Leader Technologies Inc. v. Facebook Inc.
Filing
651
DECLARATION re 650 Answering Brief in Opposition,, -- Declaration of Jeffrey T. Norberg in Support of Defendant Facebook, Inc.'s Opposition to Plaintiff's Motion for Judgment as a Matter of Law and for a New Trial by Facebook Inc.(a Delaware corporation). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Caponi, Steven)
EXHIBIT A
309
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,
) Trial Volume 2
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)
v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.
Tuesday, July 20, 2010
9:00 a.m.
BEFORE:
THE HONORABLE LEONARD P. STARK
United States District Court Magistrate
APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING
BY:
BY:
BY:
& SPALDING
PAUL ANDRE, ESQ.
LISA KOBIALKA, ESQ.
JAMES HANNAH, ESQ.
Counsel for Plaintiff
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
(302) 658-6697 FAX (302) 658-8418
467
1
wouldn't know to contradict that, but that
2
sounds about right.
3
Q.
And nothing you said in that
4
deposition was incorrect; right?
5
stand by the testimony you gave during that
6
deposition?
7
A.
In fact, you
I made a few one-word
8
clarifications in that deposition, but the
9
deposition I gave was accurate.
It's just a
10
little bit more clear about those one-word
11
additions.
12
Q.
But those one-word additions
13
didn't change the substance of your deposition
14
or your testimony?
15
A.
I don't believe they changed the
16
substance, they just clarified and narrowed it a
17
little bit.
18
19
MS. KEEFE:
Thank you very much
for your time, Mr. Lamb.
20
THE WITNESS:
21
THE COURT:
22
MS. KOBIALKA:
23
24
You're welcome.
Redirect.
Yes, Your Honor.
REDIRECT EXAMINATION
BY MS. KOBIALKA:
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
469
1
time period are you referring to?
2
A.
I don't know when the term
3
Leader2Leader first came into existence, but
4
essentially from that moment until the day I
5
left.
6
Q.
Which was in 2005?
7
A.
2005.
8
Q.
You mentioned there was a
9
10
11
collection of technologies.
What are you
referring to?
A.
So we had underlying technology
12
concept that was kind of the big thing that
13
solved it, solved the data burden issue, but
14
then we felt like we had to come to specific
15
applications the users were going to need as an
16
entry point to have it be useful.
17
So things like, you know, an email
18
tool, a task tool, a project management tool,
19
calendaring, file upload, you know, put files
20
into a shared space, any kind of file load is
21
kind of cool, that collection, that was -- there
22
were several of those applications that had to
23
be part, we thought had to be part of the
24
technology.
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
470
1
And that changed over time, too,
2
as we came up with other applications that we
3
built into that, we added that to the mental
4
pictures of what Leader2Leader was in the
5
product.
6
Q.
Sometimes when you talked about
7
Leader2Leader during your time at Leader, did
8
that include things like LeaderPhone?
9
A.
Yeah, so LeaderPhone was one of
10
the products I developed, helped develop, led
11
the team in developing at Leader Technologies.
12
13
Q.
Is there any other names that come
to mind that would have --
14
MS. KEEFE:
Objection.
16
THE COURT:
Overruled.
17
THE WITNESS:
15
Beyond the
scope.
Smart Camera was
18
another application that stood out as something
19
that we didn't conceive of when we originally
20
started, but then later on, hey, this would be a
21
cool addition to throw that in.
22
Q.
Turning to the technology that you
23
developed that you understand is the invention
24
of the '761 patent, when you implemented it, did
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
945
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,
) Trial Volume 4
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)
v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.
July 22, 2010
9:00 a.m.
BEFORE:
THE HONORABLE LEONARD P. STARK
United States District Court Magistrate
APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING
BY:
BY:
BY:
& SPALDING
PAUL ANDRE, ESQ.
LISA KOBIALKA, ESQ.
JAMES HANNAH, ESQ.
Counsel for Plaintiff
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
(302) 658-6697 FAX (302) 658-8418
Page 1182
1
Q.
Okay.
Is there anything in the
2
code that is included with the provisional
3
application that implements tracking a change of
4
a user from one board to another board?
5
A.
I would have to have a lot more
6
time to review it to definitively say so.
7
based on a short review, it does not appear that
8
there is code present in these pages that tracks
9
when a user switches from one board to another
10
11
12
13
But
board of interest.
Q.
Or from one web to another web,
the same answer?
A.
There is an assumption in the
14
question that I don't think is accurate.
15
recollection, there isn't an event where a user
16
switches from one web to another.
17
the question falls apart.
18
Q.
To my
So when -- so
Is there anything in the code
19
attached to the provisional that implements
20
associating metadata with user created data?
21
A.
Could you repeat the question?
22
Q.
Sure.
23
24
Is there anything in the code
attached to the provisional application that
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715 North King Street - Wilmington, Delaware 19801
Page 1183
1
implements associating metadata with user
2
created data?
3
A.
In my cursory review of this code,
4
I have run across a couple of instances in which
5
the association of metadata with user created
6
data is called, but the implementation is in the
7
methodology being called, not in the code that's
8
listed here.
9
Q.
So the implementation of
10
associating metadata with user created data is
11
not contained in the code that you've reviewed;
12
correct?
13
14
A.
haven't run across one of those instances yet.
15
16
In a cursory review I've done, I
Q.
Okay.
And did you -- you reviewed
the code all the way up to Page 19?
17
A.
18
looked at all of it.
19
Q.
20
2.
21
Yeah.
You said all the code, so I
I'd like to go back just to Page
document.
22
Trust me, we're almost done with this
Looking at the textual description
23
between Pages 2 and 8, can you identify anything
24
in that text that discloses tracking movement of
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1184
1
2
a user from one board to another board?
A.
I'd have to spend a lot of time
3
reviewing it to know for sure, but I -- I feel
4
confident deducing from what I do know and
5
remember that tracking a user from -- tracking a
6
user changing from one board to another board as
7
a result of that user expressing interest in
8
that other board is not something that we had
9
implemented in the technology that I think this
10
section refers to.
11
12
13
Would -- would you like me to take
the time to review the whole thing to -Q.
That may not be necessary.
So the
14
paragraph that we reviewed earlier and you're
15
free to go back to any of them, did you see
16
anything in those paragraphs that disclosed
17
tracking movement of a user from one board to
18
another board?
19
A.
While reading this in our time
20
together, I don't remember running across
21
anything that was -- that said to me there was
22
an indication of tracking a user switching from
23
one board to another board.
24
Q.
Was the ability to track movement
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1185
1
of a user from one board to another board
2
something that Leader did not implement, to the
3
best of your knowledge?
4
A.
I -- the technologies that I
5
remember building did not track the -- did not
6
track a user switching from -- simply switching
7
from one board to another board.
8
9
Q.
A.
I don't remember anything like
Q.
Okay.
that.
12
13
Is --
did it track movement at all?
10
11
You said simply switching.
Last section, I promise.
If you could go to Page 16.
14
Towards the middle of the page,
15
there is a line of code that begins with
16
action.addActionListener
17
(RemoveWebRelationshipActionListener.GLOBAL).
18
Do you see that?
19
A.
I do.
20
Q.
And then go down maybe about a
21
dozen or so lines, the end of that section
22
begins with -- ends with return form.
23
see that?
24
A.
Do you
Mm-hmm.
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1186
1
Q.
If you look at the code between
2
those two sections and including those two
3
lines, if you could review that and let me know
4
when you're finished.
5
A.
Okay.
6
Q.
Does this code implement a user
7
I'm done.
interface for the user?
8
A.
What a member of the technology
9
team would have said to another member of the
10
technology team at that point in time is that
11
this code does create the object that contains
12
the data necessary for the construction of a
13
form that the user could use to interact with
14
the system.
15
Q.
I understand.
Is there anything
16
in -- in this code, the code we've been talking
17
about on Page 16, that implements tracking
18
movement of a user from one board to another
19
board?
20
A.
No.
21
Q.
Okay.
22
23
24
(Conclusion of videotape
deposition excerpt of Mr. Lamb.)
THE COURT:
Okay.
That's the end
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1200
1
conceptual design, I can point -- I can remember
2
probably in the seven -- or '98, '98 time frame
3
when we were fairly confident we knew how to do
4
it.
5
so '98 feels like the right time.
But there again, we were still iterating,
6
7
Q.
when you had a product implemented; correct?
8
9
At some point there came a time
A.
Well, as was -- software is never
finished, so even version one of a product is
10
not implemented in the sense that it's perfect.
11
But we were confident of a fairly stable design
12
by '98 and then we started coding and -- now
13
these are rough time frames, but I would say we
14
were coding -- well, we haven't stopped coding,
15
so a fairly stable collaborative environment was
16
working by I'm going to say 2001/2002 time
17
frame.
18
Q.
Did you write any of the Java code
19
for this technology?
20
A.
No, I hired people to do that.
21
Q.
Did you write any of the C code
22
for this technology?
23
A.
We had different people do that.
24
Q.
Were you among them?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1201
1
A.
In terms of writing the code?
2
Q.
Yes, sir.
3
A.
I did not write the code.
4
people to write that code.
5
6
I hired
Q.
And the HTML code, did you write
any of that code for the technology?
7
A.
I may have.
I don't recall
8
whether -- I mean, I was more involved with that
9
side of it, but I don't know whether they used
10
any of my code or not, but I was definitely very
11
involved in that part of it.
12
Q.
What technology of Leader, if any,
13
implements what's being claimed in the '761
14
patent?
15
A.
Okay.
Well, I can't answer any of
16
the -- respond to any of the legal issues
17
involved with the '761 patent, but as far as I'm
18
concerned, that is what Leader2Leader is using.
19
Q.
Your answer is from an engineering
20
standpoint; correct?
21
A.
As one of the inventors, yes.
22
Q.
Are there any other products of
23
Leader that implements what's claimed in the'
24
'761 patent?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1231
1
A.
I do.
2
Q.
Was that an accurate statement as
3
of November 3rd, 2002?
4
A.
Again, I don't know who I'm
5
communicating with here.
I don't recall this
6
person.
7
this, but it's referring to we met with their
8
COO, CIO and CTO.
