Oracle Corporation et al v. SAP AG et al

Filing 853

Declaration of Elaine Wallace in Support of 851 Memorandum in Opposition, Declaration of Elaine Wallace In Support Of Defendants' Opposition To Plaintiffs' Motion No. 1 To Exclude Expert Testimony Of Stephen K. Clarke filed bySAP AG, SAP America Inc, Tomorrownow 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, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36)(Related document(s) 851 ) (McDonell, Jason) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 853 Att. 7

EXHIBIT 7

Dockets.Justia.com

STEPHEN K. CLARKE June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

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

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MR. PICKETT:

Q.

With reference to the

second supplemental report, 3201, that references declarations of TomorrowNow customers produced to

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Oracle for the first time on May 7. A.

Correct?

I don't know when the declarations were

produced to you. Q. After the March 26 report? MR. McDONELL: THE WITNESS: Lack of foundation. I really don't know when

they were produced to Oracle. MR. PICKETT: Q. Well, you do recall that

some of the customers' declarations came in after your initial report. A. Q. Correct?

That's my understanding. And do you know why they came in after you

had submitted your report? A. Q. No. What did you do, if anything, to obtain

declarations from customers? A. I don't recall doing anything to obtain

declarations from customers. Q. So how did you receive customer

declarations? A. Q. They came from Jones Day. So whatever declarations you refer to in

your report were simply something that came to you from the SAP attorneys? MR. McDONELL: Misstates the testimony and

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misstates the reality of what you know. THE WITNESS: MR. McDONELL: That's my understanding. Counsel, for the record,

you're not intending to ignore the declarations that you produced, are you? it to be vague and ambiguous. MR. PICKETT: Q. I'm not. Let's go. Just -- I don't want

If a customer didn't have a declaration,

did you make inquiry? MR. McDONELL: THE WITNESS: MR. PICKETT: MR. McDONELL: Vague and ambiguous. Of the customers, no. Q. Of Jones Day?

Don't disclose I instruct you not to

communications with counsel. answer. MR. PICKETT: Q.

How did you distinguish

in your mind customers for whom you had a declaration and those for whom you did not? MR. McDONELL: THE WITNESS: question. MR. PICKETT: Q. Well, you had some Vague and ambiguous. I don't understand that

statements from some of the customers, and you didn't have statements from some of the other customers. Did it make any difference to you?

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A.

It obviously made a difference in some So I either had a declaration that I

instances.

used or I didn't have a declaration. Q. And when you didn't have a declaration,

did you seek to get a declaration? MR. McDONELL: Again, don't disclose

communications with counsel. THE WITNESS: question. MR. PICKETT: Q. The customers who I can't answer that

submitted declarations after your March 26 report are not new to the case. A. Q. Correct?

I don't know what you mean. Well, they didn't just suddenly pop up

after March 26, did they? MR. McDONELL: Argumentative. Vague and ambiguous.

Object to the form. You mean the customer didn't

THE WITNESS:

pop up, or the declaration didn't pop up? MR. PICKETT: popped up. Q. Well, the declaration

The customer, I'm talking about. Argumentative, vague and

MR. McDONELL: ambiguous. THE WITNESS:

Well, I think the customers

at issue have been known for quite some time.

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MR. PICKETT:

Q.

Was there any reason

that SAP or you could not have obtained a declaration prior to the March 26 report being submitted? MR. McDONELL: compound. counsel. THE WITNESS: question. MR. PICKETT: Q. Do you know of any I can't answer that Lack of foundation,

Don't disclose communications with

attempts to secure additional customer declarations that failed? MR. McDONELL: Same instruction. Don't

disclose communications with counsel.

If you can

answer without disclosing communications with counsel, you may do so. THE WITNESS: question. I can't answer that

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. PICKETT:

Q.

Why do you need a

discussion of legal cases for purposes of your analysis? MR. McDONELL: THE WITNESS: Vague and ambiguous. As I tried to explain

previously a number of times, the -- the law deals with the legal aspects of a case. Mr. Meyer and I

deal with the economic aspects of a case. But we don't do the economics in a vacuum. We do them within the context of the law. there's an intersection between those two interests, the legal and the economic. And in And

order to do a good job in that process, you have to have an understanding of both sides of the equation. So I'm not an expert in law, I'm not a lawyer, but I do have to understand what the appropriate approach from an economic point of view is under the law. And frequently, to be honest, I look at the law, and I feel that, from an economic point of view, there's conflict, that the guidance that the law gives me isn't necessarily right on point with

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what the economics of a situation might be.

