Oracle America, Inc. v. Google Inc.

Filing 497

Declaration of DANIEL PURCELL in Support of #496 MOTION in Limine No. 5, #494 MOTION in Limine No. 3, #492 MOTION in Limine No. 1, #493 MOTION in Limine NO. 2, #495 MOTION in Limine No. 4 filed byGoogle 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, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40)(Related document(s) #496 , #494 , #492 , #493 , #495 ) (Kamber, Matthias) (Filed on 10/7/2011)

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EXHIBIT 2 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ________________________ ORACLE AMERICA, INC., Plaintiff, vs. ) ) ) No. CV 10-03561 WHA GOOGLE, INC., Defendant. ) VOLUME I ) ________________________) HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Videotaped Patent Issues Deposition of JOHN C. MITCHELL, Ph.D., taken at 755 Page Mill Road, Palo Alto, California, commencing at 9:43 a.m., Tuesday, September 6, 2011, before Leslie Rockwood, RPR, CSR No. 3462. PAGES 1 - 270 Veritext National Deposition & Litigation Services 866 299-5127 51246513-e8bb-42e8-aa7f-afedae9e0f7a HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. I believe it's important to have adequate and 2 attractive networking connections. Something that's not 3 state-of-the-art would probably impede -- stands to 4 reason something that's not state-of-the-art may impede 5 sales. 11:35:25 6 As an additional factor, I just would point 7 out that as far as I understand -- and it should be easy 8 to find more information about it -- there are various 9 manufacturers of wireless networking hardware, and one 10 may be substitutable for another. 11:35:47 11 Q. So having a 3G air interface or above is also 12 the basis for consumer demand for Android products? 13 A. I think I've explained the importance of that 14 factor. 15 Q. Is it more or less important in the patents 11:36:04 16 patents-in-suit, sir? 17 A. Well, one factor that comes to mind -- and 18 there may be others -- that would occur to me on 19 reflection is that there is -- I believe a -- some degree of substitutability across available networking hardware, 11:36:23 20 21 whereas as I've laid out in this report, based on my 22 study and evaluation to the best that I'm able to do 23 this, it doesn't appear that there is reasonable 24 substitutability of another platform for the platform 25 that draws critically on the patents-in-suit. 11:36:50 Page 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. So in your opinion, the patents-in-suit are 2 more important than having a 3G air interface on an 3 Android device? 4 A. That's not what I said. 5 Q. Well, what is your opinion? Are the 11:37:06 6 patents-in-suit more important or is having a 3G air 7 interface more important? 8 MR. PETERS: Objection. Form. 9 THE WITNESS: I believe that the -- and it 10 would be possible to look into this if this is an 11:37:21 11 absolutely critical issue, and maybe other people know 12 more about it, but it strikes me that there are likely a 13 number of different ways to assemble a phone with 14 adequate networking so that an individual chip to provide networking could be replaced with another, whereas as I 11:37:48 15 16 think I tried to explain, I don't see that as being an 17 aspect of the patents-in-suit in the software technology 18 at issue. 19 MR. PAIGE: Okay. We need to take a break to 20 change the tape, please. 11:38:05 21 THE VIDEOGRAPHER: This is the end of Disk 22 Number 1, Volume 1. We are off the record at 11:38 a.m. 23 (Recess.) 24 THE VIDEOGRAPHER: This is the beginning of Disk Number 2, Volume 1. We are back on the record at 11:59:13 25 Page 80 11:59 a.m. You may proceed. Q. BY MR. PAIGE: Welcome back, Professor Mitchell. A. Thank you. 11:59:22 Q. You say that the Oracle employees Landau, Poore and Vandette conducted certain experiments at your direction; correct? A. I believe that's what it says in that report. Q. Why did you choose to use Oracle employees 11:59:37 rather than an independent consulting firm? A. I believe that I asked if it was possible to get someone to help with some kinds of experiments like that or perhaps someone asked me if I knew students, and I suggested that perhaps someone who works for Oracle 11:59:56 could be one possibility of doing that. Q. Are there no consulting firms capable of doing the type of work that those employees