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)

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EXHIBIT A 309 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LEADER TECHNOLOGIES, INC., Plaintiff, ) Trial Volume 2 ) ) ) ) C.A. No. 08-862-JJF-LPS ) ) ) ) ) ) v. FACEBOOK, INC., a Delaware corporation, Defendant. Tuesday, July 20, 2010 9:00 a.m. BEFORE: THE HONORABLE LEONARD P. STARK United States District Court Magistrate APPEARANCES: POTTER, ANDERSON & CORROON, LLP BY: PHILIP A. ROVNER, ESQ. -andKING BY: BY: BY: & SPALDING PAUL ANDRE, ESQ. LISA KOBIALKA, ESQ. JAMES HANNAH, ESQ. Counsel for Plaintiff Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 467 1 wouldn't know to contradict that, but that 2 sounds about right. 3 Q. And nothing you said in that 4 deposition was incorrect; right? 5 stand by the testimony you gave during that 6 deposition? 7 A. In fact, you I made a few one-word 8 clarifications in that deposition, but the 9 deposition I gave was accurate. It's just a 10 little bit more clear about those one-word 11 additions. 12 Q. But those one-word additions 13 didn't change the substance of your deposition 14 or your testimony? 15 A. I don't believe they changed the 16 substance, they just clarified and narrowed it a 17 little bit. 18 19 MS. KEEFE: Thank you very much for your time, Mr. Lamb. 20 THE WITNESS: 21 THE COURT: 22 MS. KOBIALKA: 23 24 You're welcome. Redirect. Yes, Your Honor. REDIRECT EXAMINATION BY MS. KOBIALKA: Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 469 1 time period are you referring to? 2 A. I don't know when the term 3 Leader2Leader first came into existence, but 4 essentially from that moment until the day I 5 left. 6 Q. Which was in 2005? 7 A. 2005. 8 Q. You mentioned there was a 9 10 11 collection of technologies. What are you referring to? A. So we had underlying technology 12 concept that was kind of the big thing that 13 solved it, solved the data burden issue, but 14 then we felt like we had to come to specific 15 applications the users were going to need as an 16 entry point to have it be useful. 17 So things like, you know, an email 18 tool, a task tool, a project management tool, 19 calendaring, file upload, you know, put files 20 into a shared space, any kind of file load is 21 kind of cool, that collection, that was -- there 22 were several of those applications that had to 23 be part, we thought had to be part of the 24 technology. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 470 1 And that changed over time, too, 2 as we came up with other applications that we 3 built into that, we added that to the mental 4 pictures of what Leader2Leader was in the 5 product. 6 Q. Sometimes when you talked about 7 Leader2Leader during your time at Leader, did 8 that include things like LeaderPhone? 9 A. Yeah, so LeaderPhone was one of 10 the products I developed, helped develop, led 11 the team in developing at Leader Technologies. 12 13 Q. Is there any other names that come to mind that would have -- 14 MS. KEEFE: Objection. 16 THE COURT: Overruled. 17 THE WITNESS: 15 Beyond the scope. Smart Camera was 18 another application that stood out as something 19 that we didn't conceive of when we originally 20 started, but then later on, hey, this would be a 21 cool addition to throw that in. 22 Q. Turning to the technology that you 23 developed that you understand is the invention 24 of the '761 patent, when you implemented it, did Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 945 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LEADER TECHNOLOGIES, INC., Plaintiff, ) Trial Volume 4 ) ) ) ) C.A. No. 08-862-JJF-LPS ) ) ) ) ) ) v. FACEBOOK, INC., a Delaware corporation, Defendant. July 22, 2010 9:00 a.m. BEFORE: THE HONORABLE LEONARD P. STARK United States District Court Magistrate APPEARANCES: POTTER, ANDERSON & CORROON, LLP BY: PHILIP A. ROVNER, ESQ. -andKING BY: BY: BY: & SPALDING PAUL ANDRE, ESQ. LISA KOBIALKA, ESQ. JAMES HANNAH, ESQ. Counsel for Plaintiff Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 Page 1182 1 Q. Okay. Is there anything in the 2 code that is included with the provisional 3 application that implements tracking a change of 4 a user from one board to another board? 5 A. I would have to have a lot more 6 time to review it to definitively say so. 7 based on a short review, it does not appear that 8 there is code present in these pages that tracks 9 when a user switches from one board to another 10 11 12 13 But board of interest. Q. Or from one web to another web, the same answer? A. There is an assumption in the 14 question that I don't think is accurate. 15 recollection, there isn't an event where a user 16 switches from one web to another. 17 the question falls apart. 18 Q. To my So when -- so Is there anything in the code 19 attached to the provisional that implements 20 associating metadata with user created data? 21 A. Could you repeat the question? 22 Q. Sure. 23 24 Is there anything in the code attached to the provisional application that 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 (302) 658-6697 FAX (302) 658-8418 Page 1289 1 meetings and demos." Do you see that? 2 A. I do. 3 Q. Now, let's just take for a moment 4 the date of December 10, 2003, when the final 5 patent application was filed. Are you with me? 6 A. I'm listening. 7 Q. Before that time, you made many 8 presentations about Leader to Leader to many 9 people; right? 10 11 12 13 14 15 16 A. I made numerous presentations about Leader to Leader, yes. Q. And many of those were under confidentiality agreements; correct? A. All of them were under confidentiality agreements. Q. And indeed you had literally 17 hundreds of confidentiality agreements before 18 December 2003. 19 A. Probably more than that. 20 Q. Thousands? 21 A. Probably over a thousand. 22 Q. So over -- and they were all with 23 24 different people and entities? A. Yes, usually. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1290 1 Q. So before the patent application 2 was filed, you had over 1,000 different times 3 that you met with over 1,000 different folks to 4 talk about Leader to Leader; is that right? 5 A. Whenever we were speaking with 6 investors or potential suppliers or potential 7 customers, when we finished the product, prior 8 to those meetings, we would always get a 9 confidentiality agreement from them before we 10 disclosed any business trade secrets. 11 Q. Always? 12 A. Always. 13 Q. And always before the meeting? 