Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 589

JOINT CLAIM CONSTRUCTION CHART filed by Adobe Systems Incorporated, Amazon.com Inc., Apple Inc., CDW Corporation, Citigroup Inc., Ebay Inc., Eolas Technologies Incorporated, Frito-Lay, 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., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Jones, Michael)

Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Doc. 589 Att. 4

Exhibit 3

Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION Eolas Technologies Incorporated, Plaintiff, § § § § § § § § § § § § § § § § § § § §

Civil Action No. 6:09-cv-446

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.

JURY TRIAL

EOLAS' PRELIMINARY CLAIM CONSTRUCTION AND PRELIMINARY IDENTIFICATION OF EXTRINSIC EVIDENCE FOR CONSTRUCTION In compliance with Patent Rule 4-2 and the Court's Docket Control Order of April 9, 2010 (Dkt. 249) Plaintiff Eolas Technologies Inc., ("Eolas") hereby serves upon Defendants Adobe Systems Incorporated; Amazon.com, Inc.; Apple, Inc.; Blockbuster Inc.; CDW Corporation; Citigroup Inc.; eBay, Inc.; Frito-Lay, Inc.; Google Inc.; J.C. Penney Company, Inc.; JPMorgan Chase & Co.; New Frontier Media, Inc.; Office Depot, Inc.; Oracle America, Inc. f/k/a Sun Microsystems, Inc.; Perot Systems Corp.; Playboy Enterprises International, Inc.; RentA-Center, Inc.; Staples, Inc.; Texas Instruments, Inc.; The Go Daddy Group, Inc.; Yahoo! Inc.; and YouTube, LLC their Preliminary Claim Construction and Preliminary Identification of

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Extrinsic Evidence for United States Patent No 5,838,906 ("the '906 patent") and United States Patent No. 7,599,985 ("the '985 patent"). Eolas sets forth in Exhibit A its preliminary proposed construction for the terms, phrases, or clauses identified by the parties under Local Patent Rule 4-1 for those terms, phrases, or clauses that neither party has identified as implicating 35 U.S.C. § 112(6). Eolas reserves the right to amend and/or supplement its preliminary constructions. This disclosure further includes a preliminary identification of extrinsic evidence that may be relevant to the Court's construction of the claim terms. Eolas reserves the right to amend and/or supplement these disclosures with extrinsic evidence, including Defendants' own documentation, supporting the constructions proposed below or rebutting any constructions and/or extrinsic evidence proposed by Defendants. Eolas contends that no claim limitations in any of the asserted claims of the patents in suit should be governed by 35 U.S.C. § 112(6). Nonetheless, Eolas sets forth in Exhibit B the corresponding structure for the terms, phrases, or clauses that the defendants identified as implicating 35 U.S.C. § 112, ¶6. This identification of corresponding structure is provided only in the alternative. Eolas reserves the right to amend and/or supplement its preliminary identification of corresponding structure. Eolas does not presently anticipate providing any testimony of any witness as to the meaning of any of the claims in contention. Defendants have submitted for construction forty-one of the forty-two terms, phrases, or clauses that neither party has identified as implicating 35 U.S.C. § 112(6). Defendants have submitted for construction each of the fifty-one terms, phrases, or clauses that defendants alone have identified as implicating 35 U.S.C. § 112(6). Collectively, the defendants have therefore

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proposed ninety-three terms, phrases, or clauses for construction. excessive.

This is unnecessarily

In contrast to the defendants' excessive identification of claim terms, phrases, or clauses for construction, Eolas has proposed just three terms, phrases or clauses for construction. One of these three terms was already construed in Eolas' prior litigation with Microsoft and was affirmed by the Federal Circuit on appeal. Eolas Techs. v. Microsoft Corp., 2000 U.S. Dist. LEXIS 18886, at *56 (N.D. Ill. Dec. 28, 2000) aff'd by Eolas Techs., Inc. v. Microsoft Corp., 399 F.3d 1325, 1336 (Fed. Cir. 2005). The second of these three terms was already construed in Eolas' prior litigation with Microsoft. Eolas Techs. v. Microsoft Corp., 2000 U.S. Dist. LEXIS 18886, at *56 (N.D. Ill. Dec. 28, 2000). The third term, "object," has also been proposed by the defendants for construction. Judge Davis has previously found that forty-three terms to be construed is unreasonable. I2 Techs., Inc. v. Oracle Corp., 6:09-CV-194, Dkt. 147 (E.D. Tex, Aug. 8, 2010) (order instructing the parties to "meet and confer and narrow the number of disputed terms to a reasonable number" and ordering the parties to file an amended P.R. 4-3 Statement within one week). We also refer the defendants to the Court's two Orders in this case denying unopposed and/or joint motions for leave to assert additional pages. See dkts. 323 and 402.1 Prior to conducting the meet and confer with Eolas required by P.R. 4-3, Eolas requests that the Defendants meet and confer amongst themselves to substantially reduce the volume of their proposed claim construction issues. Once the Defendants have meet and conferred as a

As stated in dkt. 402: "The Local Rules' page limits ease the burden of motion practice on both the Court and the parties. This Court has hundreds of complex cases and deals with a large number of motions each year. It has become common practice for parties to regularly expect to exceed the District's page limits on nearly all briefs filed in this Court, which has placed an increased burden on the Court. Even small extensions combine to greatly increase the number of pages of briefing the Court must digest, as well as ruling on all of the motions to exceed page limits. Accordingly, the Court DENIES the motion."

