Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 242

Submission of Proposed Agreed Docket Control/Scheduling order by Eolas Technologies Incorporated. (McKool, Mike) (Additional attachment(s) added on 3/25/2010: # 1 Text of Proposed Order) (sm, ).

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., 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-446

JURY TRIAL DEMANDED

DOCKET CONTROL ORDER

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It is hereby ORDERED that the following schedule of deadlines is in effect until further order of this Court:
Trial Date To be assigned by the Court
Court designated date ­ not flexible without good cause Motion Required

9:00 a.m. JURY TRIAL as reached at the United States District Court, 211 W. Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler, Texas.

ORDER REGARDING EXHIBITS, EXHIBIT LISTS AND WITNESS LISTS: A. On the first day of trial, each party is required to have on hand the following: (1) One copy of their respective original exhibits. Each exhibit shall be properly labeled with the following information: Identified as either Plaintiff's or Defendant's Exhibit, the Exhibit Number and the Case Number. In addition, exhibits shall be placed in properly marked manilla folders and contained in a box with handles. (2) Three (3) hard copies of their exhibit list and witness list. The Court's preferred format for Exhibit Lists is available on the Court's website at www.txed.uscourts.gov under "Orders & Forms." B. During trial on a daily basis, each party shall tender to the Court a list of exhibits admitted for each day. A Plaintiff will description of the exhibits is not necessary, just a list containing the exhibit numbers. For example, submit a document entitled, "Plaintiff's List of Exhibits Admitted on (the date)." Said daily lists are to be tendered the following day. (If trial commences on Monday, Monday's list will be due Tuesday morning and so on until the conclusion of trial). C. At the conclusion of the evidentiary phase of trial, each party shall be responsible for pulling those exhibits admitted at trial and tender those to the Courtroom Deputy, who will verify the exhibits and tender them to the jury for their deliberations. are the

D. At the conclusion of trial, all boxes of exhibits shall be returned to the respective parties and the parties instructed to remove these exhibits from the courtroom. E. Within five business days of the conclusion of trial, each party shall submit to the Court (to Chambers) following: (1) A Final Exhibit List of Exhibits Admitted During Trial, and in addition provide the Court a disk containing this document in WordPerfect or Word format. (2) A disk or disks containing their respective admitted trial exhibits in PDF format, with the exception of sealed exhibits. If the Court ordered any exhibits sealed during trial, the Sealed Exhibits shall be copied on a separate disk. If tangible or over-sized exhibits were admitted, such exhibits shall be substituted with a photograph to be converted to a PDF file and shall be included in the Court's disk of admitted exhibits. (3) A disk or disks containing the transcripts of Video Depositions played during trial, along with a copy of the actual video deposition. F. After verification of final exhibit lists, the Courtroom Deputy shall file and docket the lists, and the disk disks containing the exhibits in PDF format shall be stored in the Clerk's Office.

or

10/03/2011
Court designated date ­ not flexible without good cause - Motion Required

9:00 a.m. JURY SELECTION at the United States District Court, 211 W. Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler, Texas. 9:00 a.m. PRETRIAL CONFERENCE at the United States District

September 22, 2011
Court designated date ­ not flexible

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without good cause - Motion Required

Court, 211 W. Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler, Texas. All pending motions will be heard. Lead trial counsel must attend the pretrial conference.

TBD

Parties to file estimates of the amount of time they request at jury selection and trial for (1) voir dire, (2) opening statements, (3) direct and cross examinations, and (4) closing arguments. Motions in Limine due. The parties are directed to meet and confer and attempt to resolve all limine issues before filing any motions in limine. Pretrial Objections due. Objections to Rebuttal Deposition Testimony due. Rebuttal Designations and Objections to Deposition Testimony due. Cross examination line and page numbers to be included. In video depositions, each party is responsible for preparation of the final edited video in accordance with their parties' designations and the Court's rulings on objections. Pretrial Disclosures due. Video and Stenographic Deposition Designation due. Each party who proposes to offer deposition testimony shall file a disclosure identifying the line and page numbers to be offered.

TBD TBD TBD TBD

TBD

TBD

Joint Pretrial Order, Joint Proposed Jury Instructions with citation to authority and Form of the Verdict for jury trials due. Proposed Findings of Fact and Conclusions of Law with citation to authority for issues tried to the bench. Notice of Request for Daily Transcript or Real Time Reporting of Court Proceedings due. If a daily transcript or real time reporting of court proceedings is requested for trial or hearings, the party or parties making said request shall file a notice with the Court and email the Court Reporter, Shea Sloan, at [e-mail].

