Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 393

NOTICE by Google Inc., YouTube, LLC 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 and Identification of Related Issues to be Addressed (Attachments: # 1 Declaration of M. Francis, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23)(Jones, Michael)

Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Doc. 393 Att. 12

Exhibit 11

Dockets.Justia.com

McKoOL SMITH
A PROFEOSSIONAL CORPORATION ' ATIORNEYS
Josh \V. Budwin

300 West Sixth Street, Suite 1700

Direct Dial : (5 12) 692-8727 [e-mail]

Austin, Texas 7870 I

Telephone: [phone] Tclccopicr: [phone]

March 5, 2010

VIA E-MAIL (w/o enclosures) and U.S. Mail (wI enclosures)
Chri s topher C. Carnaval King & Spalding, LLP 1185 Avenue of the Americas New York, NY 10036 Re:

Eo/as Technologies Incorporated v. Adobe Syslems, Inc., et. at; C ivil Action No. 6:09-CV-00446-LED; United District Court of Texas; Eastern District.

Dear Mr. Carnaval: In compliance with P.R. 3-1 and 3-2 and the Court's Docket Contro l Order, Eolas Technologies Incorporated ("Eolas") hereby submits its "Disclosure of Asserted Clai ms and Preliminary Infringement Contentions" and accompanying document production. Pursuant to P.R. 2-2, some of the document production accompanying Eolas' " Di s clos ure of Asserted Claims and Preliminary Infringement Contentions" is marked " Hi ghl y Confidential." All documents labeled or designated as "Hi g hl y Confidential" shall be deemed "Confidential " within the meaning of P.R. 2-2 and thereby limited to outside attomeys of record and the employees of such outside attomeys.

I.

Asserted Claims and Priority Dates
Eolas asserts the following claims against Google Inc.: U.S. Patent No. 5,838,906: claims 1-14. U.S . Patent No. 7,5 99,985: claims 1-47.

Eolas has endeavored to identify the asserted claims on a per-accused instrumentality basis in the chart in Section II, infra. Each of the claims asserted with respect to U.S. Patent Nos . 5,838,906 ("the '906 patent") and 7,599,985 ("'the '985 patent") are entitled to a priority date at least as earl y as October 17, 1994.

March 5, 2010 Page2o f 5

]1.

Accused Instrumentalities

The accused instrumentalities are specifically identified in the claim charts included on the DVD enclosed herewith as exhibits 1-18.

Chart
Exhibit No, 1.

Defend a n t

Ch:lrt

I nfringcmcnt

T heo r y Google 906 - Google - C h r o m e (see also instrumentalities identified therei n) (accused of infr in g in g claims 1- 14 of the '906 patent and claims 1-47 of the '985 patent) 906 - Goog le - C h a r t I (see a lso instrumentalities identified therein) (accused of infringing claims 1-1 4 of the '906 patent and claims 1-47 of the ' 985 patent) 906 - G o o gle - Ot h e r Domains (see also instrumentalities identified therein) (accused of infringing claims 1-14 of the '906 patent and claims 1-47 of the '985 patent) 906 - A ndroid for mobile devices (see a lso instrumentalities identified therein) (accused of infringing claims 1- 14 of the '906 patent and claims 1-47 of the '985 patent) 906 - Google - P h o n e - C h a r t l (see also instrumentalities identified therein) (accused of infringing cl aim s 1-14 of the '906 patent and cl aim s 1-47 of the ' 985 patent) 985 - G o o gle - Ch art 1 (see also instrumentalities identified therein) (accused of infringing claims 1-14 of the ' 906 patent and claims 1-47 of the '985 patent) 985 - Goog le - O t h er Domains (see also instrumenta li ties identified therein) (accused of infringing claims 1-14 of the ' 906 patent and claims 1-47 of the '985 patent) 985 - G o o gle - A d S e ns e (see also instrumentalities identified therein) (acc used of infringing claims 36-47 of the '985 patent only) 985 - Goog le - D o c u m e n t s (see al s o instrumentalities identified therein) (acc used of infringing claims 36-47 of the ' 985 palent only) 985 - Google - Gmai l (see al so instrumentalities identified therein) (accused of infringing claims 36-47 of the ' 98 5 patent on ly) DirectlIndirect (i.e., contributory infringement and/or inducement)IDOE Direct/Indirect/DOE

2.

J.

,

Direct/Indirect/DOE

4.

Direct/Indirect/DOE

5.

Direct/Indirect/DOE

6.

Direct/Indirect/DOE

7.

Di re c t /Indirect/DO E

8.

Direct/lndirectIDOE

9.