But

I'm guided by the law, as I assume Mr. Meyer is.

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MR. PICKETT:

Q.

Do you intend to offer

your summaries of the various cases as part of your expert opinions in this case? MR. McDONELL: a legal conclusion. THE WITNESS: Lacks foundation, calls for

Reserve all rights. They are part of my report,

so I think they are part of my opinion. MR. PICKETT: testify about them? A. I -MR. McDONELL: THE WITNESS: Same objections. I have not made any Q. And do you intend to

determinations as yet how I will testify in the case. MR. PICKETT: Q. What expertise do you

have to testify about a legal interpretation of a case? MR. McDONELL: repeatedly. foundation. THE WITNESS: I'm not sure I can give you Asked and answered Lacks

Vague and ambiguous.

any better answers than I have already given you. I -- I don't look at cases in order to determine purely legal matters. I look at them as a guide to

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how I ought to apply the law to the economics that I'm confronted with.

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MR. PICKETT:

Q.

Let me represent to you

that the Court held, quote, "Common sense dictates that an expert may confer with the copyright holder and that the background data may be factored into calculations of actual damages." Were you aware of that? MR. McDONELL: Assumes facts not in

evidence, lack of foundation. THE WITNESS: MR. PICKETT: I don't recall that. Q. Now, you criticized

Mr. Meyer for conferring with the owner of the copyrights in this case. MR. McDONELL: THE WITNESS: Right? Misstates the testimony. No. I don't believe I

criticized him for conferring. MR. PICKETT: Q. And using the

information he learned in valuing the case? MR. McDONELL: THE WITNESS: MR. PICKETT: that? MR. McDONELL: THE WITNESS: MR. PICKETT: Same objection. Could we read that back? Q. You criticized him for Same objection. There were -Q. You did or did not do

talking with the Oracle executives about their

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opinions with respect to the value of the stolen IP. Right? MR. McDONELL: THE WITNESS: conferring. Same objections. I didn't criticize him for

I criticized him for the way in which

he used what he learned, and I think I've been very clear that there were aspects of what they told him that I think have no place in his report. And for

them to do math of the highest speculative order and call that a methodology I think is particularly inappropriate. But, there are quite a few pages and iterations of my criticism of that approach of his in the report. I don't think that's appropriate. Of course,

So speaking with his client? that's perfectly acceptable. MR. PICKETT: A. Q.

Well, did you --

It's how you use what you learn that I

think is inappropriate. Q. Was it appropriate for Mr. Meyer to

include the damages opinions of his client's senior executives in his expert report? MR. McDONELL: and ambiguous. THE WITNESS: I think -Asked and answered. Vague

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MR. McDONELL:

Incomplete.

You're not

pointing out exactly what you're talking about in Mr. Meyer's report. THE WITNESS: I recollect that there were

several places in his report where he said, this is what we think the damages might be, "we" being the senior executives of the company. I think it's inappropriate for an expert to bring that information into his report without some critical evaluation that says, this makes sense. If it doesn't make sense -- and clearly

there are statements by the senior executives that make no sense whatsoever -- then I think the expert should apply his standards of control and quality, and common sense, frankly, to say, they may think that, but that's not what I'm going to put into my report. If they think it, they can testify about it at trial. But it doesn't and shouldn't form a

basis for me to do my analysis in the case. MR. PICKETT: Q. So what you're saying

is, it's appropriate for an expert to bring into his report, consider the senior executives' views, but he has to review them for their reasonability? A. I think that's the job of every expert in

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every case.

If -- just a moment.

The defendants frequently think that there are no damages and might try to pressure an expert into giving that opinion. If the expert thinks that there are damages, I don't think it's appropriate for them to include in their report, the defendants think there are no damages here, because he doesn't believe that. So that's important. Frequently, Plaintiffs will think that the damage number is exceptionally high. In this

particular case, as I recall, Ms. Catz was quoted as saying that she thought the damage would be in excess of 12 billion dollars. I don't think that Mr. Meyer didn't

was -- made any sense whatsoever.

actually include that, but there were statements on that vein that he did include. belong in there. I think what belongs in the expert's report is the expert's opinion, and that's what it should be limited to. That's my view. I And I don't think they

understand that you and he differ on that. that's fine. Q.

