Oracle America, Inc. v. Google Inc.
Filing
1078
MOTION in Limine re Evidence Allegedly Supporting Knowledge Requirement for Indirect Infringement filed by Google Inc.. Responses due by 5/21/2012. Replies due by 5/29/2012. (Attachments: #1 Exhibit A, #2 Exhibit B)(Van Nest, Robert) (Filed on 5/6/2012)
EXHIBIT B
Attorneys' Eyes Only
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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_______________________
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ORACLE AMERICA, INC.,
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Plaintiff,
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vs.
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GOOGLE, INC.,
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)
)
) No. CV 10-03561 WHA
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Defendant.
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_______________________)
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ATTORNEYS' EYES ONLY
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Videotaped Deposition of ANDREW E. RUBIN,
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taken at 333 Twin Dolphin Drive, Redwood
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Shores, California, commencing at 9:31 a.m.,
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Tuesday, April 5, 2011, before Leslie
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Rockwood, RPR, CSR No. 3462.
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APPEARANCES OF COUNSEL:
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FOR THE PLAINTIFF ORACLE AMERICA, INC.:
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BOIES SCHILLER & FLEXNER LLP
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BY:
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STEVEN C. HOLTZMAN, ESQ.
BEKO REBLITZ-RICHARDSON, ESQ.
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1999 Harrison Street, Suite 900
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Oakland, California 94612
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(510) 874-1000
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sholtzman@bsfllp.com
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brichardon@bsfllp.com
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MORRISON & FOERSTER LLP
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BY:
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755 Page Mill Road
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Palo Alto, California 94304-1018
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(650) 813-5600
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mdpeters@mofo.com
MARC DAVID PETERS, ESQ., PH.D.
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APPEARANCES OF COUNSEL (CONTINUED):
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FOR THE DEFENDANT GOOGLE, INC.:
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KING & SPALDING, LLP
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BY:
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1180 Peachtree Street, NE
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Atlanta, Georgia 30309-3521
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(404) 572-4826
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BRUCE W. BABER, ESQ.
bbaber@kslaw.com
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BY:
SCOTT T. WEINGAERTNER, ESQ.
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1185 Avenue of the Americas
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New York, New York 10036-4003
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(212) 556-2227
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sweingaertner@kslaw.com
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BY:
STEVEN T. SNYDER, ESQ.
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100 North Tryon Street, Suite 3900
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Charlotte, North Carolina 28202
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(704) 503-2630
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ssnyder@kslaw.com
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APPEARANCES OF COUNSEL (Continued):
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RENNY HWANG, ESQ.
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GOOGLE ASSOCIATE LITIGATION COUNSEL
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1600 Ampitheatre Parkway
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Mountain View, California 94043
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(650) 253-2551
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rennyhwang@google.com
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ALSO PRESENT:
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ALEXEI DIAS, VIDEOGRAPHER
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MR. SNYDER:
Steve Snyder, King & Spalding,
for Google.
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MR. HWANG:
Renny Hwang for Google.
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THE VIDEOGRAPHER:
Thank you.
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will be sworn in, and we can proceed.
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THE REPORTER:
The witness
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09:32:13
Would you raise your right
hand, please.
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You do solemnly state that the evidence you
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shall give in this matter shall be the truth, the whole
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truth and nothing but the truth, so help you God.
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THE WITNESS:
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THE REPORTER:
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Thank you.
EXAMINATION
BY MR. HOLTZMAN:
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Yes.
Q.
Good morning.
Could you please state your
09:32:26
full name and spell your last name for the record.
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A.
Sure.
18
Q.
Have you ever had your deposition taken
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A.
Yes.
21
Q.
How many times?
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A.
Probably about four times.
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Q.
Okay.
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It's Andrew Edward Rubin, R-U-B-I-N.
before?
09:32:37
Let me just very quickly then cover a
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few basic ground rules.
I'll be asking questions today.
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If at any time you don't understand a question I ask, let
09:32:48
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Q.
And you over time were personally involved in
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discussions with Sun on behalf of Google with regard to
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Android; correct?
4
A.
5
6
Yes, I led the discussions with Sun regarding
Android.
09:38:08
Q.
And you have been personally involved in
7
discussions with Oracle regarding Android on behalf of
8
Google; correct?
9
A.
Yes.
Again, I led those discussions as well.
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Q.
Okay.
So between -- when was the first time
11
you had a discussion with either Sun or Oracle regarding
12
09:38:18
what became Android?
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A.
Sure.
The discussions, I think, were --
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probably the earliest discussions were -- can you ask the
15
question again?
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Q.
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Sorry.
09:38:38
When was the first time -- I can rephrase it.
