Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 875

***FILED IN ERROR. SEE DOCUMENT 877 FOR CORRECT PLEADING*** MOTION to Seal Document [DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OF INVALIDITY FOR LACK OF WRITTEN DESCRIPTION by Adobe Systems Incorporated, Amazon.com Inc., CDW Corporation, Citigroup Inc., Google Inc., J.C. Penney Company, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Text of Proposed Order)(Reines, Edward) Modified on 8/18/2011 (mll, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
)
)
)
Plaintiff,
)
)
vs.
)
) No. 6:09-cv-00446-LED (filed Oct. 6, 2009)
Adobe Systems Inc.; Amazon.com, Inc.; Apple
)
Inc.; CDW Corp.; Citigroup Inc.; eBay Inc.; Frito- )
Lay, Inc.; The Go Daddy Group, Inc.; Google Inc.; )
J.C. Penney Corporation, 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.
)
)
)
Adobe Systems Inc.; Amazon.com, Inc.; Apple
)
Inc.; CDW LLC; eBay Inc.; Frito-Lay, Inc.; The )
Go Daddy Group, Inc.; Google Inc.; J.C. Penney )
Corporation, Inc.; JPMorgan Chase & Co.; New )
Frontier Media, Inc.; Office Depot, Inc.; Perot
)
Systems Corp.; Playboy Enterprises International, )
Inc.; Rent-A-Center, Inc.; Staples, Inc.; Oracle
)
America, Inc. f/k/a Sun Microsystems, Inc.; Texas )
Instruments Inc.; Yahoo! Inc.; and YouTube, LLC, )
)
Counterclaimants,
)
)
vs.
)
)
Eolas Technologies Incorporated,
)
)
Counterdefendant.
)
)
Eolas Technologies Incorporated,

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
OF INVALIDITY FOR LACK OR WRITTEN DESCRIPTION
US_ACTIVE:\43788965\01\42805.0022

TABLE OF CONTENTS
Page
I.

INTRODUCTION ............................................................................................................. 1

II.

STATEMENT OF ISSUE TO BE DECIDED................................................................... 1

III.

STATEMENT OF UNDISPUTED FACTS ...................................................................... 1

IV.

ARGUMENT..................................................................................................................... 2
A.

Written Description Law........................................................................................ 2

B.

The Claims As Construed And Applied By Eolas Overreach The Scope Of
The Inventors’ Contribution .................................................................................. 3
1.

2.

“Embed Text Format” Is A Made-Up Term First Introduced
During The Application Process................................................................ 3

3.

The Only Support For The Embed Text Format Is An HTML
EMBED Tag .............................................................................................. 4

4.

Eolas Is Overreaching The Scope Of The Invention By Applying
The “Embed Text Format” To JavaScript And Other Complex,
Non-Tag Processes..................................................................................... 5

5.

V.

Eolas Is Construing And Applying The Patents-In-Suit To Cover
All Embedded Interactive Objects On Webpages Without
Limitation To The Disclosed Tags ............................................................ 3

Eolas Is Overreaching The Scope Of The Invention By Applying
The “Embed Text Format” Such That It Is At A Location Other
Than Where The Object Is Displayed........................................................ 6

CONCLUSION.................................................................................................................. 7

i
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TABLE OF AUTHORITIES
Page(s)

Cases
Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co.,
598 F.3d 1336 (Fed. Cir. 2010) (en banc) .................................................................................. 2
ICU Med., Inc. v. Alaris Med. Sys.,
558 F.3d 1368 (Fed. Cir. 2009) .............................................................................................. 2, 3
LizardTech, Inc. v. Earth Res. Mapping,
424 F.3d 1336 (Fed.Cir.2005) .................................................................................................... 2
PowerOasis, Inc. v. T-Mobile USA, Inc.,
522 F.3d 1299 (Fed. Cir. 2008) .................................................................................................. 2
Tronzo v. Biomet, Inc.,
156 F.3d 1154 (Fed. Cir. 1998) .................................................................................................. 3

ii
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EXHIBITS
Ex. A:

United States Patent 5,838,906 dated November 17, 1998.

Ex. B:

United States Patent 7,599,985 dated October 6, 2009.

Ex. C:

U.S. Patent 5,838,906 Prosecution History dated August 6, 1996.

Ex. D:

Deposition of Michael Doyle dated June 30, 2011.

Ex. E:

Applicants’ Response in the U.S. Patent 7,599,985 Prosecution History dated February
5, 2009.