Well, you do agree that an expert may

factor that information into the calculations of

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actual damages.

Right? Are you reading from his

MR. McDONELL:

report, Counsel, and do you want to point it out to him? MR. PICKETT: THE WITNESS: No and no. It depends. It depends on

whether what you're hearing makes any sense in the context of what you know as an economics expert. And if it doesn't make sense, then I don't think it is right to factor it in. You have to withstand

the pressure from your client to do what they want you to do, whether that's the defense or the plaintiff. You have to do what you think is right.

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MR. PICKETT:

Q.

Well, you understand SAP

has infringed all kind of intellectual property, don't you? MR. McDONELL: objections. Objection. Same

Argumentative. Q. Please answer the

MR. PICKETT: question. THE WITNESS: allegation.

I understand that that is an

I don't have an understanding -- I

didn't need an understanding as to whether the allegations will ultimately be found to be proven. MR. PICKETT: Q. Well, don't you

understand -- I'm sorry, I didn't mean -MR. McDONELL: Counsel. MR. PICKETT: A. end up? (Record read as follows: Answer: allegation. I understand that that is an I don't have an understanding -Q. Go ahead. Where did I Don't interrupt, please,

Sorry, I've lost my train.

I didn't need an understanding as to whether the allegations will ultimately be found to be proven.) THE WITNESS: Where I was heading next is

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that I have made certain assumptions about the liability in the case. And I have done so within

the context of certain other expert reports that I've referenced in my report to try to determine what the subject IP is, because, as I understand it, what's at issue here is the value of that use of that subject IP. So without a proper understanding of that, we can't begin to do the next thing. So I didn't blindly assume, which is I think what your question implied, that all of the PeopleSoft, all of the JD Edwards, all of the Siebel software had been, to use your words, stolen by SAP. I -- that's not my area, and I don't think

there are any -- there's any acceptance that that is as yet a proven fact. So I've done what I think is the appropriate economic analysis, based upon the subject IP as I've defined it, which I think is the appropriate definition to apply in this case. MR. PICKETT: A. Q. Tell me --

And I understand that Mr. Meyer calculated

the value of something else, and no doubt we'll argue about that over the next couple of days and possibly at trial.

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Q.

Tell me every assumption you made with

respect to the liability. MR. McDONELL: broad. THE WITNESS: I assumed that the alleged Vague and ambiguous, overly

actions were proven to the extent that they applied to the facts of the case. So not everything that

the plaintiffs say in their complaint do I accept to be true. And one of those things, as an

example, was that -- Mr. Meyer used this terminology many times -- the entire business model was infringing. I don't think that's true. And there's

expert opinion on that that indicates that that's not true. I also think that I did my own analysis of elements of how much of the intellectual property was infringed and for how long, and the manner in which it was used, as I've spent 300 pages here explaining to you. And so I have assumed that there is liability, but I've not assumed that everything you say in the complaint is true. MR. PICKETT: Q. So you've done your own

analysis of what SAP infringed and what they did

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not infringe? MR. McDONELL: vague and ambiguous. THE WITNESS: MR. PICKETT: No. Q. You did your own Misstates the testimony,

analysis of how much IP was infringed and for how long and the manner in which it was used. no? MR. McDONELL: THE WITNESS: MR. PICKETT: Vague and ambiguous -That's correct. Q. How much -- on your Yes or

analysis, how much IP was infringed? MR. McDONELL: Misstates the testimony.

He has not -- he stated very clearly -MR. PICKETT: Go ahead. MR. McDONELL: the witness. THE WITNESS: I incorporated expert You're trying to mislead No speak being objections.

opinion, as I've indicated to you now three or four times, that suggested, indicates, that certain intellectual property owned by Oracle was not used. I have relied upon that opinion to some extent. I've also, as I said, done my own analysis that said, infringement started at this point,

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ended at this point.