did? A. There may be. I didn't -- I didn't research that. 12:00:16 Q. Did you think it might be better to have someone independent rather than a partisan with a stake in the matter doing these experiments? MR. PETERS: Objection. Form. THE WITNESS: I didn't really even make that 12:00:28 Page 81 judgment. It didn't strike me that this would be an issue where partisanship or opinion would have much bearing on it. What I believe those engineers have done is modify the system in various ways that's easily documented and run the system with certain measurements 12:00:49 afterwards. I think the results there are probably concrete and can be evaluated objectively. Q. BY MR. PAIGE: Did you design the experiments conducted by Landau, Poore and Vandette? A. I believe I did to a certain degree. That 12:01:10 is, the experiments are to the -- as far as I recall, basically comparisons against the Android system or components of it as it exists now versus some modification. As far as I recall, those modifications were modifications that I suggested. 12:01:36 Q. Okay. So you're the one who came up with the actual modifications they implemented; is that right? A. At some degree of detail, I believe so. Q. Okay. You might not have done the actual low level code, but you told them on a high level, "This is 12:01:52 what I'd like you to do in order to carry out this experiment"? A. I don't remember the exact, you know, wording of the discussion, but I believe I handled it the same way I would with a graduate student. I want them to feel 12:02:09 21 (Pages 78 to 81) Veritext National Deposition & Litigation Services 866 299-5127 51246513-e8bb-42e8-aa7f-afedae9e0f7a HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 84 1 invested and convinced that they're doing something 2 that's correct. And I'm happy to listen to someone 3 else's opinion if they think there's a better way to do 4 something, but I believe that the actual experiments that were carried out reflected my suggestions and requests on 12:02:28 5 6 how to do it. 7 Q. Was counsel for Oracle involved at all in 8 designing the experiments? 9 A. I don't believe so. 10 Q. Were they generally on the phone with you 12:02:36 11 when you would talk with these employees on the phone? 12 A. As far as I recall, and there may be some 13 instance that I've forgotten about, I believe all of 14 the phone calls were from this office in an office -from a room in this office building with a speakerphone 12:02:57 15 16 in the middle of the table. On many of those calls 17 Peter Kessler from Oracle was present, and there may have 18 been someone from the law firm as well. 19 Q. Okay. And when you say this office building, you mean Morrison & Foerster's office building here in 12:03:18 20 21 Palo Alto? 22 A. That's correct. The place we sit today, yep. 23 Q. Okay. And Peter Kessler is not a lawyer; 24 correct? 25 A. That's correct. Peter Kessler is an Oracle 12:03:27 Page 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 engineer. Q. Okay. What lawyers did participate in those phone calls, to your recollection? A. I don't know if participation is the right characterization. There may have been lawyers present 12:03:39 just to set up the call or make the phone number -- make the connection. Q. Okay. So they didn't actually speak on any of these calls that you had; is that right? A. Well, I think they made an introduction. I 12:03:59 think that they -- I don't -- I didn't unilaterally arrange or locate these employees. I don't know how they were selected, so I was introduced to them by someone in the firm. But from that point forward, the technical discussion was under my control and direction. 12:04:19 Q. Okay. I'd like to focus in on the report by Noel Poore. He did experiments on your behalf that relate to the '520 and '702 patents; correct? A. I believe that's correct. Q. Okay. And his methodology -12:04:33 A. Uh-huh. Q. -- was to take the DX tool that's found on the Android website -A. Uh-huh. Q. -- then run the DX tool with certain 12:04:40 modifications made to it and, thereby, estimate the difference that the allegedly infringing functionality made; right? A. I believe that's a correct characterization. Could I look at the report just to remind 12:04:57 myself what's in it and how he carried out his experiments? (Exhibit Google 420 was marked for identification.) THE WITNESS: I can read this further, but in 12:06:22 the interest of time, if you'd like to proceed. Q. BY MR. PAIGE: I would like to proceed. For the '702 patent he had three different ways he estimated the effect of not using the allegedly infringing functionality; right? 