Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 383

REPLY to Response to Motion re 367 Opposed MOTION Adobe Systems Incorporated's Opposed Motion Requesting Case Management Conference To Address Plaintiff Eolas's Infringement Contentions Or, In The Alternative, To Strike Those Contentions and Motion For Expedited Consideratio filed by Adobe Systems Incorporated. (Attachments: # 1 Exhibit A to Adobe's Reply ISO Opposed MOTION Adobe Systems Incorporated's Opposed Motion Requesting Case Management Conference To Address Plaintiff Eolas's Infringement Contentions Or, In The Alternative, To Strike Those Contentions and Motion For Expedited Consideration)(Healey, David)

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

EOLAS TECHNOLOGIES, INC.

Plaintiff,
Civil Action No. 6:09-CV-446 LED

v.
JURY TRIAL DEMANDED ADOBE SYSTEMS INCORPORATED, ET AL.,

Defendants.
ADOBE SYSTEMS INCORPORATED'S REPLY BRIEF IN SUPPORT OF ITS OPPOSED MOTION REQUESTING A CASE MANAGEMENT CONFERENCE TO ADDRESS PLAINTIFF EOLAS' INFRINGEMENT CONTENTIONS OR, IN THE ALTERNATIVE, TO STRIKE THOSE CONTENTIONS AND MOTION FOR EXPEDITED CONSIDERATION

Table of Contents

I. II.

INTRODUCTION ............................................................................................................. 1 ARGUMENT ..................................................................................................................... 1 A. Eolas Cannot Justify How Its "Exemplary" Claim Charts Identify "Each" Accused Instrumentality As Required By the Local Patent Rules ................................................................................................. 1 Contrary to Eolas' Opposition, Adobe Does Require Guidance for Discovery ......................................................................................................... 4 Microsoft's Suit Against Eolas Will Significantly Impact the Size and Scope of this Case, and the Court Should Consider That Impact Now ................................................................................................... 4

B. C.

III.

CONCLUSION .................................................................................................................. 5

I.

INTRODUCTION
While the Court has already granted Adobe's request for a case management conference,

Adobe files this reply in order to set the record straight regarding assertions Eolas has made, particularly regarding the scope and nature of its infringement contentions.

II.

ARGUMENT A. Eolas Cannot Justify How Its "Exemplary" Claim Charts Identify "Each" Accused Instrumentality As Required By the Local Patent Rules

In its opening brief, Adobe explained that Eolas' asserted claims require multiple components, multiple actors, and cannot be infringed by any Adobe product by itself because, at least, none of Adobe's products is or includes the claimed browser. As a casual study of the claims reveals, they generally concern a particular configuration for the transfer of hypermedia documents between a server and a browser, and how that browser processes and displays interactive compound documents. This, in short, is a joint infringement case. See, e.g., Golden

Hour Data Systems, Inc. v. emsCharts, Inc. and Softtech, LLC, _

F.3d _ , slip op. at 27 (Fed.

Cir. August 9, 2010) (discussing the joint infringement rule). In its brief, Adobe relied on and stated what Eolas told and confirmed to Adobe, that Eolas' charts provide "examples" of how accused systems infringe rather than identifying each accused model/version name and number, each accused combination of components, and so forth. In its opposition brief, however, Eolas contradicted its prior statements to Adobe, arguing that it "specifically identified each of the accused instrumentalities, not 'mere examples or illustrations of possible infringement. '" Eolas Br. (D.I. 375) at 1. Eolas' position is belied by its infringement charts. By way of example, each chart shows a Firefox web browser in the combination alleged to infringe. Firefox is an open source web browser developed by the Mozilla Foundation, and Mozilla is not a defendant in this case. If the totality of Eolas' allegations-the exhaustive list of

1

all asserted infringements-is those depicted in its claim charts, then Eolas has met the Local Rule and the charts specify the limits and bounds of its case. If the charts properly present the limit of Eo las' case, a prompt mediation may be productive, as the specific combination of products depicted is manageable. This assumes that the contentions presented are the complete set of infringement allegations as required by the Local Rule, not illustrative, and that no other combinations or products will be included in any