It took place -- and again,

I'm accepting your liability argument here -- in certain geographic territories. That use was made

by TomorrowNow and SAP of that subject IP for that period of time. And those limitations mean that what I have included does not -- is not equal to the entire intellectual property that was acquired by Oracle in the PeopleSoft and the Siebel transactions. Okay. Q. On your own analysis,

MR. PICKETT:

when did you determine the infringement started? MR. McDONELL: Same objections. This

assumes facts not in evidence, misstates the testimony. THE WITNESS: The -- the way I did my So I

analysis was on a customer-by-customer basis.

looked at, when a particular customer was acquired by TomorrowNow on the one hand, I had a change in that -- not in the approach, but because of the involvement of SAP, starting in January of '05, I had the same approach, but I changed -- at least considered changing the analysis to account for SAP's involvement. So that was how the damage started. It

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was formulated for each customer, one at a time. MR. PICKETT: on to TomorrowNow? A. As soon -MR. McDONELL: THE WITNESS: Vague and ambiguous. As soon as -- the damage Q. As soon as they signed

start date I assumed was the last date that they were supported by Oracle. always the same time. MR. PICKETT: Q. And for what products Which is not actually

did you assume the infringement occurred? MR. McDONELL: THE WITNESS: and Siebel. MR. PICKETT: Q. This was on your own Same objections. For PeopleSoft, JD Edwards,

analysis, or was this something else? MR. McDONELL: Compound. THE WITNESS: your question. MR. PICKETT: Q. Well, you just said -I don't really understand Vague and ambiguous.

you've testified for a few pages now about your own analysis that you did of how much IP was infringed and for how long and the manner in which it was used. And that's a quote from your testimony.

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So on your own analysis, did you determine what products were infringed -MR. McDONELL: MR. PICKETT: Same objections. Q. -- on this

customer-by-customer basis you just mentioned? MR. McDONELL: Same objections. Vague and

ambiguous, assumes facts not in evidence, calls for a legal conclusion. THE WITNESS: my own analysis. Object to the form. I don't think I did that on

I -- my understanding of the

allegations was that it was PeopleSoft, JD Edwards, and Siebel. MR. PICKETT: Q. Well, what was your own

analysis of the manner in which the intellectual property was used? MR. McDONELL: objections. THE WITNESS: I called it a delta. As I described in my report, I did an analysis of the Assumes facts. Same

market and found that there were certain actions that third-party support companies could do without infringing, in fact, as partners and licensees of PeopleSoft predominantly, not Oracle. So there was an established ability for certain companies to do certain things. And it was

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different for many companies, and I have maybe 50 or 60 pages of the report that address this. My understanding, my analysis of those agreements, was that there was a de minimus charge. I think I used that terminology. There were a few

thousand dollars here and there that were levied by PeopleSoft to these companies. Companies who were customers of PeopleSoft and JD Edwards could do their own support. they could do that legally. And

They could have third

parties come in and help them to do that self-support activity. So what I defined as the delta was, since all of that was perfectly acceptable, de minimus or zero license fees required, not even a license required, just operating under the customer's license, that there was some delta. There was

something else that the alleged actions brought into play. And those items were things like

developing bug fixes for one customer and promulgating them to other customers. Keeping

copies of a company's -- a customer's environment on their own computers. And I've delineated these

items in the delta in my report. So it's that delta for that period of time

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in that geographic location that I've developed and named the subject IP. And that's what I'm valuing,

and I think that's a substantial difference between what I've done and what Mr. Meyer did. MR. PICKETT: Q. Are you aware that

TomorrowNow infringed software -- copyrighted software even in instances when it did not use it for a customer? MR. McDONELL: Assumes facts not in

evidence, vague and ambiguous, calls for a legal conclusion, object to the form. THE WITNESS: Can you -- so long since I

heard that question, could you read it back or say it again? MR. PICKETT: Q. Do you assume that apart

from TomorrowNow's use of the copyrighted software in connection with the customers, that there was no infringement? MR. McDONELL: objections. THE WITNESS: Do I assume that there was Is that what Vague and ambiguous. Same

no infringement at TomorrowNow? you're asking me? MR. PICKETT: A. Okay. Q. No.

Let's have another go.

I'm not

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hearing this question quite right. Q. Do you assume that apart from

TomorrowNow's use of copyrighted software for its customers, there was no infringement? MR. McDONELL: It's vague and ambiguous.

Same objections as previously stated. THE WITNESS: Now I think I get it.

I think that is a legal question to a very large extent. Whether a copyright infringement has

occurred is not my area. MR. PICKETT: MR. McDONELL: Q. What do you assume?

You objected to his answer.

