Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 285

Corrected Exhibit 2 to Defendants' Joint Response Brief on Claim Construction filed by AOL Inc, Amazon.com Inc., Google Inc., Match.Com LLC, MySpace Inc., Softlayer Technologies, Inc., Yahoo! Inc.. (Chaikovsky, Yar)

CORRECTED EXHIBIT 2 TO DEFENDANTS' JOINT RESPONSE ON CLAIM CONSTRUCTION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiffs, vs. Case No. 6:09-CV-0029 SOFTLAYER TECHNOLOGIES, INC., CITIWARE TECHNOLOGY SOLUTIONS, LLC, GOOGLE, INC., YAHOO! INC., MYSPACE, INC., AMAZON.COM INC., MATCH.COM, LLC and AOL LLC. Defendants. _______________________________ RED HAT, INC., Plaintiff, vs. BEDROCK COMPUTER TECHNOLOGIES, LLC, Defendant. ________________________________________________________ HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF DR. RICHARD NEMES New York, New York Tuesday, August 31, 2010 Reported by: AYLETTE GONZALEZ JOB NO. 144128 Case No. 6:09-cv-00549 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 have the 495 open and next to you when you were crafting the claims of the 120 Patent? A. Q. A. Q. A. Q. A. Q. I don't remember. Was it more than five seconds? Probably. It was more than 60 seconds? Probably. It was more than five minutes? Probably. I mean, doctor, I could go with 12:18:58 5 6 7 8 9 12:19:06 10 11 12 13 14 you -- if you'd like, I could go with you -- let me ask you, who wrote the specifications of the 120 Patent? A. Q. I did. Are you saying that any 12:19:17 15 16 17 18 19 similarities in the specification of the 120 Patent to either the 495 and the 499, is that accidental? MR. CURRY: A. Q. A. Q. Objection to form. 12:19:30 20 21 22 23 24 Probably not. Well, is it probably not? It's not. It's not accidental. I mean, doctor, you sat there and you either had the 495 or the 499 open in front of you and you copied language 12:19:40 25 144 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 from those patents into the specification of the 120, didn't you? A. I used language from those two patents in the 120. Q. But I say "you used," you 12:19:52 5 6 7 8 9 copied portions of them in the specification of the 120, right? MR. CURRY: A. of the text. Q. Now, what led you to believe Objection to form. Yeah, I copied -- I copied some 12:20:03 10 11 12 13 14 that language in the 495 Patent, whether in the specification or the claims, would be a helpful model for the claims that you were writing for the 120? A. The 495 and the 499 and I 12:20:21 15 16 17 18 19 believe the other -- what was the other number? It was the 663 Patent were my first exposures to patents in any detail. So, whatever I knew about patents came from those three. So, I had really very little knowledge beyond that. So, what I did is, 12:20:43 20 21 22 23 24 in composing the 120, I turned to what I had, what I had experience with, and I 12:21:01 25 145 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 could. A. Q. Correct. So, my question is: When I asked you -- what did you understand when I said, removing expired records from hash table? A. Q. What is the question? What did you understand that I 14:21:03 5 6 7 8 9 meant by removing expired records from a hash table? MR. CURRY: A. Objection to form. 14:21:12 10 11 12 13 14 I think I didn't understand the question, so I can't answer what I thought you meant by that part of the question. Q. Do you understand that the 495 14:21:24 15 16 17 18 19 Patent has to do with removing expired records? A. Q. about that? A. Q. No. In your mind, is there a Correct. Is there any doubt in your mind 14:21:32 20 21 22 23 24 difference between removing expired records and deleting expired records? A. No. 14:21:41 25 195 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 Q. So, when you talk about deleting expired records, what does that mean to you? MR. CURRY: A. Objection to form. 14:21:50 5 6 7 8 9 Reclaiming the storage occupied by that record. Q. When you say, reclaiming the storage occupied by that record, does that mean making -- sorry. storage." storage"? A. Q. Memory. So, you mean, reclaiming the You said, "the 14:22:13 10 11 12 13 14 What do you mean by "the storage in memory occupied by that record; is that right? A. Reclaiming the portion of 14:22:27 15 16 17 18 19 memory occupied by that record. Q. Is the case that by reclaiming the portion of memory occupied by that record, other non-expired data can be located in that portion of memory? A. Right. After it's removed, 14:22:40 20 21 22 23 24 there can be an insertion of new data into that portion of memory. Q. Now, that concept of removal of 14:22:58 25 196 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 expired records or deletion of expired records, that was associated with the 495 Patent, is there a different notion of removal or deletion of expired records in the 120 Patent? A. 495? 