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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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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[phone]

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[e-mail]

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[e-mail]

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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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[phone]

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[e-mail]

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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[phone]

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BRUCE W. BABER, ESQ.

[e-mail]

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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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[phone]

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[e-mail]

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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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[phone]

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[e-mail]

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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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[phone]

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[e-mail]

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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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16

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?

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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?

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A.

Yes.

Again, I led those discussions as well.

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Q.

Okay.

So between -- when was the first time

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you had a discussion with either Sun or Oracle regarding

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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

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with Sun.

The subject matter discussed was about a Sun

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product.

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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,

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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

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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?

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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

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relating to patent infringement contributed to the end of

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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

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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.

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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15

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

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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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7

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
7

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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12
13
14

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

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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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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.

25

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

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in Sun open sourcing their virtual machine technology as

6

well, but we never reached a conclusion on whether that

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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.

11

shipping product.

12

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

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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

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open platform, there was a notion of a partnership where

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we could actually license both technology,

24

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.

6
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 --

23

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.

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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.

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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?

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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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