I'm sorry, you interrupted his answer, I believe. Did he? THE WITNESS: MR. McDONELL: Counselor? MR. PICKETT: question. Q. I asked what you assume. That's not a He's answering a different Yes. May he complete his answer,

legal question at all.

What do you assume with

respect to the infringement? MR. McDONELL: ambiguous. Same objections. Vague and

Please let him answer the question.

You really are restating it.

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THE WITNESS:

Could you read back the

question that's at issue in my -- the answer that was interrupted? MR. PICKETT: A. Q. I'll restate it.

What do you assume -- no, I haven't

finished my answer. Q. No, I ask the questions. You don't get

the right to do that. A. Q. that. Could you read -No. Sir, you don't get the right to do

You are a witness, you are not -MR. McDONELL: Don't point your finger at Please. You are only a witness in

the witness, Counsel. MR. PICKETT: this case. MR. McDONELL: MR. PICKETT: the questions. MR. McDONELL: your prior question? MR. PICKETT: MR. McDONELL: strike it.

Counsel, please.

Please.

So I have the right to ask

You're going to withdraw

Yes. Okay. Then I move to

And you accept the striking of that -MR. PICKETT: Sure.

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MR. McDONELL:

Now, restate your question,

and please don't point your finger at this witness any further. It's inappropriate, Counsel. We're on tape. If there's

MR. PICKETT:

any problem with the tape, bring it to the court. MR. McDONELL: Counsel. MR. PICKETT: Q. What did you assume You're not on the tape,

about infringement -- let me restate it. Did you assume there was any infringement aside from TomorrowNow's use of copyrighted software with its customers? MR. McDONELL: It's vague and ambiguous,

calls for a legal conclusion, lack of foundation, and object to the form. THE WITNESS: I assumed for the purposes

of my calculations that all of TomorrowNow's activities were caught up within the alleged action. So I assumed everything was infringing.

Even the things that I later learned were not copied, not used, not -- whatever Mr. Gray said they weren't. I still included all of the activities of TomorrowNow in my calculations. MR. PICKETT: Q. So if TomorrowNow made a

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binder in a library of copyrighted software, you included that in the scope of use of your license? MR. McDONELL: MR. PICKETT: MR. McDONELL: Vague and ambiguous. Q. Is that right or not?

Vague and ambiguous,

incomplete, calls for a legal conclusion, object to the form. THE WITNESS: calculations, yes. MR. PICKETT: Q. So when you're valuing That is included in my

the reasonable royalty for the actual infringement, you're including a royalty for the library that TomorrowNow created? MR. McDONELL: Vague and ambiguous, lacks Object to the

foundation, misstates the testimony. form. THE WITNESS: Yes.

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20 21 22 23 24 25

MR. PICKETT:

Q.

What determines the

scope of the license being negotiated in the hypothetical negotiation? MR. McDONELL: Object to the form of the

question, calls for a legal conclusion. THE WITNESS: The scope of the license has

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some geographic and temporal issues. you're referring to? MR. PICKETT: A. Q. Q. It --

Is that what

I'm just trying to define scope. It does, but more with respect to the

breadth of the license in terms of what products it covers. A. In this case, as in other cases that I've

done this kind of analysis, it's the license that would apply to the accused conduct. The

allegations -- the alleged actions in the case. And if I may, I'd just like to clarify something from the discussions immediately before lunch. You asked me about my assumptions regarding the reasonable royalty and the -- the use that that would apply to. And I said I hadn't

parsed out the alleged actions and accused conduct versus the duration, the time, et cetera. I had assumed, for the purposes of calculating the royalty rate that I have opined to, that all of the actions were infringing. Even

though I recognize that there are now elements of the case where that isn't -- that isn't the state of the argument.

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So I did that to come up with the royalty rate. But when I applied the royalty rate, if

there was no accused conduct on the part of certain customers of TomorrowNow, I did not apply that rate to those revenues. And the same will be true on the disgorgement side. If there were any

no-accused-conduct customers, then I didn't apply the royalty rate on that side to them, either. Although they were excluded for other reasons for the most part. Q. analysis? A. for you. Correct. I just wanted to clarify that No accused conduct based on Mr. Gray's

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17 18 19 20 21 22 23 24 25

MR. PICKETT:

Q.

