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 5 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. ) No. CV 10-03561 WHA 9 GOOGLE, INC., ) VOLUME I 10 11 Defendant. ) ------------------------- 12 13 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY 14 15 Videotaped Deposition of NOEL POORE, 16 taken at 42 Chauncy Street, Boston, 17 Massachusetts, commencing at 2:05 p.m., 18 Wednesday, September 7, 2011, before 19 Jill Shepherd, RPR, MA-CSR No. 148608, 20 NH-CSR No. 128, CA-CSR No. 13275, CLR, 21 and Notary Public. 22 23 24 25 PAGES 1 - 95 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 Q. When did you begin working on the underlying data in benchmarking for this report? MS. AGRAWAL: Objection. Form. A. Earlier this year after I received the request to assist the legal team. Q. Do you recall when you started working on this? MS. AGRAWAL: Same objection. A. Well, I said earlier that, to the best of my recollection, I received the request in the March or maybe April time frame, so that would have been when I began the technical work that ended up with this report. Q. Did you draft the report? MS. AGRAWAL: Objection. Form. A. Yes, I did. Q. Did you have any help? MS. AGRAWAL: Objection. Form. A. Yes. The exact format of the report -- you know, I did receive some -MS. AGRAWAL: Sorry. I caution the witness not to reveal any attorney-client privileged communications. To the extent that you can answer the question without doing so, you can. 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 discussed my report with Mr. Vandette. Q. Did you discuss your report with Erez Landau? MS. AGRAWAL: Objection. Form. A. No. Q. Did you discuss your report with Seeon Birger? MS. AGRAWAL: Objection. Form. A. No. Q. Anyone else you discussed your report with other than Professor Mitchell and Mr. Kessler? MS. AGRAWAL: Objection. Form. A. I don't recall discussing it with anyone else, no. Q. Did you discuss it with some attorneys; is that correct? MS. AGRAWAL: And I caution -- I instruct the witness -- caution the witness not to reveal attorney-client privileged communications; but to the extent you can answer the question with a yes or no, you can answer. A. Yes, I have. I have discussed the report with attorneys, yes. Page 22 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: Okay. A. So I did receive some help with the exact format of the report and some of the -Q. How long did it take you to draft the report? MS. AGRAWAL: Objection. Form. A. It was written over a period of several weeks, as far as I recall. It wasn't something that I was working on, you know, 100 percent of the time. Q. Did you speak with Professor Mitchell regarding your report? MS. AGRAWAL: Objection. Form. A. Yes. I have been involved with a number of phone conversations with Professor Mitchell. Q. Did you speak with Peter Kessler regarding the report? MS. AGRAWAL: Objection. Form. A. Yes. Mr. Kessler was involved in some of those conversations too, yes. Q. Did you speak with Mr. Vandette? MS. AGRAWAL: Objection. Form. A. I don't recall specifically whether Mr. Vandette was involved in any of those conversations. I have not directly Page 24 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. Did you discuss the report with any other Oracle engineers? A. No. Q. Did any Oracle engineers assist you in your performance benchmarking or any of the work that you did to prepare this report? MS. AGRAWAL: Objection. Form. A. No. Q. So you did all the work in this report by yourself, correct? A. That's correct. Q. Do you have any opinions regarding this case that are not included in your report? MS. AGRAWAL: Objection. Form. A. Well, this report is on a very -- you know, specifically relating to two of the seven patents that are in question. You know, I have been specifically asked to write the report on those and not to form or express any opinions on anything else about this case. Q. So you have no opinions regarding any of the other asserted patents or issues in this case; is that correct? MS. AGRAWAL: Objection. Form. Page 23 Page 25 7 (Pages 22 - 25) 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 A. Well, not -- you know, I'm not a patent attorney, but it does seem likely to me from an engineering opinion that some of the other patents at least are indeed infringed. Q. You've reviewed the patents? MS. AGRAWAL: Objection. Form. A. I have not reviewed the patents. I haven't sat down and read the patent documents. I know -Q. Does your report include all of your opinions with respect to the two patents that you were asked to address? A. Yes. MS. AGRAWAL: Objection. Form. Q. Is Oracle paying you anything in addition to your regular compensation for your work in this case? MS. AGRAWAL: Objection. Form. A. No. Q. Approximately how many hours have you worked on this case? MS. AGRAWAL: Objection. Form. A. So this is not something that I have been counting. Q. Yeah. But, generally, do you have any idea 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. Q. Do you have any financial interest in the outcome of this case? MS. AGRAWAL: Objection. Form. A. No. Q. What is your annual compensation at Oracle? MS. AGRAWAL: Objection. Form. A. Approximately $192,000. Q. Do you get a bonus in addition to that salary? MS. AGRAWAL: Objection. Form. A. Yes. There is a bonus at the discretion of my manager. Q. Do you have Oracle stock or options? A. I do have some options that were issued when Sun purchased Savaje. Q. How many? A. I believe that there are a few, you know, a few hundred options outstanding. Q. You have no Oracle stock currently? A. I do not own any Oracle stock currently, that's correct. Q. And you have a few hundred options? A. I believe that's the right number, yes. Q. Have you been informed that you would Page 26 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 how many days it would have added up to? MS. AGRAWAL: Objection. Form. A. I think the total must -- the total amount of time I have spent on this since earlier in the year must be, you know, at least four -- you know, four to six weeks, something like that, if you were to take all the time and turn it into a full-time equivalent. Q. Is your involvement in this case part of your current job responsibilities? MS. AGRAWAL: Objection. Form. A. Yes. Q. Your management knows that you are working on this case, correct? MS. AGRAWAL: Objection. Form. A. Yes. Q. Have you in the past performed any work for Oracle or Sun in connection with any other case? MS. AGRAWAL: Objection. Form. A. No. Q. Are you currently working for Oracle in connection with any other case? MS. AGRAWAL: Objection. Form. Page 28 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 receive anything in return for your work in this case such as a bonus or a promotion? A. No. Q. Looking at your report on page 19, is that your signature? A. Yes. Q. And did you sign this document on August 6, 2011? A. Yes. Q. Is there anything in this report that you believe should be corrected or changed? A. There is. In reviewing the materials, I did notice one error in one of the attachments. The spreadsheet, which contains the results of the '702, experiment three, the column headers for the number of classes and the number of quickened methods are switched. Q. Did that affect the results you obtained from the data in that spreadsheet? A. No. Q. So that doesn't change the data reflected in this report; is that correct? A. That's correct. Q. Are you currently working on any supplemental report or analysis? Page 27 Page 29 8 (Pages 26 - 29) 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 MS. AGRAWAL: Objection. Form. I caution the witness not to reveal any attorney-client privileged communications. A. No. I have not been asked to produce any supplemental reports or updates to this report or anything. Q. Are you conducting any additional analysis of Dalvick Virtual Machine or Android? MS. AGRAWAL: Same objection. Same caution. A. I'm not conducting any new technical work in this area at the moment, no. Q. In preparing your report, you looked at Android source code; is that correct? A. That's correct. Q. Was that Android source code public, what you received from the publicly available Web site? A. Yes. As I outlined, for example, in paragraph 13 of my report, then the source code that was used for these experiments was pulled from the publicly-available Android source code repository. Q. Did you review any source code relating to 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 those? MS. AGRAWAL: Objection. Form. A. There was one page that I looked at that summarized the Dalvick instruction set and -- but I don't recall exactly where that page was. Q. Did you watch any videos relating to Android on the Internet? A. Not specifically in relation to this work. I mean, I had watched prior to this work than I had watched, you know, videos relating to Android, for example, Google IO presentations. Q. Prior to this work, did you look at any other technical documents relating to Android? A. Yes. There is Java doc for the Android, you know, the Android APIs on the Internet, and I certainly consulted that during prior work and while I was writing applications. Q. Did you look at any documents that were produced by Google to Oracle in this case, and those documents would likely have numbers on the bottom of the page? A. No. Page 30 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 any particular Android-based device? MS. AGRAWAL: Objection. Form. A. No. Q. Did you look at any technical documents publicly available in an Android Web site? A. Yes. So, for example, in Appendix C, which is on page 32 of my report, then there is the URL of a document, public document, there on the Android Web site, which specifies the format of the Dalvick executable file. Q. You looked at that document? A. Yes. Q. Did you look at any other technical documents? A. I can't think of any other specific technical documents that I consulted, no. Q. Did you look at any Web pages on the Android Web site? A. Well, I did consult the Web pages on how to download the Android source, how to set up a build environment, how to install the repo tool that is