Personalized User Model LLP v. Google Inc.

Filing 36

NOTICE of of Issuance of Subpoena on Lumen Patent Firm, Inc. and Schwegman, Lundberg & Woessner, P.A. by Google Inc. (Attachments: # 1 Exhibit 1-2)(Moore, David)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PERSONALIZED USER MODEL, L.L.P., Plaint iff, v. GOOGLE, INC., Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 09-525 (JJF)

STIPULATED PROTECTIVE ORDER Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court hereby enters the following Stipulated Protective Order ("Order"): This Order is issued to facilitate document disclosure and production and other discovery under the Local Rules of this Court and the Federal Rules of Civil Procedure. Unless modified pursuant to the terms contained in this Order, this Order shall remain in effect through and after the conclusion of this litigation. In support of this Order, the parties represent that: Documents or information containing confidential or proprietary business information and/or trade secrets ("Confidential Information") related to the parties' claims or defenses are likely to be disclosed or produced during the course of discovery in this litigation by parties or third parties (collectively, "Party" or "Parties"); Public dissemination or disclosure of such Confidential Information could injure or damage the Party disclosing or producing the Confidential Information ("Producing Party") and could place that Producing Party at a competitive disadvantage; and

To protect the respective interests of the Parties and to facilitate the progress of disclosure and discovery in this case,

IT IS THEREFORE ORDERED THAT: INFORMATION SUBJECT TO THIS ORDER 1. Documents, physical objects, computer source code, testimony and discovery

responses containing Confidential Information disclosed or produced in this litigation are referred to as "Protected Documents." Except as otherwise indicated below, all documents, physical objects, computer source code, testimony and discovery responses designated by the Producing Party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" that are disclosed or produced to counsel for the other Parties to this litigation (the "Receiving Party") are Protected Documents entitled to confidential treatment as described below. Documents and/or Confidential Information may also be designated

"RESTRICTED CONFIDENTIAL ­ SOURCE CODE," subject to the provisions stated herein. Any extract, summary, compilation or other material derived in whole or in part from Confidential Information shall itself be deemed to be Confidential Information with the same confidentiality designation as the material it was derived from, and the dissemination or use thereof shall be governed by this Order. 2. The use of Protected Documents and/or Confidential Information obtained by any

Party pursuant to discovery in this litigation shall be limited to and used solely for the purposes of this litigation. 3. Any Protected Document containing Confidential Information should be

designated as such by marking it "CONFIDENTIAL," "HIGHLY CONFIDENTIAL OUTSIDE COUNSEL ONLY," or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" (as the case may be) prior to or at the time copies are furnished to the Receiving Party. 2

4.

All Confidential Information not reduced to documentary, tangible, or physical

form, or which cannot be conveniently designated, shall be designated by the Producing Party by informing the Receiving Party of the designation in writing. 5. To the extent that Protected Documents and/or Confidential Information are used

in depositions or at hearings, such documents or information shall remain subject to the provisions of this Order, along with the transcript pages of testimony referring to the Protected Documents and/or Confidential Information. Any deposition transcript, in whole or in part, may be designated "CONFIDENTIAL," "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY," or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" by an appropriate statement at the time such testimony is given or thereafter by notifying the other Parties in writing within fifteen (15) days from the date of the deposition of the portions to be so designated. Upon such request, the reporter shall mark the original and all copies of the transcript with the appropriate confidentiality designation. Unless the Parties otherwise agree, the entire transcript of all

depositions shall be deemed designated as "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY" for fifteen (15) days from the date of the deposition. After such date, upon request from any Party, Counsel for the Party designating a transcript, recording, or portions thereof "CONFIDENTIAL," "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY," or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" shall be responsible for notifying the court reporter and opposing counsel in writing of those portions of the transcript that contain Confidential Information. Any portions so designated shall thereafter be treated in accordance with the terms of this Order. Counsel for the Party whose Protected Documents and/or

Confidential Information is being discussed, used, or otherwise disclosed at a deposition or hearing may request that all persons other than the court reporter, videographer, the Court and its

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personnel, the witness, and others authorized to view the Protected Documents and/or Confidential Information leave the deposition or hearing. 6. In the event a deposition disclosing or discussing Protected Documents and/or

Confidential Information is video-recorded, the original and all copies of the media containing the video shall be marked by the video technician to indicate that the contents are subject to this Order, substantially as set forth below: This videotape contains confidential testimony subject to Protective Order in Civil Action No. 09-525 (D. Del.) and is not to be viewed or displayed except in accord with such Protective Order, by order of the Court, or pursuant to written stipulation of the parties to the litigation. 7. (a) Protected Documents and/or Confidential Information shall not include: publicly-disseminated advertising or other publicly-disseminated marketing materials; (b) materials that on their face show that they have been published to the general public; (c) documents that have been submitted to any governmental entity without a request for confidential treatment or a reasonable expectation that the documents or information would remain confidential; (d) any information that the Receiving Party can demonstrate by written records it already knew prior to the disclosure, provided that it received the information either: (i) (ii) fro m the Producing Party under no obligation of confidentiality, or fro m a source who obtained the information lawfully and under no obligation of confidentiality;

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(e)

any information that the Receiving Party can demonstrate by written records it received after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality; or

(f)

any information that the Receiving Party can demonstrate it independently developed after the time of disclosure by personnel who did not have access to the producing Party's Protected Documents and/or Confidential Information.