When was the first time you had a discussion
with Sun regarding what became Android?
A.
When Android was a start-up company, probably
in about 2000 -- either late 2004 or early 2005.
Q.
Okay.
09:38:49
Actually, let me come back to that
because I want to explore that separately.
Between 2005, when you started at Google, and
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now, about how many discussions, in person or by phone,
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did you participate in with anyone from Sun or Oracle
09:39:09
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relating to what became Android?
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A.
Sure.
So the early discussions were directly
3
with Sun.
The subject matter discussed was about a Sun
4
product.
5
they acquired Sun.
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think -- I'm vague on the actual dates.
So Oracle didn't come into the picture until
So the early discussions in -- I
7
Q.
Okay.
8
A.
But -- but you asked several questions.
09:39:26
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So
the discussions were probably in late 2005, early 2006,
10
is when they started or really kind of heated up.
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Because, again, I was in discussions when we were a
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start-up company before the acquisition.
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09:39:41
But the second part of your question was how
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many discussions did we have in that time frame, and it
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was a handful.
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the 2005 to 2006 time frame.
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Q.
It was probably about five or six from
Okay.
09:39:56
And after that, when was the next time
18
that you had discussions with anybody from Sun, if at
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all?
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A.
Again, vague on the precise dates, but in
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the -- in around the 2008 time frame, which was around
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the time Android launched, we entered into another round
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09:40:06
of discussions after Sun approached us.
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Q.
Okay.
So I'm sorry, so Android launched in
2008?
09:40:22
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security mechanism or the security model; is that
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correct?
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4
A.
Yes.
And those are the two, to my
recollection.
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Q.
That's fine.
Did you ever think that issues
6
relating to patent infringement contributed to the end of
7
09:56:51
those negotiations in -- this would have been in 2006.
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A.
No, I did not.
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Q.
Did you ever say that you negotiated with Sun
10
and decided to walk away after Sun threatened Google with
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patent violations?
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A.
Huh-uh, no.
Q.
Did you ever say that you negotiated with
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09:57:22
Sorry, can you ask the question
again?
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Sun?
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I'm sorry.
Yes.
I'm sorry.
Strike that and start
again.
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Did you ever say that you negotiated with Sun
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and decided to walk away after Sun threatened Google with
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patent violations?
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A.
09:57:35
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Did I ever say it?
MR. HOLTZMAN:
Not to my knowledge, no.
Okay.
09:57:47
I'll ask the court
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reporter to mark as Oracle Deposition Exhibit Number 3 a
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two-page document Bates Numbered Google 0200020474.
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(Exhibit 3 marked.)
Q.
BY MR. HOLTZMAN:
Do you recognize Oracle
09:58:55
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Exhibit 3?
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A.
I'm refreshing my memory now.
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Q.
So what is it?
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A.
It looks like an email thread between two of
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my engineers or three of my engineers and myself.
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Okay.
Q.
09:59:29
And the three engineers are Bob Lee, Brian
Swetland, and Dan Bornstein; is that correct?
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A.
Correct.
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Q.
And what's the date of that email?
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A.
It was originally -- it appears originally
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August 11th, 2007.
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Q.
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09:59:43
And so there are two emails represented in
this document; correct?
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A.
It's an email string.
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Q.
String.
Fair enough.
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fine.
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about the top email here.
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That's fine.
That's
09:59:55
And I'm interested -- I just wanted to ask you
correct?
That's an email from you;
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A.
Yes.
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Q.
And if you go down to the last paragraph
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10:00:04
before your name, Andy?
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A.
Uh-huh.
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Q.
Just read that.
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A.
I'm sorry, which paragraph does that start
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with?
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Q.
Where it says "tricky no"?
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A.
It says:
"Why would we want to do anything
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to support this behavior?
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as much as possible from Sun."
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6
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Q.
that.
All right.
We want to distance ourselves
And then you have a P.S. after
10:00:27
Could you read that.
A.
"We negotiated nine months with Sun and
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decided to walk away after they threatened to sue us over
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patent violations."
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Q.
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Okay.
Now, the reference to negotiating nine
10:00:38
months with Sun, what does that refer to?
A.
I imagine that refers to the time frame that
we were discussing, between 2005 and 2006.
Q.
And then when you say you decided to walk
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away after they threatened to sue us over patent
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violations, what were you referring to there?
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A.
10:00:57
Well, during our discussions -- I mean, first
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of all, this -- let me put this in context.
This was a
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message that I had -- that I had sent in reaction to two
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strings that my engineers had sent me in this email
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thread, and what they're -- what they were bringing to my
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attention was some public statements Sun was making and
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what the -- what the community, the Java community's
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reaction was to Sun's TCK licensing announcement.
