[phone] (Telephone)
[phone] (Facsimile)
Counsel for Defendant
ADOBE SYSTEMS INCORPORATED
/s/ Edward R. Reines (with permission)
Edward R. Reines

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 3

Jared Bobrow
Sonal N. Mehta
Aaron Y. Huang
Andrew L. Perito
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Doug W. McClellan
Email: [e-mail]
WEIL, GOTSHAL & MANGES LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Telephone: [phone]
Facsimile: [phone]
Jennifer H. Doan
Joshua R. Thane
Shawn A. Latchford
Stephen W. Creekmore, IV
HALTOM & DOAN
Crown Executive Center, Suite 100
6500 Summerhill Road
Texarkana, TX 75503
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Otis Carroll
Deborah Race
IRELAND, CARROLL
& KELLEY, P.C.
6101 South Broadway, Suite 500
Tyler, Texas 75703
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
AMAZON.COM INC. AND
YAHOO! INC.

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 4

/s/ Proshanto Mukherji (with
permission)
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.
/s/ Douglas E. Lumish (with
permission)
Douglas E. Lumish
Jeffrey G. Homrig
Joseph H. Lee
Parker C. Ankrum
KASOWITZ, BENSON, TORRES &
FRIEDMAN, LLP
333 Twin Dolphin Drive, Suite 200
Redwood Shores, CA 94065
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Jonathan K. Waldrop
KASOWITZ, BENSON, TORRES &
FRIEDMAN, LLP
1360 Peachtree St., N.E.
Suite 1150
Atlanta, GA 30309
Tel: [phone]
Email: [e-mail]
James R. Batchelder
Sasha G. Rao
Brandon H. Stroy
Rebecca R. Hermes
DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 5

Lauren N. Robinson
ROPES & GRAY LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303-2284
Tel: [phone]
Email:
[e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Han Xu
ROPES & GRAY LLP
Prudential Tower, 800 Boylston St.
Boston, MA 02199-3600
Tel: [phone]
Email: [e-mail]
Daryl Joseffer
Adam Conrad
KING & SPALDING
1700 Pennsylvania Avenue, NW
Suite 200
Washington, DC 2006-4707
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
Michael E. Jones
Allen F. Gardner
POTTER MINTON
110 N. College, Suite 500
Tyler, TX 75702
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR DEFENDANTS
GOOGLE INC. AND YOUTUBE
LLC

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 6

/s/ Christopher M. Joe (with
permission)
Christopher M. Joe
Brian Carpenter
Eric W. Buether
BUETHER JOE & CARPENTER
1700 Pacific, Suite 2390
Dallas, TX 75201
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
J.C. PENNEY CORPORATION,
INC.
/s/ Donald R. Steinberg (with
permission)
Mark Matuschak
Donald R. Steinberg
Alexandra Boudreau
WILMER CUTLER PICKERING
HALE AND DORR, LLP
60 State Street
Boston, MA 02109
Tel. [phone]
[e-mail]
[e-mail]
[e-mail]
Kate Hutchins
WILMER CUTLER PICKERING
HALE AND DORR, LLP
399 Park Avenue
New York, NY 10022
Tel: [phone]
[e-mail]
Daniel V. Williams
WILMER CUTLER PICKERING
HALE AND DORR, LLP
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
202.663.6012
[e-mail]
Joe W. Redden, Jr.
Michael E. Richardson
BECK REDDEN & SECREST
1221 McKinney
DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 7

Suite 4500
Houston, TX 77010
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
STAPLES, INC.

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on February 3, 2012 to all counsel of record who are deemed to have
consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).

/s/ Jason W. Wolff

11196374.doc

DEFENDANTS’ REPLY BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 9