8.

By way of non-limiting example, confidential research, development, commercial

or financial information the disclosure of which the Producing Party reasonably believes could cause harm to its business operations or provide improper business or commercial advantage to others may qualify for the "CONFIDENTIAL" designation. By way of non-limiting example, Protected Documents in one or more of the following categories may qualify for the "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" designation: (i) trade secrets; (ii) non-public technical information, including schematic diagrams, manufacturing and engineering drawings, engineering notebooks, specifications, research notes and materials, technical reference materials, and other non-public technical descriptions and/or depictions of the relevant technology that are likely to cause competitive harm to a Party's business operations if disclosed; (iii) non-public financial information (e.g., the number of products sold, total dollar value of sales products, and profit margins); (iv) business and/or marketing plans; (v) non-public price lists and/or pricing information; and (vi) information obtained from a third party pursuant to a current Non-Disclosure Agreement ("NDA"). Nothing herein shall prejudice or waive in any way the rights of Parties to object to the production of documents they consider not subject to discovery for any reason or operate as a consent to any discovery.

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NO WAIVER 9. Inadvertent or unintentional production of Protected Documents and/or

Confidential Information not designated "CONFIDENTIAL," "HIGHLY CONFIDENTIAL OUTSIDE COUNSEL ONLY," or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment. Upon request by the Producing Party, the Receiving Party shall immediately destroy or return all copies of inadvertently-produced document(s). The Producing Party may then reproduce or redesignate within five business days of such a request the returned documents with any of the aforementioned CONFIDENTIAL designations. The Receiving Party shall also make all

reasonable efforts to retrieve any such Protected Documents from anyone not authorized under this Order to view such Protected Documents. The receipt of documents or information that have been designated as containing Confidential Information shall not operate as an admission by the Receiving Party that any particular documents or information contain trade secrets or any other type of confidential or proprietary information. Nothing herein shall operate as an

agreement by the Producing Party that the restrictions and procedures set forth in this Order constitute adequate protection for Protected Documents and/or Confidential Information. 10. The designation (or lack thereof) of Protected Documents and/or Confidential

Information as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," and/or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" shall not operate to prejudice or waive any claim or defense in this Action. 11. Nothing herein shall prejudice or waive in any way the rights of any Party to

object to the authenticity or admissibility into evidence of any document, testimony or other evidence subject to this Order.

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CHALLENGES TO CONFIDENTIALITY DESIGNATIONS 12. Nothing herein shall prejudice or waive in any way the rights of a Party to

challenge the designation of any documents or things as Protected Documents. Counsel for the Receiving Party may challenge the confidential designation of all or any portion thereof by providing written notice to counsel for the Producing Party particularly identifying the documents or information the Receiving Party contends should be differently designated. If, after conferring, the Parties cannot reach agreement concerning the matter within five (5) business days after the delivery and receipt of the notice, then the Party requesting the dedesignation of particular items may seek an Order of this Court directing that the designation be removed. On any such motion, the burden of proof shall lie with the Producing Party to establish that the information is, in fact, properly designated. No Party shall be obligated to challenge the propriety of any designation, and failure to do so shall not preclude a subsequent challenge. Until a determination by the Court, the information in issue shall be treated as having been properly designated and subject to the terms of this Order. PERSONS AUTHORIZED TO RECEIVE CONFIDENTIAL INFORMATION 13. Subject to the limitations set forth in this Order, Protected Documents and/or

Confidential Information (except information designated "RESTRICTED CONFIDENTIAL ­ SOURCE CODE") shall be disclosed only to the following persons ("Qualified Persons"): A. Counsel of record in this action for the Party or Parties receiving Protected

Documents and/or Confidential Information; B. Partners and supporting personnel of such counsel, such as attorneys, paralegals,

translators, secretaries, clerks and reporters, and excluding experts and investigators; C. Outside vendors, including court reporters, videographers, jury consultants

(including mock jurors), graphic artists, and/or copy vendors necessary to assist such 7

counsel in the preparation and/or trial of this action, provided that counsel retaining such vendors shall be responsible for their compliance with this Order; D. The Court and its personnel (under seal or with other suitable precautions as

determined by the Court); E. Experts, consultants and their support staff that are disclosed and qualified

pursuant to the terms of paragraph 15 below; F. Up to two (2) in-house counsel for each Party;

