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 34 Highly Confidential - Attorneys' Eyes Only 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN FRANCISCO DIVISION 4 5 _______________________ 6 ORACLE AMERICA, INC., 7 Plaintiff, 8 vs. 9 GOOGLE, INC., 10 11 ) ) ) No. CV 10-03561 WHA Defendant. ) ) _______________________) 12 13 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY 14 15 Videotaped Federal Rule 30(b)(6) Deposition 16 of PETER B. KESSLER, Ph.D., taken at 755 Page 17 Mill Road, Palo Alto, California, commencing 18 at 9:39 a.m., Thursday, August 4, 2011, before 19 Leslie Rockwood, RPR, CSR No. 3462. 20 21 22 23 24 25 PAGES 1 - 208 Page 1 Veritext National Deposition & Litigation Services 866 299-5127 Highly Confidential - Attorneys' Eyes Only 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 deposition, actually. Besides reviewing source code and meeting with your counsel yesterday, did you do anything else to prepare for your deposition today was the question. MS. AGRAWAL: You mean specifically with respect to the topics? MR. KAMBER: Yes. Okay. Fair enough. Q. With respect to the 30(b)(6) topics today, did you spend -- did you do anything else besides meeting with counsel and reviewing source code? A. No. MR. KAMBER: We've been going -- I'm about to go into another section so now might be a good time for a break. If you want to keep going, I'm happy to keep going, but it's been a little over an hour now. MS. AGRAWAL: Let's break. THE VIDEOGRAPHER: This is the end of Disk Number 1, Volume 1. We are off the record at 10:46 a.m. (Recess.) THE VIDEOGRAPHER: This is the beginning of Disk Number 2, Volume 1. We are back on the record at 11:00 a.m. You may proceed. Q. BY MR. KAMBER: Dr. Kessler, with respect to your testimony about reviewing the bytecodes.hpp file, do 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 We understand that -- I understand that bytecodes.hpp has been produced, but it seems that none of these other files that the witness is referring to have been given to us yet today. MS. AGRAWAL: You haven't asked the witness whether they refreshed his recollection. MR. KAMBER: I'm not sure that that is actually the limitation in the order, but we can check that. MS. AGRAWAL: Why don't we discuss it offline. MR. KAMBER: Sure. Q. Okay. Dr. Kessler, is it Oracle's position that the JDK 1.2 practices the asserted claims of the '205 patent? MS. AGRAWAL: Objection. Form. And objection. Privilege, caution the witness. THE WITNESS: So I can't interpret the claims of the '205. I can read source code to you. Q. BY MR. KAMBER: Okay. So you -- Oracle doesn't take any position as to whether or not JDK 1.2 practices the asserted claims of the '205 patent; correct? MS. AGRAWAL: Same objections. THE WITNESS: So I believe that Oracle's Page 50 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 you remember that before? A. Yes. Q. You said that you also spent some time looking at other source code files specifically to prepare for your deposition here today; correct? A. Yes. Q. And what source code files was that? MS. AGRAWAL: Objection to the extent that calls for attorney-client communications. I instruct the witness not to reveal protected conversations. And, Matthias, can we have an agreement so that I can shorthand my objections so they don't take forever? Can I just say, "Objection. Privileged. Caution the witness," and we understand that that's the shorthand for my objection? MR. KAMBER: That would be fine with me. MS. AGRAWAL: Great. THE WITNESS: Okay. I think my testimony was that I did look at other source code, but that I don't remember specific files, and, in fact, I don't remember specific files. MR. KAMBER: Okay. We would ask that you produce those files in accordance with the Judge's order about producing files that the document -- that the witnesses review in preparation for the deposition. Page 52 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 position is that the JDK does practice the '205. Q. BY MR. KAMBER: What is the basis for that belief? MS. AGRAWAL: Same objection. THE WITNESS: Communication with the attorneys. Q. BY MR. KAMBER: Do you have any other basis for the belief that JDK 1.2 practices the asserted claims of the '205 