9
that meeting.
And I don't recall specifically writing
And I do have some memory of
And in that meeting the COO, and
10
I believe that would be Len Schlesinger that we
11
talked about earlier, came in the meeting and in
12
a strategic sense committed to moving forward
13
with a relationship with us regarding Leader's
14
company, Leader's products.
15
probably giving more detail to this person based
16
on a positive meeting.
17
Q.
And so I was
So the sentence that says, "The
18
Limited just committed to contracting with
19
Leader for LeaderPhone and Leader2Leader," was
20
that sentence accurate when it was written on
21
November 3rd, 2002?
22
A.
23
24
I would say accurate in the sense
it was hyperbole.
Q.
Which portion of it was hyperbole?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1232
1
A.
The entire statement.
2
Q.
And by hyperbole, what do you mean
A.
Well, I would have to get a
3
by that?
4
5
definition, or get a dictionary to define
6
hyperbole, but in general it means an
7
overstatement to make a point that we had a good
8
meeting.
9
because I don't remember who this person is.
But again, I don't know my audience,
10
Q.
11
investor in Leader?
12
A.
13
Could he have been a potential
I can't speculate who he is
because I don't remember him.
14
Q.
So at the time this email was
15
sent, November 3rd, 2002, did Leader have a
16
commitment with The Limited to contract for
17
Leader2Leader?
18
A.
We had a very positive indication
19
from Len Schlesinger that he was going to do
20
something, but it was a strategic visionary
21
commitment at that stage.
22
Q.
By do something, he was going to
23
contract for the purpose of Leader2Leader;
24
correct?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
1274
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,
) Trial Volume 5
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)
v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.
Friday, July 23, 2010
9:00 a.m.
BEFORE:
THE HONORABLE LEONARD P. STARK
United States District Court Magistrate
APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING
BY:
BY:
BY:
& SPALDING
PAUL ANDRE, ESQ.
LISA KOBIALKA, ESQ.
JAMES HANNAH, ESQ.
Counsel for Plaintiff
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
(302) 658-6697 FAX (302) 658-8418
Page 1289
1
meetings and demos."
Do you see that?
2
A.
I do.
3
Q.
Now, let's just take for a moment
4
the date of December 10, 2003, when the final
5
patent application was filed.
Are you with me?
6
A.
I'm listening.
7
Q.
Before that time, you made many
8
presentations about Leader to Leader to many
9
people; right?
10
11
12
13
14
15
16
A.
I made numerous presentations
about Leader to Leader, yes.
Q.
And many of those were under
confidentiality agreements; correct?
A.
All of them were under
confidentiality agreements.
Q.
And indeed you had literally
17
hundreds of confidentiality agreements before
18
December 2003.
19
A.
Probably more than that.
20
Q.
Thousands?
21
A.
Probably over a thousand.
22
Q.
So over -- and they were all with
23
24
different people and entities?
A.
Yes, usually.
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1290
1
Q.
So before the patent application
2
was filed, you had over 1,000 different times
3
that you met with over 1,000 different folks to
4
talk about Leader to Leader; is that right?
5
A.
Whenever we were speaking with
6
investors or potential suppliers or potential
7
customers, when we finished the product, prior
8
to those meetings, we would always get a
9
confidentiality agreement from them before we
10
disclosed any business trade secrets.
11
Q.
Always?
12
A.
Always.
13
Q.
And always before the meeting?
14
A.
That's correct.
15
Q.
Never happened after the meeting?
16
A.
Never.
17
Q.
The purpose of these thousand
18
different meetings with 1,000 different parties
19
with 1,000 different contracts was to discuss
20
business opportunities for Leader to Leader;
21
right?
22
A.
Well, you made some very broad
23
statements there.
There weren't thousands of
24
contracts, and the way you characterize it is
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1291
1
probably incorrect, but we did have a lot of
2
presentations to potential investors, potential
3
suppliers or vendors, some developers that we
4
were talking to, and whenever we -- to build the
5
company, and whenever we did that, to protect
6
our trade secrets, we always had them enter a
7
confidentiality agreement so that we properly
8
protected our business trade secrets.
9
10
Q.
Thank you.
And many of those were
before December 1st of 2002, weren't they?
11
A.
Yes.
12
Q.
And many of those instances
13
involved discussions about someone buying or
14
licensing Leader2Leader; correct?
15
A.
Well, those were prospective
16
discussions, and we couldn't have sold
17
Leader2Leader because it wasn't ready yet.
18
Q.
Take a look at the -- if we go
19
down to the section that's says L2L.
20
it's two asterisks.
21
22
23
24
MR. RHODES:
I think
At the bottom, Ken.
BY MR. RHODES:
Q.
Now, I take it where we see L2L,
that's a reference to the product Leader2Leader?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1297
1
right?
2
A.
That is correct.
3
Q.
Okay.
4
5
Take a look at --
MR. RHODES:
Start.
Stop, Ken.
BY MR. RHODES:
6
Q.
The date is -- Monday, 11/25 is
7
the day before the day of the email, which is
8
November 26th.
Do you see that?
9
A.
Yes, I do.
10
Q.
Okay.
So he's writing it on the
11
Tuesday, but he's talking about what happened
12
the day before the Monday.
13
A.
I am.
14
Q.
Okay.
Are you with me?
So, now let's go to the
15
body of the document and the first very part
16
under general.
17
18
MR. RHODES:
Ken, thank you.
BY MR. RHODES:
19
20
Just the first few lines.
Q.
And it says, yesterday, so that
would be November 25th; right, the Monday?
21
A.
That's right.
22
Q.
Okay.
So where we see yesterday,
23
we know that's Monday 11/25.
24
Mike, that's you;
right?
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1298
1
A.
Yes.
2
Q.
You met with Boston Scientific;
4
A.
I remember that meeting.
5
Q.
And he says you were demoing.
3
right?
6
Yes.
That means demonstrating; correct?
7
A.
I believe that would mean
8
demonstrating, yes.
9
Q.
And you were demonstrating the
10
Leader2Leader functionality for senior staff
11
members; correct?
12
A.
Yes.
13
Q.
And senior staff members refers to
14
the folks that are at Boston Scientific;
15
correct?
16
17
18
A.
That meeting was with information
technology people within Boston Scientific.
Q.
19
Okay.
Now, let's take --
MR. RHODES:
I'm sorry.
Your
20
Honor, I'll move into evidence DTX 0776.
21
MS. KOBIALKA:
22
THE COURT:
23
24
No objection.
It's admitted.
BY MR. RHODES:
Q.
Let's now take a look at DTX 0736.
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Page 1299
1
2
3
MR. RHODES:
first paragraph -- or yeah, that's fine, Ken.
BY MR. RHODES:
4
5
Just blow up the
Q.
Have you had a chance to look at
that one?
6
A.
Yes, I have.
7
Q.
All right.
So this is a document
8
that's entitled Boston Scientific Confidential
9
Disclosure Agreement.
10
A.
I do.
11
Q.
What's the effective date?
12
A.
November 26, 2002.
13
Q.
That's the day after November 25;
15
A.
Generally.
16
Q.
Yeah.
14
17
right?
20
And November 25 is the day
you gave the demonstration?
18
19
Do you see that?
A.
Yes, that's right.
It was on a
Q.
So this document wasn't in place
Monday.
21
in the point in time that you made the
22
demonstration, was it?
23
24
A.
Well, this was the second
confidentiality agreement we had with them.
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1304
1
BY MR. RHODES:
2
Q.
Let's take a look at DTX 766,
3
please.
And again, Ken, start with the invented
4
e-mail first.
5
December 8, 2002, and I'm sorry.
6
pedantic questions, but I have to ask them.
This one is dated Sunday
These are
7
You agree with me that's one year
8
before the final patent application was filed?
9
A.
I do.
10
Q.
And it's from you, of course?
11
A.
This is an e-mail to one of my
12
shareholders and a supplier of some of our
13
hardware.
14
Q.
From you?
15
A.
From me to John.
16
Q.
When we see, "Hi, John,"
17
18
19
20
21
22
23
24
everything after that is your words; correct?
A.
Let me check here.
That is
correct, except for the response from John.
Q.
Right, and John was one of the
shareholders in your company?
A.
He is a shareholder and a supplier
of hardware.
Q.
You were writing to him
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
Page 1305
1
essentially a status report?
2
3
A.
Q.
May I ask that you look to the
yes.
4
5
That's what this appears to be,
paragraph that's entitled The Limited.
6
It says -- now, The Limited is the
7
company that has this man named Len
8
Schlessinger; is that right?
9
A.
Len Schlessinger is former
10
associate dean at Harvard Business School,
11
became chief operating officer at The Limited in
12
Columbus, yes.
13
Q.
That's the name that we see in the
14
-- you say The Limited.
We have confirmation
15
now from both the CEO, Len Schlessinger.
16
see that?
17
A.
I do.
18
Q.
You say confirmation.
Do you
19
20
Now, that
means the present tense as of December 8, 2002?
A.
Yeah, I'm following up a meeting
21
we had with Len Schlessinger and John Richter,
22
chief information officer at the executive
23
level, so they decided to move forward with us
24
to try to do something with our suite of
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technologies.
2
Q.
And it says in the next sentence
3
the contract -- it sounds like you're saying we
4
will acquire a contract in January for the
5
implementation of Leader2Leader; right?
6
7
A.
came out of that meeting.
8
9
That was one of the decisions that
Q.
meeting?
You say that meeting.
Which
The one before December 8th?
10
A.
The one I just spoke about.
11
Q.
Before December 8th?
12
A.
Before this e-mail, yes.
13
Q.
So before December 8th, you had
14
made an offer to sell Leader2Leader to The
15
Limited.
16
17
A.
We didn't have it done yet.
18
19
That would have been impossible.
MR. RHODES:
I move into evidence
DTX 0766.
20
MS. KOBIALKA:
21
THE COURT:
22
MR. RHODES:
23
24
185.
No objection.
Admitted.
Let's look at DTX
Please blow up the header.
THE WITNESS:
What's the number of
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to get set up.
2
Mr. McKibben, you've been asked a
3
lot of questions yesterday and today about
4
Leader2Leader.