1

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group and reduced their number of proposed claim construction issues, we should move forward with the meet and confer between the defendants and Eolas required by P.R. 4-3.

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DATED: September 17, 2010.

Respectfully submitted, McKOOL SMITH, P.C. /s/ Josh Budwin Mike McKool Lead Attorney Texas State Bar No. 13732100 [e-mail] Douglas Cawley Texas State Bar No. 04035500 [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] Matt Rappaport Texas State Bar No. 24070472 [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 I hereby certify that a true and correct copy of the foregoing document was served on counsel of record via email on September 17, 2010.

/s/ Josh Budwin

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EXHIBIT A

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Eolas' Preliminary Claim Construction and Preliminary Identification of Extrinsic Evidence for the '906 and '985 Patents
No. 1. Claim Term, Phrase, or Clause "executable application" Proposed By Eolas/Defendants Eolas' Preliminary Proposed Construction "Executable application" means any computer program code, that is not the operating system or a utility, that is launched to enable an end-user to directly interact with data. Extrinsic Evidence Prior construction of term in Eolas Techs. v. Microsoft Corp., 2000 U.S. Dist. LEXIS 18886, at *56 (N.D. Ill. Dec. 28, 2000) aff'd by Eolas Techs., Inc. v. Microsoft Corp., 399 F.3d 1325, 1336 (Fed. Cir. 2005) Prior construction of term in Eolas Techs. v. Microsoft Corp., 2000 U.S. Dist. LEXIS 18886, at *56 (N.D. Ill. Dec. 28, 2000)

2.

"utilized by [the / said] browser to identify and locate"

Eolas

"utilized by [the / said] browser to identify and locate" means the identify and locate functions are performed by the browser.

3.

"object"

Eolas/Defendants

4.

"utilized by said browser to identify and locate [an / said] executable application"

Defendants

"object" means text, images, sound files, video data, documents or other types of information that is presentable to a user of a computer system. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean utilized by [the / said] browser to identify and locate an executable application.2 No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean with the

5.

"with the browser application: . . . utilizing the type information to identify and locate an executable

Defendants

2

A term that is underlined within a proposed construction has a separate definition, which is incorporated by reference.

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No.

Claim Term, Phrase, or Clause application"

Proposed By

6.

"cause the client workstation to utilize the browser to: ... utilize the type information to identify and locate an executable application external to the file" "utilized by the browser to identify and locate said executable application"

Defendants

Eolas' Preliminary Proposed Construction browser application using the type information to identify and locate an executable application. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean cause the client workstation to use the browser to use the type information to identify and locate the executable application external to the file. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean utilized by [the / said] browser to identify and locate the executable application. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean with the browser application identifying and locating an executable application. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean executable application is identified and located by the browser. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean automatically calling or activating the executable application. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean executable application is automatically called or activated by the browser.

Extrinsic Evidence

7.

Defendants

8.

"with the browser application: ... identifying and locating an executable application"

Defendants

9.

"executable application ... is identified and located by the browser"

Defendants

10.

"automatically [invoking / invoke] [the / said] executable application"

Defendants

Microsoft Press Computer Dictionary at 196 (c. 1991)

11.

"executable application is automatically invoked by the browser"

Defendants

Microsoft Press Computer Dictionary at 196 (c. 1991)

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No. 12.

Claim Term, Phrase, or Clause "workstation"

Proposed By Defendants

13. 14.

"network server" "type information"

Defendants Defendants

Eolas' Preliminary Proposed Construction a computer system connected to a network that serves the role of an information requester a computer system that serves the role of an information provider any information used by the browser to identify and locate the executable application, and may include the name of an application associated with the object

Extrinsic Evidence

Prior construction of term in Eolas Techs. v. Microsoft Corp., 2000 U.S. Dist. LEXIS 18886, at *56 (N.D. Ill. Dec. 28, 2000)

15.

"object [has / having] type information associated with it"

Defendants

No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the object has type information associated with it. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean allow the object to be processed based on the user's interaction. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean allowing a user to directly interact with the object. a document that allows a user to click on images, sound icons, video icons, etc., that link to other objects of various media types, such as additional graphics, sound video, text, or hypermedia or hypertext documents No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean [first] hypermedia document that allows a user to access a remote data object over a network. No construction of this term is needed.