07/18/2011

Responses to Dispositive Motions (including Daubert motions) due. Responses to dispositive motions filed prior to the dispositive motion deadline, including Daubert motions, shall be due in accordance with Local Rule CV-56 and Local Rule CV-7. Motions to extend page limits will only be granted in exceptional circumstances. Dispositive Motions due from all parties and any other motions that may require a hearing (including Daubert motions) due. Motions shall comply with Local Rule CV-56 and Local Rule CV-7. Motions to extend page limits will only be granted in exceptional circumstances. Parties to Identify Rebuttal Trial Witnesses. Parties to Identify Trial Witnesses; Amend Pleadings (after Markman Hearing). It is not necessary to file a Motion for Leave to Amend before the deadline to amend pleadings. It is necessary to file a Motion for Leave to Amend after the deadline. However, except as provided in Patent Rule 3-6, if

07/01/2011
Court designated date ­ not flexible without good cause ­ Motion Required

06/28/2011 06/17/2011

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the amendment would effect infringement contentions or invalidity contentions, a motion must be made pursuant to Patent Rule 3-6 irrespective of whether the amendment is made prior to this deadline. 21 days after date for rebuttal expert witness reports. 42 Days After Court Issues Claim Construction Order or June 14, 2011, whichever is earlier. 21 Days After Court Issues Claim Construction Order or May 25, 2011, whichever is earlier. 03/25/2011 03/03/2011
Court designated date ­ not flexible without good cause ­ Motion Required

Discovery Deadline.

Parties designate rebuttal expert witnesses (non-construction issues), Rebuttal expert witness reports due. Refer to Local Rules for required information.

Parties with burden of proof designate expert witnesses (non-construction issues). Expert witness reports due. Refer to Local Rules for required information. Comply with P.R.3-7 - Furnishing documents and privilege logs pertaining to willful infringement. Markman hearing and hearing on any Motion for Summary Judgment of Indefiniteness at 9:30 a.m. at the United States District Court, 211 West Ferguson, 3rd Floor, Courtroom of Judge Leonard Davis, Tyler, Texas. P.R. 4-5(d) Chart due. Parties shall jointly submit a claim construction chart on computer disk in WordPerfect format or in such other format as the Court may direct in accordance with P.R. 4-5(d). Reply to Motion for Summary Judgment of Indefiniteness due. If a technical advisor has been appointed the moving party is to provide their brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor. Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e). Motions to extend page limits will only be granted in exceptional circumstances.

02/24/2011

02/18/2011

Parties to file a notice with the Court stating the estimated amount of time requested for the Markman Hearing. The Court will notify the parties if it is unable to accommodate this request. Comply with P.R. 4-5(c) - Reply brief and supporting evidence due re response to claim construction. If a technical advisor has been appointed the moving party is to provide their brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor. Response to Motion for Summary Judgment of Indefiniteness due. If a technical advisor has been appointed the moving party is to provide their brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor.

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Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e). Motions to extend page limits will only be granted in exceptional circumstances. 02/04/11 Comply with P.R. 4-5(b) - Responsive brief and supporting evidence due to party claiming patent infringement. If a technical advisor has been appointed the moving party is to provide their Markman brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor. Motion for Summary Judgment of Indefiniteness due. If a technical advisor has been appointed the moving party is to provide their brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor. Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e). Motions to extend page limits will only be granted in exceptional circumstances. 12/23/10 12/23/10 Discovery Deadline - Claim Construction Issues. Comply with P.R. 4-5(a) - The party claiming patent infringement shall serve and file an opening brief and any evidence supporting its claim construction. If a technical advisor has been appointed the moving party is to provide their Markman brief on disk or CD along with a hard copy, tabbed and bound in notebook format with exhibits to the advisor. Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-5(e). Motions to extend page limits will only be granted in exceptional circumstances. 12/30/2010 12/16/2010 Respond to Amended Pleadings. Proposed Technical Advisors due. Parties to provide name, address, phone number, and curriculum vitae for up to three agreed technical advisors and information regarding the nominees' availability for Markman hearing or a statement that they could not reach an agreement as to any potential technical advisor. If the parties cannot agree on a technical advisor, they shall not submit any proposed technical advisors to the Court. Amended Pleadings (pre-claim construction) due from all parties. It is not necessary to file a Motion for Leave to Amend before the deadline to amend pleadings. It is necessary to file a Motion for Leave to Amend after the deadline. However, if the amendment would affect infringement contentions or invalidity contentions, a motion must be made pursuant to Patent Rule 3-7 irrespective of whether the amendment is made prior to this deadline. Tutorials due. Deadline for parties, if they desire, to provide Court with tutorials concerning technology involved in patent. If a technical advisor has been appointed, each party that provides a tutorial shall provide a copy to the advisor. Privilege Logs to be exchanged by parties (or a letter to the Court stating that