5
question that hadn't been asked yet which is:
6
Is Leader2Leader exactly the same thing as the
7
technology of the '761 patent?
8
9
MR. RHODES:
Honor.
Objection, Your
Leading.
10
11
And there was one very important
MS. KOBIALKA:
cross-examination.
12
THE COURT:
13
THE WITNESS:
14
15
This is
Overruled.
No.
BY MS. KOBIALKA:
Q.
Okay.
So we probably need to
16
discuss a little bit about what, in fact,
17
Leader2Leader is and then how that plays with
18
respect to the technology in the '761 patent; is
19
that right?
20
A.
That is correct.
21
Q.
Okay.
I believe you mentioned
22
that Leader2Leader is a suite of technologies
23
that falls under a brand; is that right?
24
A.
That is correct.
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friendly witness.
2
3
THE COURT:
cross-examination.
4
5
8
Overruled.
MS. KOBIALKA:
Thank you, Your
Honor.
6
7
It's
THE WITNESS:
I'm sorry.
Can you
repeat the question?
BY MS. KOBIALKA:
9
Q.
When you're talking about the
10
suite of technologies, LeaderPhone is just one
11
of those technologies as an example?
12
A.
That's correct.
13
Q.
Okay.
14
A.
You could put them together any
15
way you wanted to.
16
Q.
Okay.
Now, was LeaderPhone, could
17
that be sold just separately and apart from
18
Leader2Leader?
19
A.
Yes, it could.
20
Q.
Okay.
21
24
At some point, you had the
technology of the '761 patent; correct?
22
23
And it is.
A.
On December 11th, 2002, we did.
Q.
Okay.
Yes.
And then you had a product
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that embodied the technology of the '761 patent;
2
correct?
3
4
A.
plug in for any of those technologies.
5
6
We could -- we could use that as a
Q.
Okay.
But you did get some sort
of other technology at some point; right?
7
A.
Yes.
8
Q.
Okay.
9
10
11
So then that was a plug in,
so it would be another just -- just another part
of the -A.
Leader2Leader.
Right.
It could
12
be a plug in for Leader2Leader, for all of them,
13
or it could be a plug in for any one of them.
14
15
Q.
So we can't equate Leader2Leader
with the technology of the '761 patent; right?
16
A.
No, we can't.
17
Q.
You've got to actually be specific
18
about what we're talking about when we're
19
talking about Leader2Leader; correct?
20
A.
Exactly.
21
Q.
Now, why did you just use
22
Leader2Leader as a name, then, in documents or
23
in talking to people?
24
A.
Well, as we developed our
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right.
2
3
So you founded the company
sometime in 1997; is that right?
4
A.
Yes, that's correct.
5
Q.
And when did the patent issue for
6
the -- we'll find it.
7
some point.
8
9
It will be on there at
There it is.
And when did the patent issue?
The 761 patent.
10
A.
November 23rd, 2006.
11
Q.
So November 2006.
12
And when did
you file the provisional patent application?
13
A.
On December 11, 2002.
14
Q.
Okay.
There was reference earlier
15
in questions about the final patent application.
16
The final application was in connection with the
17
filing that occurred after, I believe, it was
18
December 10, 2003.
19
Do you believe that the
20
December 11, 2002, wasn't the filing of the
21
patent application that led to the 761 patent?
22
A.
We never thought of it that way.
23
Q.
So prior December 11, 2002, when
24
you referred to Leader2Leader, did that include
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the 761 technology that's a plug-in to
2
Leader2Leader?
3
A.
No, it couldn't have because that
4
technology wasn't done until days before the
5
December 11, 2002, filing.
6
Q.
How do you know that?
7
A.
I vividly remember that because
8
this had been a long R and D cycle, and we had
9
been struggling during 2002 to get the code
10
ready, and we ran into some more difficulties,
11
so we were working into the fall.
12
And within days of actually
13
getting the code working, the technology
14
working, we actually pulled a section of that
15
code out of the working code and put it into the
16
provisional patent, and we went to the patent
17
office.
18
Q.
That's all the pages of code we've
19
been seeing on that provisional patent
20
application?
21
A.
Yes.
22
Q.
You wanted to make sure you had
23
24
your code before you did the filing?
A.
So that would tell a computer
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under the hood.
2
Q.
Okay.
So prior to December 11,
3
2002, was there any technology in Leader2Leader
4
that could permit someone to move from one work
5
space to another work space?
6
A.
No, it wasn't done yet.
7
Q.
Or move from board to board within
8
the system?
9
A.
10
No, that technology was not done
until a few days before December 11, 2002.
11
Q.
You couldn't track any movement
12
obviously since you didn't have that movement;
13
right?
14
15
16
17
18
19
20
21
22
A.
It was not finished until right
before 2002.
Q.
That is correct.
At some point, you had a version
of the software; right?
A.
Is that correct?
Yeah, right around that time
December 11th.
Q.
Okay.
And you started to do some
beta testing of that software; right?
A.
Yeah, what happens after that is
23
we had an experimental version then, so we
24
started doing experimental testing first inside
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order just to get one connection.
2
So to have two connections in a
3
conference room where the person's only got an
4
hour and to have two computers, it was just too
5
cumbersome.
6
Q.
And we never did it.
All right.
I'd like to show you a
7
draft of The Limited brand beta agreement marked
8
as PTX 773.
9
MS. KOBIALKA:
10
11
THE COURT:
You may.
BY MS. KOBIALKA:
12
13
May I approach?
Q.
Do you recognize this document,
Mr. McKibben?
14
A.
Yes, I do.
15
Q.
And what is the document?
16
A.
This was the result of our
17
discussions during the first few months of 2003
18
to finalize an initial experimental test with
19
them.
We called it the Beta Agreement.
20
Q.
21
Scientific.
22
Okay.
Let's talk about Boston
In some of your first meetings
23
with Boston Scientific, did Professor Chandler
24
attend with you?
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A.
Actually Professor Chandler
2
introduced us to Boston Scientific and he
3
attended the first meeting.
4
5
Q.
meeting; correct?
6
7
A.
We had a confidentiality agreement
at the very first meeting.
8
9
And you had an NDA at that first
Q.
I think we have enough NDAs in the
record, so I'll just ask some questions.
What
10
was that meeting about that you were discussing
11
back in September of 2002?
12
A.
That was a meeting with the chief
13
security officer for Boston Scientific and the
14
professor and him had been a colleague for many
15
years, years in the National Intellectual Law
16
Institute.
17
That meeting was primarily
18
introductory and it was to generally discuss our
19
products.
20
discussing the possibilities with that.
21
I recall showing him LeaderPhone and
And the other aspect of our
22
technology that he was primarily interested in
23
was the Leader Smart Camera, because he was in
24
charge of all of the security systems for Boston
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completeness, start at Line 9.
2
you want to end it, Mr. Rhodes?
3
MR. RHODES:
4
THE COURT:
5
ahead and play that.
6
7
10
Line 21.
Okay.
You can go
Nine through 21, please.
(Beginning of videotape deposition
excerpt of Mr. McKibben:)
8
9
And where did
Q.
Did you have any technique for
identifying differences between various
iterations of Leader2Leader product?
11
A.
As I'm speaking here today, I
12
believe that our developers kept track of that.
13
But the name they gave to it, I don't remember.
14
Q.
Can you identify any iteration of
15
the Leader2Leader product that, in your opinion,
16
did not implement what's claimed in the '761
17
patent?
18
A.
That was a long time ago.
19
can't point back to a specific point.
20
I -- I
(Conclusion of videotape
21
22
23
24
deposition excerpt of Mr. McKibben.)
BY MR. RHODES:
Q.
Now, Mr. McKibben, at some point
in time, you had the Leader2Leader product
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2
Q.
I thought you conceived them in
1999; right?
3
A.
Is the question did Jeff and I
4
conceive of 761 sometime in 1999?
5
yes.
6
Q.
The answer is
And whatever Leader2Leader was at
7
the time, you were proposing to install and
8
implement that within the first quarter of 2002
9
in this document; correct?
10
A.
As I've explained, Leader2Leader
11
discussions vary depending on who it is that we
12
are discussing it with, and at that time the
13
specific components of Leader2Leader that we
14
were discussing with Wright-Patterson Air Force
15
Base weren't working and weren't included in
16
that reference.
17
Q.
Weren't working?
18
A.
They were working and were
19
included in that reference, but it couldn't have
20
been the 761 technology because it didn't exist
21
until a few days before November 11, 2002.
22
December 11, 2002.
23
24
Q.
Did Leader Technologies ever
create marketing materials before 2002 in which
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Q.
Were you asked to perform another
3
A.
Yes.
4
Q.
What was that?
5
A.
The second task was to take the
2
task?
6
761 and essentially to judge its novelty.
That
7
is, to compare each and every asserted element
8
in the asserted claims of the 761 patent against
9
several references.
That is, several
10
publications or systems that appeared before the
11
filing of the -- either the provisional and 761
12
patent.
13
And if in fact the ideas in the
14
761 patent appeared earlier, then it's not
15
novel, so that in the words, it means that the
16
patent would be invalid.
17
18
Q.
Did you prepare a slide to show
the two things that you were asked to do?
19
A.
Yes, I did.
20
Q.
I believe you already testified
21
the first task.
22
number there; is that right?
23
24
A.
That's what's under the first
That's right.
So my first opinion
is the provisional patent application did not
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disclose every element of the asserted claims of
2
the 761 patent.
3
Q.
And did you come to an opinion
4
regarding your second task, whether or not the
5
patent was valid?
6
A.
Yes, I did.
7
Q.
What was that?
8
A.
As you can see here, I compared
9
each asserted claim of the 761 patent to a
10
variety of references, and for the first three
11
there, we see U.S. patent 6236994.
12
this Swartz from now on.
13
assigned to.
14
I'll call
Swartz is the inventor
Everything in the asserted claims
15
was in Swartz, and the iManage 6.0 reference
16
manual, and I again found all the ideas in the
17
asserted claims in each and every element of the
18
asserted claims in the iManage system.
19
And I also looked at the European
20
patent application, EP 10873067 AT, which I'll
21
call Hubert, and I found each and every element
22
of the asserted claims in the Hubert patent were
23
in the 761 patent -- I should correct myself.
