Oracle Corporation et al v. SAP AG et al

Filing 1206

Declaration of Nargues Motamed in Support of 1202 Statement Joint Statement in Support of Evidentiary Issues filed byOracle International Corporation. (Attachments: # 1 Exhibit A-0059, # 2 Exhibit A-6329-1, # 3 Exhibit A-0367, # 4 Exhibit A-5042, # 5 Exhibit A-5997, # 6 Exhibit A-6042-1, # 7 Exhibit A-6205-1, # 8 Exhibit A-5193, # 9 Exhibit A-5995, # 10 Exhibit A-5058, # 11 Exhibit A-5002-1, # 12 Exhibit A, # 13 Exhibit B, # 14 Exhibit C, # 15 Exhibit D, # 16 Exhibit E, # 17 Exhibit F, # 18 Exhibit G, # 19 Exhibit H, # 20 Exhibit I, # 21 Exhibit J, # 22 Exhibit K, # 23 Exhibit L, # 24 Exhibit M, # 25 Exhibit N, # 26 Exhibit PTX 0008, # 27 Exhibit PTX 0014, # 28 Exhibit PTX 0161, # 29 Exhibit O, # 30 Exhibit P, # 31 Exhibit Q, # 32 Exhibit R, # 33 Exhibit PTX 4809, # 34 Exhibit PTX 4819, # 35 Exhibit PTX 0012, # 36 Exhibit PTX 0024, # 37 Exhibit PTX 0960, # 38 Exhibit PTX 7028, # 39 Exhibit S, # 40 Exhibit T, # 41 Exhibit U, # 42 Exhibit V, # 43 Exhibit W, # 44 Exhibit PTX 8040, # 45 Exhibit PTX 2582, # 46 Exhibit X, # 47 Exhibit Y, # 48 Exhibit PTX 8112, # 49 Exhibit PTX 8111, # 50 Exhibit PTX 8108)(Related document(s) 1202 ) (Howard, Geoffrey) (Filed on 8/2/2012)

Page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
ORACLE CORPORATION, a
Delaware corporation,
ORACLE USA, INC., a
Colorado corporation, and
ORACLE INTERNATIONAL
CORPORATION, a California
corporation,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
) No. 07-CV-1658 (PJH)
)
SAP AG, a German
)
corporation, SAP AMERICA,
)
INC., a Delaware
)
corporation, TOMORROWNOW,
)
INC., a Texas corporation,
)
and DOES 1-50, inclusive,
)
)
Defendants.
)
________________________________)

VIDEOTAPED DEPOSITION OF
STEPHEN K. CLARKE
_________________________________
VOLUME 1; PAGES 1 - 323
TUESDAY, JUNE 8, 2010

HIGHLY

REPORTED BY:

CONFIDENTIAL - ATTORNEYS' EYES ONLY

HOLLY THUMAN, CSR No. 6834, RMR, CRR
(1-427117)

STEPHEN K. CLARKE
June 8, 2010
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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Page 176
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Mr. Meyer's scope. Vague and ambiguous, object to

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the form.

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(Deposition Exhibit 3204 was marked for

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they're very close, and I think the piece that's

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identification.)

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missing from this is -- is the delta. So this --

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MR. PICKETT: Q. Have you seen this

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if this piece fits with 1, 2, and 3 from page 116,

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I don't see how that was ever reflected in the

A. Yes.

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calculations for the value of use that he had made.

Q. Can you identify it?

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A. My recollection is, it was -- I can't

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swear that it's an exact copy, but it was included

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in papers we got from Mr. Meyer.

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distinction between Mr. Meyer's 3204 description

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and your description on page 116?

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MR. McDONELL: Asked and answered

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repeatedly. Object to the form of the question.

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broader than the scope you suggest on page 116 of

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your report?

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the time now is 2:21. This also will be the

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conclusion of Tape 2.

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(Examining document.)

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We are back on the videotape record. This also

So the question is, does -- do these three

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marks the beginning of Tape 3.

not waiving anything.

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Q. Would you agree that Mr. Meyer's scope is

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MR. PICKETT: Q. Let me show you what's
been marked as Exhibit 3204.

before, Mr. Clarke?

Q. These are his notes of the scope of the
license that he is analyzing. Correct?
A. Yes. I think so. I think that's what
this was intended to be.

MR. McDONELL: Take your time to read to
the extent you need to.
THE WITNESS: I'm going to read it
carefully.

THE WITNESS: Well, at a minimum, I'd say

MR. PICKETT: Q. I'm trying to limit it
to scope of use at this point.
You're saying there's no meaningful

THE WITNESS: I don't see -- I don't see
much difference between the two.
MR. PICKETT: Why don't we take a break.
THE VIDEO OPERATOR: Going off the record,

(Recess from 2:21 p.m. to 2:37 p.m.)
THE VIDEO OPERATOR: The time now is 2:37.

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items in the delta cover these items on Mr. Meyer's

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list?

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2

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MR. McDONELL: Vague and ambiguous.

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The value of use must be limited to the

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THE WITNESS: Well, it's got more words in

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actual use Defendants allegedly made of the

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it, but actually, I think pretty much everything on

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subject IP, which means the value must be

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this list falls somewhere within these three items.

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related to the actual customers, not the

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customers SAP hoped for in an unsupported

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scope of use as defined by Mr. Meyer in

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Exhibit 3204?

