Google Inc. et al v. Egger et al

Filing 126

Declaration of Thomas B. Walsh, IV in Support of 124 Memorandum in Opposition to Motion to Dismiss filed byGoogle Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B - FILED UNDER SEAL, # 3 Exhibit C, # 4 Exhibit D - FILED UNDER SEAL, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K - FILED UNDER SEAL, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O - FILED UNDER SEAL, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R - FILED UNDER SEAL, # 19 Exhibit S - FILED UNDER SEAL, # 20 Exhibit T- FILED UNDER SEAL, # 21 Exhibit U - FILED UNDER SEAL, # 22 Exhibit V - FILED UNDER SEAL, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB - FILED UNDER SEAL, # 29 Exhibit CC - FILED UNDER SEAL, # 30 Exhibit DD - FILED UNDER SEAL, # 31 Exhibit EE - FILED UNDER SEAL, # 32 Exhibit FF - FILED UNDER SEAL, # 33 Exhibit GG, # 34 Exhibit HH - FILED UNDER SEAL, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK - FILED UNDER SEAL, # 38 Exhibit LL - FILED UNDER SEAL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP - FILED UNDER SEAL)(Related document(s) 124 ) (Walsh, Thomas) (Filed on 7/24/2009)

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Google Inc. et al v. Egger et al Doc. 126 Case5:08-cv-03172-RMW Document126 vegaki09 1 Juanita R. Brooks (SBN 75934, brooks@fr.com) Jason W. Wolff (SBN 215819, wolff@fr.com) 2 FISH & RICHARDSON P.C. 12390 El Camino Real 3 San Diego, CA 92130 Telephone: (858) 678-5070 4 Facsimile: (858) 678-5099 Filed07/24/09 Page1 of 7 5 Jerry T. Yen (SBN 247988, yen@fr.com) FISH & RICHARDSON P.C. 6 500 Arguello Street, Suite 500 Redwood City, CA 94063 7 Telephone: (650) 839-5070 Facsimile: (650) 839-5071 8 Thomas B. Walsh, IV (Admitted pro hac vice, walsh@fr.com) 9 FISH & RICHARDSON P.C. 5000 Bank One Center,1717 Main Street 10 Dallas, TX 75201 Telephone: (214)747-5070 11 Facsimile: (214) 747-2091 12 Attorneys for GOOGLE INC. 13 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. CV08-03172-RMW FIRST DECLARATION OF THOMAS B. WALSH, IV IN SUPPORT OF PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, TRANSFER, OR STAY UNDER THE FIRST-TO-FILE RULE, UNDER RULE 12(B)(2) FOR LACK OF PERSONAL JURISDICTION, AND UNDER RULE 12(B)(1) FOR LACK OF SUBJECT MATTER JURISDICTION CERTAIN EXHIBITS FILED UNDER SEAL Hearing Date: August 21, 2009 Hearing Time: 9:00 am Courtroom: 6 (4th Floor) Judge: Hon. Ronald M. Whyte 16 GOOGLE INC., AOL LLC, YAHOO! INC., IAC SEARCH & MEDIA, INC., and 17 LYCOS, INC. 18 19 v. 20 L. DANIEL EGGER, SOFTWARE RIGHTS ARCHIVE, LLC, and 21 SITE TECHNOLOGIES, INC. 22 23 24 25 26 27 28 . Defendants Plaintiffs, 1ST DECL. OF THOMAS B. WALSH, IV TO PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.'S OPP'N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Dockets.Justia.com Case5:08-cv-03172-RMW Document126 vegaki09 1 2 1. 2. Filed07/24/09 Page2 of 7 I, Thomas B. Walsh, IV declare as follows: I am an attorney admitted to practice in the State of Texas and I am a principal in 3 the law firm of Fish & Richardson P.C. I represent Plaintiffs Google Inc. and AOL LLC in this 4 action and have been admitted pro hac vice in this action. I submit this declaration in support of 5 Google Inc., AOL LLC, IAC Search & Media, Inc., and Lycos, Inc.' s Opposition to Defendants' 6 Motion to Dismiss, Transfer, or Stay Under the First-to-File Rule, Under Rule 12(b)(2) for Lack 7 of Personal Jurisdiction, and Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction. Except 8 as otherwise stated, I have personal firsthand knowledge of the matters set forth in this 9 Declaration, and if called as a witness I would testify competently to those matters. 10 3. Attached to this declaration as Exhibit A is a true and correct copy of a Site 11 Technologies, Inc. Stock Exchange Agreement ("Stock Exchange Agreement") as obtained from 12 Global Securities Information, Inc. 13 4. Attached to this declaration as Exhibit B are true and correct excerpts from the 14 September 30, 2008 deposition of Jeffery Franklin Ait ("Ait Depo") [FILED UNDER SEAL] , 15 with highlighting added. 16 5. Attached to this declaration as Exhibit C is a true and correct copy of Site 17 Technologies, Inc.' s Bill of Sale, Assignment, and License Agreement, dated September 15, 1998 18 ("1998 Bill of Sale"), as obtained from the United States Patent and Trademark Office. 19 6. Attached to this declaration as Exhibit D are true and correct excerpts from the 20 October 2, 2008 deposition of Daniel Egger ("Egger Depo I") with errata [FILED UNDER 21 SEAL], with highlighting added. 22 7. Attached to this declaration as Exhibit E is a true and correct copy of the Debtor' s 23 First Amended Plan of Reorganization dated April 25, 2000 from Site Technologies, Inc.' s 24 bankruptcy proceeding in the Northern District of California (Case No. 99-50736-JRG-11). 