Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 657

REPLY to Response to Motion re 634 MOTION FOR LEAVE TO SUPPLEMENT INFRINGEMENT CONTENTIONS FOR ANDROID 3.0 filed by Eolas Technologies Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(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., Argosy Publishing, 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.

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§ Civil Action No. 6:09-CV-00446-LED
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JURY TRIAL
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EOLAS’ REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO SUPPLEMENT ITS
INFRINGEMENT CONTENTIONS FOR ANDROID 3.0

I.

INTRODUCTION
Eolas is requesting leave to supplement its initial infringement contentions concerning

Google’s Android operating system to account for Google’s recent release of Android 3.0.
Approximately one year after service of Eolas’s initial infringement contentions, Google
released Android 3.0, a new major release of the Android operating system. Android 3.0 added
new infringing functionality and expanded the range of Google-supported devices beyond cell
phones to also include tablet devices.
Since Google’s February 22, 2011 announcement of its SDK for Android 3.0, Eolas sent
supplemental claim charts on March 27, 2011 and met and conferred with Google on April 8,
2011. As Google opposed Eolas’s supplementation of infringement contentions, but was unable
to provide any legitimate reason for its opposition, Eolas filed this motion on April 18, 2011.
II.

ARGUMENT
Both parties agree on the four factors this Court normally considers in determining

whether a party has met the good cause requirement for supplementing infringement contentions.
The four factors are: “(1) the explanation for the party’s failure to meet the deadline, (2) the
importance of what the Court is excluding, (3) the potential prejudice if the Court allows the
thing that would be excluded, and (4) the availability of a continuance to cure such prejudice.”
MacLean-Fogg Co. v. Eaton Corp., No. 2:07-CV-472, 2008 U.S. LEXIS 78301, at *4 (E.D. Tex.
Oct. 6, 2008); see also S & W Enters., L.L.C. v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535–
36 (5th Cir. 2003); Motion at 3 (Dkt. No. 634); Response at 6 (Dkt. No. 647).
A.

Eolas Has Met All Deadlines and Acted Diligently in Supplementing
Infringement Contentions for Products Subsequently Released by Google

Eolas has consistently served its Infringement Contentions and supplements to
Infringement Contentions in a diligent manner. Google did not publicly release Android 3.0 or

1

otherwise disclose the new functionality at issue until late February 2011. Eolas contacted
Google and provided the supplemental infringement contentions approximately one month later,
on March 27, 2011. After communications and a meet and confer with Google’s counsel, Eolas
filed a motion for leave to supplement on April 18, 2011. Eolas’s supplemental infringement
contentions could not have been served before the release of the new infringing functionality,
and were thus provided once Eolas had an opportunity to review the released product.
Rather than address the factor of Eolas’s timely supplementation of infringement
contentions, Google chooses instead to attack the sufficiency of Eolas’s initial infringement
contentions served on March 5, 2010.1 But this Court has already decided that issue in its Sept.
1, 2010 order. Dkt. No. 401 (denying motion to strike Eolas’s infringement contentions).2
Eolas’s original infringement contentions are sufficient to accuse Google and YouTube
products disclosed and released as of March 5, 2010. Eolas’s original infringement contentions
were mapped to Android 2.1, the most current Android release at the time of filing. While Eolas
did not update the infringement contentions for every minor release of Android (2.2 and 2.3) in
the past year, Eolas has been diligent in moving to supplement infringement contentions for the
first major release of Android since the initial infringement contentions were served.
The major features released with this major version release of Android necessitate the
supplemental infringement contentions. Android 3.0 is the first version of Android to officially
support tablet devices. See discussion infra Part II.B. Examples of changes with Android 3.0
can be found through the various press releases and screenshots contained in the exhibits to
1

Response at 6–7 (claiming “Eolas had over a year to supplement its contentions regarding Android, but refused to
do so despite being notified by Google that its initial contentions failed to put Google on notice of its infringement
theories.”).
2
After Eolas’s service of infringement contentions on March 5, 2010, Adobe filed a motion on July 7, 2010 that
included a motion to strike Eolas’s infringement contentions. Dkt. No. 367. Google and YouTube joined Adobe’s
motion on Aug. 26, 2010. Dkt. No. 393. After a hearing, this Court denied that motion on Sept. 1, 2010. Dkt. No.
401.

2

Eolas’s motion for leave to supplement.3

Eolas provided these supplemental infringement

contentions as soon as practically possible after Android’s first new major release since this
litigation began.
B.

It Is Important that the Issue of Android 3.0 Infringement Be Addressed
Now

Both parties appear to agree that Android 3.0 should be included in this case. Google
believes “Android is already part of the case,” but that no supplementation is warranted by
Android’s new major version release. Response, at 8. Eolas, on the other hand, believes that the
new major release of Android warrants supplementation of the infringement contentions
concerning Android, especially since this is the first version of Android specifically tailored to
tablet devices. Motion, at 7.
At the time of the initial infringement contentions, Google was focused only on smart
phones, neglecting other devices such as tablets and not even having an Android certification for
tablets.4 While some manufacturers did cobble together tablets running an open-source version
of Android, Google specifically discouraged such devices until the release of Android 3.0.5
Google first supported Android on tablet devices with version 3.0 and started allowing for