120. Oh, we're talking about the 14:23:22 5 6 7 8 9 I thought we were talking about the Maybe we should back up. Q. That's all right. I'll take 14:23:33 10 11 12 13 14 that. I'll take your answer. When you answered the last question, you answered associated with the 120? A. Q. Yep. Doctor, you answered with 14:23:39 15 16 17 18 19 respect to the 495 or 120, your call. Which one was it? MR. CURRY: A. Objection to form. I'd be more comfortable going Can we back up and I know 14:23:46 20 21 22 23 24 over that again. it might be a little bit burdensome, but to keep it accurate. Q. Actually, I'm kind of happy I want to find out, when with the answers. 14:23:56 25 you were just answering these questions 197 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 under oath, did you understand what I was talking about? MR. CURRY: Objection to form. He's signaling me to make a form objection. MR. STERN: conceding that. I'm appreciate you The witness was 14:24:07 5 6 7 8 9 conceivably was doing that. You're client was. witness. Q. What did you understand when Not the 14:24:11 10 11 12 13 14 you just provided, the record will reflect, an entire list of answers to questions about the meaning of delete or removal, with respect to what patent did you think you were answering questions? A. If you could read it back, I 14:24:26 15 16 17 18 19 can identify it better. Q. It just happened. I'm asking 14:24:36 20 21 22 23 24 in your mind, what do you recall just happened within the last three minutes? MR. CURRY: A. Q. Objection to form. I'd be more comfortable -Actually, I appreciate that But I'm 14:24:45 25 phrase, "be more comfortable." 198 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 actually asking you a question under oath. What did you understand were the subject matter of the questions I was asking? A. Q. testimony? MR. CURRY: A. testimony. Q. A. Q. About what? I'm not sure anymore. You were providing truthful Objection to form. At this point, I'm not sure. Were you providing truthful 14:24:54 5 6 7 8 9 I was providing truthful 14:25:02 10 11 12 13 14 testimony about the subject of which you're not sure? MR. CURRY: A. Objection to form. 14:25:10 15 16 17 18 19 It seemed to go back and forth between 120 and 495. Q. The question is the following: 14:25:19 20 21 22 23 24 "Do you understand that the 495 Patent has to do with removing expired records? "Answer: Correct. "Is there any doubt in your mind about that? "Answer: No. 14:25:28 25 199 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 "In your mind, is there a difference between removing expired records and deleting expired records? "Answer: No. 14:25:36 5 6 7 8 9 "So when you talk about deleting expired records, what does that mean to you? "Answer: Reclaiming the storage occupied by that record. "Question: When you say 14:25:49 10 11 12 13 14 reclaiming the storage occupied by that record, does that mean making -- I'm sorry; you said the storage -- what do you mean by the storage. "Answer: Memory. 14:25:59 15 16 17 18 19 "So, you mean reclaiming the storage in memory occupied by that record; is that right? "Answer: Reclaiming the 14:26:06 20 21 22 23 24 portion of memory occupied by that record. "Question: Is that" -- the Court Reporter has got a notation I can't understand. Your answer was: "Right after 14:26:26 25 it's removed there can be an insertion of 200 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 new data into that portion of memory." Was that related to the 495 or the 120? A. Q. about that? A. Q. No, there is not. Now, my question is: The 495. Is there doubt in your mind 14:26:35 5 6 7 8 9 answers that you just provided with respect to the 495, I could ask you the same with respect to the 120. same? again? A. time. Q. Do you understand that the 120 Yes. Let's take them one at a Are the answers the 14:26:41 10 11 12 13 14 You want me to go through them 14:26:51 15 16 17 18 19 Patent has to do with removing expired records? A. Q. about that? A. Q. No, there's not. In your mind, is there a Yes. Is there any doubt in your mind 14:27:00 20 21 22 23 24 difference between removing expired records and deleting expired records? 14:27:07 25 201 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 A. Q. No. So, when you talk about deleting expired records, what does that mean to you? Your last testimony was "reclaiming the storage in memory occupied by that record." the 495. A. Q. That's what you said for 14:27:33 5 6 7 8 9 Is that different for the 120? No. Is it the case that after the 14:27:41 10 11 12 13 14 expired record is removed, there can be an insertion of new data into that portion of memory? A. I'm going to phrase it like 14:27:56 15 16 17 18 19 this, that portion of memory can be made available for storage of new data. Q. So, that is what we talked about just now, the deletion or removal of an expired record, the meaning of that, is common both to the 120 and the 495; is that right? A. Q. That's correct. Thank you. Now, you also have in front of you the 499 Patent. Can you take a look at 14:28:09 20 21 22 23 24 14:28:34 25 202 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 Q. The 120 uses external chaining. The 495 uses linear probing, right? A. Correct. MR. CURRY: Counsel, I know you 15:16:34 5 6 7 8 9 need to go at 4, but can we take a quick break? MR. STERN: Quick break. The time is THE VIDEOGRAPHER: 3:16 p.m. We're off the record. 