12/16/2010

02/24/11

08/27/2010

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there are no disputes as to claims of privileged documents). 10/29/10 09/24/2010 Comply with P.R. 4-3 - Filing of Joint Claim Construction and Prehearing Statement. Defendant shall assert any counterclaims. After this deadline, leave of Court must be obtained to assert any counterclaims. Add any inequitable conduct allegations to pleadings. It is not necessary to file a motion for leave to add inequitable conduct allegations to pleadings prior to this date. Thereafter, it is necessary to obtain leave of Court to add inequitable conduct allegations to pleadings. 09/17/2010 08/02/2010 06/25/2010 Comply with P.R. 4-2 - Exchange of Preliminary Claim Constructions and Extrinsic Evidence. Comply with P.R. 4-1 - Exchange Proposed Terms and Claim Elements for Construction. Comply with P.R. 3-3 and 3-4 - Invalidity Contentions due. Thereafter, it is necessary to obtain leave of Court to add and/or amend invalidity contentions, pursuant to Patent Rule 3-6. Defendant shall join additional parties. It is not necessary to file a motion to join additional parties prior to this date. Thereafter, it is necessary to obtain leave of Court to join additional parties. 03/05/2010 Comply with P.R. 3-1 and P.R. 3-2 - Disclosure of Asserted Claims and Infringement Contentions due. Thereafter, it is necessary to obtain leave of Court to add and/or amend infringement contentions, pursuant to Patent Rule 3-6. Plaintiff shall join additional parties. It is not necessary to file a motion to join additional parties prior to this date. Thereafter, it is necessary to obtain leave of Court to join additional parties. Plaintiff shall add new patents and/or claims for patents-in-suit. It is not necessary to file a motion to add additional patents or claims prior to this date. Thereafter, it is necessary to obtain leave of Court to add patents or claims. TBD Mediation to be completed. (Name), (address), and (phone number) is appointed as mediator in this cause. Mediation shall be conducted in accordance with the Court-Annexed Mediation Plan. See Appendix H to Local Rules, available on the Court's website at www.txed.uscourts.gov. EXPECTED LENGTH OF TRIAL

No. of trial days

In the event that any of these dates fall on a weekend or Court holiday, the deadline is modified to be the next Court business day. The parties are directed to Local Rule CV-7(d), which provides in part that "[i]n the event a party fails to oppose a motion in the manner prescribed herein the Court will assume that the party has no

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opposition." Local Rule CV-7(e) provides that a party opposing a motion has 15 days in which to serve and file supporting documents and briefs after which the Court will consider the submitted motion for decision. OTHER LIMITATIONS (a) (b) All depositions to be read into evidence as part of the parties' case-in-chief shall be EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony; ONLY those portions which are relevant to the issues in controversy shall be read into evidence. The following excuses will not warrant a continuance nor justify a failure to comply with the discovery deadline: (i) (ii) (iii) The fact that there are motions for summary judgment or motions to dismiss pending; The fact that one or more of the attorneys is set for trial in another court on the same day, unless the other setting was made prior to the date of this order or was made as a special provision for the parties in the other case; The failure to complete discovery prior to trial, unless the parties can demonstrate that it was impossible to complete discovery despite their good faith effort to do so.

