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

Filing 157

Declaration of Nicholas A. Brown in Support of 156 Reply Memorandum filed byApple Inc.. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit A part 3# 4 Exhibit A part 4# 5 Exhibit A part 5# 6 Exhibit B part 1# 7 Exhibit B part 2# 8 Exhibit B part 3# 9 Exhibit C# 10 Exhibit D# 11 Exhibit E# 12 Exhibit F# 13 Exhibit G# 14 Exhibit H# 15 Exhibit I# 16 Exhibit J# 17 Exhibit K# 18 Exhibit L# 19 Exhibit M# 20 Exhibit N# 21 Exhibit O)(Related document(s) 156 ) (Brown, Nicholas) (Filed on 9/6/2007) Modified on 9/18/2007 (gba, COURT STAFF).

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

Doc. 157 Att. 13

Case 3:06-cv-00019-MHP

Document 157-14

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ABI'LE VS. BURST.COM

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KANEKRAMER
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
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APPEARANCES (Continued) THE VIDEOGRAPHER: DAN MOTTAZ VIDEO PRODUCTIONS, LLC BY: STEVE LEFTWICH 182 Second Street, Suite 202 San Francisco, CA 94105 [phone]

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APPLE COMPUTER, INC., Plaintiff and Counterdefendant, vs. Case No. 3:06-CV-00019 MHP BURST.COM, INC., Defendant and Counterclaimant, I AND RELATED COUNTERCLAIMS. DEPOSITION OF KANE KRAMER CONFIDENTIAL - ATTORNEYS' EYES ONLY TUESDAY, AUGUST 7,2007 PAGES 1 to 299

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ALSO PRESENT: JAYNA WHITT

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8 REPORTED BY: LOUISE MARIE SOUSOURES, CSR NO. 357: 9 Certified LiveNote Reporter 0

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CONFlDEMTl Ah ATTORNEYS YES ONLY

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APPEARANCES FOR PLAINTIFF AND COUNTERDEFENDANT: WEIL, GOTSHAL & MANGES LLP BY: NICHOLAS BROWN, ATTORNEY AT LAW 201 Redwood Shores Parkway Redwood Shores, CA 94065 [phone] [e-mail]

INDEX EXAMINATION BY: MR. ENGER MR. BROWN PAGE 7 278

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FOR DEFENDANT AND COUNTERCLAIMANT: 5
HEIM, PAYNE & CHORUSH LLP BY: ERIC J. ENGER, ATTORNEY AT LAW 6710 Chase Tower 600 Travis Houston, TX 77002 [phone] [e-mail]
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EXHIBITS: PAGE 362 E-mail dated Wednesday, 20 June 2007 24 363 Subpoena in a civil case 28 364 U.S. patent No. 4,667,088 57 365 Hand-drawn document 162 366 Document entitled "1x1-the first MP3 162 player" 367 Document production Nos. KRAMER 00475 to 476 368 Document production Nos. KRAMER 00346 to 347 369 Document production Nos. KRAMER 00012 to 170 370 Document production Nos. KRAMER 00172 to 174 371 Document production No. KRAMER 00184