patent? MS. AGRAWAL: Same objections. THE WITNESS: My understanding of the '205 comes from my communications with the attorneys. And using that information, I can look in the source code. Q. BY MR. KAMBER: I'm not sure I understand that answer, Dr. Kessler. My question is: Do you have any other basis besides conversations with counsel to believe that JDK 1.2 practices the asserted claims of the '205 patent? MS. AGRAWAL: Same objections. THE WITNESS: In addition to information that I've obtained from the attorneys, I have my reading of the code. Q. BY MR. KAMBER: Which code? MS. AGRAWAL: Same objections. THE WITNESS: In the case of the '205, I Page 51 Page 53 14 (Pages 50 - 53) Veritext National Deposition & Litigation Services 866 299-5127 Highly Confidential - Attorneys' Eyes Only 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 potential implementation of the asserted claims of the '205 patent; is that correct? MS. AGRAWAL: Objection. THE WITNESS: I don't -- I don't recall whether it was me or John. Q. BY MR. KAMBER: Is it Oracle's position that the fast_invokevfinal method implements all of the remaining asserted claims of the '205 patent? MS. AGRAWAL: Objection. Privilege. Objection. Form, caution the witness. THE WITNESS: All of the remaining -- I don't understand the question around all the remaining claims. Q. BY MR. KAMBER: Okay. Fair enough. I'll represent to you that Oracle's counsel at this point asserts Claims 1, 2, 3 and 8 of the '205 patent. Is it Oracle's position that the fast_invokevfinal method implements each one of those claims? MS. AGRAWAL: Same objections. THE WITNESS: So I'm an engineer, not a lawyer. I can't interpret the claims of the patent. Q. BY MR. KAMBER: I understand. I'm not asking for your personal testimony here. I'm asking for Oracle's position. MS. AGRAWAL: Same objection. 1 So is it Oracle's position that all of Claims 2 1 -- well, let me rephrase. 3 Does Oracle take a position as to whether the 4 fast_invokevfinal method implements Claim 1? 5 MS. AGRAWAL: Same objections. I'll also 6 object to the extent it calls for expert testimony. 7 THE WITNESS: So I can't answer that 8 question without revealing what Oracle's attorneys 9 interpret Claim 1 to be. 10 Q. BY MR. KAMBER: Okay. But I'm not asking you 11 to reveal anything. I'm just asking you to tell me 12 Oracle's position so that our client can understand it. 13 Is it Oracle's position that the 14 fast_invokevfinal method implements Claim 1 of the '205 15 patent? 16 MS. AGRAWAL: Same objections. Objection to 17 the extent it calls for a legal conclusion, expert 18 testimony. 19 THE WITNESS: And, again, I do not know how 20 to answer your question without revealing attorney-client 21 privileged information. 22 Q. BY MR. KAMBER: Is it Oracle's position that 23 the only person who can answer that question is an expert 24 witness? 25 MS. AGRAWAL: Same objection. Page 58 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 THE WITNESS: So without reviewing the patent, which I can't do without consulting with my attorneys, I don't know how to answer the question. Q. BY MR. KAMBER: So it's Oracle's position that it doesn't know whether all of Claims 1, 2, 3 and 8 implement the -- excuse me. So it's Oracle's position that fast invoke -- let me start over. Is it Oracle's position that the fast_invokevfinal method -- I'm struggling to get this one out, so bear -A. Take your time. Q. -- bear with me, Dr. Kessler. Does Oracle take no position as to whether all of Claims 1, 2, 3 and 8 are practiced by the fast_invokevfinal method? MS. AGRAWAL: Objection. Privilege, caution the witness. THE WITNESS: I can't answer that question without interpreting the claims of the patent. Q. BY MR. KAMBER: Would it help to look at the claims themselves? A. No, because I am not an attorney. Q. Okay. I understand that you would have to do an interpretation, but, again, I'm asking for Oracle's position here today, not your interpretation. Page 60 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 Mr. Kamber, can we just take a quick break? MR. KAMBER: Sure. THE VIDEOGRAPHER: We're off the record at 11:15 a.m. (Discussion off the record.) THE VIDEOGRAPHER: We are back on record at 11:23 a.m. You may proceed. Q. BY MR. KAMBER: Dr. Kessler, have you had an opportunity to confer with your counsel? A. Yes. Q. Let me go back to some questions from before. Is it Oracle's position that the fast_invokevfinal method implements Claim 1 of the '205 patent? MS. AGRAWAL: Mr. Kamber, if you have the interrogatory response, that will help to refresh -that will probably -- I'm just trying to help you help Dr. Kessler refresh his recollection. He's not here to testify as an expert or as an attorney, so if you want to just move this along. MR. KAMBER: Sure. Let me just ask a question. Q. Dr. Kessler, are you unable to answer my question unless and until you see Oracle's rog response? MS. AGRAWAL: Objection. Form. Page 59 Page 61 16 (Pages 58 - 61) Veritext National Deposition & Litigation Services 866 299-5127 Highly Confidential - Attorneys' Eyes Only 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 of these several places that you found them? A. Class names have to be resolved, method names have to be resolved, field names have to be resolved. And there may be others. Q. Is class name resolution a -- in Java, a use of the invention allegedly set forth in the asserted claims of the '104 patent? MS. AGRAWAL: Objection. Form. THE WITNESS: My understanding of the '104 is that it refers to the -- not the resolution of the symbolic reference, but the saving of the numeric reference to avoid the re-resolution of a symbolic reference. Q. BY MR. KAMBER: Let me try to rephrase it, then. Is it Oracle's position that the saving of resolved -- let me stop for a second. I'm trying to figure out how to refer to it. Is it resolved reference? How would you characterize it? MS. AGRAWAL: Objection. Form. THE WITNESS: You could -- so the resolved reference is the thing -- so a resolved reference is the result of calling resolve -- calling a resolution method, and a numeric reference is a particular encoding of that result. 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 MS. AGRAWAL: Objection. Calls for a legal conclusion, calls for expert testimony, and actually, I do think that's beyond the scope because you're asking him to interpret the '104 patent. And Topic 11 is asking for a conception reduction to practice and actual use, and you're asking questions in the abstract, and you're asking for Dr. Kessler's interpretation of the '104 patent. MR. KAMBER: Dr. Kessler testified that one place he found this was in the resolution of class names in Java. I'm asking him that -- about that actual use. MS. AGRAWAL: Okay. Q. BY MR. KAMBER: So that's exactly what I'm trying to get at is: What is it in class names that actually uses the invention alleged set forth in the asserted claims of the '104 patent? MS. AGRAWAL: Objection. Form. THE WITNESS: Class names arrive as symbolic references, and in order to be used, have to be reduced to numeric -- not -- they don't have to be. One way to use them is to reduce them to numeric references, and then one can save the numeric references to avoid the resolution on subsequent use of that class name. Q. BY MR. KAMBER: Would it be fair to say that one reason to do that is because resolution requires some Page 186 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 MS. AGRAWAL: And just for the record -- we talked about this so many times -- you're not asking Dr. Kessler to draw legal conclusions or give expert testimony based on the '104 patent; correct? MR. KAMBER: No, I'm just asking questions in line with Deposition Topic Number 11 about Oracle's position regarding the evidence of actual use of the inventions allegedly encompassed by the asserted claims of the '205 -- or of the '104 patent. Excuse me. MS. AGRAWAL: I'm just going to assert a general objection of calling for a legal conclusion and asking for expert testimony. MR. KAMBER: Again, I dispute that and would note that that objection was not registered with respect to Deposition Topic Number 11 in the response to the deposition notice, unlike with Deposition Topic Number 10. MS. AGRAWAL: It's not the topic that I'm objecting to; it's your questions. Q. BY MR. KAMBER: So Dr. Kessler, let me try this again: Is the -- is it Oracle's position that the resolution of symbolic references to numeric references and subsequent saving of the numeric reference in the case of class names practices the inventions allegedly set forth in the asserted claims of the '104 patent? Page 187 Page 188 1 degree of work that is sought to be avoided by saving the 2 numeric reference for future use? 3 MS. AGRAWAL: Objection. Form. 4 THE WITNESS: Yeah, are you suggesting that 5 that's why it's done? 6 Q. BY MR. KAMBER: I'm asking if that's one 7 benefit. 