used to set up the source code repository and so on. Q. Did you look at any Web pages besides for Page 32 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. The source code that you mentioned before relating to Android, did you personally download that? A. Yes. (Exhibit 475 marked.) Q. Exhibit 475 is U.S. patent number 5,966,702. I will refer to it as the "'702 patent," and this is one of the patents asserted in this case. Have you seen this patent before? A. Yes. Q. Have you reviewed the patent claims? MS. AGRAWAL: Objection. Form. A. I have looked through the patent, but at no time have I been asked to express an opinion on exactly which claims are infringed or anything like that. Q. Do you know which claims are asserted in this case? MS. AGRAWAL: Objection. Form. A. No. Q. Was any of the work that you did and described in your report particular to any individual claim in the '702 patent? MS. AGRAWAL: Objection. Form. Page 31 Page 33 9 (Pages 30 - 33) 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 A. So the guidance that I was given in conversation with Dr. Mitchell was to focus my work on the shared constant table that is used in the Dalvick executable file format. Q. So Professor Mitchell told you what to look at with respect to the accused functionality; is that correct? A. Yes. Q. But you didn't actually review the asserted claims in this case? MS. AGRAWAL: Objection. Form. Q. Is that correct? A. That's correct, yes. Q. Are you familiar with the concept of a multiclass file? MS. AGRAWAL: Objection. Form. A. I am familiar with the concept of packing multiple classes into a single file structure, yes. Q. Are you familiar with the concept of a multiclass file as it is described in the '702 patent? MS. AGRAWAL: Objection. Form. A. I guess as an engineer. I'm reluctant to answer that question with a definite yes, 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 single file in order to benefit from the fact that they are within a single file. Q. Have multiclass files been implemented in Sun or Oracle products? MS. AGRAWAL: Objection. Form, outside the scope. A. I don't actually know whether a multiclass file in this sense that we've just discussed, or that I just discussed, has actually been implemented in any Sun or Oracle product that has shipped. Q. You don't know if the multiclass file described in this patent has ever shipped in an Oracle product? MS. AGRAWAL: Objection. Form. A. Well, there is a form of multiclass file that is implemented in the CVM product, so CVM has the ability to romize, R-O-M-I-Z-E -- to romize a defined collection of classes. And the -- so those classes are then -- the loaded form of those classes is then stored in a single file. So I guess you could argue that that is a multiclass file. Q. Do you mean that the romizer can create a Page 34 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 because I'm not necessarily familiar enough with the detail of this patent to -- you know, it seems like an ambiguous question. Q. Do you understand the -- let me rephrase. Do you understand that a jar file will have many different class files in it? MS. AGRAWAL: Objection. Form. A. I understand that a jar file does contain many different class files, but that the structure of the jar file makes no attempt to combine those different class files in any way. A jar file is specifically -- I mean, it is a structure that is specifically designed to package multiple files of any kind, not specifically class files, into a single container file. Q. So a multiclass file, as you understand it, combines classes in some form or another? MS. AGRAWAL: Objection. Form. A. I would understand the term "multiclass file" to mean that you are doing more than simply, you know, bundling multiple independent classes into a single file, but that you are somehow operating on the classes which are contained within the Page 36 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 multiclass file? MS. AGRAWAL: Objection. Form, outside the scope. Sorry, Mr. Franz. I don't want to get in this fight with you again. I'm going to ask you to stick to the report. The fact that he's not here as a fact witness or to get into topics that are not within his report. Q. Can you answer the question? MS. AGRAWAL: Same objection. A. So I'm not part of the CVM team, and, therefore, I wouldn't qualify myself as an expert in CVM. But my understanding is that, yes, it would be reasonable to understand the romized class file as a multiclass file. Q. Do you know of any multiclass files in JDK? MS. AGRAWAL: Objection. Form, outside the scope. Same caution. A. No, I do not. Q. Is it your understanding that multiclass files have a shared constant pool? MS. AGRAWAL: Objection. Form, outside the scope. Page 35 Page 37 10 (Pages 34 - 37) 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 Q. Have you tried comparing the dex file to its dexdump output? MS. AGRAWAL: Objection. Form. A. No. I don't believe I have done anything that would fall under that heading, no. MR. FRANCIS: Okay. Why don't we take a five-minute break. And