24
For Swartz and Hubert.
That's each and every
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that definition when they were there.
2
If the Court did not construe or
3
define any terms, I went to the patent itself to
4
see if they provided a definition.
5
If they did not provide a
6
definition, I used the definition that would be
7
known to one skilled in the art.
8
9
10
These slides are bit of evidence
back up.
Q.
I think you were saying if there
11
wasn't a definition provided by the Court, you
12
used the patent itself to find the definition or
13
you used what one of ordinary skill in the art
14
would use.
15
A.
That's correct.
16
Q.
What is one of ordinary skill in
17
18
the art in computer science in this case?
A.
One of ordinary skill in the art,
19
as I believe, is somebody with a bachelor of
20
science in computing science or computer
21
engineering or equivalent and a couple years of
22
experience.
23
24
I kind of know what students can
do as soon as they graduate, and you need a
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couple years experience to mature and understand
2
what you do and how to build products within
3
that.
4
Because of the nature of the 761
5
patent, they would have to have background in
6
networking, in distributed systems, in
7
weapon-based platforms, and a little groupware.
8
Doesn't have to be extensive.
9
Q.
When you were doing your analysis
10
regarding the other pieces of prior art Swartz
11
and iManage and Hubert, did you use a different
12
definition or different process for the claim
13
terms?
14
A.
No, I used exactly what was
15
construed by the Court then what the patent said
16
and then failing that, what one of ordinary
17
skill in the art would understand those words to
18
mean.
19
Q.
So right now, Dr. Greenberg, I'd
20
like to step us through your first opinion, the
21
one regarding the provisional application, and
22
whether or not the provisional application
23
contains a disclosure of each and every element
24
of the issued claims.
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A.
Yes.
2
Q.
I think you have an exhibit in
3
your binder, PTX 3.
4
A.
I see it.
5
Q.
What is that?
6
A.
This is the provisional
7
application.
8
9
Can you turn to that.
Q.
And again just for clarity, when
you were doing your analysis comparing the
10
claims of the issued patent to the provisional
11
application, did you confine yourself to just
12
those two pieces of paper?
13
A.
Yes, I did.
14
Q.
Why did you do that?
15
A.
My understanding of patent law is
16
that for a patent to be entitled to the date of
17
provisional application, the provisional
18
application by itself has to disclose each and
19
every element of the claim, and if it doesn't,
20
the patent is not allowed to use the filing date
21
of provisional application.
22
Q.
And so why didn't you look to
23
anything else that was in existence at the same
24
time?
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A.
Well, as I mentioned, the law
2
states that I have to confine myself to the
3
provisional application.
4
allowed to apply my understanding as one skilled
5
in the art or as I would interpret one skilled
6
in the art at the time of the filing, how they
7
would understand the terms in the provisional
8
application.
9
is.
10
11
Q.
As a matter of law, that's how it
What conclusion did you make when
you started this analysis?
12
13
I am, of course,
A.
The provisional application -- I
have a graphic on this.
14
The provisional application
15
defines a whole variety of -- defines ideas in
16
it.
17
it to the 761 patent, the 761 patent has
18
substantially more material in it, and it's not
19
just more words, but it has substantially new
20
ideas, new parts of invention, that just don't
21
appear in the provisional anywhere.
22
There is some stuff in it.
Q.
When I compared
Doctor, before we move on, I
23
notice you have claim numbers up there.
24
Why did
you choose those claims?
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A.
Yes, because when you look at the
2
ideas that are in the claims, those ideas are
3
covered by the material added to the 761 patent,
4
and they're not in the provisional application.
5
The provisional application does overlap with
6
what's in the patent, but not in the ideas that
7
are in the claims.
8
that was added.
9
10
Q.
That's all the new stuff
And why did you pick these
particular claims?
11
A.
Well, my understanding is that
12
these are the claims being asserted in the case,
13
and that's where I focused my attention.
14
claims may talk about what's in the provisional
15
application, but that's not what's at issue
16
here.
17
Q.
Other
Did you analyze each and every one
18
of these claims and compare it to what was
19
disclosed in the provisional application?
20
A.
Yes, I did.
21
Q.
And what did you -- you said that
22
there was some things in these claims that was
23
not in the provisional application.
24
mean by that?
What do you
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A.
Well, what I did was, I looked for
2
the ideas, what's in each one of the elements.
3
Can I find a match of the provisional
4
application?
5
So for example, at one level, are
6
the words there?
7
aren't there, is the idea there?
8
9
At another level, if the words
There's some code included in the
provisional application.
I looked at the code,
10
and I asked, does the code actually have any of
11
these words or ideas within it?
12
13
So that's how I did my comparison.
Q.
Can you pull up a slide of claim
14
one, please.
15
show claim one.
16
17
Just go to the patent itself and
So for example, this is claim one;
is that right?
18
A.
Right.
19
Q.
Now, are there -- what elements in
20
claim one are you talking about when you say
21
that there are ideas that are in the claim that
22
are not in the provisional application?
23
24
A.
We see two major elements.
We see
two paragraphs.
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In the first, we see a
2
"computer-implemented context component for
3
capturing context information associated with
4
user defined data."
5
for a was a context component in the provisional
6
that captures context information.
7
something there that's associated with user
8
defined data?
9
One of the things I looked
Is there
The second paragraph says there's
10
a computer-implemented tracking component for
11
tracking of change of the users from the first
12
context to the second context.
13
provisional to see is there anything there that
14
tracks a user moving from one context to
15
another.
16
I looked at the
And the third thing, dynamically
17
updating the stored metadata based on the
18
change.
19
notion of metadata and any notion of dynamically
20
updating the metadata on change.
21
22
23
24
I looked to see, first, is there any
Q.
Is there anything in the patent
that talks about these things you're mentioning?
A.
Absolutely.
I believe the figure
on the face of the patent, that is Figure 1,
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which is a little figure we see clearly.
2
So this is obviously important.
3
It's on the very front of the patent, and
4
there's -- on the left side we see this thing
5
called a context component and this thing called
6
a tracking component.
7
patent.
This is part of the 761
8
Q.
9
provisional patent?
10
A.
11
provisional patent.
12
in the provisional patent.
13
14
Q.
Are those figures in the
This figure is not in the
There's no figures at all
Are there more figures in the
issued patent?
15
A.
There's twenty or twenty-one.
16
However you count in the issued patent, there's
17
quite a lot more.
18
Q.
Are there other differences
19
between, just facial differences between the
20
provisional patent application and the final
21
patent?
22
A.
Well, the provisional application
23
is a lot shorter, for one thing.
24
And I
actually --
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Q.
Did you prepare a slide?
2
A.
Yes.
3
So here's a good
side-by-side comparison.
4
The provisional application, as I
5
mentioned, is quite a bit shorter.
6
there's nine and a half pages of text, plus
7
eight and a half pages of code.
8
9
We see
And it's in quotes because I don't
actually know if it's working code or just
10
something that was written that never actually
11
ran.
12
says that.
13
There's nothing in the application that
Whereas the final patent
14
application has 39 pages of text.
15
this is substantially more stuff in it.
16
You know, so
The provisional has no figures to
17
illustrate a concept whereas the final patent
18
application has 22 figures.
19
I mention words like tracking,
20
context, context data, metadata.
There's
21
absolutely no mention of the word tracking in
22
the provisional application.
23
patent application, tracking is an element of
24
every single asserted claim, and it's also
And in the final
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described thoroughly in the specification.
2
In the provisional application,
3
there's no mention of context data or this idea
4
of metadata.
5
metadata.
6
Well, there is of storing
There is one mention of metadata
7
that I'll talk about shortly.
8
mention of these terms of context data at all.
9
But there's no
Whereas in the final patent, their
10
context data and metadata are in -- are elements
11
of each and every one of the independent claims.
12
And it's also claimed in the -- described in the
13
specification.
14
Q.
And you mentioned that the
15
metadata is used once in the provisional, but
16
it's not used as -- the same way in the final?
17
A.
And again, metadata is in each and
18
every one of the elements of the asserted -- of
19
the independent claims that are asserted in this
20
case.
21
Q.
Can you describe for us some of
22
the examples of the description of context
23
components and context data that you found in
24
the patent itself?
And I think you had some
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slides for that as well.
2
A.
Sure.
3
Q.
Column 6.
4
A.
Well --
5
Q.
Oh, go ahead.
6
7
8
Did you want to
talk about this?
A.
Sure.
Maybe we can just bring
them both up at the same time.
9
Okay.
This just elaborates a little bit
10
more about what I said before.
11
zero times.
12
Tracking appears
Track appears zero times.
Metadata appears once.
And as I
13
mentioned, not in the way it's used, access
14
appears twice.
15
really heavily used in the final patent.
And whereas these terms are
16
They appear 64 times.
17
back to the question of, you know, on the face
18
level, you know, are there stark differences.
19
And the answer is yes.
20
Q.
Okay.
So that was
So you mentioned that these
21
terms appear numerous times in the final
22
application?
23
A.
That's correct.
24
Q.
Before we dive into the
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provisional, I'd like you to walk us through a
2
little bit of how those elements are described
3
in the final patent application.
4
A.
Sure.
5
Q.
So I think you actually had some
6
slides that showed some portions of the patent
7
that describe these elements; is that right?
8
9
A.
yes.
10
11
There is columns from the patent,
MS. KEEFE:
Can you bring up
Columns 6 and 7?
12
BY MS. KEEFE:
13
Q.
Does this look familiar?
14
A.
Yeah.
15
Q.
What is this?
16
A.
So this is from Column 6 of the
Yeah, it does.
17
patent.
18
The system 100 also includes a context component
19
in association with the figures context to
20
monitor and generate context data associated
21
with data operations of the user in the first
22
context.
23
24
So here -- here we see it clearly says,
Essentially what this means is
that there, context component is monitoring what
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people are doing with their data and it's
2
generated context data captioning that
3
information.
4
Q.
And is the same true with respect
5
to the tracking component you were mentioning in
6
the claims?
7
A.
Yes, it is.
8
Q.
Can we look at Column 7?
9
A.
Yeah.
10
So here's another excerpt.
And here at the bottom we see --
11
let's see.