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don't recall exactly what the announcement was, but this
10:01:15
And I
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thread started out with a public community rumor, I would
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say.
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Q.
Okay.
So I got that background, let me go
back now to the question.
A.
And my response was, to my engineers, was
10:01:58
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basically to -- as a manager, to provide some guidance to
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them on basically getting them to move on and understand
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that we were no longer -- there was no longer really an
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opportunity to partner with Sun.
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In my discussions with Sun, I don't believe
10:02:15
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Sun ever threatened to sue us over patent violations.
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think I was choosing those words to help my engineering
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team move along and, you know, continue their development
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effort on other technologies.
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I
During this -- the discussions, by the way, I
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mean, in normal business discussions, I think there's --
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I think there's a line where when you're in a partnership
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discussion you don't say, you know, "do this or we're
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going to sue you," but I do think you make statements and
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vague assertations on the consequences or the evolution
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of the partnership in cases the companies agree to
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10:02:35
disagree.
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10:02:55
I did feel during the Sun discussions that
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there was a threat that Sun would pursue legal action
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if -- if -- even if the legal action was frivolous, in
10:03:20
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order to successfully complete the partnership.
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3
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Does that make sense?
Q.
Let me see if I can drill down
on that a little bit.
5
6
I think so.
First of all, you referred to even if the
action was frivolous.
10:03:35
Is that your characterization?
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A.
Yes, completely my characterization.
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Q.
You're not saying that Sun threatened or
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10
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12
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implied that it might assert frivolous claims, in its
words, against Google; correct?
A.
10:03:50
You know, again, I'm really not qualified to
determine what's frivolous or not.
Q.
Sure.
Okay.
So I just want to go back, and
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I just want to make sure I understand.
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here that Sun threatened to sue us or sue Google over
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patent violations, what did you mean?
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A.
When you wrote
10:04:03
It was probably more along the lines of our
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business discussions had concluded.
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the two reasons that I stated to you, the security
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control and the third-party developer ecosystem control.
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As the -- as the discussions concluded, it was implied,
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probably is the best way to say, that Sun would or could,
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I should say, choose a legal solution to bring the
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partnership back together.
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Q.
They concluded for
And what in your understanding was the nature
10:04:17
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machine technology, and that virtual machine technology
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virtually executed machine instructions that were defined
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by Sun.
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I was, you know, as an accelerator interested
5
in Sun open sourcing their virtual machine technology as
6
well, but we never reached a conclusion on whether that
7
was possible or not.
8
9
Q.
12:26:17
What was it about the Sun virtual machine
that would serve as an accelerator?
10
A.
It was implemented.
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shipping product.
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Q.
It was actually a
12:26:33
Now, going back to the question about patent
13
rights, did you have any discussion with Sun about
14
whether there were any patents relating to the Sun
15
virtual machine?
16
A.
12:26:45
You know, I do recall some discussions around
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patents.
One of the ideas of partnering with Sun was to
18
basically -- you know, if Google set out -- you know, if
19
Android set out as a start-up company, then -- to build
20
an open platform, then became part of Google, and the
21
role that Google was to basically continue to build the
22
open platform, there was a notion of a partnership where
23
we could actually license both technology,
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implementation, and patents, where the patents would be
25
used to protect the open platform.
12:27:02
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So I think there was some discussions,
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especially in the 2008 meetings, where Sun would -- would
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basically assign some patents to Google to help protect
4
Android in the open market should somebody come along and
5
try to sue.
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7
Q.
12:27:43
To what extent did that provide value to
Google or would that have provided value to Google?
8
A.
Well, if Google's investing its resources in
9
building an open platform, it makes sense to invest some
10
in protecting the open platform once it comes out so we
11
make sure that, you know, that platform survives.
12
Q.
Okay.
12:28:01
Now, you understood from your
13
discussions with Sun that Sun offered licenses governing
14
the use of Sun copyrights; correct?
15
A.
I viewed the license -- in the conversations
16
with Sun, it was relayed to me that Sun licenses
17
12:28:17
technology and the technology comes for a price.
18
Q.
Okay.
And you didn't unpack whether that
19
technology what's, involved there is copyrights or
20
patents or trademarks or whatever?
21
A.
I just viewed it as a bundle.
12:28:36
And again, I'm
22
not a lawyer so it's hard to dissect that stuff.
It's --
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you know, it's a middle-ware component of a platform, and
24
in my view, for a price, it could accelerate our whole
25
effort.
12:28:49
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Q.
Okay.
Now, let's move past the 2005, 2006
2
time frame.
You'll have to remind me, what was the next
3
period of time where you had discussions with Sun?