3

See, e.g., Motion, Exh. A.8, at 2 (“The Android 3.0 platform introduces many new and exciting features for users
and developers.” “Android 3.0 is a new version of the Android platform that is specifically optimized for devices
with larger screen sizes, particularly tablets.”); Motion, Exh. A.10, at 6, 7, 5–7 (“We [Adobe] have been working
very closely with Google to ensure tight integration between Flash Player 10.2 and new OS and browser capabilities
in Android 3.0.” “Deeper integration with the Android browser rendering engine (Android 3.0.1+ only).” “Deeper
integration of Flash Player and the enhanced Android 3.0 browser delivers faster and better rendering of rich,
interactive web content resulting in a browsing experience similar to the desktop.”).
4
Ganapati, Priya, Android Devices Crave Google’s Attention, WIRED, March 29, 2010,
http://www.wired.com/gadgetlab/2010/03/android-devices-crave-googles-attention/ (“But these oddball devices
[(including tablets)] bringing up the rear are running into an unexpected challenge: neglect by Google.” “Today
Google is 100 percent focused on smartphones” (quoting Kevin Kitagawa). “Though Android is free and open
source, Google exercises control over what devices can access the Android Market’s applications and receive
extensive developer support. And, currently, only smartphones running Android qualify.”) (Exh. A).
5
Ogg, Erica, Google: Android not yet ready for tablets, CNET, Sept. 10, 2010, http://news.cnet.com/8301-31021_320016085-260.html (citing Hugo Barra, Google’s director of mobile products) (Exh. B).

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Android compatibility certification of tablet devices. These tablet devices, along with the other
features of Android 3.0 are important to this case.
C.

There Is No Potential Prejudice to Google in Being Held Accountable for Its
Latest Infringement Activity

Eolas’s Supplemental Infringement Contentions are in direct response to Google’s latest
infringing activity: Google’s release of Android 3.0. Google cannot continue to release new and
updated infringing products during the course of litigation and expect them to avoid
incorporation into this lawsuit.
Eolas is not springing newly accused products on Google. Though Google focuses solely
on the name “YouTube,” Response at 3, 3 n.1, Eolas’s initial infringement contentions
specifically call out applications in describing the infringement,6 and even Google describes
YouTube as an application, Response at 2–3.

Eolas is not accusing new products, but

supplementing its infringement contentions to account for the new features of a major new
Android release.
Eolas is not springing new patents or claims on Google. Google cites both Sybase, Inc. v.
Vertica Systems, Inc., No. 6:08-cv-24 (E.D. Tex. Nov. 30, 2009) and Alt v. Medtronic, Inc., No.
2:04-cv-370 (E.D. Tex. Oct. 28, 2005), but those cases involve supplementation that would have
added new patents or new claims.7 Eolas’s Supplemental Infringement Contentions refer to
claims 1, 2, 3, 6, 7, 8, 11, 12, 13, and 14 of U.S. Patent No. 5,838,906. Motion, Exh. A.10.
6

Motion, Exh. A.9, at 5, 121 (“And of course the platform really wouldn’t be complete without some applications,
and so we’ve built them. We’ve included a web browser, email client, instant messaging, a camera for the phone, a
dialer, contacts, and the list goes on.”); id. at 7, 123 (discussing creation of games as applications for Android); id. at
16, 120 (“The Android SDK provides the tools and APIs necessary to begin developing applications that run on
Android-powered devices. This site provides information about Google projects based on the Android platform,
such as external libraries that extend the Android platform, Android applications, hosted services and APIs, the
Android Developer Contest, and more. Everything on this site is provided by Google for the benefit of Android
developers.”); id. at 126–27 (discussing the Ustream application).
7
The motion in Sybase was to add claims of infringement of previously unasserted U.S. Patent No. 5,794,228 to a
case already asserting U.S. Patent No. 5,794,229. Sybase, No. 2:04-cv-370, at 1–2. The motion in Alt was to add
previously unasserted claim 16 of U.S. Patent No. 5,014,722 to a case already asserting claim 1. Alt, No. 2:04-cv370, at 1.

4

Eolas has already asserted each of these claims, among others, against Android in Eolas’s initial
infringement contentions. Motion, Exh. A.9.
Eolas’s Supplemental Infringement Contentions do not create a new infringement theory
for Android devices. Google’s Response does not even attempt to identify any of the supposedly
new infringement theories.

Rather, Eolas’s Supplemental Infringement Contentions apply

Eolas’s long-standing infringement theories against Google’s new Android 3.0 software and
newly supported tablet devices.
Just last week, on May 9, 2011, this Court allowed Eolas to supplement Eolas’s
Infringement Contentions to add the newly released Amazon Cloud Player. Dkt. No. 652. Here,
Eolas’s supplemental Infringement Contentions continue to assert existing claims against an
existing product line, but update them to account for Android’s new major 3.0 release.
D.

A Continuance is Unnecessary Because There Is No Prejudice

As Google will suffer no prejudice by Eolas’s Supplemental Infringement Contentions,
there is no need for a continuance. Google does not even argue that a continuance is necessary.
Rather, Google appears to indicate that a timely trial is better. Response, at 10.
III.

CONCLUSION
For the foregoing reasons, Eolas respectfully requests that the Court grant its motion to

supplement its infringement contentions.

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Dated: May 16, 2011.

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]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
John B. Campbell
Texas State Bar No. 24036314
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Harting
Texas State Bar No. 24055979
[e-mail]
Matthew B. 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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Austin 67427v2

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic services on May 16, 2011. Local Rule CV-5(a)(3)(A).
/s/ Josh Budwin
Josh Budwin

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Austin 67427v2