Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 374

RESPONSE to 373 Notice (Other) by Eolas Technologies Incorporated. (McKool, Mike) Modified on 8/4/2010 to remove duplicate text(dcap, ).

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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' THIRD NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF TRANSFER 1 Austin 61516v1 Defendants submitted Judge Everingham's order in Software Rights Archive, LLC v. Google, Inc., No. 2:07-CV-511 (CE) (E.D.Tex. signed July 22, 2010) ("Software Rights"), in support of their Motion to Transfer ("Motion"), see Dkt. 373, but Software Rights does not support Defendants' Motion. The factual differences between Software Rights and this case render it distinguishable. For example: In Software Rights, the only party located in the EDTX was the plaintiff. Software Rights at 1, 4. Here, at least five defendants--in addition to Eolas--are in the EDTX. Dkt. 291 at 2-4. In Software Rights, the plaintiff did not indicate why its documents were located in Texas. Software Rights at 4. Here, Eolas has employees in the EDTX that test and develop Eolas' products--including embodiments of the patents-in-suit. Dkt. 291 at 1-2, 4; Dkt. 359 at 2-4. In Software Rights, the plaintiff failed to identify any party or non-party witnesses within the EDTX. Software Rights at 5. Here, Eolas has identified numerous party witnesses (both its own personnel and that of the five EDTX defendants) located in the EDTX. Dkt. 291 at 2-5; Dkt. 359 at 2-3. Eolas has also identified numerous third-party witnesses who reside within Texas (some who may be within 100 miles of the courthouse in Tyler). Dkt. 291 at 11-12 and Exs. 4-14; Dkt. 359 at 5. Given the factual dissimilarities, Software Rights does not support Defendants' Motion. In addition, Judge Everingham found that because "the parties fully briefed a motion to dismiss, agreed to a docket control, discovery and protective orders, engaged in discovery, served initial disclosures, and exchanged infringement and invalidity contentions" this "weighs heavily against transfer." Software Rights at 7. Here, the parties have done all of these things, but agree to a protective order (which the parties are close to agreement on). See Dkt. 175, 184, 205, 206, 282, 309, 333, 353, and 365 (two fully briefed motions to dismiss); 247 (discovery order); 249 (docket control order); 363 (referencing the protective order). Therefore, applied to the facts of this case, the "other practical problems" factor weighs heavily against transfer. 2 Austin 61516v1 Dated: July 28, 2010. MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 mmckool@mckoolsmith.com Douglas Cawley Texas State Bar No. 04035500 dcawley@mckoolsmith.com Luke McLeroy Texas State Bar No. 24041455 lmcleroy@mckoolsmith.com MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: (214) 978-4000 Telecopier: (214) 978-4044 Sam F. Baxter Texas State Bar No. 01938000 sbaxter@mckoolsmith.com MCKOOL SMITH, P.C. 104 E. Houston St., Ste. 300 P.O. Box O Marshall, Texas 75670 Telephone: (903) 923-9000 Telecopier: (903) 923-9095 Kevin L. Burgess Texas State Bar No. 24006927 kburgess@mckoolsmith.com Steven J. Pollinger Texas State Bar No. 24011919 spollinger@mckoolsmith.com Josh W. Budwin Texas State Bar No. 24050347 jbudwin@mckoolsmith.com MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Telecopier: (512) 692-8744 ATTORNEYS FOR PLAINTIFF EOLAS TECHNOLOGIES, INC. Austin 61516v1 CERTIFICATE OF SERVICE The undersigned certifies that true and correct copies of the foregoing document were served to all counsel of record via the Court's ECF system. /s/ Josh Budwin Josh Budwin Austin 61516v1

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