So such user activities and data
12
operations in the one or more context of the
13
system 100 and movement of the user between
14
context are tracked using a tracking component.
15
So what this is talking about here
16
is that we have a tracking component in a bit of
17
the software that's actually watching what's
18
going on, that's watching how the user moves
19
from one context to another.
20
captioning that as information.
21
Q.
And it's
And is it your opinion that either
22
of these concepts, which are in all of the
23
claims, do they appear anywhere in the
24
provisional application?
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A.
No.
They don't appear whatsoever.
2
And again, I have to stress, and I think this is
3
really important, it's not just that the words
4
don't appear, but the concept itself just isn't
5
there in the provisional.
6
Q.
Is the process of moving between
7
contexts, so moving from one context to another,
8
discussed in the later -- in the later patent
9
application, just that idea of movement, not
10
just tracking?
11
12
A.
It's discussed in the patent.
Q.
Could you show Figure 2 again,
Yes.
13
14
please?
15
How does Figure 2 show that?
A.
Well, there's also some associated
16
text with this.
I don't know if you can bring
17
this side by side.
18
Q.
Column 7.
19
A.
That may be a bit -- can everybody
20
see that?
21
So here this -- this essentially
22
describes the basic process that's handled by
23
pretty well all of the asserted independent
24
claims of the patent.
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We have at the beginning here, you
2
know, it starts user is associated with a first
3
context.
4
sends application.
5
operations.
They do some stuff.
6
You know, user
They may perform data
That is the notion of context
7
component.
8
and actually looking at this.
9
You know, watching what's going on
But then we see the step 206,
10
where it says the user changes context, and
11
there's a text that describes it.
12
206, the user changes context from the first
13
context to a second context.
14
movement there.
15
It says at
So there's the
And then at 208, it says the data
16
and applications are then automatically
17
associated with the second context.
18
a consequence there.
19
So there's
But we see this idea of user
20
changing context is part of the general flow
21
that's described in the '761 patent.
22
is pretty well what happened with all of the
23
independent claims being asserted.
24
Q.
And this
And does a description like
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this -- actually the first question:
Does this
2
language appear in the provisional application,
3
the language that you were just describing?
4
A.
No, it does not.
5
Q.
And does Figure 2 appear in the
6
provisional application that you've been
7
describing?
8
A.
9
They're -- not only does Figure 2
not appear, there's nothing in the provisional
10
application that even textually describes what's
11
in Figure 2.
12
Q.
Aside from the exact language, is
13
there any description using any language of the
14
concepts that are disclosed in the paragraph
15
that you've been talking about here?
16
17
A.
20
It's not in the
description.
18
19
No, it's not.
It's not in the examples given,
nor is it in the code that was provided.
Q.
So I think you've actually
21
mentioned three things, if I remember right.
22
You mentioned that the provisional application
23
did not have any concept of metadata storage or
24
updating; is that right?
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A.
That's correct.
2
Q.
In fact, can I get a --
3
MS. KEEFE:
Your Honor, may I
4
approach behind to write on a white board?
5
put a white board up and write on it?
6
THE COURT:
You may.
7
MS. KEEFE:
So I apologize already
8
for speaking from here.
9
before I go back over there.
10
Q.
I'll be very loud
BY MS. KEEFE:
11
To
So I believe that you actually
12
said that the first thing that you couldn't
13
find -- and by the way, I'm only doing this
14
because Dr. Greenberg says his handwriting is
15
very bad.
16
A.
It's really bad.
17
Q.
I think you said the first concept
18
that's all throughout all of the claims as well
19
as the specification of the patent was the idea
20
of metadata storage and updating; is that right?
21
A.
That's correct.
22
Q.
And then if I remember right --
23
24
MR. ANDRE:
Counsel is leading.
Your Honor, objection.
He can tell her what to
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write.
2
3
THE COURT:
Sure.
Sustained.
BY MR. RHODES:
4
Q.
What were the other two concepts
5
that you did not find from the claims of the
6
patent in the provisional application?
7
A.
Okay.
So the other -- I am just
8
going to bring the patent, just use the right
9
language in front of me.
10
So this is '761 here.
So essentially the context
11
component for captioning context.
For caption
12
context information.
13
Q.
Okay.
14
A.
And the third one is tracking
And another?
15
component for tracking a change of the user from
16
the first context to a second context.
17
Q.
Does that look right?
18
A.
That's correct.
19
Q.
Okay.
20
So I'd like to go through
these with you one by one.
21
A.
Sure.
22
Q.
So why don't we take the first one
23
24
first.
Why do you think that there is no
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description of metadata storage or update in the
2
provisional application?
3
A.
Well, it's just not there.
In
4
fact, they -- the term metadata is used only
5
once, and it's used as a description of what was
6
available previously.
7
And the way it's used is in a
8
different way from the way it's described in the
9
'761 patent.
10
11
In fact, I have some -- I've
highlighted some materials about that.
12
Q.
Actually, no, before we bring that
14
A.
That's not --
15
Q.
No.
13
up --
No, before we bring that up,
16
so with metadata, I just want to back up and
17
make sure this concept is very clear.
18
19
Where does metadata storage and
update -- in fact, let's bring up Claim 1 again.
20
21
Where does metadata and storage
appear in Claim 1?
22
A.
23
take a look at this.
24
Okay.
So it appears in -- let's
So if we look at the first
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paragraph right at the middle, we see the word
2
metadata.
3
If we can highlight that.
There it is.
So we see the
4
context component dynamically storing the
5
context information in metadata associated with
6
the user-defined data.
7
place it appears.
8
9
So that is the first
Essentially the context component
is taking this information and it's storing
10
it.
11
about data.
12
That's the everyday use of the Court's
13
construction, I believe.
14
And metadata, by the way, is just data
That's the Court's construction.
The second paragraph says metadata
15
based on the change.
16
about is that the tracking component is watching
17
the person moving from one context to another.
18
And as part of that, it takes that metadata, the
19
stuff that was stored in the first context and
20
is updating it again.
21
new.
22
So what this is talking
Essentially is adding
It's either changing the
23
information or adding things associated with
24
that information.
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2
3
Q.
Is this an important context in
the claim?
A.
Well, absolutely.
It appears in
4
every -- as I mentioned, it appears in every one
5
of the asserted independent claims.
6
And it's talked about extensively
7
throughout the patent.
8
computer science terms, it says, this is a
9
method by which we will take this information
10
and we'll structure it and store it for later
11
access and use.
12
13
14
15
Q.
Essentially it says in
Can you show us where the concept
of metadata is in Claim 9, please?
A.
Sure.
Let's move to Claim 9.
It's -- we'll see that there's --
16
it's all very similar, although the wording
17
around it is somewhat different.
18
the middle, we see dynamically -- well,
19
beginning of the second paragraph, we see
20
dynamically associating metadata with the data.
21
So it appears there again.
22
So, again, in
And then it says the data and
23
metadata stored on a storage component.
We see
24
even later on, the metadata -- what the metadata
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consists of, what it includes.
2
related to the user, the data, the application
3
and the user environment.
4
So information
In the last paragraph, we see
5
dynamically updating the stored metadata.
And
6
again, it gives a bit of a description of what
7
it's doing.
8
Q.
And is the concept in Claim 21?
9
A.
Let's look at Claim 21, and we see
So there it is in Claim 9.
10
something very similar.
11
paragraph, again dynamically associating
12
metadata with the data.
13
metadata stored, in this case, on a web-based
14
computing platform.
15
16
17
We see in the second
And again, the data,
There we see the metadata includes
information and it says what's in it.
We see in the one, two, three,
18
fourth paragraph dynamically associating the
19
data and the application with the second user
20
workspace in the metadata.
21
And then final paragraph, we see
22
starting near the bottom that we see a plurality
23
of different users can access the data via the
24
metadata from a corresponding plurality of
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different user workspaces.
2
3
4
5
6
7
So, again, we see it's littered
throughout this claim.
Q.
And finally, is it also -- the
concept of metadata also in Claim 23?
A.
Yes, it is.
very similar.
8
9
So, again, something
Let me just search for this.
Here -- it's somewhere in the
middle of the first paragraph.
It says for
10
dynamically -- just a little bit below, for
11
dynamically storing the context data as metadata
12
on a storage component.
13
And a little bit right after that,
14
it says which metadata.
15
dynamically associated with data.
16
It says that's
And then in the second paragraph,
17
we have again near the bottom, it says
18
dynamically storing the change information on
19
the storage component as part of the metadata.
20
So again, it's throughout these claims.
21
fundamental component of many of the elements of
22
these claims.
23
24
Q.
It's a
And what's the basis for your
opinion that these elements are not disclosed in
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the provisional application?
2
A.
Well, as I mentioned, the word
3
metadata appears only once and it appears in a
4
completely different context.
5
of the background of the invention.
6
In fact, as part
And there's -- there's nothing
7
else in the -- in the provisional that actually
8
has any concept of metadata, nor is there
9
anything in the code, nor is there anything in
10
the examples.
11
12
Q.
I didn't see it.
Can you please pull up the
background of the provisional.
13
So is this the paragraph that
14
describes metadata?
15
A.
16
Yes.
is, if it's this particular part.
17
18
So let me just see where it
Maybe it's the next paragraph.
I'm not sure.
19
Q.
How about Paragraph 11?
20
A.
Yeah, keep going.
21
There we go.
In fact, if you
22
include Paragraph 12 as well, that would be
23
good.
24
So this is in the background of
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the invention in the provisional.
2
they're talking about here is what existed at
3
the time of the filing of this provisional
4
application.
5
And so what
And here we see, the second line,
6
it says Current processes.
7
exists.
8
such as the metadata tagging approach, involve
9
having a knowledge officer view files after they
10
So this is what
Then designed to add context to files
have been stored and create metadata tags.
11
So here they're saying that at the
12
time of this filing, the one approach was to use
13
metadata where some person would manually assign
14
essentially this information to the file so they
15
can later search for it.
16
And then immediately following it,
17
it says -- it actually says, Well, this isn't
18
good enough.
19
usefulness of the above-described methods, a
20
need still exists for a communications tool that
21
associates files generated by applications with
22
individual groups and topical context.