4
A.
It was immediately prior to the Oracle
5
acquisition of Sun.
6
date.
7
or early 2009 and -- yeah, that was the time frame.
I don't remember specifically the
12:33:41
My sense is it was either 2008 -- mid to late 2008
8
Q.
Okay.
And who initiated those discussions?
9
A.
The Sun representatives.
10
Q.
Do you remember who from Sun?
11
A.
It was Vineet, Eric, who I believe was their
12:34:00
12
then CTO.
13
changes, and one other person, but basically it was the
14
technology owners of Java and Vineet, who as you know,
15
was the salesperson.
16
17
18
The company had kind of gone through some
Q.
12:34:24
And who from Google participated in those
discussions?
A.
Myself, primarily, and there was one other
19
person probably related to -- that's interesting.
20
imagining, you know, I know the meeting room we sat in,
21
and I know there were four of us -- five of us.
22
else from Google's side.
23
don't know.
24
25
Q.
I'm
12:34:42
Somebody
It was either -- I'm sorry, I
I don't remember.
Okay.
And what was the subject of that
discussion?
12:34:57
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2
3
4
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Q.
Do you recall anybody from Sun putting a
number on that value to them?
A.
Yeah, I'm sure numbers were thrown around in
the meeting.
Q.
I don't remember what it was.
Okay.
So after those -- that series of
6
meetings, however many it was, when was the next time you
7
had any communication with Sun or Oracle, I guess, about
8
12:38:59
Android or anything relating to it?
9
A.
I don't know.
I mean, there were probably
10
some intermediate emails after those kind of intense, you
11
know, handful of discussions.
12
you keep the relationship going.
13
across town from each other kind of thing.
14
other around.
15
12:39:13
Ultimately we passed, but
You know, we lived
You see each
You want to be friendly.
When the Oracle acquisition got announced,
16
I'm sure there was some email exchanges, congratulations,
17
you know, and then -- and then, a time after the
18
acquisition in 2010, we were approached by Oracle to
19
12:39:27
revive discussions around the partnership.
20
Q.
Who at Oracle approached who from Google?
21
A.
It was Ellison reaching out, I believe, to
22
Eric and also Larry, and I forget if Ellison reached out
23
12:39:50
first to Eric and then to Larry.
24
25
Q.
Okay.
straight here.
Let me make sure we have the names
We have Larry Ellison on the Oracle side,
12:40:08
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WWW.google.com when they want to do a search for
2
something.
3
Q.
4
Is that the only metric you have for
measuring the number of Android-enabled devices?
5
A.
That's one.
I think another one is how many
6
people use Gmail, how many people view YouTube videos.
7
So again, these are independent services that are kind of
8
tied together to Google's back end, and Google's back end
9
is the destination.
13:13:30
10
And when a packet lands -- when an
IP packet lands on our, you know, back end, we know it.
11
Q.
And you know that's coming from an Android
13
A.
Generally speaking, yes.
14
Q.
Okay.
13:13:47
12
device?
Now, you mentioned earlier that
15
after -- I think you said you had two meetings at Google
16
with Mr. Kurian; correct?
17
A.
Uh-huh.
18
I'm vague.
19
Q.
20
at Oracle; correct?
21
A.
Correct.
22
Q.
And who attended that meeting?
23
A.
Just myself.
24
Q.
From Google, just you?
25
A.
13:13:58
Two or maybe three, but I believe --
Yes.
Definitely two.
Okay.
I'm not sure three.
Then you said you had another meeting
13:14:13
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Q.
And who attended from Oracle?
2
A.
A whole bunch of people that I don't recall
3
their names.
I think it was pretty much all the product
4
owners and the various business owners at Oracle.
5
Mr. Kurian was there as well, as well as their general
6
counsel.
7
Q.
Okay.
8
A.
Yes.
9
Q.
About how long did that meeting last?
10
A.
It was relatively short, 40 minutes,
13:14:32
11
Oracle general counsel?
13:14:42
45 minutes.
12
Q.
And what was discussed during that meeting?
13
A.
Well, so the -- so the two teams couldn't
14
agree on Oracle's ask, which was, you know, the realm of
15
100 million a year plus, you know, search REV share and
16
things like that.
17
think, a last ditch effort for Oracle to engage with
18
Google in a partnership.
19
13:15:00
And so this meeting was basically, I
And Oracle surprised me by having their --
20
their general counsel there.
21
that they had prepared a lawsuit against us for copyright
22
and patent infringement and that they were willing to
23
issue the lawsuit against us unless we could come to
24
terms on the financial amount.
25
Q.
And the statement was made
How did you respond?
13:15:27
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