Ex. F:

Excerpts to the Deposition of Cheong Ang dated July 7, 2011.

Ex. G:

Declaration of Edward W. Felten dated September 27, 2007 accompanying
Applicants’ Response in U.S. Patent 5,838,906 Reexamination.

Ex. H:

Excerpts to the Expert Report of David Martin dated July 20, 2011.

Ex. I:

Excerpts to the Microsoft trial transcript dated July 9, 2003 before the Honorable
James B. Zagel regarding Case No. 99 C 626 in the United States District Court
Northern District of Illinois Eastern Division.

Ex. J:

Notice of Intent to Issue Reexamination Certificate dated September 27, 2005
regarding U.S. Patent 5,838,906.

Ex. K:

Excerpts to the Expert Report of Richard L. Phillips dated July 20, 2011.

Ex. L:

Applicants’ Response from the U.S. Patent 5,838,906 prosecution history dated June 2,
1997.

Ex. M:

Applicants’ Response from the U.S. Patent 7,599,985 Prosecution History dated
March 11, 2005.

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I.

INTRODUCTION
Defendants move for summary judgment of invalidity for lack of a written description

with respect to all remaining claims-in-suit, including U.S. Patent Nos. 5,838,906 (“’906 patent”),
claims 1-3, 6-8, 11, 13 and 7,599,985 (“’985 patent”), claims 1-11, 16-28, 36-43.1
II.

STATEMENT OF ISSUE TO BE DECIDED
Are the claims-in-suit invalid for lack of a written description pursuant to Section 112(1)

of Title 35 because the patents do not show that the inventors actually invented a method for
website interactivity broadly employing a so-called “embed text format” insofar as that is
something other than the EMBED tag that is disclosed in the patents?
III.

STATEMENT OF UNDISPUTED FACTS
1.

suit.

The term “embed text format” is not found in the specification to the patents-in-

See Ex. A (’906 patent); Ex. B (’985 patent).2

Rather, it was coined by the inventors and

added to the claims by amendment during prosecution long after the first filing. See Ex. C at 12 (Aug. 6, 1996 Applicants’ Response in ‘906 PH); Ex. D at 480:19-24 (06/30/11 Deposition of
Michael Doyle, named inventor) (quoted infra).

There is no disclosure in the patents of

scripting language, the use of scripts, or JavaScript.
2.

The patentees have repeatedly conceded, including during prosecution of the

patents-in-suit, that the only example of a so-called “embed text format” found in the patents is
the HTML EMBED tag referenced in Table II.

See, e.g., Ex. E (’985 PH Ex. 14 at

PH_001_0000784634) at 22 (Feb. 5, 2009 Applicants’ Response)); Ex. F at 582:8-583:2
1

Eolas has not included all these claims in its infringement reports and so many are effectively
dropped from its infringement allegations. Despite this, Eolas has attempted at various points to
reserve its right to assert these claims in this case. Accordingly, Defendants’ motion covers all
claims originally asserted in this case.
2

Citations are to exhibits accompanying the Declaration of Edward R. Reines filed herewith.
1
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f
(2011/07/22 Deposition of Cheong Ang, “Ang Depo”) (quoted infra).

During subsequent

proceedings before the Patent Office, the patentees continued to identify the “embed text format”
as the EMBED tag and rely upon it being a “special tag” to distinguish prior art. See, e.g., Ex.
G at ¶¶ 21–25 (Sept. 27, 2007 Declaration of Edward W. Felten, accompanying Applicants’
Response in ‘906 Reexam) (quoted infra).
IV.

ARGUMENT
A.

Written Description Law

“The purpose of the written description requirement is to ‘ensure that the scope of the
right to exclude, as set forth in the claims, does not overreach the scope of the inventor's
contribution to the field of art as described in the patent specification.’” ICU Med., Inc. v.
Alaris Med. Sys., 558 F.3d 1368, 1376 (Fed. Cir. 2009) (internal citations omitted). The written
description test “is whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed subject matter as of the
filing date.” Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir.
2010) (en banc).
“Compliance with the written description requirement is a question of fact but is
amenable to summary judgment in cases where no reasonable fact finder could return a verdict
for the non-moving party.” PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1307 (Fed.
Cir. 2008) (affirming summary judgment).

Indeed, summary judgment is appropriate where

“expansive claim language” is supported by only one specific embodiment and the record
establishes that the generic claimed invention was not in the possession of the inventor.
LizardTech, Inc. v. Earth Res. Mapping, 424 F.3d 1336, 1344-46 (Fed.Cir.2005); ICU Med., 558

2

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F.3d at 1379 (all affirming summary judgment grants); See also Tronzo v. Biomet, Inc., 156 F.3d
1154, 1159 (Fed. Cir. 1998) (reversing JMOL denial).
B.