Notwithstanding this provision, Protected Documents and/or Confidential Information designated "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" shall not be disclosed to any person allowed access under paragraph 13.F or mock jurors under 13.C. Nothing herein precludes counsel for a Party from providing advice or opinions to his or her client regarding this litigation based on his or her evaluation of Protected Documents or Confidential Information ­ provided that such rendering of advice and opinions shall not reveal the content of Protected Documents and/or Confidential Information except by prior written agreement with counsel for the Producing Party. DISCLOSURE TO TECHNICAL ADVISORS 14. Informat ion designated by the Producing Party under any category of Protected

Information and such copies of this information as are reasonably necessary for maintaining, defending or evaluating this litigation may be furnished and disclosed to the Receiving Party's experts or consultants and their necessary support personnel. 15. Before a Receiving Party may disclose any material designated

"CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," and/or

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"RESTRICTED CONFIDENTIAL ­ SOURCE CODE" to a proposed expert or consultant, including, any support staff or assistant: A. Counsel shall provide a copy of this Order to such person, who shall sign the

Agreement attached hereto as Exhibit A; and B. Counsel for the Receiving Party shall notify the Producing Party in writing of the

intent to disclose "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," and/or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" discovery material to such person. The notice shall include a copy of the Agreement signed by the proposed expert or consultant and include a copy of the individual's most recent curriculum vitae, which shall identify all of such person's past and present employment and/or consulting relationships for the last four years, a listing of cases in which the witness has testified as an expert at trial or by deposition within the preceding five years, an identification of any patents or applications for patents in which the technical adviser is identified as an inventor or applicant, which the technical advisor is involved in the prosecution or maintenance thereof, or any patents or patent application in which the technical advisor has any pecuniary interest, and any previous or current relationship (personal or professional) with any of the Parties (and/or their predecessors or successors-in-interest). If the Producing Party objects to the disclosure of

"CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," and/or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" material to such person, the Producing Party shall notify counsel for the Receiving Party in writing of the objection within seven business days of the disclosure. Any objection must be made for good cause, stating with particularity the reasons for the objection. No disclosure of

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Protected Documents or Confidential Information should be made to that individual until after the seven business days have passed without objection, or until the objection is resolved. Should the Receiving Party disagree with the basis for the objection(s), the Parties must first attempt to resolve the objection(s) informally. If informal efforts do not resolve the dispute within five business days, the Producing Party may seek relief from the Court after that five day period expires. C. The objecting party shall have the burden of showing to the Court "good cause"

for preventing the disclosure of its Protected Information to the technical adviser. This "good cause" shall include a particularized showing that: (1) the Protected Information is confidential commercial information, (2) disclosure of the Protected Information would result in a clearly defined and serious injury to the objecting party's business, (3) the proposed technical advisor is in a position to allow the Protected Information to be disclosed to the objecting party's competitors, and (4) that the technical advisor's access to Protected Information may create other confidentiality or legal risks in connection with other patent-related activities or interests tied to the technical advisor. D. Pending a ruling by the Court upon any such objection(s), the Protected

Documents or Confidential Information shall not be disclosed to the proposed expert or consultant. LIMITATIONS ON THE USE OF CONFIDENTIAL INFORMATION 16. All Protected Documents and/or Confidential Information are entitled to

confidential treatment pursuant to the terms of this Order until and unless the Parties otherwise agree in writing or as otherwise ordered by the Court. Protected Documents and/or Confidential Information shall not be used, shown, disseminated, copied, or in any way communicated to anyone for any purpose whatsoever, except as provided for in this Order. As noted above, such 10

Protected Documents and/or Confidential Information shall be used solely for purposes of this litigation and for no other purpose. 17. This Protective Order has no effect upon, and shall not apply to, a Producing

Party's use of its own "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," and/or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" material for any purpose. 18. Except as may be otherwise ordered by the Court, any person may be examined as

a witness at deposition or trial and may testify concerning all Protected Documents and/or Confidential Information of which such person has prior knowledge. Without in any way limiting the general application of the foregoing: A. Any present director, officer, or employee of a Producing Party may be examined

and may testify at deposition or trial concerning all Protected Documents and/or Confidential Information which has been produced by that Party. B. Any former director, officer, agent and/or employee of a producing party may be

interviewed, examined and may testify concerning all Protected Information of which he or she has personal knowledge, including any Protected Information that refers to matters of which the witness has personal knowledge, which has been produced by that party and which pertains to the period or periods of his or her employment. C. Any other person may be examined and may testify at deposition or trial

concerning any Protected Document and/or Confidential Information that identifies that person on the face of the document as an author or recipient, or where it otherwise appears from other documents or testimony to have been received from or communicated to that person. Such person may not retain originals or copies of such Protected