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Dated: March 22, 2010. 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] Luke McLeroy Texas State Bar No. 24041455 [e-mail] MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: [phone] Telecopier: [phone] Sam F. Baxter Texas State Bar No. 01938000 [e-mail] McKool Smith, P.C. 104 E. Houston St., Ste. 300 P.O. Box O Marshall, Texas 75670 Telephone: [phone] Telecopier: [phone] Kevin L. Burgess Texas State Bar No. 24006927 [e-mail] Steven J. Pollinger Texas State Bar No. 24011919 [e-mail] Josh W. Budwin Texas State Bar No. 24050347 [e-mail] MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: [phone] Telecopier: [phone] ATTORNEYS FOR PLAINTIFF EOLAS TECHNOLOGIES, INC. /s/ David J. Healey (with permission) David J. Healey Fish & Richardson PC 1221 McKinney Street, Suite 2888 Houston, TX 77010 [e-mail] Lead Counsel for Adobe Systems Incorporated /s/ Douglas E. Lumish (with permission) Douglas E. Lumish Weil Gotshal & Manges 201 Redwood Shores Parkway Redwood City, CA 94065 [e-mail] Lead Counsel for Amazon.com, eBay Inc., and Yahoo! Inc. /s/ David T. Pritikin (with permission) David T. Pritikin Sidley Austin - Chicago Bank One Plaza One South Dearborn Ave Chicago, IL 60603 [e-mail] Lead Counsel for Apple, Inc. /s/ Scott Wayne Breedlove (with permission) Scott Wayne Breedlove Vinson & Elkins 2001 Ross Avenue 3700 Trammel Crow Center Dallas, TX 75201 [e-mail] Lead Counsel for Blockbuster Inc. /s/ Thomas L. Duston (with permission) Thomas L. Duston Marshall Gerstein & Borun 233 S. Wacker Drive 6300 Sears Tower Chicago, IL 60606

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[e-mail] Lead Counsel for CDW Corporation /s/ Edwin R. DeYoung (with permission) Edwin R. DeYoung Locke Lord Bissell & Liddell LLP 2200 Ross Ave. Suite 2200 Dallas, TX 75201 [e-mail] Lead Counsel for Citigroup Inc. /s/ Jeffrey K. Joyner (with permission) Jeffrey K. Joyner GREENBERG TRAURIG 2450 Colorado Avenue Suite 400E Santa Monica, CA 90404 [e-mail] Lead Counsel for Frito-Lay, Inc. and RentA-Center, Inc. /s/ Thomas M. Melsheimer (with permission) Thomas M. Melsheimer Fish & Richardson 1717 Main Street Suite 5000 Dallas, TX 75201 [e-mail] Lead Counsel for The Go Daddy Group, Inc. /s/Scott T. Weingaertner (with permission) Scott T. Weingaertner King & Spalding, LLP 1185 Avenue of the Americas New York, NY 10036 [e-mail] Lead Counsel for Google Inc. and YouTube, LLC /s/ Christopher M. Joe (with permission) Christopher M. Joe Buether Joe & Carpenter

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1700 Pacific, Suite 2390 Dallas, TX 75201 [e-mail] Lead Counsel for J.C. Penney Inc. /s/ Joel Mark Freed (with permission) Joel Mark Freed McDermott Will & Emery 600 13th Street, NW 12th Floor Washington, DC 20005-3096 [e-mail] Lead Counsel for JPMorgan Chase & Co. /s/ Michael Simons (with permission) Michael Simons Akin Gump Strauss Hauer & Feld 300 W. 6th Street Suite 2100 Austin, TX 78701 [e-mail] Lead Counsel for New Frontier Media, Inc. /s/ Kenneth Jurek (with permission) Kenneth Jurek McDermott Law Firm 227 West Monroe Street Chicago, IL 60606 [e-mail] Lead Counsel for Office Depot /s/ Barton E. Showalter (with permission) Barton E. Showalter Baker & Botts 2001 Ross Ave. Suite 600 Dallas, TX 75201 Lead Counsel for Perot Systems Corp. /s/ Avelyn Marie Ross (with permission) Avelyn Marie Ross Vinson & Elkins 2801 Via Fortuna Suite 100

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Austin, TX 78746 Lead Counsel for Playboy Enterprises International /s/ Michael Ernest Richardson (with permission) Michael Ernest Richardson Beck Redden & Secrest 1221 McKinney Suite 4500 Houston, TX 77010 Lead Counsel for Staples, Inc. /s/ Eric Hugh Findlay (with permission) Eric Hugh Findlay Findlay Craft 6760 Old Jacksonville Highway Suite 101 Tyler, TX 75703 Lead Counsel for Sun Microsystems, Inc. /s/ Carl R. Roth (with permission) Carl R. Roth The Roth Law Firm 115 N. Wellington Suite 200 P.O. Box 876 Marshall, TX 75671 Lead Counsel for Texas Instruments, Inc. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on March 22, 2010. Local Rule CV-5(a)(3)(A). /s/ Josh Budwin Josh Budwin

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