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what other device? A. Well, it could be from a memory store which, if you like, would be a computer store, which has the information on it or it could be at a distant location, it would be the same type of memory store, but would distribute or deliver the data. Q. So you would be recording from a memory store or a computer store and what would you be recording onto? A. Onto the -- onto the card. Q. Does that section that we just discussed, , column 4 lines 6 through 8, refer to any other type of recording other than recording from a memory store or computer store to a portable storage card? A. Those three lines don't, no. Q. Now, it says that that type of recording from a memory store or computer store to an external storage, portable storage card can take a very short time, correct? A. Correct, yes. Q. How long is a very short time? A. It would be very hard to be descriptive about the short time because it would totally depend on the length of the track concerned. If it was a long playing album, it would
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Actually in that particular part, it actually just says a very short time, quickly. So for example, if someone were buying an album, they would not have to, say, expect to wait the 45 minutes of the playing time of the album but would expect it to be in a matter of minutes, you know, seconds. Q. So a very short time means a matter of minutes or seconds? A. Well, it wouldn't be a matter of minutes if you had only had one minute of the music you were transferring. You would have been very specific about the amount of time and look at the data transfer rate and speed of output in order to be able to assess how long that actually would be. Q. Does your patent tell you to look at the bit rates and the transmission length of the song in order to determine what constitutes a very short time? A. No, it doesn't. Q. So a very short period of time could be one minute? MR. BROWN: Objection. THE WITNESS: It wouldn't -- beg your pardon.
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clearly take longer than a single. Typically we mention, I think, we mention somewhere, column 4, line 24, the output will be at a speed much faster at least one hundred times than that required for actual sound reproduction. So typically it could be a hundred times as fast. Q. Does very short time mean a hundred times as fast? MR. BROWN: Objection. Go ahead. THE WITNESS: Okay. It may not do if the means for delivery of the data could be faster or slower unit, but that's not the intention. The intention is at least a hundred times. Obviously, digital data can be transferred very fast, so -- we say at least a hundred times. BY MR. ENGER: Q. So the very -A. At the very least, yes. Q. So a very short time, whenever it talks about in column 4, lines 6 through 8, is talking about at least a hundred times faster than required for actual sound reproduction? A. No. It doesn't say that.

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Wouldn't be a short period of time, one minute. If the music only played for 30 seconds, that would be double real time. Only something which is shorter than real time could be described as shorter than real time. BY MR. ENGER: Q. So whenever it says which can take a very short time, that really means shorter than the amount of time it would take to play the song? A. Correct. Q. Where does it teach you that a very short time has to be less time than would be required for actual sound reproduction? A. Can you repeat that question, please? MR. ENGER. Could you read back the question, please? (The record was read by the Reporter.) MR. BROWN: Objection. THE WITNESS: Line 24, the output would be at a speed much faster, at least a hundred times, than that required for actual sound reproduction, column 4, line 24. BY MR. ENGER: Q. I thought you testified earlier that the very short period of time referred to in column 4,

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computer? A. Proprietary multi-pin plug. Q. The same multi-pin port in which digital audio was input? A. No, another one but just another plug, another socket and plug. Q. Do you have any of the MK4 prototypes in your possession? A. Unfortunately not. A. Nobody has any of the prototypes in their possession, unfortunately. Q. What happened to the -- all the prototypes including the MK4 prototype? A. They were all delivered to a firm of solicitors for safekeeping to the benefit of the shareholders of the company. The solicitors moved offices after four years and threw them away without contacting me.

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according to its capability, speed of the optical interface could sort of squeeze, slow it down -- it would be its limitation. Q. Was the functionalityyou've just described where you transmit compressed digital audio information fiom the MK4 to an external computer via the multi-pin output port on the back of the MK4 ever publicly displayed or shown to anyone? A. I think the answer's yes, but just to confirm, could you please repeat the question? (The record was read by the Reporter.) THE WITNESS: Okay. No. It would have been shown to people, but not in a sort of in a big public way. BY MR. ENGER: Q. Was the MK4 ever sold to anyone? A. No. Q. Was it ever offered for sale to anyone? A. No. Q. What publications was the MK4 described in? A. Well, many of these publications I hadn't seen since the day they came out and have only recently been found, some of them not even by me. I had a couple of assistants help me search out the information and anything that looked like
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to the outside computer? It was very -- it was quick. And again, there was an article which has got the interface speed in it. And I can't remember what that -- there's a lot of zeroes involved, I remember that, I can't remember the speed, amount of kilohertz. Q. Was the article published? A. Yes. Q. In what publication? A. I can't recall, but I'm sure I will be able to produce it. We may have it here now. It's not one of these, I can see that. Q. Does the article document transmitting from the MK4 to an external computer over the multi-pin port? A. I don't think it goes into that kind of detail, no. What it does is it gives me the optical interface, it refers to the optical interface speed which when using optical at the current time, the transceiver optical speed which actually was very fast at the time, but nevertheless that was its limitation as opposed to if it was going through hard wired means which had the potential to be faster. In other words, the optical interface,