25 8. Attached to this declaration as Exhibit F is a true and correct copy of an Order 26 Confirming Debtor' s First Amended Plan of Reorganization dated June 15, 2000 from Site 27 Technologies, Inc.' s bankruptcy proceeding in the Northern District of California (Case No. 9928 1 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Case5:08-cv-03172-RMW Document126 Filed07/24/09 Page3 of 7 1 50736-JRG-11). 2 9. Attached to this declaration as Exhibit G is a true and correct copy of a Certificate 3 of Ownership Merging Site/Technologies/Inc. into Site Technologies, Inc. dated December 29, 4 2000 from the California Secretary of State. 5 10. Attached to this declaration as Exhibit H is a true and correct copy of a Certificate 6 of Ownership Merging Site/Technologies/Inc. into Site Technologies, Inc., filed with the 7 Delaware Secretary of State on December 29, 2000. 8 11. Attached to this declaration as Exhibit I is a true and correct copy of the Final 9 Decree dated January 6, 2004 from Site Technologies, Inc.' s bankruptcy proceeding in the 10 Northern District of California (Case No. 99-50736-JRG-11). 11 12. Attached to this declaration as Exhibit J is a true and correct copy of the 12 Certificate of Incorporation of Software Rights Archive, Inc., filed with the Delaware Secretary of 13 State and dated January 7, 2004, with highlighting of the file stamp date. 14 13. Attached to this declaration as Exhibit K is a true and correct copy of a document 15 bates labeled EGG_0000066-68, as produced by Software Rights Archive LLC [FILED UNDER 16 SEAL]. 17 14. Attached to this declaration as Exhibit L is a true and correct copy of a document 18 titled " Assignment of Patent" and dated February 11, 2005 with its recordation coversheet, as 19 obtained from the United States Patent and Trademark Office. 20 15. Attached to this declaration as Exhibit M is a true and correct copy of a document 21 titled " Assignment of Patent" and dated February 22, 2005 with its recordation coversheet, as 22 obtained from the United States Patent and Trademark Office. 23 16. Attached to this declaration as Exhibit N is a true and correct copy of Plaintiff 24 Software Rights Archive, LLC' s Rule 7.1 Disclosure dated November 21, 2007 in the Texas 25 Action, Civil Action No. 2:07-cv-511 (CE) (E.D. Tex.) (hereinafter " Texas Action" ). 26 27 28 2 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Case5:08-cv-03172-RMW Document126 Filed07/24/09 Page4 of 7 1 17. Attached to this declaration as Exhibit O is a true and correct copy of a document 2 bates labeled EGG_ND_0000164-172 and 0000175-176, as produced by Software Rights Archive 3 LLC. [FILED UNDER SEAL]. 4 18. Attached to this declaration as Exhibit P is a true and correct copy of the Status 5 Conference Statement by Software Rights Archive, LLC dated December 16, 2008 in Site 6 Technologies, Inc.' s bankruptcy proceeding in the Northern District of California (Case No. 997 50736-RLE). 8 19. Attached to this declaration as Exhibit Q are true and correct excerpts from a 9 December 17, 2008 hearing transcript from Site Technologies, Inc.' s bankruptcy proceeding in the 10 Northern District of California (Case No. 99-50736-RLE) (" Bankr. Tr." ). 11 20. Attached to this declaration as Exhibit R is a true and correct copy of a document 12 bates labeled STI_0011611-613, as produced by Software Rights Archive, LLC [FILED UNDER 13 SEAL]. 14 21. Attached to this declaration as Exhibit S is a true and correct copy of a document 15 bates labeled EGG_0000668-670, as produced by Software Rights Archive, LLC [FILED UNDER 16 SEAL]. 17 22. Attached to this declaration as Exhibit T are true and correct copies of the 18 Declarations of Christopher W. Day, Donald Frisbie, Adam L. Barea, Arnabnil Bhatttacharjee and 19 Kevin Baillie, filed on February 20, 2009 in the Texas Action [FILED UNDER SEAL]. 20 23. Attached to this declaration as Exhibit U are true and correct excerpts from the 21 Disclosures of Plaintiff Yahoo! Pursuant to FRCP 26(a)(1) and Plaintiff Google Inc.' s Initial 22 Disclosures Pursuant to Federal Rule of Civil Procedure 26(A)(1) dated December 29, 2008 23 [FILED UNDER SEAL]. 24 24. Attached to this declaration as Exhibit V are true and correct excerpts from the 25 January 27, 2009 deposition of Daniel Egger. (" Egger Depo II" ) [FILED UNDER SEAL], with 26 highlighting added. 27 28 25. Attached to this declaration as Exhibit W are true and correct excerpts from 3 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Case5:08-cv-03172-RMW Document126 Filed07/24/09 Page5 of 7 1 Plaintiff Software Rights Archive, LLC' s Disclosure of Asserted Claims and Infringement 2 Contentions served on October 31, 2008 in the Texas Action. 