Oracle America, Inc. v. Google Inc.

Filing 509

DECLARATION of RUCHIKA AGRAWAL in Opposition to 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 1-1, # 2 Exhibit 1-2, # 3 Exhibit 1-3, # 4 Exhibit 1-4, # 5 Exhibit 1-5, # 6 Exhibit 1-6, # 7 Exhibit 1-7, # 8 Exhibit 1-8, # 9 Exhibit 1-9, # 10 Exhibit 1-10, # 11 Exhibit 1-11, # 12 Exhibit 1-12, # 13 Exhibit 2-1, # 14 Exhibit 2-2, # 15 Exhibit 2-3, # 16 Exhibit 2-4, # 17 Exhibit 2-5, # 18 Exhibit 2-6, # 19 Exhibit 2-7, # 20 Exhibit 2-8, # 21 Exhibit 2-9, # 22 Exhibit 2-10, # 23 Exhibit 2-11, # 24 Exhibit 2-12, # 25 Exhibit 2-13, # 26 Exhibit 2-14, # 27 Exhibit 2-15, # 28 Exhibit 2-16, # 29 Exhibit 2-17, # 30 Exhibit 3-1, # 31 Exhibit 3-2, # 32 Exhibit 3-3, # 33 Exhibit 3-4, # 34 Exhibit 3-5, # 35 Exhibit 3-6, # 36 Exhibit 3-7, # 37 Exhibit 3-8, # 38 Exhibit 3-9, # 39 Exhibit 3-10, # 40 Exhibit 3-11, # 41 Exhibit 4-1, # 42 Exhibit 4-2, # 43 Exhibit 4-3, # 44 Exhibit 5-1, # 45 Exhibit 5-2, # 46 Exhibit 5-3, # 47 Supplement 5-4)(Related document(s) 496 , 494 , 492 , 493 , 495 ) (Kamber, Matthias) (Filed on 10/7/2011)

