Textscape, LLC v. Google, Inc.

Filing 51

First MOTION for Summary Judgment of Invalidity filed by Google, Inc.. Motion Hearing set for 7/30/2010 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Proposed Order)(Ezgar, Geoffrey) (Filed on 6/16/2010)

GOOGLE INC.'S MOTION FOR SUMMARY JUDGMENT OF INVALIDITY OF CLAIM 1 OF U.S. PATENT NO. 5,713,740

Exhibit D

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS TEXTSCAPE LLC., a New Jersey ) Corporation, ) ) Plaintiff, ) ) No.: CV-09-4550 BZ vs. ) ) ADOBE SYSTEMS INCORPORATED, a ) Delaware Corporation, ) ) Defendant. ) _______________________________) ADOBE SYSTEMS INCORPORATED, a ) Delaware Corporation, ) ) Counterclaimant, ) ) vs. ) ) TEXTSCAPE LLC, a New Jersey ) Corporation, ) ) ) Counterdefendant. ) _______________________________) VIDEOTAPED DEPOSITION OF R. DAVID MIDDLEBROOK Palo Alto, California Wednesday, April 7, 2010

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APPEARANCES FOR PLAINTIFF AND COUNTERDEFENDANTS: GOLDSTEIN, FAUCETT & PREBEG, LLP BY: CORBY R. VOWELL, ATTORNEY AT LAW 1177 West Loop South, Suite 400 Houston, Texas 77027 Tel: [phone] E-mail: [e-mail]

FOR DEFENDANT AND COUNTERCLAIMANTS: TOWNSEND and TOWNSEND and CREW BY: THEODORE T. HERHOLD, ATTORNEY AT LAW ERIC M. HUTCHINS, ATTORNEY AT LAW C. DANIEL TREVINO, CASE MANAGER (Joins proceedings.) 379 Lytton Avenue Palo Alto, California 94301 Tel: [phone] E-mail: [e-mail] [e-mail]

REPORTED BY: LINDA VACCAREZZA, RPR, CLR, CRP, CSR NO. 10201

Videographer: Ramon Pereza

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS TEXTSCAPE LLC., a New Jersey ) Corporation, ) ) Plaintiff, ) ) No.: CV-09-4550 BZ vs. ) ) ADOBE SYSTEMS INCORPORATED, a ) Delaware Corporation, ) ) Defendant. ) _______________________________) ADOBE SYSTEMS INCORPORATED, a ) Delaware Corporation, ) ) Counterclaimant, ) ) vs. ) ) TEXTSCAPE LLC, a New Jersey ) Corporation, ) ) ) Counterdefendant. ) _______________________________) Videotaped Deposition of R. DAVID MIDDLEBROOK taken on behalf of the Defendants at Townsend and Townsend and Crew, 379 Lytton Avenue, Palo Alto, California, beginning at 9:31 a.m. and ending at 6:27 p.m., on Wednesday, April 7, 2010, before Linda Vaccarezza, RPR, CLR, CRP, CSR No. 10201.

INDEX WITNESS: R. DAVID MIDDLEBROOK EXAMINATION PAGE BY MR. HERHOLD 8 EXHIBIT INDEX 1 Adobe Systems Incorporated's Amended First Notice of Deposition of Textscape LLC 17

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Join Stipulation Regarding Summary 18 Judgement Schedule and Order File History for Patent No. 5,556,282, 114 Bates Stamped TEXT0000106 through 0000307 United States Patent No. 5,556,282, 115 Bates stamped TEXT0000111 through 0000139 File History for Patent No. 5,713,740, 115 Bates Stamped TEXT0000308 through 0000410 United States Patent No. 5,713,740, 115 Bates Stamped TEXT0000313 through 0000307 File History for Patent No. 5,930,809, 116 Bates Stamped TEXT0000001 through 0000105 United States Patent No. 5,930,809, 116 Bates stamped TEXT0000006 through 0000018 Plaintiff Textscape, LLC,'s Objections 172 and Responses to Defendant Adboe Systems Incorporated's First Set of Interrogatories Verification of R. David Middleman dated March 17, 2010 172

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EXHIBITS (CONT'D) 11 Verification of R. David Middleman dated March 17, 2010