3 26. Attached to this declaration as Exhibit X are true and correct excerpts from Notice 4 of Allowability from US Serial No. 08/649,304 and an Office Action dated July 19, 2000 from 5 U.S. Serial No. 09/071,120, with highlighting added. 6 27. Attached to this declaration as Exhibit Y is a true and correct excerpt from 7 Software Rights Archive, LLC' s Objections and Response to Defendants' First Set of Common 8 Interrogatories (Nos. 1-9) served on January 5, 2009 in the Texas Action. 9 28. Attached to this declaration as Exhibit Z is a true and correct copy of a web page 10 entitled " Trusted, Objective Source for Software Code History" at srarchive.com as obtained from 11 the Internet archive, webarchive.org. 12 29. Attached to this declaration as Exhibit AA is a true and correct copy of a Whois 13 web page available at http://whois.domaintools.com/srarchive.com regarding srarchive.com, with 14 highlighting added and a true and correct copy of the top portion of the web page available at 15 http://www.lunarpages.com/contact/. 16 30. Attached to this declaration as Exhibit BB is a true and correct copy of a document 17 bates labeled SRA_0000364, as produced by Software Rights Archive LLC, with highlighting 18 added [FILED UNDER SEAL]. 19 31. Attached to this declaration as Exhibit CC is a true and correct copy of an email 20 bates labeled EGG_ND_0000011, with highlighting added and redaction of user id and password 21 information [FILED UNDER SEAL]. 22 32. Attached to this declaration as Exhibit DD are true and correct excerpts from the 23 May 22, 2009 deposition of Russell Barron and errata [FILED UNDER SEAL], with highlighting 24 added. 25 33. Attached to this declaration as Exhibit EE is a true and correct copy of a document 26 bates labeled STI_0011614, as produced by Software Rights Archive LLC [FILED UNDER 27 SEAL]. 28 4 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Case5:08-cv-03172-RMW Document126 Filed07/24/09 Page6 of 7 1 34. Attached to this declaration as Exhibit FF are true and correct copies of 1998 and 2 1999 Site/Technologies/Inc. U.S. Federal Corporation Income Tax Returns, as produced by 3 counsel for Software Rights Archive LLC [FILED UNDER SEAL]. 4 35. Attached to this declaration as Exhibit GG is a true and correct copy of Exhibit 8 5 from Dkt. No. 76 in the Texas Action, which is an excerpt of a document titled " Noncompetition 6 Agreement" with highlighting from the exhibit. 7 36. Attached to this declaration as Exhibit HH is a true and correct of a document 8 bates numbered SRA_0000180-182, as produced by Software Rights Archive LLC [FILED 9 UNDER SEAL]. 10 37. Attached to this declaration as demonstrative Exhibit II is a table regarding the 11 chain of title of the asserted patents. 12 38. Attached to this declaration is Exhibit JJ is a true and correct copy of a Statement 13 of Information for Site Technologies, Inc. dated August 1, 2008 as filed with the California 14 Secretary of State. 15 39. Attached to this declaration as Exhibit KK is a true and correct copy of a 16 document, bates labeled ACP001 004, with highlighting added. [FILED UNDER SEAL]. 17 40. Attached to this declaration as Exhibit LL are true and correct excerpts from the 18 October 1, 2008 deposition of J. Christopher Lynch [FILED UNDER SEAL], with highlighting 19 added. 20 41. Attached to this declaration as Exhibit MM are true and correct excerpts of various 21 IP seminar brochures printed from the internet for seminars which occurred in California, with 22 highlighting added. 23 42. Attached to this declaration as Exhibit NN are true and correct copies of Altitude 24 Capital Partners webpages, as accessed at www.altitudecp.com/board.html and 25 www.altitudecp.com/portfolio.html, with highlighting added. 26 43. Attached to this declaration as Exhibit OO is a true and correct copy of an Altitude 27 Capital Partners press release entitled " Altitude Capital Partners Names Former Apple Computer 28 5 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW Case5:08-cv-03172-RMW Document126 Filed07/24/09 Page7 of 7 1 & National Semiconductor Chief IP Counsel Irving Rappaport to its Advisory Board." 2 44. Attached to this declaration as Exhibit PP is a true and correct copy of a 3 Declaration of William Marino dated July 23, 2009 [FILED UNDER SEAL]. 4 I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th 5 day of July, 2009, at Dallas, Texas. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1st DECL. OF THOMAS B. WALSH, IV to PLAINTIFFS GOOGLE INC., AOL LLC, IAC SEARCH & MEDIA, INC., AND LYCOS, INC.' S OPP' N TO DEFS' MOT TO DISMISS, TRANSFER OR STAY CASE NO. C-08-03172-RMW /s/ Thomas B. Walsh, IV Thomas B. Walsh, IV

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