23
24
It says, Notwithstanding the
So really here they're talking
about metadata as here's what existed before.
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They're talking about it as, Oh, it was done
2
manually and we can do better than that.
3
But that's it.
4
use of the word metadata in this entire
5
provisional is to say, Here's what's been done
6
before.
7
That's the only
And it's wrong or it's not wrong,
8
but it's not enough.
9
Q.
If the provisional doesn't
10
describe metadata storage and updating, what
11
does it describe?
12
A.
So I prepared a series of slides
13
on power point to try to illustrate this.
14
could bring that up.
15
If we
There we go.
So the provisional application
16
describes this idea -- describes here a lot of
17
the ideas in it.
18
It's just not the stuff that's in the asserted
19
claims.
20
So there is stuff in there.
So the first thing it does, it
21
describes these things called boards.
22
boards are essentially a collection of data and
23
application functions.
24
And
So these are things like, Well,
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you know, we have Microsoft Word and we have a
2
document prepared with it.
3
stuff that -- essentially all the data and later
4
applications, stuff that can happen on the
5
board.
And it's all the
So it's just a collection.
6
It knows that there could be a
7
word file, for example, with the document
8
associated with it.
9
The next thing it does, if you go
10
to the next slide, is that -- and this is a
11
quote from the provisional -- it says "the
12
present invention automates workflow processes."
13
The workflow is a sequence of
14
steps.
It's usually designed -- workflow is
15
usually for office automation where it tries to
16
automate some kind of procedure that documents
17
will follow or that people have to follow.
18
So for example, like, if you
19
wanted to buy something, you filled out a form,
20
and that form would go to this place first and
21
that place next and that place next.
22
sequence of steps.
23
24
Q.
It's a
Dr. Greenberg, when you have your
quotes up there, I wanted to help.
If anyone
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wanted to follow, what is the paragraph number?
2
What does that mean?
3
A.
That means this is an excerpt from
4
paragraph twenty-two in the provisional
5
application.
6
The provisional application says
7
we can relate these boards together in a
8
sequence of steps, and the next thing the
9
provisional says -- this is a quote from page
10
six, paragraph three.
11
different because the provisional looks like two
12
different documents stuck together.
13
provisional numbers their paragraphs isn't
14
consistent.
15
The numbering is a little
The way the
It says the workflow process may
16
be readily reorganized by making a change to one
17
or more of the webs and boards.
18
Somehow we've created a sequence, maybe
19
manually, that there's a sequence or process
20
that goes from board A to board B to board C and
21
then D.
22
Imagine that.
We can shuffle around that
23
sequence.
The invention says we can change that
24
sequence and reorganize those boards, so we can
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go from board B to board D to board A.
2
All that
stuff will be on those boards.
3
Q.
Why would someone want to do that?
4
A.
Workflow processes essentially, as
5
I said, describe a sequence of steps, and these
6
steps could change over time.
7
One of the problems around -- I
8
shouldn't say major problem.
9
that we wanted workflow systems to be, for
10
example, so a site administrator could say,
11
let's change the sequence of steps we're going
12
to do things in without having to do a massive
13
amount of rewrite of code.
14
One of the issues
Essentially what this invention
15
says, we can change the sequence of steps.
16
think we have a few more animations to show
17
that.
18
I
We could do this, and this is
19
captured by this quote, and this is what's meant
20
in the provisional.
21
context, the files, and applications
22
automatically follow dynamically capturing those
23
shifts in context, so this is automated.
24
The user changes the
When they go from one board to the
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next, these things will be in the right place.
2
This is not about tracking movements, capturing
3
contexts.
4
here's the relationships, and we keep juggling
5
those relationships and boards around to define
6
different sequences of steps and different
7
relationships.
8
9
10
It is about, here's the boards,
Q.
context.
Say as a user changes their
Why doesn't that mean when a user goes
from board D to board C?
11
A.
Here they are going from board D
12
to board C.
This is an after-the-fact thing.
13
What the invention describes is we
14
can take the boards and change the
15
relationships.
16
can go from one board to the next, and the stuff
17
will be there.
18
context of what the person is doing as they do
19
that, nor is there any tracking of the movements
20
nor updating of metadata.
21
Q.
Here we're talk about a person
There is no capturing of the
That is not in there.
You mentioned there's two
22
documents pushed together to make up this
23
provisional application; is that right?
24
A.
That's correct.
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Q.
What are those two documents?
2
A.
If I look at the provisional, so
3
there's one that looks like an -- essentially a
4
description, and it's -- they have paragraphs
5
numbers one through twenty-five and then there's
6
an attachment.
7
It's labeled attachment two.
So I'm not sure.
There's no
8
attachment one.
I could see it just seems
9
something gathered from someplace else which
10
contained another description, and there's code
11
associated with it.
12
Q.
13
application as well?
14
A.
Yes, I did.
15
Q.
Does the code included in that
Did you study that portion of
16
portion of the application change your opinion
17
regarding what's disclosed in that provisional
18
application?
19
20
21
A.
No, if anything, it reenforces
what I found in the description.
The code is all about here's a
22
board and here's a relationship between boards,
23
and one is simply form filling essentially
24
manually what the relationships between the
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boards are.
2
Q.
Can you pull up the code,
3
Dr. Greenberg.
4
Do you see the import statements
here?
5
A.
Yes, I do.
6
Q.
Are these in the provisional?
7
A.
Yes, they are at the beginning of
8
the code section.
9
10
Q.
What's the purpose of an import
statement?
11
A.
So an import statement is, as the
12
name suggests, is a way for the computer program
13
to import code that's somewhere else, so
14
essentially it says it's a way for us to manage
15
code.
16
and I want to bring it into the program so the
17
program can actually use it.
18
It says that there's code somewhere else,
Q.
If we take the -- one of the first
19
ones, for example, the import com.leader.util.
20
What would that mean?
21
A.
Not much because one thing that is
22
not in the provisional is what's in these
23
external files.
24
and I'm just guessing now, so this is an
All this tells me is that --
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educated guess -- that because it starts with
2
com.leader, this is some code that Leader may
3
have or may not have written yet or may plan to
4
write that does some stuff.
5
Essentially it just says that
6
whatever is there is intrinsic to Leader, so I
7
would be guessing.
8
and we have stuff it in it, and the company
9
holds the box, but I won't tell you what's in
10
it.
11
12
It's like, we have this box,
Q.
Can you determine in any way from
the import statements what the code looks like?
13
A.
14
if the code exists.
15
working code.
16
actually compiled to run?
17
can't tell from this because that's not
18
complete.
19
First, I have to say I don't know
I can't tell is this code
Is it actually code that they've
I don't know.
I
The second thing I can tell is
20
this code or pseudocode is stuff intended to run
21
compiled by systems to be run eventually, or
22
it's more of a sketch.
23
looks more like code.
24
And looking at it, it
Again I don't know.
The third thing I can't tell is
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1
whether these files com.leader.util or debug,
2
whether they exist or not.
3
whether these are just place holders or if they
4
have stuff there.
5
I have no idea
It's not in the provisional.
If I look at any particular one of
6
them, I can make a guess.
7
maybe that means there's a utility program in
8
it, but there's another one called
9
asp.facebook.util, so I don't know what's in it.
10
11
12
13
Com.leader.util,
I just make a wild guess.
Q.
These are part of what's been
described as the code for this program?
A.
Well, it's part of the code that
14
was produced in the provisional, but it's the
15
actual stuff in these things designated by the
16
import isn't there.
They did not deliver that.
17
I've read other patent
18
applications, other things, before and sometimes
19
they come with a floppy or CD that says, here's
20
our stuff.
21
22
23
24
For one, this is all I have to
work with.
Q.
I would be guessing.
Can I direct your attention to a
particular part of the code attached here, the
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sixteenth page of the provisional.
2
be something called tool code.
3
get contact?
4
A.
There should
Tool code equals
I think you want to see more than
5
that.
The bottom one.
6
bottom, to where it says return form.
7
Two more lines.
8
9
Keep going right to the
Q.
And in here in particular, I'd
like to point your attention to the middle of
10
the page where it says action.addactionlistener.
11
Do you see that code?
12
A.
I do.
13
Q.
What does that code do?
14
A.
So remember before I said that
15
what the provisional allows it to reset the
16
relationship between these boards.
17
looking at this and using my knowledge of
18
programming that what this essentially does is
19
really the user interface part for somebody to
20
manually set the relationship of one board to
21
another.
22
I believe in
If I could highlight, it says the
23
fourth, fifth line down, add new relationship
24
subform.
So it's using the word "form," and we
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have sub equal new concrete sub form create
2
relationship sub form.
3
be the title of the window you would see as the
4
user and creator.
5
So that would probably
New relationship would be
6
instruction, and the rest of the code -- go a
7
little below it -- says sub.addboarddropdown.
8
It says sub.addboarddropdown, and following
9
that, it talks about the board drop down.
10
I think this is a drop down form
11
or guideline, something that you've probably
12
seen before on computer systems, but it brings
13
up this form that lets you set the relationship
14
of one board to another, and this is a manual
15
thing.
16
Q.
Does anything in this disclose
17
tracking a user's movement from one board to
18
another board?
19
20
21
A.
Neither is it in this code and
nowhere else in the code.
Q.
Does anything in this code
22
disclose tracking a user's movement from one
23
context to a separate context?
24
A.
No.
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2
Q.
There was a deposition taken in
this case of Mr. Lamb.
Are you aware of that?
3
A.
Yes, I am.
4
Q.
Did you read Mr. Lamb's
5
deposition?
6
A.
I did.
7
Q.
Did you base your opinion on
8
Mr. Lamb's testimony in his deposition?
9
A.
No, I did not.
10
Q.
When you reviewed Mr. Lamb's
11
testimony about what he thought was in the
12
provisional application, did it change your
13
opinion as to whether or not the provisional
14
disclosed each and every element of the claim?
15
A.
It enforced my position.
He said
16
several times that no tracking was done in the
17
provisional application.
18
MR. ANDRE:
I'm going to object to
19
the characterization of the witness's testimony,
20
and he testified to that.
21
22
THE COURT:
Overruled.
He's
testifying to his interpretation of that.
23
BY MS. KEEFE:
24
Q.
