Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1368

Opposed MOTION to Amend/Correct 1354 Judgment by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Attachment A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(McKool, Mike)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EOLAS TECHNOLOGIES
§
INCORPORATED and THE REGENTS
§
OF THE UNIVERSITY OF CALIFORNIA §
§
Plaintiffs,
§
§
vs.
§
§
ADOBE SYSTEMS INC., AMAZON.COM §
INC., CDW CORPORATION, CITIGROUP §
INC., THE GO DADDY GROUP, INC.,
§
GOOGLE INC., J.C. PENNEY
§
CORPORATION, INC., STAPLES, INC.,
§
YAHOO! INC., and YOUTUBE, LLC.,
§
§
Defendants.
§

CASE NO. 6:09-CV-00446-LED

JURY TRIAL

PLAINTIFFS’ OPPOSED MOTION TO CORRECT
JUDGMENT PURSUANT TO RULES 59(e) AND 60(a)

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Plaintiffs Eolas Technologies Incorporated (“Eolas”) and The Regents of the University
of California (UC) (collectively “Plaintiffs”) respectfully file this Motion to Correct Judgment
Pursuant to Rules 59(e) and 60(a).1
I.

ARGUMENT
On October 6, 2009, Eolas filed suit in this action, alleging patent infringement of the

’906 and ’985 patents.

[Dkt. No. 1]. On December 17, 2009, one of the five remaining

Defendants in this action, Amazon.com Inc. (“Amazon”), filed an answer, asserting, among other
things, a counterclaim for declaratory judgment of noninfringement, invalidity, and
unenforceability due to inequitable conduct. [Dkt. No. 131 at ¶¶ 340-48]. Similarly, Plaintiffs’
current Complaint, filed on October 28, 2011, contains allegations of patent infringement [Dkt.
No. 1075], and Amazon has counterclaimed for a declaratory judgment on noninfringement,
invalidity, and unenforceability. [Dkt. No. 1026 at ¶¶ 338-345].
On January 20, 2012, this Court issued its “Final Trial Plan” for this action, pursuant to
which an “Invalidity and Inequitable Conduct” trial would be followed by three “Infringement
and Damages” trials. [Dkt. No. 1264]. Accordingly, in the first trial in this action, which began
on February 6, 2012 and concluded with a jury verdict on February 9, 2012 that claims 1 and 6
of the ’906 patent and claims 1, 3, 10, 16, 18, 20, 22, 36, 38, 40, and 42 of the ’985 patent were
invalid [Dkt. No. 1353], no infringement issues were addressed by the jury in its verdict and no
inequitable conduct issues were addressed by the Court in its judgment .
Because neither the jury nor the Court expressly ruled on Plaintiffs’ infringement claims
and Defendants’ counterclaims of noninfringement and unenforceability due to inequitable
1

Plaintiffs are filing contemporaneously with this Motion to Correct Judgment a Motion for
Judgment as a Matter of Law Under Rule 50(b) that the Patents-in-Suit Are Not Invalid, or in the
Alternative for a New Trial Under Rule 59. This Motion to Correct Judgment in no way
modifies or pertains to that Motion or the relief sought in that Motion.
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McKool 438240v1

conduct, an argument can be made that the February 13, 2012 judgment cannot be final. This is
precisely what the Federal Circuit found in Leggett & Platt, Inc. v. Vutek, Inc., 239 Fed. Appx.
602 (Fed. Cir. 2007) (unpublished). In Leggett & Platt, the district court had granted the
defendant’s motion for summary judgment on invalidity and stated in its judgment that
“defendant VUTEk shall have judgment on plaintiffs’ complaint and on its counterclaim, and
plaintiffs’ complaint is dismissed in its entirety.” Exhibit 1. On appeal, the Federal Circuit
found that “the district court’s judgment did not, one way or the other, decide its counterclaim
for a declaratory judgment of noninfringement”. Id. at 604. Because of this, the Federal Circuit
declined to hear the case, holding that “until it has been disposed of, absent a Fed. R. Civ. P.
54(b) judgment, there is no final judgment on all claims for relief and we must dismiss this
appeal.” Id. at 604. On remand, the district court issued a revised final judgment, which stated
that “Plaintiffs’ complaint is dismissed in its entirety, and VUTEk’s counterclaim for noninfringement is dismissed as moot.” Exhibit 2. With such a revision to the court’s judgment, the
Federal Circuit heard the appeal. Leggett & Platt, Inc. v. VUTEk, Inc., 537 F.3d 1349 (Fed. Cir
2008). The revised judgment Plaintiffs propose (attached hereto as Attachment A) is in line with
the district court’s judgment entered in Leggett & Platt and deemed acceptable by the Federal
Circuit.
In addition, Plaintiffs entered into settlements with Adobe Systems, Inc., CDW
Corporation, and Staples, Inc. prior to the jury’s verdict [see Dkt. Nos. 1361, 1365, and 1359,
respectively].

Those Defendants should, therefore, not be named in the Court’s corrected

judgment.
II.

CONCLUSION
Based on the foregoing, Plaintiffs respectfully request that the Court correct its “final”

judgment entered in this case, replacing it with a judgment naming only Defendants
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Amazon.com Inc.; Google Inc.; J.C. Penney Corporation, Inc.; Yahoo! Inc.; and YouTube, LLC
and stating that Plaintiffs’ claims for infringement and damages are dismissed based on
Defendants’ invalidity affirmative defense and counterclaim, and Defendants’ counterclaims
other than for invalidity are hereby dismissed as moot.
Dated: March 12, 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]
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]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
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Telecopier: [phone]
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
Telephone: [phone]
Telecopier: [phone]
ATTORNEYS FOR PLAINTIFFS
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA AND EOLAS
TECHNOLOGIES INCORPORATED

CERTIFICATE OF SERVICE
Pursuant to Local Rule CV-5(a)(7), the undersigned certifies that the foregoing document
was filed electronically on March 12, 2012. As such, counsel for Plaintiffs has served this
Motion in electronic form on all counsel who have consented to electronic service.
/s/ Gretchen Curran
Gretchen Curran

CERTIFICATE OF CONFERENCE
I certify that counsel for Plaintiffs met and conferred with counsel for Defendants
regarding the relief requested in this Motion. Defendants are opposed to the relief Plaintiffs
seek.
/s/ Gretchen Curran
Gretchen Curran
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