8 MS. AGRAWAL: Same objection. 9 THE WITNESS: Okay. So restate the question. 10 Q. BY MR. KAMBER: Sure. Is -- is the fact that 11 you can avoid resolution later on -- re-resolution one of 12 the benefits of using the already resolved numeric 13 reference? 14 MS. AGRAWAL: Objection. Form. 15 THE WITNESS: That's my understanding of one 16 of the benefits of the '104 patent. 17 Q. BY MR. KAMBER: Do you understand -- well, 18 what's your understanding as to any other benefits? 19 MS. AGRAWAL: Objection. Form. And object 20 to the extent it calls for expert testimony or a legal 21 conclusion. 22 THE WITNESS: Yeah, I'm not going to 23 speculate on all of the reasons that the '104 patent 24 exists. 25 Q. BY MR. KAMBER: Okay. You mentioned method Page 189 48 (Pages 186 - 189) Veritext National Deposition & Litigation Services 866 299-5127 Highly Confidential - Attorneys' Eyes Only 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 that's not the complete list and that I don't know what changes between class files for Java SE and the other instrumentalities, the functionality -- my understanding is that the functionality is the same, even if the file names or the method names are different. Q. BY MR. KAMBER: And you also just said that my list of class names, method names, and field names is not a complete list; correct? A. Yes, I did say that. Q. Okay. Can you please give me a complete list. MS. AGRAWAL: Objection. Form. THE WITNESS: I'm almost sure that there is at least one more place where symbolic references are resolved. I cannot think of it right now. Q. BY MR. KAMBER: But your recollection here today is there is only one more potential place where there is symbolic resolution to numeric resolution with a numeric resolution, numeric reference is then saved; is that correct? MS. AGRAWAL: Objection. Form. THE WITNESS: No, my testimony is that there's at least one. Q. BY MR. KAMBER: But you can't identify it for me today? 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 11 ___________________________________ 12 SIGNATURE OF THE WITNESS 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 202 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 A. No. MR. KAMBER: I don't have any further questions of the witness on these topics. I would note that we do want to keep the deposition open on Topic 11 as to -- subject to our discussion regarding the '520 and '720 patents, and we can still discuss that going forward. But other than that, I have no further questions for you today. MS. AGRAWAL: Thank you. THE VIDEOGRAPHER: This is the end of today's deposition. We are off the record at 5:10 p.m. The master tapes will be held by Veritext. (TIME NOTED: 5:10 p.m.) ---oOo--- Page 204 1 STATE OF CALIFORNIA ) ss: 2 COUNTY OF MARIN ) 3 4 I, LESLIE ROCKWOOD, CSR No. 3462, do hereby 5 certify: 6 That the foregoing deposition testimony was 7 taken before me at the time and place therein set forth 8 and at which time the witness was administered the oath; 9 That testimony of the witness and all 10 objections made by counsel at the time of the examination 11 were recorded stenographically by me, and were thereafter 12 transcribed under my direction and supervision, and that 13 the foregoing pages contain a full, true and accurate 14 record of all proceedings and testimony to the best of my 15 skill and ability. 16 I further certify that I am neither counsel 17 for any party to said action, nor am I related to any 18 party to said action, nor am I in any way interested in 19 the outcome thereof. 20 IN WITNESS WHEREOF, I have subscribed my name 21 this 5th day of August, 2011. 22 23 24 25 Page 203 __________________________________ LESLIE ROCKWOOD, RPR, CSR NO. 3462 Page 205 52 (Pages 202 - 205) Veritext National Deposition & Litigation Services 866 299-5127

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