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Is it fair to say that you limited the

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value of use to the value related to the actual

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customers that TomorrowNow was able to retain?

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it's a document that I would never have prepared,

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testimony, misstates the document. Object to the

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so to that extent, I disagree with it, in that I

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form.

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think it's got some things that are just -- you

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Counselor, can you tell me -- I didn't

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know, they have a flavor of being pejorative, and I

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quite follow what paragraph you were looking at.

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don't think that's necessary.

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MR. PICKETT: Q. It's the first full

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paragraph at the bottom. It has a number 2 in the

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front.

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there's -- at least on this issue, there's no

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dispute that is the scope of use?

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MR. PICKETT: Q. The question was, wasn't
his broader than yours?

MR. PICKETT: Q. Do you disagree with the

MR. McDONELL: Vague and ambiguous.
Assumes facts. Object to the form.
THE WITNESS: When I look at this listing,

As I read down these items, I think they
pretty much fall within 1, 2, and 3 here.
MR. PICKETT: Q. So from your standpoint,

MR. McDONELL: Assumes facts. This is

MR. PICKETT: Q. Could you please turn to
page 51 of your report?
A. At the bottom of the first full paragraph,
you state:

business case.

MR. McDONELL: Objection. Misstates the

MR. McDONELL: Thank you.
THE WITNESS: The -- there are two parts
to that answer.
The first part is that addressing

45 (Pages 174 to 177)
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STEPHEN K. CLARKE
June 8, 2010
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 178

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TomorrowNow at this point, the reasonable royalty

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that I computed was based upon all of the

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respect to the value of the license, from either

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activities at TomorrowNow. I applied it to all of

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the buyer's or the seller's standpoint, is a

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the customers' revenues, except for those revenues

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relevant factor. Right?

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related to the no accused conduct.

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So that's the answer to your question, I
believe.
MR. PICKETT: Q. So the value was limited

MR. PICKETT: And their expectations, with

MR. McDONELL: Calls for a legal
conclusion, vague and ambiguous.
THE WITNESS: I think those would be
relevant facts.

to those revenues you deemed to be related to the

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MR. PICKETT: Q. In a real-world

accused conduct?

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situation, with a lump-sum royalty, the actual

MR. McDONELL: Vague and ambiguous.

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success of the licensee -- licensee's business

THE WITNESS: I'm sorry?

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would not be meaningful. Right?

MR. McDONELL: I said vague and ambiguous.

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for a legal conclusion, incomplete hypothetical,

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object to the form of the question.

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THE WITNESS: At the time of the

conduct. So yes, those that remained were the ones

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hypothetical negotiation, if your hypothetical

with accused conduct.

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requires the agreement to be a reasonable -- not

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a -- a royalty that would be based on a lump-sum

the measurement of damages necessarily depend on

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paid in advance, then of course the parties don't

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the success of the infringer in obtaining

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know what the future is going to hold.

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customers?

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And the -- while the licensee might have a

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MR. McDONELL: Vague and ambiguous.

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very large interest in the success of the product,

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THE WITNESS: Yes. I believe in the

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the licensor probably doesn't care at that point.

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context of the reasonable royalty, that will be an

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They've been paid.

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because I took out the ones that had no accused

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That was my objection.
THE WITNESS: Yes. That's accurate,

MR. PICKETT: Q. By that approach, does

MR. McDONELL: Vague and ambiguous, calls

Page 179

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element, a factor that you would want to consider,

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the success of the product in the market.

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MR. McDONELL: Same objections. Calls for

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case that the relevant fact is the parties'

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a legal conclusion, vague and ambiguous, incomplete

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expectation at the time of the negotiation of the

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hypothetical. Object to the form of the question.

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hypothetical license rather than the actual success

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THE WITNESS: Well again, I -- in order to

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or failure of the venture after the date of the

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answer that, I have to round out your hypothetical

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hypothetical negotiation?

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a little bit and give you a caveat.

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If what you're going to assume is that a

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conclusion, vague and ambiguous, compound, assumes

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paid-up license is the only possible outcome, and

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facts. Object to the form.

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everything else stays the same, then you're right.

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The licensor, once they've got their money, they

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don't really care what happens.

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They might rue the fact that they sold it

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to the success of the product -- in this case, a

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for too little. They might be happy that they sold

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service. So clearly, that's part of the

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it for too much.

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consideration, and it is a factor that we experts

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ought to consider.

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nor the buyer would know in advance what the

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I think there's another element to the

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success of the venture was. Right?

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hypothetical negotiation, which is that the parties

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at that negotiation are assumed to have knowledge

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legal conclusion about the nature of that test,

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of the relevant -- the relevant facts. Of course,

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vague and ambiguous, incomplete hypothetical.

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at that point they wouldn't know what the future

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Misstates the test and the law.

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was going to hold, but they may have some

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THE WITNESS: Since the hypothetical

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expectations.

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negotiation occurs before infringement has begun,

MR. PICKETT: Q. Is it -- isn't it the

MR. McDONELL: Calls for a legal

THE WITNESS: That again is a two-part
answer.
One of the Georgia-Pacific factors relates

MR. PICKETT: Q. So the business success
would not be meaningful to the licensor?

MR. PICKETT: Q. And neither the seller

MR. McDONELL: Objection. Calls for a

46 (Pages 178 to 181)
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