15:16:40 10 11 12 13 14 (Whereupon, at this time, a short recess was held.) THE VIDEOGRAPHER: 3:26 p.m. BY MR. STERN: Q. Dr. Nemes, we've talked about We talked about The time is We're back on the record. 15:26:22 15 16 17 18 19 Linked List this morning. external chaining. I've got some questions about terminology for you. I think the record will reflect that you talked about accessing a Linked List. Does that phrase mean anything to 15:26:37 20 21 22 23 24 you, to access a Linked List? MR. CURRY: A. Objection it form. I don't think that's a term 15:26:56 25 that you would find in a glossary in a 245 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 computer science textbook, let's say, or in a technical dictionary of electrical engineering and computer programming terms. I don't think it's a term of art. Is 15:27:15 5 6 7 8 9 that -- a term of art in that sense. So, I don't think it's got, you know, official meaning. If you typed it into Wickipedia, I don't think anything would come up. Q. A. Q. Have you done that? No. So, what about the phrase, 15:27:29 10 11 12 13 14 "traversing a Linked List"? A. Traverse is a technical term in 15:27:42 15 16 17 18 19 computer science. Q. What does it mean to you to traverse a Linked List? A. To traverse a data structure in general, Lined List being a particular example of a data structure, to traverse a data structure, in general, is to visit each of its nodes, elements, I call them. Q. So, traverse means to visit 15:27:51 20 21 22 23 24 each of the nodes or elements; is that right? 15:28:11 25 246 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 isn't other pros that also describes it. I'm just trying to be really careful here to be very accurate in my answer, but that does -- that is the pros that is associated with Claim 2. Q. Can you tell me, sir, in that 16:22:04 5 6 7 8 9 pros, what is the means for dynamically determining the maximum number? A. I think your -MR. CURRY: A. claim. Q. You're right. I am. You didn't Objection to form. 16:22:16 10 11 12 13 14 -- asking me to interpret the Let's be specific. 16:22:21 15 16 17 18 19 write any code that shows how to do that, right? A. shows that. Q. You didn't identify any device I didn't write any code that 16:22:31 20 21 22 23 24 that's capable of doing that, right? A. Q. Right. You didn't identify any software program that's capable of doing that, right? A. Right. 16:22:39 25 288 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 Q. As you sit here today, can you think of any structure at all, any sort of physical or nonphysical device or system, that you described to be able to perform that means of dynamically determining a maximum number? MR. CURRY: A. Q. Objection to form. 16:22:51 5 6 7 8 9 What's a nonphysical device? Software. MR. CURRY: Objection to form. 16:23:01 10 11 12 13 14 A. Then I guess I don't understand the question because I don't think of software as a device. Q. Let's go physical then. Any 16:23:10 15 16 17 18 19 physical device that you could identify that could perform any of that means? A. I could take -- I could program a computer to perform the tasks described by that means. Q. A. Q. Did you ever do that? No. It continues to say, "The 16:23:32 20 21 22 23 24 record search means" do you see that? A. Q. What column? Claim 2. Talks about the 16:23:51 25 289 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 automatic expiration is. Are you suggesting that what you wrote here, when you wrote the 120 Patent, is not automatically expiration? MR. CURRY: A. question. Q. This section says that the Objection to form. 16:55:32 5 6 7 8 9 I don't understand your determination of expiration is made by comparing some portion of the contents of record to some external condition? A. Q. Yes, I see that. Is that consistent with your 16:55:43 10 11 12 13 14 definition of automatic expiration that you provided to me a moment ago? A. Q. consistent? A. Let's say we have a record and If Yeah, I think it is. Sure. 16:55:52 15 16 17 18 19 Can you explain how it's 16:56:03 20 21 22 23 24 it identifies a particular passenger. we go and see that that passenger is on a plane still in the air, and not an external condition, that record is not -- has not expired. If that passenger is no longer on 16:56:21 25 a plane in the