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Documents and/or Confidential Information, or any notes or transcripts reflecting such Protected Documents and/or Confidential Information, other than for the limited purpose of reviewing deposition transcripts to make necessary corrections. D. Any person other than the witness, his or her attorney(s), or any Qualified Person

shall be excluded from the portion of the examination concerning such information, unless the Producing Party otherwise consents. If the witness is represented by an attorney who is not qualified under this Order to receive such information, then prior to the examination, that attorney shall provide a signed statement, in the form of Exhibit A hereto, that he or she will comply with the terms of this Order and maintain the confidentiality of Protected Documents and/or Confidential Information disclosed during the course of the examination. E. All transcripts of depositions, exhibits, answers to interrogatories, pleadings,

briefs, and other documents submitted to the Court which have been designated as Protected Information, or which contain information so designated, shall be filed under seal in a manner prescribed by the Court for such filings. F. Outside attorneys of record for the parties are hereby authorized to be the persons

who may retrieve confidential exhibits and/or other confidential matters filed with the Court upon termination of this litigation without further order of this Court, and are the persons to whom such confidential exhibits or other confidential matters may be returned by the Clerk of the Court, if they are not so retrieved. No material or copies thereof so filed shall be released except by order of the Court, to outside counsel of record, or as otherwise provided for hereunder. Notwithstanding the foregoing and with regard to material designated as RESTRICTED CONFIDENTIAL ­ SOURCE CODE, the

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provisio ns of Paragraph 19.B are controlling to the extent those provisions differ from this paragraph. G. Protected Information shall not be copied or otherwise produced by a Receiving

Party, except for transmission to Qualified Recipients, without the written permission of the Producing Party, or, in the alternative, by further order of the Court. Nothing herein shall, however, restrict a Qualified Recipient from making working copies, abstracts, digests and analyses of CONFIDENTIAL and HIGHLY CONFIDENTIAL OUTSIDE COUNSEL ONLY information for use in connection with this litigation and such working copies, abstracts, digests and analyses shall be deemed Protected Information under the terms of this Order. Further, nothing herein shall restrict a Qualified Recipient fro m converting or translating CONFIDENTIAL and CONFIDENTIAL OUTSIDE COUNSEL ONLY information into machine readable form for incorporation into a data retrieval system used in connection with this action, provided that access to that Protected Information, in whatever form stored or reproduced, shall be limited to qualified recipients. H. At the request of any party, the original and all copies of any deposition transcript,

in whole or in part, shall be marked "CONFIDENTIAL" by the reporter. This request may be made orally during the deposition or in writing within fifteen (15) days of receipt of the final certified transcript. Deposition transcripts shall be treated as HIGHLY

CONFIDENTIAL OUTSIDE COUNSEL ONLY until the expiration of the time to make a confidentiality designation. Any portions so designated shall thereafter be treated in accordance with the terms of this Order.

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LIMITATIONS ON USE OF SOURCE CODE 19. All source code produced shall be deemed designated as "RESTRICTED All such source code, and any other Protected

CONFIDENTIAL ­ SOURCE CODE."

Documents designated "RESTRICTED CONFIDENTIAL ­ SOURCE CODE," shall be further protected as follows: A. "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" includes human-readable

programming language text that defines software, firmware, or electronic hardware descriptions (hereinafter referred to as "source code"). Text files containing source code shall hereinafter be referred to as "source code files." Source code files further include object code, "include" files, "make" files, link files, documentation relating to any such source code or object code, and other human-readable text files used in the generation and/or building of software directly executed on a microprocessor, microcontroller, or DSP. B. Necessit y and Treatment of Source Code. The following procedures may apply to

the production of source code at the option of the Producing Party. No action taken (or not taken) by the Producing Party, however, shall be considered a waiver of the provisions set forth herein unless otherwise agreed in writing: 1. The Producing Party shall make the source code available electronically and in text-searchable form on a password-protected stand-alone computer (i.e., not connected to a network or the Internet, and locked down so that additional peripheral devices cannot be connected to the computer by a Receiving party) (the "Source Code Computer") in a secure room at a secure facility agreed upon by the Parties, or, if the Parties cannot agree on a location for the production of source code, at the offices of the Producing Party's non-local outside counsel. 14

2.

The Producing Party may use appropriate commercially-available, licensed software tools for viewing and searching source code on the Source Code Computer, which shall be installed by the Producing Party, including text editors and multi-file text search tools such as "grep." Specific tools may include, but are not limited to: Eclipse, Visual Slick Edit, Source-Navigator, PowerGrep,

Understand, and ExamDiff Pro, or similar programs. Should it be necessary, other mutually-agreed-upon tools may be used. To the extent that the Receiving Party wishes to use a particular tool other than Eclipse, the Receiving Party must provide the producing party with the CD or DVD containing the requested software tools at least four (4) business days in advance of the requested inspection. 3. The Source Code Computer shall be made available during regular business hours local time, Monday through Friday (excluding holidays), and other days and/or times, including weekends, upon reasonable request, which shall not be less than three (3) business days in advance of the requested inspection. Access on

weekends or after hours (until 10 pm) shall be permitted when reasonably necessary and on three (3) business days advance notice. 4. Source code is to be treated as "RESTRICTED CONFIDENTIAL--SOURCE CODE." In addition, source code is to be treated as "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY," and may not be disclosed to anyone not bound by this Order. No employee of the Receiving Party shall have access to or obtain a copy of the Producing Party's source code.