Dr. Greenberg, one of the terms we
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hear a lot of in patent law is enabling.
Do you
2
know what that means?
3
A.
Yes, I do.
4
Q.
What does it mean to be enabled or
5
enabling technology?
6
A.
It mean that is -- this
7
description has to be enough that somebody of
8
ordinary skill in the art could go and build it.
9
It doesn't have to say everything, but it should
10
be rich enough that you can say, here's what it
11
says, and you can do something about it.
12
Q.
And in your opinion, was the text
13
and code in the back of the provisional
14
application enabling technology?
15
A.
It was enabling in the sense that
16
I understood enough to determine it's about
17
creating boards and setting the relationships
18
between those boards.
19
enabling.
20
In that sense, it's
But it's not a full specification.
21
There's a lot of stuff missing, such as in those
22
import files.
23
description that it matches the description I
24
told you, but in terms of enabling what's in the
I could tell from the code in the
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761 patent, I would say it's not.
2
Q.
So the -- in your -- in your
3
opinion, did the disclosure from the provisional
4
application, including the code at the back,
5
enable one of skill in the art to build or
6
understand what was in the claims of the 761?
7
A.
No.
8
Q.
In your opinion, does the
9
provisional patent application disclose each and
10
every element fully of the asserted claims of
11
the 761 patent?
12
A.
13
No, they do not.
MS. KEEFE:
This is a good place
14
for a break, Your Honor, or we can go to the
15
next topic.
16
17
THE COURT:
I know the next topic
will take more than six minutes.
18
MS. KEEFE:
I promise it will.
19
THE COURT:
Based on that promise,
20
we'll start our lunch a little early today and
21
have the jurors back in time to start again at
22
1:30.
23
THE CLERK:
All rise.
24
(The jury exited the courtroom at
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things I had to take care of and I apologize for
2
keeping you waiting.
3
me keep you waiting no longer.
And welcome back and let
4
Ms. Keefe.
5
MS. KEEFE:
6
Go ahead and put up the summary
7
Dr. Greenberg.
slide.
8
BY MS. KEEFE:
9
Q.
Good afternoon, Dr. Greenberg.
10
A.
Hi.
11
Q.
So before lunch, I think we were
12
talking about your first opinion; is that
13
correct?
14
A.
That's correct.
15
Q.
And what was your first opinion,
A.
So just to summarize, the
16
again?
17
18
provisional patent application does not disclose
19
every element of each asserted claim of the '761
20
patent.
21
22
Q.
Thank you.
I'd like for us now to move on to
23
your second opinion.
Now, before we dive into
24
that, I think one of the terms that we keep
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1643
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,
v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.
) Trial Day 6
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)
Monday, July 26, 2010
9:00 a.m.
BEFORE:
THE HONORABLE LEONARD P. STARK
United States District Court Magistrate
APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING
BY:
BY:
BY:
& SPALDING
PAUL ANDRE, ESQ.
LISA KOBIALKA, ESQ.
JAMES HANNAH, ESQ.
Counsel for Plaintiff
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1
prior art and are therefore not invalid for that
2
reason.
3
Number three, judgment as a matter
4
of law that the invention covered by any of the
5
asserted claims of U.S. Patent Number 7,139,761
6
was not in public use or on sale by Leader
7
Technologies more than one year prior to the
8
effective filing date and the asserted claims of
9
U.S. Patent Number 7,139,761 are therefore not
10
11
invalid for that reason.
Number four, judgment as a matter
12
of law that Facebook has no defense to
13
infringing the asserted claims of U.S. Patent
14
Number 7,139,761 under the Doctrine of
15
Equivalents, including but not limited to, that
16
Facebook has not demonstrated that infringement
17
under the Doctrine of Equivalents results in the
18
asserted claims ensnaring the prior art, as
19
Facebook has failed to provide a hypothetical
20
claim as required to prove ensnarement.
21
Number five, judgement as a matter
22
of law that the U.S. Provisional Patent
23
Application 60/432,255 supports the asserted
24
claims of the U.S. Patent Number 7,139,761 and
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2
THE COURT:
sentence.
One more sentence.
3
4
Three paragraphs, one
MR. WEINSTEIN:
semicolons?
5
Can I use
I'm sorry, Your Honor.
Each and every claim of the '761
6
patent is invalid as obvious as detailed in the
7
testimony of Professor Greenberg and no
8
reasonable jury could fail to find as much.
9
And we just want to reserve our
10
right under the IPXL Holdings.
11
Your Honor has reviewed the IPXL ruling.
12
THE COURT:
I understand
I'm willing to reserve
13
judgment on all of Facebook's motions as I have
14
on Leader's.
15
I do want to give counsel a
16
five-minute break.
Is there anything else that
17
needs to be discussed first?
18
No.
Hopefully not.
19
We'll see you in five minutes.
20
(A brief recess was taken.)
21
THE CLERK:
All rise.
22
THE COURT:
Okay.
MR. ANDRE:
Your Honor, before the
23
24
We'll bring the
jury in.
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jury comes in, we also -- I think Your Honor
2
also already made this clear.
3
reserve our right to the file written submission
4
on the Rule 50 motion.
5
6
THE COURT:
We're going to
That's fine.
That
right is now reserved --
7
MR. ANDRE:
Thank you.
8
THE COURT:
-- to the extent, it
9
wasn't earlier.
10
11
MR. ANDRE:
I thought it was, but
after that long --
12
THE COURT:
13
MR. RHODES:
That's fine.
And, Your Honor, at
14
the end of the case, I'm literally just going to
15
say and I reiterate what Mr. Weinstein said and
16
then say no more.
17
I can do it at a side-bar.
I don't want to interrupt your
18
flow at the end.
19
am going to say is remake the motion again for
20
the reasons stated.
21
do.
22
So I'll look at you, and all I
That is all I am going to
THE COURT:
I think you will
23
probably be able to do that in front of the
24
jury.
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that is in Dr. Greenberg's report.
2
3
Q.
What information did you review in
order to come to your opinion?
4
A.
Well, I reviewed Dr. Greenberg's
5
report and all of the citations or all of the
6
references cited in his report.
7
I reviewed the '761 patent.
I
8
reviewed the claim construction order.
9
reviewed the prosecution history of the patent.
10
11
12
13
14
15
16
I
And I think that completes the
list.
Q.
And you reviewed the provisional
application?
A.
Of course, I did review the
provisional application.
Q.
For all of your analysis, did you
17
understand that you needed to identify who
18
constitutes one of ordinary skill in the art as
19
it relates to the '761 patent?
20
A.
Yes, I did.
21
Q.
Who would that person be?
22
A.
Well, it might be one of ordinary
23
skill in the art would be someone with a
24
bachelor's degree in computer science or related
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field, and/or perhaps several years of
2
experience.
3
Q.
And would someone with let's say
4
Master's degree in computer science fit within
5
the scope of one of ordinary skill in the art?
6
A.
Sure.
I think so.
7
I mean, it's increasingly common
8
for developers in industrial settings to have
9
bachelor's degree.
10
be unusual.
11
Q.
So I don't think that would
And as you get more advanced in
12
degrees, is it typical to specialize in a
13
certain area?
14
A.
Yeah.
I think by the time someone
15
is studying for Ph.D., the things that the
16
person is studying for are extremely narrow and
17
aren't typically all that helpful in real world
18
in building things like web applications.
19
So I think a Bachelor's degree or
20
higher would be -- people in that category would
21
be fairly equivalent when it comes to building
22
applications like this.
23
24
Q.
Did you do all your analysis for
the opinions that you're going to provide today
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Q.
But you also have testified before
2
that the code attached to the provisional
3
application is just pseudo code; correct?
4
A.
Yes.
Well, that goes along with
5
the idea that it's mainly a communication device
6
for other people who might want to make and use
7
this invention.
8
implementation as I said, but it is designed to
9
be helpful, you know, to give information and
It's not really a full
10
hints to someone who might want to actually make
11
this invention.
12
13
14
Q.
To make hints, that is what you
just said?
A.
For someone practicing the art, it
15
would give strong indications of how to
16
implement, make and use this invention.
17
Q.
And pseudo code would not actually
18
function if you were to compile it into an
19
executable program; right?
20
A.
Pseudo code would not, right.
21
Q.
And that's because it's not a real
22
23
24
programing language; right?
A.
So pseudo code is not a real
programing language, but there is really kind of
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a fine line here that I would like to clarify.
2
So the language that appears here
3
looks very much like Java, although I didn't
4
really try to compile it and test it and see if
5
it actually runs.
6
that looks a lot like Java is to provide
7
information to someone skilled in the art so you
8
know what kind of glasses had been imported, you
9
would know how data was being stored, you would
But the purpose of that code
10
know where to go to access information about
11
users, and so on.
12
Q.
You mentioned a lot of things in
13
that last answer that I would like to go
14
through.
15
A.
Okay.
16
Q.
Can we actually see the import
17
statement section of the provisional, please.
18
So you mentioned these import statements quite a
19
few times; is that correct?
20
A.
That's right.
21
Q.
And, in fact, the ones that we
22
pointed to most frequently were the import.com.
23
Leader.persist.vbsf, and the very last import,
24
com.leader.osapplication.sessionstate; is that
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correct?
2
A.
That's correct.
3
Q.
You just mentioned that an import
4
statement imports classes that are defined
5
elsewhere; is that right?
6
A.
That's right.
7
Q.
What is a class?
8
A.
It is a unit of code.
9
Q.
So an import statement is used to
10
bring in code that lives somewhere else into the
11
code without having to repeat that code right
12
here; is that correct?
13
A.
Yeah, it's used for, you know,
14
very common sort of utilities and boiler plate
15
sort of code that's used very frequently.
16
every Java program and most programing language
17
these days import things like that.
18
Q.
And
But with respect to the import
19
statements that we have highlighted here, you
20
can't really know what is in those classes
21
unless you actually have access to the
22
underlying source code that's being imported;
23
isn't that correct?
24
A.
I would say that's not correct.
