Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 974

RESPONSE in Opposition re 965 MOTION for Reconsideration re 914 Memorandum & Opinion, EOLAS' MOTION TO RECONSIDER CONSTRUCTION OF "EXECUTABLE APPLICATION" IN MEMORANDUM OPINION AND ORDER (DKT. NO. 914) OR, IN THE ALTERNATIVE, TO CERTIFY THE QUESTION FOR INTERLO MOTION for Reconsideration re 914 Memorandum & Opinion, EOLAS' MOTION TO RECONSIDER CONSTRUCTION OF "EXECUTABLE APPLICATION" IN MEMORANDUM OPINION AND ORDER (DKT. NO. 914) OR, IN THE ALTERNATIVE, TO CERTIFY THE QUESTION FOR INTERLO cutory Appeal filed by Adobe Systems Incorporated, Amazon.com Inc., CDW Corporation, Citigroup Inc., Frito-Lay, Inc., Google Inc., J.C. Penney Corporation, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Jones, Michael) (Additional attachment(s) added on 9/15/2011: # 5 Text of Proposed Order) (mjc, ).

EXHIBIT B

From:
Sent:
To:
Cc:
Subject:

Josh Budwin <[e-mail]>
Friday, August 26, 2011 1:47 PM
Reines, Edward; John B. Campbell
'[e-mail]'; Eolas
RE: Eolas v. Adobe et al

Ed We are happy to discuss. Since your email of 1:53pm CT today requests for the first time an indefinite postponement of
the rebuttal reports which are due Monday (and a response by 4pm CT today), we propose extending the deadline for
rebuttal reports one week to September 6,2011 (since Monday, September 5,2011 is a holiday) so we have time to
discuss your concerns. Please send us a draft proposed motion. Of course, we disagree with the posturing in your emails
below.
Thanks.
-----Original Message----From: Reines, Edward [mailto:[e-mail]]
Sent: Friday, August 26,2011 1:53 PM
To: Josh Budwin; John B. Campbell
Cc: '[e-mail]'; EOLAS Attorneys
Subject: RE: Eolas v. Adobe et al
Josh,
We propose extending the rebuttal report deadline sufficiently far out that we have time to receive and process Eolas'
position regarding its scripts-related and user-touch infringement positions as set out in my email Tuesday. We had
asked for a response by yesterday given the rebuttal report date and we received no answers at all. Given the claim
construction ruling and its substantial impact on Eolas' infringement case-as acknowledged by Eolas' proffered motion for
reconsideration--we believe this is reasonable and fair. Please respond by 4pm CT today so we can take whatever action
we believe necessary if we cannot come to an agreement. Of course, we are happy to discuss.
Best,
Ed
-----Original Message----From: Reines, Edward
Sent: Thursday, August 25, 2011 3:48 PM
To: [e-mail]'
Cc: '[e-mail]'; EOLAS Attorneys
Subject: RE: Eolas v. Adobe et al
Josh, I know from your email activity it has been a busy day, but please advise as to when we can expect a response to our
below email. This is obviously time sensitive. Thanks much, Ed
-----Original Message----From: Reines, Edward
Sent: Tuesday, August 23,2011 6:50 PM
To: [e-mail]
Cc: [e-mail]; EOLAS Attorneys
Subject: Eolas v. Adobe et al
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Josh,
In light of Judge Davis's Claim Construction Order, and given the upcoming events, we request that Eolas promptly
confirm that the following categories of features, and methods using them, are no longer accused of infringement:
Features where a script or a portion of a script is alleged to satisfy the "executable application" limitation, such as
for example what Eolas has labeled "search suggest" and "product carousels" using JavaScript, given the Court's
construction of "executable application," "in order to display said object ... within a display area created at said first
location," and "automatically" invoking the executable application.
Features where a script or a portion of a script is alleged to satisfy the "embed text format" limitation, given the
Court's ruling that the "embed text format location in the document is where the displayed object will appear."
Features where a user-click is required before the alleged "executable application" is launched, such as for example
the accused products that utilize Flash technology with a user-click, given the Court's construction of "automatically
invoking the executable appl ication."
Browsers where Eolas' infringement theory is based upon the above mentioned theories.
Whether there ever was a basis to assert infringement against these types of products and methods using them, there is no
legitimate basis now. In that regard, we reserve all rights. Please provide a complete response by Thursday, August 25
COB given the upcoming deadlines.
Best,
Ed

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