The Claims As Construed And Applied By Eolas Overreach The Scope Of
The Inventors’ Contribution
1.

Eolas Is Construing And Applying The Patents-In-Suit To Cover All
Embedded Interactive Objects On Webpages Without Limitation To
The Disclosed Tags

Eolas contends that the patents-in-suit cover essentially all interactive elements
embedded on web pages no matter how this embedding is accomplished. See Ex. H (Expert
Report of David Martin, July 20, 2011) at ¶ 4 (“The patents-in-suit disclose inventions that make
possible interactivity with web page embedded objects over the internet.”).

Indeed, Eolas

appears to contend that there is no meaningful way to include embedded interactive objects on a
web page to “design around” the Eolas patents.
alternative that would “avoid infringement”).

Id.

68-106 (not aware of any design

Inventor Michael Doyle even claimed

in

deposition that he invented and patented the idea of using “interactive media” within a web page
altogether. See Ex. D (Doyle. Depo.) at 301:4-22 (“I define ‘interactive media’ within a web
page as a fully interactive embedded application that provides interaction with data objects
displayed within the web page, and in that context, we did invent that.”)
2.

“Embed Text Format” Is A Made-Up Term First Introduced During
The Application Process

Central to Eolas’ effort to expand its patent claims so broadly is the claim term “embed
text format.”

Eolas applies this term to cover virtually anything in a document used to embed

an object in a webpage. This term is present in every asserted claim.
“Embed text format” is a made-up term, unknown to those skilled in the art, as the
inventor Michael Doyle testified. See Ex. D (Doyle, Depo.) at 480:19-24 (“Q: No, nothing
3

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specific. I’m just asking if—did embed text format, was that a term of art or is that a term that
you coined?

A: That's a term that we coined in our—in our—or that we used in our patent

specification.”).

Importantly, this term was not used in the patent application and only first

surfaced during prosecution, years later.

Ex. C at 1-2, 16 (Aug. 6, 1996 Applicants’ Response

in ’906 PH).
3.

The Only Support For The Embed Text Format Is An HTML
EMBED Tag

While “embed text format” is admittedly a made-up phrase that Eolas is attempting to use
as an all-encompassing generic term, inventor Cheong Ang confirmed that the only example of a
so-called embed text format in the patent is the HTML EMBED tag referenced in Table II. See
Ex. F (Ang Depo) at 582:8-583:2 (“[T]he patent description did not provide another example.”).
During prosecution, the applicant likewise identified the EMBED tag as the only example of an
embed text format in the specification. See Ex. E (’985 PH Ex. 14 at PH_001_0000784634) at
22 (Feb. 5, 2009 Applicants’ Response) (referencing the phrase “a check is made as to whether
the current tag is the EMBED tag” as support for the “embed text format” claim requirement).
The HTML EMBED tag that is disclosed in the patents is a short, pre-defined tag. It
uses standard HTML formatting conventions and attributes. For example, it uses angle brackets
to specify the beginning and end of the HTML tag. It has: (1) a TYPE attribute that specifies
the same MIME type information that web browsers at the time, such as Mosaic, used to identify
helper applications; (2) a HREF attribute, which is a standard HTML attribute commonly used at
the time to specify the location of a file; and (3) WIDTH and HEIGHT attributes, which were
standard HTML attributes commonly used at the time to specify the width and height of an
image. See, e.g., Ex. A (’906 patent), col. 12:66-13:36; see also Ex. I (MS Trial Tr.) 271:3
4

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(“Doyle: It takes this document, and if you see these little pieces of text with these little angle
brackets surrounding them, those are called text formats.

The browser recognizes those as

things that direct it to do something, but they are separate from the actual text, for example, that
might be placed on the page.”).
4.

Eolas Is Overreaching The Scope Of The Invention By Applying The
“Embed Text Format” To JavaScript And Other Complex, Non-Tag
Processes

Because the written description of the patent-in-suit only briefly identifies a simple
HTML tag as the way to embed objects in a web page, that disclosure cannot support Eolas’s
sweeping application of the claims to cover the use of virtually any technique for rendering
objects including the use of JavaScript, or other scripting language, to present objects in a web
page. This complex non-tag approach to interactive websites is well beyond the scope of what
was invented.
When distinguishing the prior art Mosaic browser, the applicant relied heavily upon its
“special” embed tag to distinguish the prior art, equating the claimed “embed text format” only
with it special EMBED tag.

