Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 369

RESPONSE to 368 Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other) by Eolas Technologies Incorporated. (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., 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

PLAINTIFF EOLAS' RESPONSE TO DEFENDANTS' SECOND NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF TRANSFER

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Defendants submitted Judge Folsom's order in WIAV Networks Inc. v. 3Com Corporation, No. 5:09-CV-101 (DF) (EDTEX) ("WIAV"), in support of their Motion to Transfer ("Motion"), see Dkt. 368, but WIAV does not support Defendants' Motion. The factual differences between WIAV and this case render WIAV distinguishable. For example: In WIAV, no party or non-party witnesses were located in the EDTX. WIAV at 6, 9. Here, Eolas is located in the EDTX as are at least five defendants. Dkt. 291 at 2-4. The plaintiff in WIAV had no employees, development or testing in the EDTX. WIAV at 6, 9. Eolas has employees in the EDTX that test and develop Eolas products-- including embodiments of the patents-in-suit. Dkt. 291 at 1-2; Dkt. 359 at 2-4. In WIAV, Judge Folsom noted that the Court had yet to "hold a scheduling conference let alone issue scheduling, docket control, or discovery orders." WIAV at 10-11. Here, the Court held a scheduling conference in February and issued docket control and discovery orders in March. Dkt. 210, 247, 249. Discovery is well under way. Id. Given the factual dissimilarities, WIAV does not support Defendants' Motion. In addition, Judge Folsom found that in WIAV "there appears to be no dispute that the accused infringers' documents are located across the United States and in both California and Texas. Keeping this case in the Eastern District of Texas would not impose a significant and unnecessary burden on Defendants. Accordingly, this factor is neutral." WIAV at 4-5. Here, the accused infringers are located across the U.S.--and, unlike WIAV, the accused infringers have documents and employees in the EDTX. Dkt. 291 at 2-4; Dkt. 359 at 2-4. Therefore, applied to the facts of this case, the relative ease of access to sources of proof factor favors the EDTX. Defendants also submitted a transfer order from Boram Pham. Co. Ltd. v Life Technologies, Corp., No. 10-31 (D.Del) ("Boram"). This case is inapplicable to the facts presented here as it involved a single plaintiff from Korea and a single defendant from California, none of whom conducted business in Delaware (where suit was filed). Boram at 3. Here, parties to this case, including Eolas and at least five defendants, transact business and have documents, people and things in the EDTX. Dkt. 291 at 2-4; Dkt. 359 at 2-4. 2
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Dated: July 20, 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.

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CERTIFICATE OF SERVICE The undersigned certifies that true and correct copies of the foregoing document were served via email to all counsel of record. /s/ Josh Budwin Josh Budwin

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