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)

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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 1    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: Healey@fr.com FISH & RICHARDSON P.C. 1 Houston Center 1221 McKinney Street, Suite 2800 Houston, TX 77010 713-654-5300 (Telephone) 713-652-0109 (Facsimile)                                                              1 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. 2    OF COUNSEL: Frank E. Scherkenbach E-mail: Scherkenbach@fr.com FISH & RICHARDSON P.C. One Marina Park Drive Boston, MA 02210 617-542-5070 (Telephone) 617-542-8906 (Facsimile) Jason W. Wolff E-mail: Wolff@fr.com 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 3    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     4   

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