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5.

Only the following individuals shall have access to "RESTRICTED CONFIDENTIAL - SOURCE CODE" materials, absent the express written consent of the Producing Party or further court order: Outside counsel of record for the parties to this action, including any attorneys, paralegals, technology specialists and clerical employees of their respective law firms; Up to three (3) outside experts or consultants per party, pre-approved in accordance with Paragraphs 15.A-15.D and specifically identified as eligible to access Source Code; The Court, its technical advisor (if one is appointed), the jury, court personnel, and court reporters or videographers recording testimony or other proceedings in this action; While testifying at deposition or trial in this action only: (i) any current or former officer, director or employee of the producing party or original source of the information; (ii) any person designated by the producing party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; and/or (iii) any person who authored, previously received, or was directly involved in creating, modifying, or editing the source code, as evident from its face or reasonably certain in view of other testimony or evidence. Persons authorized to view Source Code pursuant to this sub-paragraph shall not retain or be given copies of the Source Code except while so testifying.

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6.

A list of names of persons who will view the source code will be provided to the Producing Party in conjunction with any written (including email) notice requesting inspection. The Receiving Party shall maintain a daily log of the names of persons who enter the locked room to view the source code and when they enter and depart. The Producing Party shall be entitled to have a person observe all entrances and exits from the source code viewing room, and to a copy of the log.

7.

The Receiving Party's outside counsel and/or technical advisors may take notes relating to the source code, but may not copy the source code into the notes. Such notes shall themselves thereafter be deemed "source code" for all purposes and provisions herein. No person shall copy, e-mail, transmit, upload, download, print, photograph or otherwise duplicate any portion of the designated Source Code, except as the Receiving Party shall be entitled to 1,500 pages of Source Code in aggregate during the duration of the case without prior written approval by the Producing Party. If the Receiving Party reasonably believes that more than 1,500 pages of Source Code are required, then the Receiving Party may request permission from the Producing Party to exceed the 1,500 page limit, and the Producing Party will not unreasonably withhold its consent to such a request. Additionally, the Receiving Party shall not be entitled to print more than 50 consecutive pages of Source Code from any single Source Code file without prior written approval by the Producing Party. If the Receiving Party reasonably

believes that more than 50 consecutive pages of Source Code from a single Source Code file are required, then the Receiving Party may request permission

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fro m the Producing Party to exceed the 50 consecutive page limit, and the Producing Party will not unreasonably withhold its consent to such a request. Within 4 business days, the Producing Party will provide the requested material on watermarked or colored paper bearing Bates numbers and the legend "RESTRICTED CONFIDENTIAL - SOURCE CODE" unless objected to as discussed below. The printed pages shall constitute part of the source code produced by the Producing Party in this action. At the inspecting parties request, up to four additional sets (or subsets) of printed source may be requested and provided by the Producing Party in a timely fashion. 8. Should there be a dispute between the Parties concerning the Receiving Party's request to exceed 1,500 pages of printed Source Code in the aggregate, or 50 consecutive pages, and the Producing Party's refusal thereto, the parties agree that the Receiving Party may seek expedited briefing on the following schedule related to the request for additional Source Code pages: any opposition papers shall be due five days after the filing of the request, and any reply papers shall be due three days after the filing of the opposition, with no surreplies. Until such a matter is resolved by the Court, the Producing Party shall immediately provide one printed copy of the requested code to be kept secure location under the direct control of outside counsel for the Receiving Party. Should the dispute concern Receiving Party's request to exceed 3,000 pages of printed source code in aggregate, however, contested Source Code print outs need not be produced to the Requesting Party until that matter is resolved by the Court.

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9.

Any printed pages of Source Code, and any other documents or things reflecting Source Code that have been designated by the Producing Party as "RESTRICTED CONFIDENTIAL - SOURCE CODE" may not be copied, digitally imaged or otherwise duplicated, except in limited excerpts (including transient electronic copies) as necessary to use as exhibits to depositions, or to file, draft, and serve expert reports or court filings as discussed below.

10.

Any paper copies designated "RESTRICTED CONFIDENTIAL - SOURCE CODE" shall be stored or viewed only at (i) the offices of outside counsel for the Receiving Party; (ii) the offices of outside experts or consultants who have been approved to access Source Code; (iii) the site where any deposition is taken; (iv) the Court; or (v) any intermediate location necessary to transport the information to a hearing, trial or deposition. Any such paper copies shall be maintained at all times in secure location under the direct control of counsel responsible for maintaining the security and confidentiality of the designated materials. The Receiving Party shall maintain a log recording the custodian and location of any such paper copies, by date, and the Producing Party shall be entitled to a copy of the log upon a showing of reasonable need. Counsel of record need not log changes in location of such paper copies of source code due to appropriate use at depositions, hearings, or other case-related events.