air, then that record is 307 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 expired. Q. So, the external condition you're saying is the person being in a plane in the air? A. I think in that example you You can say 16:56:32 5 6 7 8 9 might be able to say that. that in that example. Q. Right. In order for the information to be sent to the system, whatever system is making a check of this external condition, there would have to be some information sent that the person is either in the plane or deplaned from the plane; would there not? A. question. Q. condition? MR. CURRY: A. Objection to form. Well, what's an internal I don't really understand your 16:56:50 10 11 12 13 14 16:57:01 15 16 17 18 19 16:57:14 20 21 22 23 24 You want me to give you an example of internal condition? Q. A. Sure. Let's say we have the 120 Patent and we have our hash table, we have our list of records and let's say we store 16:57:27 25 308 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 a record in a particular node on a Linked List. And let's say that we've calculated a check sum of the contents of that record, and we story that check sum in the node along with the record. And let's say that one of the bits, a portion of the record, is faulty and a zero should be a one, or a one should be a zero. When we go to retrieve that 16:57:50 5 6 7 8 9 16:58:08 10 11 12 13 14 record, we're going to retrieve the contents of the record, recalculate the check sum, compare that against the stored check sum and find that there's a mismatch. That's how checks are designed to be. You lose a bit -- typically, you get a different check sum. That's not 16:58:24 15 16 17 18 19 some external condition that caused automatically that causes records to automatically expire. That's an example of 16:58:39 20 21 22 23 24 something that's not in the category of external condition. Q. A. condition. Q. Does automatic expiration -That's an internal condition? I would call that an internal 16:58:47 25 309 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 your definition of automatic expiration include both external conditions and internal conditions? A. No, it does not include 16:59:05 5 6 7 8 9 internal conditions. Q. A. conditions. Q. conditions? A. Q. Yes. So, something becomes It just includes external Does not include internal? Does not include internal 16:59:12 10 11 12 13 14 automatically expired through the determination of an external condition; is that correct? A. Q. A. Q. Was there a question? Is that correct? Say it once again, please. Something becomes automatically 16:59:34 15 16 17 18 19 16:59:40 20 21 22 23 24 expired through the determination of whether the portion or contents of record in comparison to an external condition? A. Q. Correct. You didn't disclose any other 17:00:00 25 methodology for automatic expiration nor do 310 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 is one understanding of the term, "number." There's number theory, and I could probably give you a definition for the world of mathematics that, I guess, would reflect my understanding of it, but I don't think that's what you really are after. So, if you could clarify a little 17:21:52 5 6 7 8 9 bit, I'll be happy -Q. When you wrote the 120 Patent 17:22:01 10 11 12 13 14 and used the word, "number" in various places, what did you mean by the word, "number" in the 120 Patent? MR. CURRY: A. Objection to form. If we could take a look at a 17:22:09 15 16 17 18 19 couple of spots, maybe that would make it more exact. Q. Before we take a look at a couple of spots, I would like you to, to the best of your recollection sitting here today, tell me what you meant by the word, "number" in the 120 Patent? MR. CURRY: A. Objection to form. 17:22:20 20 21 22 23 24 You didn't like quantity, so How many, number and what about how many. 17:22:43 25 how many -- how many is my understanding of 326 SARNOFF COURT REPORTERS 877.955.3855 DR. RICHARD NEMES HIGHLY CONFIDENTIAL 8/31/2010 1 2 3 4 the term "number." As I sit here thinking about it and trying to give you a nonmathematical, technical definition in terms of set theory and all of the steps, the best I'm going to do right now is a phrase "how many" and the word number go strongly together in my head. Q. A. Q. A. Q. A. So, one is a number? One is a number. Two is a number? Two is a number. Three? Three is a number. MR. CURRY: real quick? MR. CHAIKOVSKY: One last Can we take a break 17:23:01 5 6 7 8 9 17:23:15 10 11 12 13 14 17:23:59 15 16 17 18 19 thing, and then we can take a break. Q. You testified earlier that the 17:24:08 20 21 22 23 24 -- for example, Claim 1 would cover or claim the best modes that you disclose in invention; is that correct? A. Q. I testified to that. Right. That included the 17:24:23 25 pseudocode of the appendix; is that 327 SARNOFF COURT REPORTERS 877.955.3855