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 5
Highly Confidential - Attorneys' Eyes Only
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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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-------------------------
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ORACLE AMERICA, INC.,
)
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Plaintiff,
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vs.
) No. CV 10-03561 WHA
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GOOGLE, INC.,
) VOLUME I
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Defendant.
)
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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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Videotaped Deposition of NOEL POORE,
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taken at 42 Chauncy Street, Boston,
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Massachusetts, commencing at 2:05 p.m.,
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Wednesday, September 7, 2011, before
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Jill Shepherd, RPR, MA-CSR No. 148608,
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NH-CSR No. 128, CA-CSR No. 13275, CLR,
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and Notary Public.
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PAGES 1 - 95
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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.
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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.
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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
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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.
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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
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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
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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.
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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?
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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
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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.
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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
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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.
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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,
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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
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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
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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.
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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
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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
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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
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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?
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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
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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
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