11.

Unless otherwise agreed in advance by the parties in writing, following each inspection, the Receiving Party's outside counsel and/or experts shall remove all notes, documents, laptops, and all other materials from the room that may contain work product and/or attorney-client privileged information. The Producing Party

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shall not be responsible for any items left in the room following each inspection session. 12. The Receiving Party will not copy, remove, or otherwise transfer any source code from the Source Code Computer including, without limitation, copying, removing, or transferring the source code onto any other computers or peripheral equipment. The Receiving Party will not transmit any source code in any way from the location of the source code inspection. 13. Persons authorized to access source code for a Receiving Party under this Order shall protect source code with at least as much care as the Receiving Party would give to its own confidential trade secrets and source code, and in no case less than a reasonable degree of care. 14. The Receiving Party may only include excerpts of source code in pleadings, exhibits, expert reports, discovery documents, deposition transcripts, other Court documents, or any drafts of these documents ("SOURCE CODE

DOCUMENTS") when reasonably necessary. Any and all such SOURCE CODE DOCUMENTS shall be filed under seal and diligently protected from publication or other disclosure (including, without limitation, seeking to have such documents continue to be sealed after trial) by the Receiving Party to the greatest extent consistent with law. 15. To the extent portions of source code are quoted in a SOURCE CODE DOCUMENT, either (i) the entire document shall be stamped RESTRICTED CONFIDENTIAL ­ SOURCE CODE, or (ii) those pages containing quoted source code shall be separately bound and stamped as RESTRICTED

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CONFIDENTIAL ­ SOURCE CODE. shall be filed under seal. 16.

All SOURCE CODE DOCUMENTS

Wit hin sixty days after the issuance of a final, non-appealable decision resolving all issues in this case, the Receiving Party must certify that it has destroyed all paper copies of the Producing Party's source code as well as documents, pleadings, reports, and notes reflecting or referring to such source code.

17.

Access to and review of source code shall be strictly for the purpose of investigating the claims and defenses at issue in this action. No person shall review or analyze any source code for purposes unrelated to this case, nor may any person use any knowledge gained as a result of reviewing source code in this case in any other pending or future dispute, proceeding, patent prosecution, or litigation. PROSECUTION BAR

20.

Any person reviewing any of an opposing party's Confidential Materials,

Confidential Outside Counsel Only Materials or Source Code (all of which shall also be referred to as "Prosecution Bar Materials") shall not, for a period commencing upon receipt of such information and ending one year following the conclusion of this case (including any appeals) engage in any Prosecution Activity (as defined below) on behalf of a party asserting a patent in this case. Furthermore, any person reviewing Prosecution Bar Materials shall not, for a period commencing upon receipt of such information and ending one year following the conclusion of this case (including any appeals) engage in any Prosecution Activity involving claims on a method, apparatus, or system for Personalized Search. For the sole purpose of this Prosecution

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Bar, Personalized Search means search technology where the search results are dependent on the search queries submitted by the user as well as the user's profile. 21. The following documents and materials shall not be eligible for classification as

Prosecution Bar Materials: (i) documents and information related only to damages or reasonably royalty rates; (ii) publications, including patents and published patent applications; (iii) materials regarding 3rd party systems or products that were publicly known, on sale, or in public use before December 27, 2005, unless such materials are designated as PROSECUTION BAR materials by a 3rd party; and (iv) information that is publicly available. 22. Prosecution Activity shall mean: (1) prepare and/or prosecute any patent

application (or portion thereof), whether design or utility, and either in the United States or abroad on behalf of a patentee or assignee of patentee's rights; (2) prepare patent claim(s) on behalf of a patentee or assignee of patentee's rights; (3) participate in any reissue or reexamination proceedings on behalf of a patentee or assignee of patentee's rights; or (4) provide advice, counsel or suggestions regarding, or in any other way influencing, claim scope and/or language, embodiment(s) for claim coverage, claim(s) for prosecution, or products or processes for coverage by claim(s) on behalf of a patentee or assignee of patentee's rights. Nothing in this paragraph shall prevent any attorney from sending Prior Art to an attorney involved in patent prosecution for purposes of ensuring that such Prior Art is submitted to the U.S. Patent and Trademark Office (or any similar agency of a foreign government) to assist a patent applicant in complying with its duty of candor. Prior Art shall mean (i) publications, including patents and published patent applications; and (ii) materials or information regarding 3rd party systems or products that were publicly known, on sale, or in public use before December 27, 2005, unless such materials are designated as PROSECUTION BAR materials by a 3rd party.