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EXHIBIT 3-2 Pages 1 - 53 United States District Court Northern District of California Before The Honorable William Alsup Oracle America, Incorporated, ) ) ) Plaintiff, ) ) vs. ) ) Google, Incorporated, ) ) Defendant. ) ____________________________) No. C10-3651 WHA San Francisco, California Thursday, July 21, 2011 Reporter's Transcript Of Proceedings Appearances: For Plaintiff: By: Morrison & Foerster, LLP 755 Page Mill Road Palo Alto, California 94304 Michael A. Jacobs, Esquire By: Oracle, Incorporated 500 Oracle Parkway, M/S 5op7 Redwood Shores, California 94065 Matthew Sarboraria, Esquire For Plaintiff: (Appearances continued on next page.) Reported By: Sahar Bartlett, RPR, CSR No. 12963 Official Reporter, U.S. District Court For the Northern District of California (Computerized Transcription By Eclipse) Sahar Bartlett, RPR, CSR 12963 Official Court Reporter, U.S. District Court (415) 626-6060 Exhibit 3-2 9 10 1 He overlooks the actual negotiations -- 1 to take a hundred million, but the rejection means nothing, 2 THE COURT: Repeat that last point again about 2 does it? What could it possibly mean? 3 diminimus and -- say that again. Where did that come from? 4 3 MR. VAN NEST: Yeah, that came from Oracle's MR. VAN NEST: Well, it doesn't mean nothing, Your 4 Honor, but your point is well taken; it probably means more 5 representations to the federal regulators when they acquired 5 that that's what Sun offered, that's what Sun was willing to 6 Sun. And there was an investigation into whether this was 6 take. In other words, in the hypothetical negotiation -- 7 anti-competitive or not, that, hey, we have always licensed 7 8 Java, we have never refused to license Java, and we have 8 9 licensed it at diminimus rates. 9 10 And now you have Dr. Cockburn coming in here and THE COURT: And then your side -- tell me why there isn't willful infringement here. MR. VAN NEST: I will. 10 THE COURT: Because you went to get the license, you 11 claiming that in a hypothetical negotiation, Google would have 11 didn't follow through, and now you got a production out there 12 agreed to pay 15 to 20 percent of all of its ad revenue off 12 that is in direct violation of these patents? 13 every handset sold by every carrier, not only using Android, 13 14 but as I understand his report, every other platform as well. 14 15 Now, the actual negotiations, in the actual MR. VAN NEST: None of those. THE COURT: That's a very hard scenario -- I am 15 going to ask you, but I bet you've never seen that scenario before. I have not. 16 negotiations, Sun proposed a royalty all in for three years of 16 17 a hundred million dollars, and that was rejected by Google. 17 18 That was offered, according to Dr. Cockburn and according to 18 19 the evidence -- 19 20 THE COURT: Well, what difference does it make? Why 20 MR. VAN NEST: And you won't see it here, either, Your Honor. THE COURT: Well, then, why isn't there willful infringement? 21 does it matter if Google rejected it? Google may have been 21 MR. VAN NEST: I'll explain why. 22 playing -- they may have just been trying to get it on the 22 THE COURT: All right. Leave enough time. 23 cheap, that doesn't mean it was reasonable to reject it. 23 MR. VAN NEST: The negotiation that took place was 24 MR. VAN NEST: No, Your Honor, Your Honor -- 24 not a pure licensing negotiation. And that's been confirmed by 25 THE COURT: It may mean that the offerer was willing 25 all the participants, including Mr. Schwartz, the CEO of Sun at Sahar Bartlett, RPR, CSR 12963 Official Court Reporter, U.S. District Court (415) 626-6060 Sahar Bartlett, RPR, CSR 12963 Official Court Reporter, U.S. District Court (415) 626-6060 12 11 1 2 the time. 1 Google had two essential options in building MR. VAN NEST: They were negotiating a technology 2 partnership, they were negotiating an agreement. They weren't 3 Android: They could have entered into a technology partnership 3 coming to say, we need a license to your technology, they were 4 with another company and contributed resources and engineers 4 coming to say, we have a product and a project we would like to 5 and built Android together, that's what they were discussing, 5 build, we would like to build it together, you guys have 6 in fact, with Sun. 6 technology that might be useful, we have technology that might 7 be useful, let's partner together and build it. 7 They discussed that same thing, Your Honor, with 8 several other companies that already had virtual machines. So 8 9 they went to several companies, not just Sun, and said, do you 9 And that is what was being proposed in 2005 and 2006 in these discussions we've been talking about. That was not 10 want to build this project with us together? We'll provide 10 acceptable, ultimately, either to Google or to Sun, they 11 engineers and technology, you provide engineers and technology, 11 couldn't reach term on that. So Google went out, they built 12 and we'll build the product together and the advantage of that 12 their own. They used a clean-room environment. They didn't 13 was, it might be a little faster. 13 look at any of these Sun patents we're talking about. 14 The other option they had was to build it on their 14 And the kicker is, Your Honor, discussions 15 own, build it independently and using their own engineers, own 15 continued, there were further discussions; Sun became more and 16 technology and/or licensing technology from other third 16 more and more interested in getting on the Android bandwagon. 17 parties, not -- not just Sun, because many other folks were 17 18 building virtual machines. 18 throw up their hands and say, oh, my gosh, you're infringing, 19 Sun congratulated Google on Android, welcomed Android to the 19 What happened was, they couldn't come to terms with So when Android was announced in 2007, Sun didn't 20 Sun -- by the way, in those negotiations, there wasn't any 20 Java community, put Android on Sun products, asked Google how 21 specific discussion of the patents. Nobody showed them Sun 21 they could help Android. 22 patents. Nobody said, are you infringing these patents. They 22 23 didn't see these Sun patents until Oracle showed them to them a 23 Sun saw, then, as beneficial to them, something that would 24 month before -- 24 spread the news and the word about Java. They didn't come in 25 in 2007 -- 25 THE COURT: Why did they need their license, then? The whole point was that Android was something that Sahar Bartlett, RPR, CSR 12963 Official Court Reporter, U.S. District Court (415) 626-6060 Sahar Bartlett, RPR, CSR 12963 Official Court Reporter, U.S. District Court (415) 626-6060 Exhibit 3-2

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