16.

"enable interactive processing of said object"

Defendants

17.

"[enable / enabling] an end-user to directly interact with [said / the / an] object"

Defendants

18.

"[first] hypermedia document"

Defendants

19.

"[first] distributed hypermedia document"

Defendants

20.

"file"

Defendants

Microsoft Press

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No.

Claim Term, Phrase, or Clause

Proposed By

Eolas' Preliminary Proposed Construction In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean a named collection of data.

Extrinsic Evidence Computer Dictionary at 144 (c. 1991) The New IEEE Standard Dictionary of Electrical and Electronics Terms at 498 (c. 1993)

21.

"file containing information to enable a browser application to display [, on] [said/the] [client workstation,] at least [a / said] portion of [a / said] distributed hypermedia document" "text format"

Defendants

No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the file contains information to allow the browser application to display at least part of a distributed hypermedia document.

22.

Defendants

No construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean text that initiates processing. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean text format for embedding an object. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean embed text format located at a first location in the first distributed hypermedia document. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean embed text format which relates to a first location in the document. No construction of this term is needed. In the alternative, to the extent a

23.

"embed text format"

Defendants

24.

"embed text format, located at a first location in said first distributed hypermedia document"

Defendants

25.

"embed text format [which] correspond[s/ing] to [a / said] first location in the document"

Defendants

26.

"interactively control[ling]"

Defendants

Microsoft Press Computer

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No.

Claim Term, Phrase, or Clause

Proposed By

27.

"distributed application"

Defendants

Eolas' Preliminary Proposed Construction construction is deemed necessary, this term should be construed to mean controlling through back-and-forth interactions. No construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean an application that may be broken up and performed among two or more computers. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean present the object to the user. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the object is being presented to the user. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the executable application to execute on the client workstation to display [said / the] object and [enable / enabling] an end-user to directly interact with [said / the / an] object. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the executable application to execute on the client workstation to display [said / the] object and enable interactive processing of said object. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the executable application to execute on the client workstation to display [said / the] object and [enable / enabling] an end-user to directly interact with [said / the / an] object.

Extrinsic Evidence Dictionary at 192 (c. 1991)

28.

"display [said / the] object"

Defendants

29.

"object is displayed"

being

Defendants

30.

"said executable application to execute on said client workstation in order to display said object and enable an end-user to directly interact with said object"

Defendants

31.

"said executable application to execute on said client workstation in order to display said object and enable interactive processing of said object" "the executable application . . . to execute on the client workstation in order to display the object and enable an end-user to directly interact with the object"

Defendants

32.

Defendants

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No. 33.

Claim Term, Phrase, or Clause "directly interact with an object by utilizing said executable application to interactively process said object while the object is being displayed"

Proposed By Defendants

Eolas' Preliminary Proposed Construction No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean directly interact with an object by using the executable application to process the object based on the user's interaction while the object is being displayed.

Extrinsic Evidence

34.

"the client workstation to display an object and enable an end-user to directly interact with said object while the object is being displayed"

Defendants

No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the client workstation to display [said / the] object and [enable / enabling] an end-user to directly interact with [said / the / an] object while the object is being displayed. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean an executable application to [enable / enabling] an enduser to directly interact with [said / the / an] object while object is being displayed. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean the executable application to [enable / enabling] an enduser to directly interact with [said / the / an] object, while the object is being displayed. No construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean that the computer program product that includes a computer usable medium having computer readable program code for causing the client workstation to execute a browser application.

35.

"an executable application . . . to enable an end-user to directly interact with an object while the object is being displayed"

Defendants

36.

"the executable application . . . to enable an end-user to directly interact with the object[,] while the object is being displayed" "A computer program product . . . comprising a computer usable medium having computer readable program code physically embodied therein, said computer program product further comprising: computer readable program code for causing said client workstation to execute a browser

Defendants

37.

Defendants

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No.

Claim Term, Phrase, or Clause application" "computer readable media encoded with software"

Proposed By

Eolas' Preliminary Proposed Construction

Extrinsic Evidence

38.

Defendants

No construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean computer readable media having software. No construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean to break an input into smaller pieces. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean identifying an embed text format. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean an embed text format is identified. No further construction of this term is needed. In the alternative, to the extent a construction is deemed necessary, this term should be construed to mean specifies the location of at least part of an object.

39.

"pars[e/es/ed/ing]"

Defendants

Microsoft Press Computer Dictionary at 259 (c. 1991)

40.

"identify[ing] an embed text format"

Defendants

41.

"an embed text format . . . is identified"

Defendants

42.

"specifies the location of at least a portion of [an / said] object"

Defendants

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