Apple Computer Inc. v. Burst.com, Inc.

Filing 151

DECLARATION of Daniel J. Walker in Opposition to Apple Computer, Inc.'s Second Motion for Summary Judgment filed byBurst.com, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29)(Wecker, Bruce) (Filed on 8/28/2007)

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Apple Computer Inc. v. Burst.com, Inc. Doc. 151 Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PARKER C. FOLSE III (WA Bar No. 24895 ­ Pro Hac Vice) pfolse@susmangodfrey.com IAN B. CROSBY (WA Bar No. 28461 ­ Pro Hac Vice) icrosby@susmangodfrey.com FLOYD G. SHORT (WA Bar No. 21632 ­ Pro Hac Vice) fshort@susmangodfrey.com DANIEL J. WALKER (WA Bar No. 38876 - Pro Hac Vice) dwalker@susmangodfrey.com SUSMAN GODFREY, L.L.P. 1201 Third Avenue, Suite 3800 Seattle, Washington 98101-3000 (206) 516-3880 Tel (206) 516-3883 Fax SPENCER HOSIE (CA Bar No. 101777) shosie@hosielaw.com BRUCE WECKER (CA Bar No. 078530) bwecker@hosielaw.com HOSIE McARTHUR LLP One Market, 22nd Floor San Francisco, CA 94105 (415) 247-6000 Tel. (415) 247-6001 Fax (additional attorneys listed on signature page) Attorneys for Defendant/Counterclaimant BURST.COM, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION APPLE COMPUTER, INC., Plaintiff/Counterdefendant, v. BURST.COM, INC., Defendant/Counterclaimant. § § § § § § § § § § CASE NO. C06-00019 MHP DECLARATION OF DANIEL J. WALKER IN SUPPORT OF BURST.COM INC.'S OPPOSITION TO APPLE COMPUTER, INC.'S SECOND MOTION FOR SUMMARY JUDGMENT TRIAL DATE: FEBRUARY 26, 2008 ___________________________________________________________________________________________________________________ 1 DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP Dockets.Justia.com Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DANIEL J. WALKER IN SUPPORT OF DEFENDANT BURST.COM, INC.'S OPPOSITION TO PLAINTIFF APPLE COMPUTER, INC.'S SECOND MOTION FOR SUMMARY JUDGMENT I, Daniel J. Walker, declare as follows: 1. I am an associate in the Seattle office of Susman Godfrey L.L.P. I represent defendant Burst.com, Inc. ("Burst") in the above captioned matter. I make this declaration based upon personal knowledge and, if called upon to do so, could testify competently to the facts set forth herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of an article published in the April 24, 2006 issue of BusinessWeek. 3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts of the transcript of the deposition of Burst's Chief Executive Officer, Richard Lang, taken on January 8, 2007. (FILED UNDER SEAL) 4. Attached hereto as Exhibit 3 is a true and correct copy of "Your movie may come to you over the phone and `compressed,'" published in the January 20, 1991 issue of The Philadelphia Inquirer. 5. Attached hereto as Exhibit 4 is a true and correct copy of Univercell Holdings, Inc.'s 10K for fiscal year 1997, filed on March 27, 1998. 6. Attached hereto as Exhibit 5 is a true and correct copy of "More Bang For Your Bandwidth," published in the September 1999 issue of NewMedia. 7. Attached hereto as Exhibit 6 is a true and correct copy of Apple's Supplemental Response to Burst's Interrogatory No. 21. (FILED UNDER SEAL) 8. Attached hereto as Exhibit 7 is a true and correct copy of Apple's "Power Mac G5: Buyer Profile Study," dated March 2004. (FILED UNDER SEAL) 2 ___________________________________________________________________________________________________________________ DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Attached hereto as Exhibit 8 is a true and correct copy of an Apple Press Release, dated April 9, 2007, titled "100 Million iPods Sold." 10. Attached hereto as Exhibit 9 is a true and correct copy of "IPod, TheyPod: Rivals Imitate Apple's Success," published in the September 18, 2006 issue of The Wall Street Journal. 11. Attached hereto as Exhibit 10 is a true and correct copy of "Macs Power Up Earnings at Apple," published in the July 26, 2007 issue of The Los Angeles Times. 12. Attached hereto as Exhibit 11 is a true and correct copy of an Apple Press Release, dated July 31, 2007, titled "iTunes Store Tops Three Billion Songs." 13. Attached hereto as Exhibit 12 is a true and correct copy of "Apple unveils digital music device," published by BBC News, dated October 24, 2001. 