Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 871

Opposed MOTION for Leave to File Excess Pages Opposed Motion for Leave to File a Summary Judgment Motion Unique to Adobe by Adobe Systems Incorporated. (Attachments: # 1 Text of Proposed Order Granting Adobe's MFL to File a SJM Unique to Adobe)(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 INC., ET AL.,
Defendants.

OPPOSED MOTION FOR LEAVE TO FILE A
SUMMARY JUDGMENT MOTION UNIQUE TO ADOBE
Adobe, Inc., moves for leave to file a motion for summary judgment on the contractual
and exhaustion effects of the Oracle Settlement Agreement and License. Two Adobe websites—
including www.adobe.com, which forms the entire royalty basis for the majority of Eolas’s
damages theory—are hosted on Sun network servers. Sun network servers are now licensed
hardware products under the Oracle Settlement and License Agreement. Alternatively, even if
the hardware’s operation is somehow outside of the express terms of the Oracle contract, the
Eolas patents are exhausted by Sun’s licensed sale of hardware. The Motion and Brief, exclusive
of exhibits, is approximately 11 pages. Adobe’s motion is unique to Adobe’s circumstances and
is not a motion that should be charged against all Defendants in counting pages for summary
judgment.
Adobe files this motion aware of the Court’s admonition on page limits, and in doing so
has kept its motion as short as possible. Adobe is also aware of and has cooperated in the Court’s
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requirement that Adobe and all Defendants work together: In fairness to other Defendants,
Adobe did not think it appropriate to unilaterally file its own unique summary judgment motion
if it would be charged against a collective page limit.1 These are questions of law, contract
interpretation and patent exhaustion, and should be decided on summary judgment. Accordingly
Adobe moves for leave to file its own summary judgment motion due to its unique
circumstances.
DATED: August 17, 2011

Respectfully Submitted,
By: /s/ David J. Healey
David J. Healey
E-mail: [e-mail]
FISH & RICHARDSON P.C.
1 Houston Center
1221 McKinney Street, Suite 2800
Houston, TX 77010
713-654-5300 (Telephone)
713-652-0109 (Facsimile)

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The Defendants previously operated under an assumption that each of them had sixty pages for
motions for summary judgment, some of which had been consumed by joint motions filed to
date. This came from the wording of the case management order referring to the Local Rules,
which are phrased in terms of parties rather than “per side”. Upon being instructed by the Court’s
staff that the page limit was collective, Adobe decided the fairest and most prudent thing to do is
to file this motion for leave.
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OF COUNSEL:
Frank E. Scherkenbach
E-mail: [e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02210
617-542-5070 (Telephone)
617-542-8906 (Facsimile)
Jason W. Wolff
E-mail: [e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
858-678-5070 (Telephone)
858-678-5099 (Facsimile)
Counsel for Defendant
ADOBE SYSTEMS INCORPORATED

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of this document via the Court’s CM/ECF system per Local
Rule CV-5(a)(3) on August 17, 2011.

/s/ Lorraine Morton
Lorraine Morton

CERTIFICATE OF CONFERENCE 
David Healey, attorney for Adobe, spoke to John Campbell, attorney for Eolas on August
17, 2011, and Eolas opposes the motion.

/s/ David J. Healey
David J. Healey

CERTIFICATION OF AUTHORIZATION TO SEAL
I hereby certify that the Court has granted authorization to seal the foregoing document
and the attachments thereto [Dkt. No. 423].

/s/ David J. Healey
David J. Healey

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