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PRIVILEGED MATERIALS 23. Producing or permitting the inspection of documents (including physical objects)

shall not constitute a waiver of the attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity. As soon as the Producing Party becomes aware of the

inadvertent production, it shall promptly advise the other Parties. The Producing Party shall also within five business days produce any replacement diskettes that contained the inadvertently produced documents and provide a privilege log for the inadvertently-produced materials. Upon request by the Producing Party, the Receiving Party shall immediately destroy or return all copies of inadvertently-produced document(s) in its possession. The Receiving Party shall also make all reasonable efforts to retrieve any such inadvertently-produced documents from anyone who received the documents prior to notification to the Receiving Party. Nothing herein shall prevent the Receiving Party from challenging the propriety of an attorney-client privilege, workproduct doctrine, or other applicable privilege or immunity designation by seeking relief from the Court. 24. Nothing in this Protective Order shall require production of information that a

Party contends is protected from disclosure by the attorney-client privilege, the work-product doctrine, or other privilege, doctrine, right, or immunity. If information subject to a claim of attorney-client privilege, work product doctrine, or other privilege, doctrine, right, or immunity is nevertheless inadvertently or unintentionally produced, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any such privilege, doctrine, right, or immunity. Any Party that inadvertently produces materials protected by the attorneyclient privilege, work product doctrine, or other privilege, doctrine, right, or immunity may obtain the return of those materials by notifying the recipient(s), as soon as reasonably possible after the producing Party becomes aware of any inadvertent or unintentional disclosure. 23

NONPARTY USE OF THIS PROTECTIVE ORDER 25. This Order shall afford all nonparties who produce Protected Documents and/or

Confidential Information voluntarily, or pursuant to a subpoena, court order, or discovery request the same protections afforded to the Parties to this action. Specifically, nonparties may mark such documents "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY," or "RESTRICTED CONFIDENTIAL ­ SOURCE CODE" and may also mark transcripts of deposition testimony with these designations. The Parties to this action shall treat information designated in this manner per the terms of this Order and such information shall be entitled to the same protections under this Order as documents marked by Parties to the litigation. 26. A nonparty's use of this Protective Order to protect its Protected Documents

and/or Confidential Information does not entitle that nonparty access to the Protected Documents and/or Confidential Information produced by any Party. MISCELLANEOUS PROVISIONS 27. The term "copy" as used herein means any photographic, mechanical, or

computerized copy or reproduction of any document or thing, or any verbatim transcript, in whole or in part, of such document or thing. 28. All transcripts of depositions, exhibits, answers to interrogatories, pleadings,

briefs, and other documents submitted to the Court designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL ­ OUTSIDE COUNSEL ONLY," or "RESTRICTED

CONFIDENTIAL ­ SOURCE CODE" or which contain information so designated shall be filed or lodged under seal. 29. Nothing herein shall alter or change in any way the discovery provisions of the

Federal Rules of Civil Procedure. Identification of any individual pursuant to this Order does not 24

make that individual available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure or the Local Rules of Civil Practice and Procedure of the United States District Court for the District of Delaware. 30. Wit hin sixty (60) days of the final, non-appealable termination of this action by

dismissal, judgment, or settlement, counsel for the Parties receiving Protected Documents shall destroy or return the Protected Documents to counsel for the Producing Parties. If material is destroyed, a certificate of destruction signed by counsel shall be provided to the Producing Party within ten (10) calendar days of the destruction of the material. Notwithstanding the foregoing, Parties receiving Protected Documents and/or Confidential Information may keep their attorney work product referring or relating to any Protected Documents and/or Confidential Information. Each law firm serving as counsel of record may retain one archival paper and electronic copy of all pleadings, motion papers, deposition transcripts and exhibits, expert reports, transcripts of proceedings (including exhibits), any documents or materials filed or used in court, exhibits offered or introduced into evidence at trial, legal memoranda, correspondence, and work product, even if such material includes Protected Documents and/or Confidential Information. 31. This Order shall be binding upon the Parties and their attorneys, successors,

executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. 32. Any of the notice requirements herein may be waived, in whole or in part, but

only on the record during a deposition or in a writing signed by an outside counsel of record for the Party against whom such waiver will be effective. For purposes of this provision an e-mail will constitute a writing signed by the sender.

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33.

Inadvertent or unintentional production of documents or things containing

Protected Information which are not designated as one or more of the three categories of Protected Information at the time of production shall not be deemed a waiver in whole or in part of a claim for confidential treatment. With respect to documents, the Producing Party shall immediately notify the other parties of the error in writing and provide replacement pages bearing the appropriate confidentiality legend. 34. If a Receiving Party learns that, inadvertently or otherwise, it has disclosed

Protected Documents and/or Confidential Information to any person or in any circumstance not authorized under this Order, the Receiving Party must immediately (a) notify the Producing Party in writing of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Documents and/or Confidential Information, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request that such person or persons execute the "Acknowledgment To Be Bound" attached hereto as Exhibit A. 35. If at any time documents containing Protected Documents and/or Confidential

Information are subpoenaed or otherwise requested through litigation or an arbitral, administrative, or legislative body, the person to whom the subpoena or other request is directed shall immediately give written notice thereof to each Party who has produced such documents and to its counsel, and shall provide each such Party with an opportunity to object to the production of such documents or information. If a producing Party does not take steps to prevent disclosure of such documents or information within twenty (20) business days of the date written notice is provided, the Party to whom the referenced subpoena is directed may produce such documents and/or information.