anything to do with this project got thrown into the box. Much of this information in here, I haven't read in 20 years. I can't recall exactly which article was which, but I can remember, you know, articles about particular aspects of the thing. Q. Tell me about the MK5 prototype and what functionality it had that was different from the MK4 or any of the other previous MK prototypes. A. Okay. The MK5 was our first prototype -our first preproduction prototype or our only preproduction prototype. That in every respect was a finished product. All the circuit boards inside had now been produced with company name on it and everything was sort of finished, if you like. And it had much, much more sophisticated software and editing software. You could slip one track in relation to another, you could synchronize it to a time code so you could synchronize it with video. So if you were video editing, for example, you could provide your video editing with sort of solid state digital sound tracks. It took a multitude of cards. You could treat the cards as an array so it could either

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take -- sort of treat them as one continuous sort of -- you could play back fiom the three cards as if it was one. You could use it all as one piece of memory or could split it up into more tracks. And slightly more sophisticated, as I say, you could slip tracks to each other, do multi-function edits, punch in and punch out at different edit points and you could transfer information from one card to another digitally so that you were bypassing the analog so you could just literally put one card in, put another card in, dump information from one to the other and put it out. Q. What documentation do you have that discusses the editing functionality of the M U ? A. I have the company accounts that were lodged with company's house which are public record describes the activities and the business of the company and the year. Also I have a business plan which describes -- which was distributed and we obtained 60 shareholders from it. Q. This is the 1984 business plan or a different business plan? A. It would be the 1984 business plan would be describing that.
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1 That progress of the development of the 2 project is minuted in the company minutes. 3 Q. What input ports did the MK5 had? 4 A. It had all of the ones mentioned previously. 5 Q. Was it able to receive both analog audio at 6 real time speeds through the canon jack -- through 7 the canon and the jack? 8 A. Correct, yes. 9 Q. And it was able to receive digital 0 information through the multi-pin input port? 1 A. Yes, and output, yeah. 2 Q. Did it have the ability to compress analog 3 audio information into digital form? 4 A. Yes, it did. 5 Q. Did it have internal storage capabilities? 6 A. Internal when the cartridge was plugged into 7 it, yes. 8 Q. If the cartridge was unplugged from the 9 machine, did it have storage capability? 0 A. Well, you didn't have a player if you 1 unplugged it, but yes, if you took it out, it 2 couldn't -- in the same way if you unplug the memory 3 in a -- any device, once you take the memory out, it 4 can't remember. 5 So obviously it was an integral part of the 204

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and '84. Q. When was the MK5 first built? A. I think I'd have to refer to our minutes of the meetings of the company, which accurately describes exactly what part we were at and exactly what process. It's very well minuted during all that period, but, you know, fiom memory, I can't be that -- I can't remember that specifically, you know, it's 22 years ago. Q. Was the MK5 created prior to the 1984 business plan? A. As I say, I can't recall the date without checking the records, but there is accurate records of the exact time. I believe it may have been around then, but from the point you actually start building the prototype to the point that prototype is actually ready to present to people, having a box on the table which has certain functionality and writing software and growing the hnctionality, you know, we didn't decide to make it on a Monday and obviously it was ready on a Tuesday. It was over a period of time.

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system. It wasn't a complete system without the memory in. Once the memory was in, you had a complete system. Q. So the only memory for the MK5 was found in these external cards? A. Well, they were internal, they were plugged in. Q. They were removable? A. Removable, yes. Q. What was the storage capability of each card? A. I'm pretty certain it was three and a half minutes. Q. So whenever all three cards were plugged in, you would have ten minutes or so of audio? A. Yes. Q. And then was the compressed digital audio output through the multi-pin port to an external computer? A. Was the -- sorry, can you please repeat that? Q. Was the compressed digital audio found on the bubble memory cards then output through the multi-pin output port to an external computer similar to the functionality described with the MK4?