14. Attached hereto as Exhibit 13 is a true and correct copy of an Apple Press Release, dated October 23, 2001, titled "Apple Presents iPod." 15. Attached hereto as Exhibit 14 is a true and correct copy of an Apple Press Release, dated October 30, 2002, titled "Apple's iPod Now Available at All Target Stores." 16. Attached hereto as Exhibit 15 is a true and correct copy of a marketing document for Apple's project "Jupiter." (FILED UNDER SEAL) 17. Attached hereto as Exhibit 16 is a true and correct copy of a market research study, dated March 30, 2001, conducted for the original iPod, which was codenamed "Dulcimer." (FILED UNDER SEAL) 18. Attached hereto as Exhibit 17 is a true and correct copy of excerpts of the transcript of the deposition of Apple employee Max Muller, taken on July 20, 2007, pursuant to F.R.C.P. 30(b)(6). (FILED UNDER SEAL) ___________________________________________________________________________________________________________________ 3 DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Attached hereto as Exhibit 18 is a true and correct copy of excerpts of the transcript of the deposition of Apple employee Frank Casanova, taken on September 22, 2006, both in his individual capacity and on behalf of Apple pursuant to F.R.C.P. 30(b)(6). (FILED UNDER SEAL) 20. Attached hereto as Exhibit 19 is a true and correct copy of a customers survey conducted by Apple. (FILED UNDER SEAL) 21. Attached hereto as Exhibit 20 is a true and correct copy of a product user manual from CompuSonics Corp. 22. Attached hereto as Exhibit 21 is a true and correct copy of excerpts of the transcript of the deposition of David Schwartz, a former employee of CompuSonics Corp., dated August 4, 2007. (FILED UNDER SEAL) 23. Attached hereto as Exhibit 22 is a true and correct copy of United States Patent No. 4,963,995. 24. Attached hereto as Exhibit 23 is a true and correct copy of United States Patent No. 5,057,932. 25. Attached hereto as Exhibit 24 is a true and correct copy of United States Patent No. 5,164,839. 26. Attached hereto as Exhibit 25 is a true and correct copy of United States Patent No. 5,995,705. 27. Attached hereto as Exhibit 26 is a true and correct copy of an Information Disclosure Statement, filed with the Patent & Trademark Office, showing that the Walter patent was disclosed during prosecution of Patent No. 5,995,705. ___________________________________________________________________________________________________________________ 4 DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. Attached hereto as Exhibit 27 is a true and correct copy of an Information Disclosure Statement, filed with the Patent & Trademark Office, showing that the Walter patent was disclosed during prosecution of Patent No. 5,057,932. 29. Attached hereto as Exhibit 28 is a true and correct copy of an Information Disclosure Statement, filed with the Patent & Trademark Office, showing that the Walter patent was disclosed during prosecution of Patent No. 5,164,839. 30. Attached hereto as Exhibit 29 is a true and correct copy of an excerpt from the Manual of Patent Examining Procedure. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED this 28th day of August, 2007. /s/ Daniel J. Walker Daniel J. Walker Additional Counsel: MICHAEL F. HEIM (TX Bar No. 9380923Pro Hac Vice) LESLIE V. PAYNE (TX Bar No. 0784736Pro Hac Vice) ERIC ENGER (TX Bar No. 24045833Pro Hac Vice) HEIM, PAYNE & CHORUSH, L.L.P. 600 Travis Street, Suite 6710 Houston, TX 77002 (713) 221-2000 Tel. (713) 221.2021 Fax ROBERT J. YORIO (CA Bar No. 93178) V. RANDALL GARD (CA Bar No. 151677) COLBY B. SPRINGER (CA Bar No. 214868) CARR & FERRELL LLP ___________________________________________________________________________________________________________________ 5 DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 6 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2200 Geng Road Palo Alto, CA 94303 (650) 812-3400 Tel. (650) 812-3444 Attorneys for Defendant/Counterclaimant Burst.com, Inc. ___________________________________________________________________________________________________________________ 6 DECLARATION OF DANIEL J. WALKER Case No. C06-00019 MHP

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