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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?