12:06:33 A. That's the way I remember it, and it's also identified that way on page 304 of his report. He lists methodology experiment one, experiment two, experiment three. Q. Okay. And the first methodology involved 12:06:54 modifying the DX tool in order to prevent it from carrying out the allegedly infringing functionality of moving duplicates; right? A. Yes. That's what the report says in paragraph 15. 12:07:06 Page 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And for the '520 patent, he had one way of disabling the alleged play execution of static arrays; right? A. I can check to make sure if you'd like, but that's also my recollection. 12:07:18 Q. Okay. So that way Mr. Poore could compare what the size of the code looked like when the DX tool allegedly play executed and what the size of the code looked like when the DX tool did not use play execution; right? 12:07:34 A. I believe that's the basic idea. Q. Okay. And if you could turn to page 15 of his report, the code following paragraph 65, that's what Mr. Poore found when it was allegedly play executed; correct? 12:07:56 A. I don't recall the exact context for this paragraph. If you just give me a second, I'll look at the page or so before just to remind myself what this is saying. Okay. I think I'm with you. I think that 12:09:22 what he means by normal execution is the unmodified DX tool and its output. Q. Okay. What you would consider the infringing DX tool; correct? A. That's correct. 12:09:35 22 (Pages 82 to 85) Veritext National Deposition & Litigation Services 866 299-5127 51246513-e8bb-42e8-aa7f-afedae9e0f7a HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 268 Page 266 1 I declare under the penalty of perjury 2 under the laws of the State of California that the 3 foregoing is true and correct. 4 Executed on _____________________, 2011, 5 at _______________________, _____________________. 6 7 8 9 ___________________________________ 10 SIGNATURE OF THE WITNESS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 INDEX 2 3 TUESDAY, SEPTEMBER 6, 2011 4 5 WITNESS EXAMINATION 6 7 JOHN C. MITCHELL, PH.D. Patent Issues Volume 1 8 9 By Mr. Paige 5 10 By Mr. Weingaertner 180 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF CALIFORNIA ) ss: COUNTY OF MARIN ) 1 2 3 I, LESLIE ROCKWOOD, CSR No. 3462, do hereby 4 certify: 5 That the foregoing deposition testimony was 6 taken before me at the time and place therein set forth 7 and at which time the witness was administered the oath; 8 That testimony of the witness and all 9 objections made by counsel at the time of the examination 10 were recorded stenographically by me, and were thereafter 11 transcribed under my direction and supervision, and that 12 the foregoing pages contain a full, true and accurate 13 record of all proceedings and testimony to the best of my 14 skill and ability. 15 I further certify that I am neither counsel 16 for any party to said action, nor am I related to any 17 party to said action, nor am I in any way interested in 18 the outcome thereof. 19 IN WITNESS WHEREOF, I have subscribed my name 20 this 7th day of September, 2011. 21 22 23 __________________________________ 24 LESLIE ROCKWOOD, RPR, CSR NO. 3462 25 Page 269 DEPOSITION EXHIBITS JOHN C. MITCHELL, PH.D., VOLUME 1 NUMBER DESCRIPTION IDENTIFIED Exhibit Google 418 U.S. Patent Number 31 6,061,520, 5/9/00 Exhibit Google 419 Opening Expert Report 42 of John C. Mitchell Regarding Patent Infringement, 8/8/11 Exhibit Google 420 Summary and Report of 84 Noel Poore, 8/6/11 Exhibit Google 421 Appendix A 87 Exhibit Google 422 Expert Report of Terence 128 Parr, Ph.D., Regarding the Non-Infringement of U.S. Patent No. 6.061,520, 8/25/11 Exhibit Google 423 Expert Report of Terence 134 Parr, Ph.D., Regarding the Non-Infringement of U.S. Patent No. 6,061,520 Exhibit Google 424 Reply Expert Report 138 of John C. Mitchell Regarding Patent Infringement, 9/1/11 68 (Pages 266 to 269) Veritext National Deposition & Litigation Services 866 299-5127 51246513-e8bb-42e8-aa7f-afedae9e0f7a

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