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PALO ALTO, CALIFORNIA; WEDNESDAY, APRIL 7, 2010 9:31 A.M. THE VIDEOGRAPHER: Good morning. Here begins the deposition of Mr. R. David Middlebrook in the matter of Textscape, LLC versus Adobe Systems Incorporated and related counter-claim. This case is filed in the United States district court for the Northern District of California and the case number is CV-09-4550 BZ. Today's date is April 7th, 2010, and the time is 9:32 a.m. This deposition is taking place at Townsend and Townsend and Crew, 379 Lytton Avenue, Palo Alto, California, 94301, and is being taken on behalf of the defendants and counterclaimant. The court reporter is Linda Vaccarezza, appearing on behalf of U.S. Legal Support. The videographer is Ramon Pereza, also of U.S. Legal Support. Counsel, please identify yourselves for the record and state whom you represent. MR. HERHOLD: Ted Herhold from Townsend and Townsend, representing Defendant and Counter-claimant Adobe. MR. VOWELL: Corby Vowell with the law firm of Goldstein, Faucett and Prebeg, representing

12 Visuospatial Text Processing and the 204 Figure 8 Reading Method, Bates stamped TEXT0003346 though 0003609 13 Handwritten Notes, Bates Stamped TEXT0001203 through 0001309 14 Group Document, Bates stamped TEXT0001151 through 0001202 213 241

15 Group Document, Document entitled The 248 Learning Impairments of Children with Attention Deficits, Bates stamped TEXT0001099 through 0001107 16 Group Document Bates stamped TEXT0001677 252 through 0001753 17 Handwritten Notes, Bates Stamped TEXT0000478 through 0000494 18 PC Outline Files, Bates stamped TEXT00001310 through 0001339 272 276

19 Copy of Compositions Notebook, Bates 281 Stamped TEXT0001372 through 0001482 20 Portions from Green Notebook, Bates 286 stamped TEXT0000411 through 0000420 21 Trace Sheets, Bates stamped TEXT0001998 through 0002021 22 Document, Bates Stamped TEXT0000421 through 0000435 23 Copy of Newspaper Article, Bates Stamped TEXT0002034 through 0002037 24 Document, Bates Stamped TEXT0002126 through 0002131 25 Photocopy of Handwritten Notebook, Bates stamped TEXT0001609 through 0001676 293 303 310 311 314

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EXHIBITS (CONT'D) 26 United States Trademark Application, Bates stamped ADTXT0002014 through 0002020 27 Photocopy of Computer Screenshots

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the Plaintiffs Textscape, LLC. THE VIDEOGRAPHER: The court reporter may now swear in the witness. R. DAVID MIDDLEBROOK, having been duly sworn, by the Certified Shorthand Reporter, was examined and testified as follows: EXAMINATION BY MR. HERHOLD: Q Can you state your full name and address for the record? A Yes. Robert David Middlebrook. 290 Glenn Avenue, in Lawrence, New Jersey. Q Mr. Middlebrook, my name is Ted Herhold and I represent Adobe. A Yes. Q And we are here to take the deposition of Textscape here today. And we had noticed the deposition of the company, of the entity, the corporate entity, and that entity has designated you as the witness here today. A Yes. Q And you understand that you're testifying on behalf of Textscape, not in your individual capacity?

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of factors. You would have had different perspectives to bring in on that novel. But you would understand the story in a way that you could all share. I didn't. My friends would talk about books that we had both read that -they would say you didn't read the same book. And I said that's fine, I enjoyed reading the book. But it's a problem when you have to share that information, when you have to share comprehension for business or make a living. It's a real problem. When you're enjoying a book it doesn't matter. What you get out of it you get out of it. But this was a problem, economically. Q So when did you start thinking about the reading comprehension problem and thinking of ideas for software tools to solve it? A When I was diagnosed in, I think '88, that was a real jolt. It got me thinking. Because I took the LSAT's. And I was in the 92nd percentile. And I took the -- and I went back and got my college grades and I realized I was in the 11th percentile of the same group. And I figured there was no way I was going to get into law school. And a family friend said why don't
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Q When do you think that was? A That was in -- probably -- I don't know. In the first few weeks of law school in 1990. And I mapped that case. And at that moment, just all the bells started going off and I realized that this was a process, at that point. And I realized that this was maybe my way out. I hadn't dealt with the fact that it's entirely impractical to photocopy your entire law book. But to me it felt like this was an important recognition. and I realized it fit my learning style because I move around a lot and I'm very active and I'm very visual. And that's what this was. Q You used the term invention? A Uh-huh. Q What do you mean by invention? Or how did you mean it in that context? A I had the idea, the recognition that a scroll could help me -- relating to a document in a different way, a very different way than you can relate to in a book. That was an important insight for me. I guess you would say that was an insight. The beginning of a recognition. But it -- it came together for me at Thanksgiving of
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you get tested for learning disabilities? From what you're describing, it's pretty major. There's probably something there. And I went and got tested. It just wakes you up. It gets you thinking a lot when they tell you, "You have these memory deficits. You have a lot of auditory processing problems." And you realize that -- you think back to what it was like in college, what it was like in high school and things start to come together. And so that started me thinking about it. But the real -the invention, which is probably mostly where your question goes to -- and thinking about this specific thing -- one of the first cases that you read -- that I read in law school was Madison versus Marbury. And you could read about it and kind of Cliff Notes it, so to speak, but I couldn't follow the argument itself. I understood how the court came out. But I had read about it before I started reading. I learned how to kind of prepare myself for these things. But I was not able to actually follow the argument in the course book. And out of frustration I copied the -- photocopied the pages and strung them together to make a scroll.