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36.

No party shall be required to identify on their respective privilege log any

document or communication dated on or after the filing of the lawsuit, which absent this provision, the party would have been obligated to so identify on said privilege log. 37. The United States District Court for the District of Delaware has authority to

interpret and enforce this Order. After termination of this litigation, the provisions of this Order shall remain binding except with respect to those documents and information that become a matter of public record. This Court retains and shall have continuing jurisdiction over the Parties and recipients of Protected Documents and/or Confidential Information for enforcement of the provisions of this Order following termination of this litigation. All disputes concerning

Protected Documents and/or Confidential Information produced under the protection of this Order shall be resolved by the United States District Court for the District of Delaware. 38. This Order shall become effective immediately upon submission to the Court for

approval, notwithstanding the pendency of approval by the Court. If approval by the Court is ultimately withheld or made conditional, no Party shall treat any designated Protected Documents and/or Confidential Information produced prior to that time other than as provided in this Order without giving the Producing Party advance notice so as to allow for application to the Court for additional relief. 39. This Order is entered without prejudice to the right of any party to apply to the

Court at any time for additional protection, or to relax or rescind the restrictions of this Order, when convenience or necessity requires. Furthermore, without application to this Court, any party that is a beneficiary of the protections of this Order may enter a written agreement releasing any other party hereto from one or more requirements of this Order even if the conduct subject to the release would otherwise (absent such agreement) violate the terms herein.

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DISCOVERY FROM EXPERTS 40. Testifying experts' draft reports, notes, communications with counsel, outlines of

draft reports, or any other writing leading up to an issued report in this litigation, shall not be subject to discovery in this case, nor shall any such drafts, notes, or outlines of draft reports that the testifying expert prepared in other cases be subject to discovery in this case. 41. Discovery of materials provided to testifying experts shall be limited to those

materials, facts, consulting expert opinions, and other matters actually relied upon by the testifying expert in forming his or her final report, trial or deposition testimony. No discovery may be taken from any consulting expert who does not testify, except to the extent that the consulting expert has provided information, opinion or other materials to a testifying expert, who then relies upon such information, opinions or other materials in forming his or her final report, trial or deposition testimony, or any other opinion in this case. 42. No conversations or communications between counsel of record and any

testifying or consulting expert will be subject to discovery unless the conversations or communications are relied upon by such experts in formulating opinions that are presented in reports, trial or deposition testimony in this case.

SO ORDERED this ___ day of ___________, 2010.

__________________________________________ United States District Judge

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We hereby stipulate to the entry of the foregoing Stipulated Protective Order.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

POTTER ANDERSON & CORROON LLP

/s/ Jeremy A. Tigan
Karen Jacobs Louden (#2881) Jeremy A. Tigan (#5239) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 [phone] [e-mail] jt [e-mail] Attorneys forPlaintiff Personalized User Model, L.L.P. Dated: April 15, 2010

/s/ David E. Moore
___________________________________ Richard L. Horwitz (#2246) David E. Moore (#3983) Hercules Plaza, 6th Floor 1313 N. Market Street Wilmington, DE 19801 [phone] [e-mail] [e-mail] Attorneys for Defendant Google, Inc.

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EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PERSONALIZED USER MODEL, L.L.P., Plaint iff, v. GOOGLE, INC., Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 09-525 (JJF)

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER I, , hereby acknowledge that, as an expert

or consultant under paragraphs 13E and 15 or as another nonparty of the Protective Order ordered by the Court in this case, I am may receive Protected Documents and/or Confidential Information as defined in the Protective Order. I certify my understanding that the Protected Documents and/or Confidential Information are being provided to me pursuant to the terms and restrictions of the Protective Order, and that I have been given a copy of and have read and understood my obligations under the Protective Order. I hereby agree to be bound by the terms of the Protective Order. I clearly understand that the Protected Documents and/or Confidential Information and my copies or notes relating thereto may only be disclosed to or discussed with those persons permitted by the Protective Order to receive such material. I will return all materials containing Protected Documents and/or Confidential Information, copies thereof, and notes that I have prepared relating thereto, upon request to outside counsel for the party to the litigation by whom or on whose behalf I am retained.

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Protective Order and waive any and all objections to jurisdiction and venue. I make the above statements under penalty of perjury.

Printed Name:___________________________________ Company Name/Address/Phone: ______________________________________ ______________________________________ ______________________________________ ______________________________________