14 A. That's correct. 15 Q. Never happened after the meeting? 16 A. Never. 17 Q. The purpose of these thousand 18 different meetings with 1,000 different parties 19 with 1,000 different contracts was to discuss 20 business opportunities for Leader to Leader; 21 right? 22 A. Well, you made some very broad 23 statements there. There weren't thousands of 24 contracts, and the way you characterize it is Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1291 1 probably incorrect, but we did have a lot of 2 presentations to potential investors, potential 3 suppliers or vendors, some developers that we 4 were talking to, and whenever we -- to build the 5 company, and whenever we did that, to protect 6 our trade secrets, we always had them enter a 7 confidentiality agreement so that we properly 8 protected our business trade secrets. 9 10 Q. Thank you. And many of those were before December 1st of 2002, weren't they? 11 A. Yes. 12 Q. And many of those instances 13 involved discussions about someone buying or 14 licensing Leader2Leader; correct? 15 A. Well, those were prospective 16 discussions, and we couldn't have sold 17 Leader2Leader because it wasn't ready yet. 18 Q. Take a look at the -- if we go 19 down to the section that's says L2L. 20 it's two asterisks. 21 22 23 24 MR. RHODES: I think At the bottom, Ken. BY MR. RHODES: Q. Now, I take it where we see L2L, that's a reference to the product Leader2Leader? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1297 1 right? 2 A. That is correct. 3 Q. Okay. 4 5 Take a look at -- MR. RHODES: Start. Stop, Ken. BY MR. RHODES: 6 Q. The date is -- Monday, 11/25 is 7 the day before the day of the email, which is 8 November 26th. Do you see that? 9 A. Yes, I do. 10 Q. Okay. So he's writing it on the 11 Tuesday, but he's talking about what happened 12 the day before the Monday. 13 A. I am. 14 Q. Okay. Are you with me? So, now let's go to the 15 body of the document and the first very part 16 under general. 17 18 MR. RHODES: Ken, thank you. BY MR. RHODES: 19 20 Just the first few lines. Q. And it says, yesterday, so that would be November 25th; right, the Monday? 21 A. That's right. 22 Q. Okay. So where we see yesterday, 23 we know that's Monday 11/25. 24 Mike, that's you; right? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1298 1 A. Yes. 2 Q. You met with Boston Scientific; 4 A. I remember that meeting. 5 Q. And he says you were demoing. 3 right? 6 Yes. That means demonstrating; correct? 7 A. I believe that would mean 8 demonstrating, yes. 9 Q. And you were demonstrating the 10 Leader2Leader functionality for senior staff 11 members; correct? 12 A. Yes. 13 Q. And senior staff members refers to 14 the folks that are at Boston Scientific; 15 correct? 16 17 18 A. That meeting was with information technology people within Boston Scientific. Q. 19 Okay. Now, let's take -- MR. RHODES: I'm sorry. Your 20 Honor, I'll move into evidence DTX 0776. 21 MS. KOBIALKA: 22 THE COURT: 23 24 No objection. It's admitted. BY MR. RHODES: Q. Let's now take a look at DTX 0736. Hawkins Reporting Service 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1306 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1316 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1320 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1321 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1324 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1327 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1363 1 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? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1364 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1377 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1402 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1403 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1406 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1407 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1408 1 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? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1409 1 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? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1410 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1411 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1412 1 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, Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1413 1 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 -- Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1414 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1415 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1416 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1417 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1418 1 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? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1419 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1420 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1421 1 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? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1422 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1423 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1424 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1425 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1426 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1427 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1428 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1429 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1430 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1431 1 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, Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1432 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1433 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1434 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1435 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1436 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1437 1 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 -- Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1438 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1439 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1440 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1441 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1442 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1443 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1444 1 761 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 Page 1447 1 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 Hawkins Reporting Service 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1714 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1733 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1734 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1740 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1741 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1855 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1856 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1857 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 I 1858 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1859 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1860 1 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. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1861 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1862 1 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1863 1 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. 13 14 15 Q. I mean, you can't -A. 16 17 But you are speculating. I am. (End of videotape.) A. So if I may clarify what I was 18 speculating about is the reason they don't 19 appear here, if you go back and carefully read 20 that, I'm not speculating about what the classes 21 mean, I'm saying I'm speculating the reason they 22 don't appear here is because they're very common 23 and they don't need to appear here. 24 Q. When you hired doctor -- you hired Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1864 1 Dr. Caltaldo to actually attempt an experiment, 2 is that correct, using the provisional 3 application? 4 A. I'm not sure if hire is the 5 correct word. 6 task, I did not pay him, someone else paid him, 7 but yes, I gave him that task. 8 Q. I'm the one that gave him the And you agree that a person of 9 ordinary skill in the art in this case can have 10 as little as a bachelor of science in computer 11 science according to your testimony; is that 12 right? 13 A. Yes, that's right. 14 Q. But Dr. Caltaldo actually has a 16 A. He does. 17 Q. And Dr. Caltaldo has more than ten 15 Ph.D.? 18 years of experience in the field of computer 19 science? 20 A. That's correct. 21 Q. And you consider him to be very 22 23 24 talented; right? A. He's talented, yes, but then on the other hand, as I said before, having a Ph.D. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1865 1 does not necessarily enhance somebody's ability 2 to create a web application. 3 you're doing research that takes you into an 4 extremely specialized area and since I was his 5 thesis supervisor, I can tell you it had 6 absolutely nothing to do with web applications 7 or even applications. 8 9 Having a Ph.D. I think ten years of experience is, you know, probably fairly average for 10 someone in industry, so I think if you put all 11 that together, he was someone, you know, that 12 would be a representative of someone who was 13 well versed in the art. 14 Q. And other than assigning him this 15 task, you didn't actually oversee Dr. Caltaldo 16 in any way during the project; is that right? 17 18 19 A. Not in any way having to do with this, no. Q. And you don't know if Dr. Caltaldo 20 referenced any outside materials in coming up 21 with the pseudo code that he developed; isn't 22 that correct? 23 24 A. All I know is what he told me, and he told me he did not, when I asked him. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1867 1 is that at some point in the deposition, I think 2 it was at lunchtime or perhaps a break, I called 3 Dr. Caltaldo and asked him some of these 4 questions. 5 half, I knew some of the answers during the 6 second half. 7 think to ask him which I asked him yet later, so 8 there are several different points in time here. 9 So I didn't know during the first Q. 10 please. 11 1125, please. Could we pull up the pseudo code, I think it's the new exhibit, 1125. 12 13 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? 14 A. Yes, it is. 15 Q. And the terms at the end here, 16 context and tracking components. 17 phrases used in the patent; isn't that correct? 18 A. 19 the patent. 20 Q. Those are That's correct, they are used in In fact, it's -- you testified 21 earlier that it was possible that Dr. Caltaldo 22 actually had a copy of the final patent when he 23 was performing his analysis, didn't you? 24 A. I believe what I said is that it's Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1868 1 public information, that anybody can access 2 that, so of course he had access to it as does 3 everyone. 4 5 Q. Dr. Herbsleb, what Dr. Caltaldo built was actually pseudo code, wasn't it? 6 A. Well, again, it appears to be 7 Java. 8 I didn't compile it, I don't know if it really 9 runs, so we could call it pseudo code. 10 11 It is very, very close to Java, but since It looks just like Java. Q. You testified before that 12 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 18 didn't have in code form, so it couldn't run 19 because it makes those calls to the code that's 20 in the system. 21 Q. And the fact that it is pseudo 22 code indicates to you that the code Dr. Caltaldo 23 developed could not be used to create a working 24 application; is that correct, by itself? Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 (302) 658-6697 FAX (302) 658-8418 1896 1 2 3 4 5 6 7 8 9 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. ) ____________________________________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801 1898 1 THE CLERK: All rise. Court is 2 now in session, the Honorable Leonard P. Stark 3 now presiding. 4 THE COURT: 5 (Everyone said, Good morning, Your 6 Good morning. Honor.) 7 THE CLERK: Please be seated. 8 THE COURT: Anything we need to 9 take up before the jury comes in? 10 MR. ANDRE: Just real quick, Your 11 Honor. 12 Facebook made a filing this morning on Rule 58. 13 Some objections. 14 objections to the jury are noted and the Rule 58 15 motion can come in sometime after the jury 16 verdict, perhaps within ten days. 17 acceptable, Your Honor? 18 THE COURT: 19 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. 22 THE COURT: 23 MR. RHODES: 24 Is that Thank you very much. 20 21 I saw that It is admitted. I appreciate that, Your Honor. Hawkins Reporting Service 715 North King Street - Wilmington, Delaware 19801

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