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1990. That was when -- after I was well-fed, when I was sitting around relaxing and -- at a friend's -- at someone's house. And I opened up an atlas of world history. Where everything was on two facing pages. There was no page breaks. But there was a ton of information there. And I realized how much I enjoyed maps. And I just connected to what I was doing. And I instantly thought, you know, there's no way I can really do this on paper for the rest of my life. But I could do it on a computer, because a computer could do all the things that I don't do well. It could cover for my disability, so to speak. It could do a lot of the grunt work. And so that's what I wanted to do. That's when I really -- I would say it's fair to say that was the invention. Q When you say that was the invention -I'm still a little unclear. What -A 19 -- Thanksgiving of 1990, when I realized -Q How would you describe what the invention was in Thanksgiving in 1990? A A map on the screen that would enable you to navigate and understand the document.

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That would enable you to get a sense of the whole. And always have the whole view in place, so that whatever was happening on the screen in front of you, in terms of the text, you didn't have page breaks to contend with, because you still had that whole view. In my mind, it was on the bottom of the screen because I was thinking of it like a left-to-right scroll. I was thinking of it like the scroll that I had. Q What was the first time that you were actually able to implement this on a computer? A Oh, on a computer? Ballpark 1996. I can -- I don't remember exactly when I started this but that's something I could find for you. Because I do have a record of buying Macromedia Director. It's a program, software program, that's used for creating like -- I think it's the precursor of Flash. I'm pretty sure it was before Flash. And up until that time I had been hand-drawing screens and doing word counts and stuff, but doing them manually, because I didn't have the computer skills to do them any other way. And I just hit a certain point where I just knew that this was -- I had done enough so that I felt like I needed to convert it to computer and
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can kind of string together to make things happen on the screen. And I built kind of a slideshow on this screen, frame-by-frame. And then I used Lingo to interact with that and I created a Director demo, which I believe you have a copy of. And if not, we can get it to you. Q When do you think the Director demo was? A I believe I finished it in '96. It took me about a year to learn how to program in Macromedia Director to the point where I could produce a demo that did what I wanted. Q And you think that was throughout the course of 1996? A I probably started it in '95 and ended it sometime in early '96. That was my guess but -- the date that I put it -- the copyright on was 1996. And it would be in the first half of '96, for sure, that I would have finished it. And maybe even January of '96. I'm not positive about that. Q And you're talking about the demo when you say "it"? A Yes. Yes. The Macromedia Director demo. The Director demo. Q And where is that demo physically now?
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I had no idea how to do that. So I asked around. People said, "How would you do that?" And some people said PowerPoint, for example. And I knew that that wasn't going to do it. There wasn't enough there. And someone suggested Macromedia Director. And I said, you know, I'm going to have to really work hard to understand that because it requires programming and you're not a programmer. But -- and I said, "Well, can it do these things?" And they said yeah. And I said okay, that's what I want to do. So I went out and bought Macromedia Director and it comes with a stack of manuals, like, you know, a little bit smaller than this. But it came with a pretty good stack of manuals. I guess maybe six, seven, eight manuals. Not all of them had to be read and understood to, you know, work. And it wasn't the kind of thing that you had to read through it to understand it. It's a manual. So you could start and play with the program and learn it by doing it. And there's a software scripting language called Lingo. And as I understand it, a scripting language is something that allows you to shortcut -- it gives you capabilities that you

Is it on a CD? Is it on a floppy? A It's on a CD. It's on my hard drive. And it does run -- Macromedia Director, you can package up the entire thing to run as a standalone, kind of -- standalone application, so to speak. And then it was supposed to be running on anybody's machine or whatever. I know that it ran well up to Windows 98. At some point, Windows 98 -- it busted on me. Late in my owning of Windows 98. So if you guys have a Windows 98 or 95 or if you have an emulator or something, you should be able to plug that in and play it. Q Do you know -- did you give an electronic version of the demo to your lawyers? A Yes. Q And do you know was it produced to us? A I don't know. Q Don't know? A Don't know. Okay. I can't look to you. I'm sorry. Q So just -- the timing on this then -you think you bought the Macromedia Director software sometime in 1995? A Yes. Yeah, that's a good -Q Do you know when in '95, roughly?

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