See Ex. G at 21-25 (Sept. 27, 2007 Decl. of Edward W. Felten

accompanying Sept. 27, 2007 Applicants’ Response in ‘906 Reexam) (“In the claimed ’906
system, the browser instead used a special tag, the ‘embed text format,’ to specify that an
embedded object should be included.

Mosaic lacked the embed text format.”).

See Id.

There is no mention of a script or anything other than the “special” EMBED tag in the
applicants’ submission.
Indeed, the Patent Office clearly understood that the claimed “embed text format” was
only properly supported to the extent it was an EMBED tag, expressly stating that they were the
same thing.

See Ex. J at 8-9 (Sept. 27, 2005 Notice of Intent to Issue Reexamination Certificate)
5

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(“‘[I]nteractive processing’ is invoked . . . in response to the browser application parsing an
‘embed text format’ (i.e., an ‘EMBED’ tag, see col. 12, line 60, ’906 patent) . . . .”). The Patent
Office’s conspicuous and noteworthy use of the signal “i.e.” confirms that it did not envision
support for the claims beyond the use of the “special” tags to which the written description of the
patents is limited.
In contrast to a special “tag,” the use of scripts (which Eolas contends is within the scope
of the “embed text format”) involves a much higher level functionality than a tag.

These scripts

require special interpreters, which render the HTML document in a tree-like structure called a
DOM tree. See Ex. K (Expert Report of Richard L. Phillips, July 20, 2011) at ¶ 805. None of
this is explained, disclosed or even mentioned in the patent.
Based on the objective evidence about what the patent means, one skilled in the art
simply would not conclude that the inventors contemplated or possessed non-tag scripts as part
of their invention for embedding objects on web pages. See id. at ¶ 800-809.
5.

Eolas Is Overreaching The Scope Of The Invention By Applying The
“Embed Text Format” Such That It Is At A Location Other Than
Where The Object Is Displayed

The patents-in-suit do not support an “embed text format” at a location other than the one
located at a “first location” where the object is displayed.

As explained above, the only “embed

text format” shown in the patent is the EMBED tag of Table II.

This tag does not have the

capability to alter the location of the object it represents. There is no disclosure of the object
being located anywhere else.
processing.”

All that is contemplated by the patent is “simple in-line

See id. at ¶ 811.

During prosecution, the applicant repeatedly noted that a key characteristic of the claimed
invention is that the object is displayed at the location of the “embed text format.” See, e.g., Ex.
6

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L at 11 (June 2, 1997 Applicants’ Response in ‘906 PH) (“Further, [in Mosaic] a display window
is not created in the first hypermedia document at the location in the document of the embed text
format as required by the claim.”); See Ex. G (Declaration of Edward W. Felten) at ¶¶ 51-52
(“[Cohen’s] LDESC tags cannot be the embed text format, because they do not satisfy the
required claim element ‘wherein said first distributed hypermedia document includes an embed
text format, located at a first location . . . .’ This claim element requires that the embedded
object be displayed at a location in the distributed hypermedia document (e.g., the Web page)
that corresponds to the location of the embed text format within the document. . . . The LDESC
tag does not appear in the document at the required location.

Instead, the LDESC (link

description) tag appears in the document file’s prologue . . . .”); Ex. M at 18 (March 11, 2005
Applicants’ Response in ‘985 PH) (“Further, there is no teaching in NoteMail of parsing an
embed text format at a first location and displaying and enabling interactive processing within
the first location because, in NoteMail, the location of information is specified elsewhere, by the
‘Format’ data type.”).
Based on the objective evidence about what the patent means, one skilled in the art
simply would not conclude that the inventors contemplated or possessed the use of “embed text
format” at a location other than the one located at the “first location” where the object is
displayed. See Ex. K (Phillips Expert Report) at ¶¶ 810-814.
V.

CONCLUSION
For all of these reasons, Defendants’ motion for summary judgment of invalidity should

be granted as set forth in the proposed order.

7

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Respectfully submitted,

Dated: August 17, 2011
By: /s/ James R. Batchelder (with
permission)
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[e-mail]
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CERTIFICATE OF SERVICE

The undersigned hereby certifies 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 this 17th day of August 2011.
of record will be served via facsimile or first class mail.

/s/ Cynthia Jacobs
Cynthia Jacobs

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All other counsel