Well, your delta

consists of an analysis of what a third-party provider or a consultant theoretically could have done legally. Right? Object to the form. That's part of the -- of the

MR. McDONELL: THE WITNESS: floor of the delta. MR. PICKETT:

Q.

But you also understand

that TomorrowNow did not do what you suggest a

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third-party service provider could have done. Right? MR. McDONELL: the form. THE WITNESS: Well, I understand that's Assumes facts. Object to

the allegation, and I have assumed that those alleged actions are found -- they're found to be liable for those. MR. PICKETT: A. Q. A. Q. So --

But -- just a second. Go ahead. I've not simply taken the allegations on I've applied some economic analysis

blind faith. to it.

I've taken some technical input from

technical people who are other experts in the case and tried to define as clearly as I can the subject IP, and then try to value that actual use of the subject IP, as I've described in this report. Q. Your analysis of the potentially legal

activities of a third-party support provider reduce the ultimate valuation in your analysis. MR. McDONELL: the form. THE WITNESS: that around. Well, if you -- let me turn Assumes facts. Correct? Object to

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If you assume that you couldn't do any kind of assistance to an Oracle customer at all, other than illegally, then I -- you might be right. But you know and I know that that's not the way it works, and that there are many things that a customer can receive in the form of external -- external to the company, that is -assistance. And you know that they're legal, I So TomorrowNow could have

know that they're legal.

done all of those things without a license. And I don't know what's hard to understand about the delta. If we go up to everything that

was allowed to be done without a license, and then look at the alleged actions in terms of TomorrowNow, it's only that difference that we're trying to calculate the license for. Because you

didn't need a license to do the first 10,000 things that companies all over the world are doing every day. MR. PICKETT: Q. Your analysis of what

you believe a party -- a provider could do legally reduces the amount of damages, does it not? MR. McDONELL: repeatedly. Asked and answered

Object to the form. I don't think it reduces

THE WITNESS:

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damages at all. calculated.

The damages are what I've

MR. PICKETT: A.

Q.

But -- go ahead.

There would be no -- there wouldn't be a

damage for things that -- something like a systems integrator or a self-support customer bringing in a consultant to help on a specific problem. There

wouldn't be a license required for any of those things. So it's not that there's a damage and I'm There are no damages. It's just --

reducing it.

the damage just relates to that delta, that difference, between what you've alleged as being inappropriate and what's perfectly legal and perfectly acceptable and done by thousands of firms all around the world every day. Q. Whether or not TomorrowNow itself actually Is that correct? Vague and ambiguous. Q. In other words, it makes

did it legally or not. MR. McDONELL: MR. PICKETT:

no difference how TomorrowNow did it, so long as someone else would have done it legally? MR. McDONELL: Misstates the testimony,

vague and ambiguous, object to the form. THE WITNESS: I'm sorry, but that question

doesn't make any sense to me.

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MR. PICKETT: again. A. Q. Okay.

Q.

Well, let's try it

You're assuming there's certain activity

which is perfectly proper on the part of third-party service providers. A. Q. Correct? A. Q. Correct. And I'm saying that the delta is the Correct. And you worked that into your delta. Correct?

delta, regardless of the particular way in which TomorrowNow performed its business activities. MR. McDONELL: MR. PICKETT: A. Object to the form. Q. Is that right?

Well, there may have been other ways

TomorrowNow could have acted that would still have been appropriate under the -- the -- so they would be under the floor of the delta. Q. above it. And there would be ways that would be Right? MR. McDONELL: please. THE WITNESS: go next. That's where I was going to Don't interrupt, Counsel,

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There are activities that will be above the floor of the delta, and that's what is relevant. That's what Mr. Meyer should have

calculated; it's what I have calculated. MR. PICKETT: Q. Aren't you assuming that

TomorrowNow will do everything it could do legally, and -- let me rephrase that. Your license is limited to the three numbered paragraphs on page 116. nature and scope of the license. MR. McDONELL: THE WITNESS: Object to the form. No. You mean just the Right? The

bulleted points 1, 2, and 3? MR. PICKETT: Q. The delta consisted of Correct?

the following three bulleted points. A. Q. Yes.

And the nature and scope of the license is Right? Object to the form. Yeah, I think -- I think

the delta.

MR. McDONELL: THE WITNESS:

that's a fairly -- that's a decent summing up of what I'm getting at here. It's the difference between what will be legally allowed and what I am interpreting the complaint to say TomorrowNow did.

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