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
[phone] FAX [phone]

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
[phone] FAX [phone]

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

Hawkins Reporting Service
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
[phone] FAX [phone]

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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715 North King Street - Wilmington, Delaware 19801

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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1

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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1

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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1

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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Page 1325
1

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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Page 1382
1
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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1

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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1

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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1
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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715 North King Street - Wilmington, Delaware 19801

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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1

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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1858
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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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1
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.

2

MS. KEEFE:

3

(Videotape:)

4
5
6

Q.

So you would not know how to

locate those classes.
A.

Thank you, Your Honor.

Correct?

So there are session state classes

7

in Java, for example, that may be very similar

8

to this, so the functionality of these kinds of

9

classes -- the reason -- well, I'm speculating.

10

But the reason they're not fully reproduced here

11

is simply because they're fairly common kinds of

12

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.

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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

2

it was at lunchtime or perhaps a break, I called

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Dr. Caltaldo and asked him some of these

4

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

3

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

14

provisional; isn't that correct?

15

A.

That's correct, because it does

16

make calls into the code, you know, provided in

17

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

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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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