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A. By the -- not exactly. By MK5, had to have been a number of MKSs, had more than one. You could then have plugged -- excuse me, the digital output port from one machine into another machine and backwards the other way to create an array of machines that would behave as if they were one to increase their overall ability and tracks and timing. Q. How many MK5s were produced? A. One. Q. So it was not possible to transfer digital audio music from the multi-pin output port of one MK5 to another MK5 because only one existed? A. Yes, it was, because you could output from one card the information from the digital output port and plug and wire it back into itself and input into another card of the device or you could do it internally but that's how we knew it could work. Q. You could transmit it from one MK5 back to the same MK5? A. Yeah. You could do it internally or you could do it with a loop was the way of proving it. You could take your top card and put it down to the bottom, for example. Q. Since there was only one MK5, you don't
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in order to prove that one part of the system could output its information and take it back in into another part of the system. Q. So you could simulate sending infomation from a MK5 to another external device, but since there was only one MK5, it was physically impossible to actually transmit data from one MK5 to another MK5? A. We did -- you asked before, and you just reminded me, you asked before about did we transmit data to and from a computer and we did because we were doing tests with a view to music downloading at the time. Q. When did those tests occur whenever you transmitted information from a MK5 to an external computer? A. In the region of about 1986. Q. Did anyone observe you performing these tests? A. I would think quite a number of people would have seen us demonstrating it, yes. Q. Who would have seen these demonstrations? A. All of our shareholders, for example. Q. And this occurred in the United Kingdom? A. That's where we built the prototype, yeah.
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know -- you've never tested whether you could transfer from one MK5 to another MK5? A. Yes, we could do that because if you output the data from card number one through the digital output data and bring it back in through an input port and send it to card number 3, you know it's working. Q. Was the circumstance you described, where you send from one MK1 -- I'm sorry, from one MK5 to another MK5 ever tested? A. I don't recall whether or not we tried it with MK4 or not. I just don't recall. Q. There was only one MK5 so you couldn't transmit from one MK5 to a second MK5, correct? A. The MK5 actually behaved, could behave as three independent units within the one box. So when you were transmitting from one card, it acted and behaved completely independently from how it was coming out of that system from how it would -- so if you've got a card and all of your configuration and system to operate that card and then you've got a second card and you've got a third card slot, you could -- they would be treated independently unless you made them work as one. So we didn't need to build another prototype

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Q. Did you ever demonstrate the functionality where you could transfer data from MK5 to an external computer in the United States? A. No. Q. Did you ever sell a MK5? A. We took orders. Q. Did you ever sell a MK5? MR. BROWN: Objection. THE WITNESS: Yes, but we didn't deliver. BY MR. ENGER: Q. So you had a contract but you never transferred the MK5 to any -- any other person's possession? A. Correct. Q. Did you ever offer the MK5 for sale? A. Yes. Q. When did you offer the MK5 for sale? A. Again, the exact dates I would have -- are well-documented, but again, I think it was approximately 1986. Q. Are there any sales invoices or the like that would show these orders for the M U ? A. There are or there were, but not in my possession. They have never been in my possession.

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computer information. 2 BY MR. ENGER: 3 Q. Referring to column 6, lines 31 to 33? 4 A. That's a part of it. I'm going to read a 5 bit further on. 6 I can't see it, but I know that it's in our 7 British patent and it's been published. 8 So I think there's some differences in some 9 of the patents that were granted when going through 10 the sort of process of grant and various objections 11 that might be made. 12 I'm -- I can't see it in here. 13 Q. With reference to this '088 patent, your 14 American patent, it doesn't specifically talk about 15 video, does it? 16 A. I can't see a reference to the word video in 17 here, other than this reference to synchronizing with 18 video. 19 Q. Synchronizing audio with video? 20 A. Synchronizing audio with video where it 21 would be clocked and run in synchronicity with a 22 video player, for example, for doing sound tracks or 23 something like that for a film. 24 Q. But your '088 patent doesn't teach receiving 25 video, compressing it, storing it and transmitting it 278
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