Oracle America, Inc. v. Google Inc.

Filing 191

RESPONSE (re #171 MOTION To Exclude Expert Opinions and Testimony (Daubert) ) filed byOracle America, Inc.. (Attachments: #1 Affidavit, #2 Exhibit)(Rutherford, Alanna) (Filed on 6/28/2011)

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MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[e-mail]
MARC DAVID PETERS (Bar No. 211725)
[e-mail]
DANIEL P. MUINO (Bar No. 209624)
[e-mail]
755 Page Mill Road, Palo Alto, CA 94304-1018
Telephone: [phone] / Facsimile: [phone]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[e-mail]
333 Main Street, Armonk, NY 10504
Telephone: [phone] / Facsimile: [phone]
STEVEN C. HOLTZMAN (Bar No. 144177)
[e-mail]
1999 Harrison St., Suite 900, Oakland, CA 94612
Telephone: [phone] / Facsimile: [phone]
ALANNA RUTHERFORD (Admitted Pro Hac Vice)
575 Lexington Avenue, 7th Floor, New York, NY 10022
Telephone: [phone] / Facsimile: [phone] (fax)
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[e-mail]
DEBORAH K. MILLER (Bar No. 95527)
[e-mail]
MATTHEW M. SARBORARIA (Bar No. 211600)
[e-mail]
500 Oracle Parkway, Redwood City, CA 94065
Telephone: [phone] / Facsimile: [phone]
Attorneys for Plaintiff
ORACLE AMERICA, INC.

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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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ORACLE AMERICA, INC.

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Plaintiff,

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v.

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Case No. CV 10-03561 WHA
DECLARATION OF FRED NORTON IN
SUPPORT OF ORACLE AMERICA,
INC.’S OPPOSITION TO GOOGLE’S
DAUBERT MOTION

GOOGLE, INC.

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Defendant.

Dept.: Courtroom 9, 19th Floor
Judge: Honorable William H. Alsup

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DECLARATION OF FRED NORTON ISO ORACLE’S OPPOSITION TO GOOGLE’S DAUBERT MOTION
CASE NO. CV 10-03561 WHA

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I, FRED NORTON, declare as follows:

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1.

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I am a partner with the law firm of Boies, Schiller & Flexner LLP, attorneys for plaintiff

Oracle America, Inc. in the above captioned matter.
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I make this declaration based on my own personal knowledge. If called as a witness, I

could and would testify competently as to the matters set forth herein.
3.

Attached hereto as Exhibit A is a true and correct copy of the April 21, 2009, article titled

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“In Sun, Oracle Sees a Software Gem,” published in the New York Times and downloaded from

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www.nytimes.com.

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4.

Attached hereto as Exhibit B is a true and correct copy of the July 28, 2010 article titled

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“Eric Schmidt on Google’s Next Tricks” published in the Wall Street Journal and printed from

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www.wsj.com.

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5.

Attached hereto as Exhibit C is a true and correct copy of a January 31, 2006, e-mail and

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attachment from Andy Rubin to Timothy Lindholm, Richard Miner, Chris DiBona, and David Lee.

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The root e-mail, entitled “FYI,” bears Bates stamp GOOGLE-14-00042243. The attachment, a

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presentation titled “Open Handset Alliance,” bears Bates stamp GOOGLE-14-00042244–54. Google

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produced these documents and has designated them HIGHLY CONFIDENTIAL – ATTORNEYS

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EYES ONLY. [FILED UNDER SEAL.]

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6.

Attached hereto as Exhibit D is a true and correct copy of a October 11, 2005 email from

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Andy Rubin to Larry Page, titled “RE: Sun meeting.” and bearing Bates stamp GOOGLE-01-

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00019527–28. Google produced this document and has designated it HIGHLY CONFIDENTIAL –

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ATTORNEYS EYES ONLY. [FILED UNDER SEAL.]

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7.

Attached hereto as Exhibit E is a true and correct copy of the June 21, 2011 article titled

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“25 Percent, 50 Percent ... What’s In A Number?” by Dr. Christine Siegwarth Meyer and Dr. David

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Blackburn of NERA Economic Consulting, published by Law360 and printed from www.law360.com.

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Attached hereto as Exhibit F is a true and correct copy of an article by Elizabeth M. Bailey,

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Gregory K. Leonard, and Mario A. Lopez, titled “Making Sense of ‘Apportionment’ in Patent

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Damages,” published in the Columbia Science & Technology Law Review on June 2, 2011, and

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downloaded from www.nera.com.
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DECLARATION OF FRED NORTON ISO ORACLE’S OPPOSITION TO GOOGLE’S DAUBERT MOTION
CASE NO. CV 10-03561 WHA

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Attached hereto as Exhibit G is a true and correct copy of the Google, Inc. Q3 2010

Earnings Call Transcript, dated October 14, 2010, downloaded from www.morningstar.com.
10. Attached hereto as Exhibit H is a true and correct copy of the August 5, 2010, article titled

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“Google’s Android Is Making Boatloads Of Money, Says Schmidt – Way More Than It Costs To

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Make,” published in Business Insider and downloaded from www.businessinsider.com.

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11. Attached hereto as Exhibit I is a true and correct copy of the Google, Inc. Q2 2010
Earnings Call Transcript, dated July 15, 2010, and downloaded from www.morningstar.com.
12. Attached hereto as Exhibit J is a true and correct copy of page 63 from Economic
Approaches To Intellectual Property: Policy, Litigation, and Management edited by Gregory K.
Leonard and Lauren J. Stiroh, copyright 2005 NERA, Inc.

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13. Attached hereto as Exhibit K is a true and correct copy of page 92 of the deposition

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transcript of Andy Rubin, which Google has designated CONFIDENTIAL. [FILED UNDER SEAL.]

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14. Attached hereto as Exhibit L is a true and correct copy of the Android Timeline
downloaded from http://www.android.com/timeline.html.
15. Attached hereto as Exhibit M is a true and correct copy of a June 6, 2007, e-mail thread

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between Andy Rubin, Steve Horowitz, Jason Parks, and Dan Bornstein, titled “Re: [FWD: MIDP VM

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on Android.]” and bearing Bates stamp GOOGLE-02-00089698–99. Google produced this document

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and has designated it HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY. [FILED UNDER

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SEAL.]

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on June 28, 2011 at Oakland, California.

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By: /s/ Fred Norton_______
Fred Norton

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DECLARATION OF FRED NORTON ISO ORACLE’S OPPOSITION TO GOOGLE’S DAUBERT MOTION
CASE NO. CV 10-03561 WHA

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ATTESTATION OF FILER

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The signatory to this document is Fred Norton. I, Alanna Rutherford, have obtained Mr.

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Norton’s concurrence to file this document on his behalf.

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Dated: June 28, 2011

BOIES, SCHILLER & FLEXNER LLP
By: /s/ Alanna Rutherford
Alanna Rutherford
Attorneys for Plaintiff
ORACLE AMERICA, INC.

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DECLARATION OF FRED NORTON ISO ORACLE’S OPPOSITION TO GOOGLE’S DAUBERT MOTION
CASE NO. CV 10-03561 WHA