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would say that anyone skilled in the art knows,
2
you know, you don't know every single detail of
3
exactly what is within those classes, but you
4
know that VBSF is middleware that allows you to
5
store information in a database, you know, that
6
session statement is there to sort of capture
7
and hold information about a session because web
8
protocols are stableless and they can't catch a
9
state, so you know that kind of stuff from just
10
looking at the names of these things because
11
those are very common names in the industry.
12
MS. KEEFE:
Your Honor, I would
13
like to play from the deposition at page 132,
14
lines 19 through 22.
15
MS. KOBIALKA:
16
That's an incomplete clip.
17
on to --
18
19
THE COURT:
We need to continue
Which lines do you
propose in addition?
20
21
I'll object.
MS. KOBIALKA:
At least page 133
through line one.
22
THE COURT:
133, one.
23
MS. KEEFE:
That's fine, Your
24
Honor.
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THE COURT:
2
(Videotape:)
3
Q.
Okay.
You can't really know what's in
4
these classes unless you actually have access to
5
the underlying code.
6
A.
Correct?
So, that's correct -- except
7
someone with skill in the art would be able to
8
make reasonable guesses based on the names, I
9
would maintain.
10
BY MS. KEEFE:
11
Q.
And, in fact, the best you could
12
do is guess as to what's in the code referred to
13
in an import statement; isn't that correct?
14
A.
Not in the sense of a wild guess,
15
no.
So as I said before, you don't know the
16
details of how each one of those is implemented
17
because you don't see the code.
18
very common well understood terms so that anyone
19
knowledgeable in the art would know basically
20
what they're doing and they would tell you that
21
if you are trying to make and use this
22
invention, certain kinds of information are
23
going to be stored in a relational database and
24
certain kinds of information are going to be
But VBSF are
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stored in a session state.
2
3
MS. KEEFE:
MS. KOBIALKA:
incomplete.
6
7
Your Honor, I would
like to play page 133 lines, two through six.
4
5
That would be clear.
I'll object as
If it goes through line 13 on page.
THE COURT:
No objection through
line 13?
8
MS. KOBIALKA:
Yes.
9
THE COURT:
Ms. Keefe.
10
MS. KEEFE:
I actually disagree, I
11
literally asked the question directly and then
12
the answer, but if that helps then we can go
13
ahead and play it.
14
15
THE COURT:
18
19
Let's go
ahead and play it then, the whole portion.
16
17
It helps.
(Videotape:)
Q.
But that's the most they could
make, is reasonable guesses?
A.
Yes.
But someone, you know,
20
skilled in the art could make reasonable
21
guesses, I think.
22
Yes.
But someone, you know,
23
skilled in the art could make reasonable
24
guesses, I think.
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2
Q.
minute.
3
So let's talk about VBSF for a
What is VBSF?
A.
Sort of a middleware that matches
4
up object-oriented programs with relational
5
databases so that it does the translation from
6
the object model to a relational model, makes it
7
much easier to use in a relational database.
8
BY MS. KEEFE:
9
Q.
And, in fact, with respect to the
10
sessions state classes, you were, in fact,
11
speculating as to what was contained within
12
them; isn't that correct?
13
14
15
16
A.
clip?
So, are you talking about this
This clip is talking about VBSF.
Q.
No, I'm talking about session
state classes.
17
A.
Session state classes.
18
Q.
That were imported.
19
A.
So, as I mentioned, you can't see
20
the details of what is session state because the
21
source code is not here.
22
boiler plate type code.
23
something that if you're writing a web and you
24
have to maintain session state, it's usually the
But it is sort of
Session state is
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same for almost every application, a set of
2
things that you're doing in web protocols, they
3
don't know that you have logged in, they don't
4
know that you have seen this page but not that
5
page.
6
information and holds it.
But session state captures that sort of
7
8
It is well-known that this is the
purpose of session state libraries.
9
Q.
But you agree that with respect to
10
the session state, you were speculating as to
11
what it contained?
12
A.
I think that when something is
13
well understood by people versed in the art it's
14
not really quite speculation.
15
informed inference.
16
MS. KEEFE:
It is a very
Your Honor, I would
17
like to play from page 132, line five through
18
line 18.
19
MS. KOBIALKA:
20
This isn't impeachment.
21
THE COURT:
Object, Your Honor.
22
of the transcript.
Pass up a copy, please
132, line five through 18?
23
MS. KEEFE:
Yes, sir, Your Honor.
24
THE COURT:
The objection is
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overruled.
You can play it.
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MS. KEEFE:
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(Videotape:)
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Q.
So you would not know how to
locate those classes.
A.
Thank you, Your Honor.
Correct?
So there are session state classes
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in Java, for example, that may be very similar
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to this, so the functionality of these kinds of
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classes -- the reason -- well, I'm speculating.
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But the reason they're not fully reproduced here
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is simply because they're fairly common kinds of
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things that you wouldn't need to look at.
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Q.
I mean,
you can't -A.
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But you are speculating.
I am.
(End of videotape.)
A.
So if I may clarify what I was
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speculating about is the reason they don't
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appear here, if you go back and carefully read
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that, I'm not speculating about what the classes
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mean, I'm saying I'm speculating the reason they
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don't appear here is because they're very common
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and they don't need to appear here.
24
Q.
When you hired doctor -- you hired
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Dr. Caltaldo to actually attempt an experiment,
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is that correct, using the provisional
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application?
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A.
I'm not sure if hire is the
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correct word.
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task, I did not pay him, someone else paid him,
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but yes, I gave him that task.
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Q.
I'm the one that gave him the
And you agree that a person of
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ordinary skill in the art in this case can have
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as little as a bachelor of science in computer
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science according to your testimony; is that
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right?
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A.
Yes, that's right.
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Q.
But Dr. Caltaldo actually has a
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A.
He does.
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Q.
And Dr. Caltaldo has more than ten
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Ph.D.?
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years of experience in the field of computer
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science?
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A.
That's correct.
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Q.
And you consider him to be very
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talented; right?
A.
He's talented, yes, but then on
the other hand, as I said before, having a Ph.D.
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does not necessarily enhance somebody's ability
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to create a web application.
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you're doing research that takes you into an
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extremely specialized area and since I was his
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thesis supervisor, I can tell you it had
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absolutely nothing to do with web applications
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or even applications.
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Having a Ph.D.
I think ten years of experience
is, you know, probably fairly average for
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someone in industry, so I think if you put all
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that together, he was someone, you know, that
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would be a representative of someone who was
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well versed in the art.
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Q.
And other than assigning him this
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task, you didn't actually oversee Dr. Caltaldo
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in any way during the project; is that right?
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A.
Not in any way having to do with
this, no.
Q.
And you don't know if Dr. Caltaldo
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referenced any outside materials in coming up
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with the pseudo code that he developed; isn't
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that correct?
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A.
All I know is what he told me, and
he told me he did not, when I asked him.
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is that at some point in the deposition, I think
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it was at lunchtime or perhaps a break, I called
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Dr. Caltaldo and asked him some of these
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questions.
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half, I knew some of the answers during the
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second half.
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think to ask him which I asked him yet later, so
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there are several different points in time here.
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So I didn't know during the first
Q.
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please.
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1125, please.
Could we pull up the pseudo code,
I think it's the new exhibit, 1125.
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There were some things I didn't
Can you highlight just the title.
Dr. Herbsleb, is this the title of
the report that Dr. Caltaldo gave you?
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A.
Yes, it is.
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Q.
And the terms at the end here,
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context and tracking components.
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phrases used in the patent; isn't that correct?
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A.
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the patent.
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Q.
Those are
That's correct, they are used in
In fact, it's -- you testified
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earlier that it was possible that Dr. Caltaldo
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actually had a copy of the final patent when he
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was performing his analysis, didn't you?
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A.
I believe what I said is that it's
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public information, that anybody can access
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that, so of course he had access to it as does
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everyone.
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5
Q.
Dr. Herbsleb, what Dr. Caltaldo
built was actually pseudo code, wasn't it?
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A.
Well, again, it appears to be
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Java.
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I didn't compile it, I don't know if it really
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runs, so we could call it pseudo code.
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It is very, very close to Java, but since
It looks
just like Java.
Q.
You testified before that
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Dr. Caltaldo did not build any actual working
13
system in connection with his work with the
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provisional; isn't that correct?
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A.
That's correct, because it does
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make calls into the code, you know, provided in
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the provisional patent application which we
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didn't have in code form, so it couldn't run
19
because it makes those calls to the code that's
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in the system.
21
Q.
And the fact that it is pseudo
22
code indicates to you that the code Dr. Caltaldo
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developed could not be used to create a working
24
application; is that correct, by itself?
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
___________________________________________________
LEADER TECHNOLOGIES,
) Trial Day 7
INC., a Delaware
)
corporation,
)
)
PLAINTIFF,
)
)
v.
) C.A. No. 08-862-JJF-LPS
)
FACEBOOK, INC., a
)
Delaware corporation,
)
)
DEFENDANT.
)
____________________________________________________
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Tuesday, July 27, 2010
9:00 a.m.
BEFORE:
THE HONORABLE LEONARD P. STARK,
United States District Court Magistrate
APPEARANCES:
POTTER ANDERSON & CORROON, LLP
BY: PHILIP ROVNER, ESQ.
-andKING & SPALDING LLP
BY: PAUL ANDRE, ESQ.
BY: JAMES HANNAH, ESQ.
Counsel for Plaintiff
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THE CLERK:
All rise.
Court is
2
now in session, the Honorable Leonard P. Stark
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now presiding.
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THE COURT:
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(Everyone said, Good morning, Your
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Good morning.
Honor.)
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THE CLERK:
Please be seated.
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THE COURT:
Anything we need to
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take up before the jury comes in?
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MR. ANDRE:
Just real quick, Your
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Honor.
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Facebook made a filing this morning on Rule 58.
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Some objections.
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objections to the jury are noted and the Rule 58
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motion can come in sometime after the jury
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verdict, perhaps within ten days.
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acceptable, Your Honor?
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THE COURT:
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I'm a little paranoid.
with me.
I just want to make sure our
MR. RHODES:
That's all acceptable
Your Honor, we forgot
to move into evidence DTX 278 and 280.
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THE COURT:
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MR. RHODES:
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Is that
Thank you very much.
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I saw that
It is admitted.
I appreciate that,
Your Honor.
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