Direct/lndi rect/DO E

10.

DircctlIndirect/DOE

March 5,20 10 Page 3 of5

Chart Exhibil No.
I I.

Defendant

Chart

Infringement Theory
DirectllndirectlDOE

12.

13.

14.

15.

16.

17.

18.

985 - G o o gle - S e a r c h Suggest (see also instrumentalities identified therein) (accused of infringing claims 36-47 of the '985 patent only) 985 - G o o g le - S e a r ch (see also instrumentali t ies identified therein) (accused of infringing cla im s 36-47 of the '985 paten' onl y) 985 - G o o g l e - C h r o m e (see also instrumentalities identified therei n) (acc used of infringing claims 36-4 7 of 'he '98 5 D te nt only) a 985 - G o o g le - M a ps (see also instrumentali ties identifi e d therein) (accused o f infring in g claim s 36-47 of the '985 patent only) 985 - G o o g l e - M a p s Web Service (see also instrumentalities identified therein) (accused of infringing claims 36-47 o f the ' 985 patent only) 985 - G o o g le - iG o o g l c (see also instrumentalities identified therein) (accused of infringing clai m s 36-47 of the '985 patent o nl y) 985 - A n d r o id fo r mobile devices (see also instrumentali t ies identified therein) (accused of infringi ng claims 1- 14 o f the '906 patent and claims 1-47 of the '985 patent) 985 - G o o gle - P h o ne - C h art 1 (see also instrumentalities identified there in) (accused of infringing claims 36-47 of the '985 patent only)

DirectlIndirectIDOE

Direct/I ndirec t / D O E

DirectiIndirect/DOE

DirectlIndirectlDOE

DirectlInd ire c t I D O E

DirectlIndirectIDOE

Direct/Indirect/DOE

III.

Infringement Theory

The infringement theories for each o f the accused instrumentali ties are specifically identified in the claim charts attached hereto. The in fri nge m e n t theory fo r each of the accused instrumentali t ies is also summarized in the chart in Section II above. In the alternat ive, Eolas contends that any element found not to be literally infri nged is infri nged under the doctri ne o f equivalents because the d i f fe r e n c e s between the claimed inventions and the accused instrumentalit ies , if any, are insubstant ia l. Eolas also contends that Google Inc. d irectly infringes the asserted claims by maki n g, using, offering for sale, sell ing, and import in g in to thc Unitcd States the accused instrumentali tie s as well as ind irect ly infri ng e s by contribut in g to andlor inducing others (e.g. , GoogJe lnc.'s customers or its customers' customers) to direct ly infringe those claims. Eolas further contends that Google Inc.'s infri ng e m e nt is deli be rate and will fu l en titling Eolas to an injunction, enhanced damages. and attorneys' fees.

March 5,2010
Page 4 of 5

IV.

Claim Charts

The claim charts attached hereto as Exhibits 1-18 identify where each element of each asserted claim is found within each of the accused instrumentalities, as required under Patent Rule 3-I(c). V. Eola5' Embodiments of the Claimed Inventions

The inventions claimed in some or all of the claims of the '906 and/or '985 patent are embodied in some or all versions of the following products: Visible Embryo Project andlor AnatLab System.

VI.

Document Production Pursuant to P.R. 3-2

In addition to the DVD containing the claim charts, submitted herewith are 2 DVDs
containing Eolas' document production, which include, among other things, documents produced pursuant to P.R. 3-2. The following lists the specific documents that correspond to each category

of P.R. 3-2: P.R. 3-2(a) Documents: none.

P.R. 3-2(b) Documents: EOLASTX-E-OOOOOOOOO I and EOLASTX-OOOOOOOOO I EOLASTX-0000000312. See also Appendices A and B to the specification of the '906 patent (included within the P.R. 3-2(c) documents identified infra). P.R. 3-2(c) Documents: EOLASTX-0000000313 - EOLAS TX-000000987 5.
Additionally, because no Protective Order has been entered in this case, source code related to products that may embody some or all of the claims of Eolas' patents will be made available in accordance with the agreement of the parties for source code production and the dale for sllch production. Eolas has used its best efforts to identify all responsive P.R. 3-2 documents and only those documents. However, given the volume of documents, some documents may have been inadvertently listed or inadvertently omitted. To the extent such deficiencies are identified, Eolas will supp lement its production accordingly. fr you have any questions, please do not hesitate to contact me. Sincerely,

Enclosures

March 5, 20 I 0

Page 5 of5

cc: Without Production and Enclosures:
[e-mail] Michael E. Jones ([e-mail])
Allen F. Gardner (allengardner@ pottenninton.com)