we'll try to wrap it up. THE VIDEOGRAPHER: The time is 4:17. We are now off the record. (Short recess.) THE VIDEOGRAPHER: The time is 4:28. We are now back on the record. (Exhibit 476 marked.) Q. I bet you figured this was coming. Exhibit 476 is U.S. patent number 6,061,520. I will refer to it as the '520 patent, and this is asserted by Oracle in the case. Have you seen this patent before? A. Yes, I have seen it. Q. Have you reviewed it? A. No. As with the other -- as with the '702 patent, I have seen it, I have scanned through it, but I haven't seen a detailed 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 Java byte codes that initialize an array and saving the initialized array value in order -- and using that instead of executing the byte codes that perform the initialization. Q. Do you know if this technique was implemented in any Oracle products? MS. AGRAWAL: Objection. Form, outside the scope. A. I don't know that, no. Q. You don't know if any Oracle Java products have this static array initialization -MS. AGRAWAL: Same objection. Q. -- procedure? MS. AGRAWAL: Same objections. A. I don't. I haven't been asked, you know -I was never asked to answer that question. Q. Page 13, paragraph 62, you state "To study the effect on dex file size for different primitive data types, I created a number of simple Java programs, all of which are similar to the following," and then you provide some code; is that correct? A. Yes. Q. Is this what a typical Android application Page 74 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 review of the -- of all of the claims and so on. Q. Do you know which claims are asserted in this case from this patent? A. I do not. Q. Have you reviewed Oracle's infringement contentions relating to this patent? A. Yes. I was provided with the -- with that document for the '520 patent, and I scanned through it. So the process for this patent was basically the same as for the '702. I consulted with John -- I forgot his name now. Q. Professor Mitchell? A. Professor Mitchell, thank you. So I consulted with Professor Mitchell, and he gave me direction. And the outcome of that conversation was about how to proceed in terms of testing and technical work for this patent report. Q. Do you believe you have a general sense of what this patent is about? MS. AGRAWAL: Objection. Form. A. Yeah. I believe, generally speaking, this patent is about replacing the -- simulating Page 76 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 looks like? MS. AGRAWAL: Objection. Form. A. This is code that is specifically structured to enable -- to enable the measurement of the effect on the size of the dex file of different data types, array sizes, and whether or not the array initialization is being optimized. Q. How often are static arrays used in an Android application? MS. AGRAWAL: Objection. Form. A. So I have not -- I have not performed a survey of an Android applications in general, but, you know, in my experience, initialized arrays are, you know, relatively common in applications, or in Java source code in general. I wouldn't say that they are a huge, you know, component of the source code -- of most source code, but they are used quite frequently. Q. So if you had an application, what percentage of that application would you expect to have static arrays? Would that be one percent of the application? Ten percent of the application? Page 75 Page 77 20 (Pages 74 - 77) Veritext National Deposition & Litigation Services 866 299-5127 Highly Confidential - Attorneys' Eyes Only 1 CERTIFICATE 2 3 COMMONWEALTH OF MASSACHUSETTS 4 MIDDLESEX, SS. 5 I, Jill Shepherd, Notary Public, in 6 and for the Commonwealth of Massachusetts, 7 do hereby certify that: NOEL POORE, the witness whose 8 deposition taken on September 7, 2011 is hereinbefore set forth, was satisfactorily 9 identified by means of driver's license, and 10 was duly sworn by me, and that the foregoing transcript is a true and accurate record of 11 the testimony given by such witness and such 12 testimony is a true and accurate 13 transcription of my stenotype notes to the 14 best of my knowledge, skill, and ability. I further certify that I am not 15 related to any of the parties in this matter 16 by blood or marriage and that I am in no way 17 interested in the outcome of this matter. 18 IN WITNESS WHEREOF, I have hereunto 19 set my hand and notarial seal this 8th day 20 of September, 2011. 21 22 ___________________________ 23 Jill Shepherd, RPR 24 Notary Public 25 My Commission expires: April 18, 2014 Page 94 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 INDEX WEDNESDAY, SEPTEMBER 7, 2011 WITNESS PAGE NOEL POORE Examination By Mr. Francis DEPOSITION EXHIBITS NUMBER DESCRIPTION 5 PAGE Exhibit 472 Defendant's Notice of Rule 4 30(B)(1) Deposition of Noel Poore Exhibit 473 Summary and Report of 9 Noel Poore Exhibit 474 Resume 9 Exhibit 475 U.S. Patent 5,966,702 33 Exhibit 476 U.S. Patent 6,061,520 74 Page 95 25 (Pages 94 - 95) Veritext National Deposition & Litigation Services 866 299-5127

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