TimesLines, Inc v. Facebook, Inc.

Filing 81

DECLARATION of Brendan J. Hughes regarding motion for summary judgment 79 , memorandum 80 (Attachments: # 1 Exhibit 1 - 13, # 2 Exhibit 14 - 17, # 3 Exhibit 18 - 19, # 4 Exhibit 20 - 31, # 5 Exhibit 32 - 35, # 6 Exhibit 36 - 40, # 7 Exhibit 41 - 43, # 8 Exhibit 44 - 46, # 9 Exhibit 47 - 51, # 10 Exhibit 52 - 57, # 11 Exhibit 58 - 59, # 12 Exhibit 60 - 62, # 13 Exhibit 63.1, # 14 Exhibit 63.2, # 15 Exhibit 64 - 71)(Hughes, Brendan)

Exhibit 47

Exhibit 48

Page 1
1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF ILLINOIS

3

EASTERN DIVISION

4
5

TIMELINES, INC.,

)
)

6

Plaintiff,

)
)

7

VS.

)

No. 11-CV-06867

)
8

FACEBOOK, INC.,

)
)

9

Defendant.
______________________________

)
)

10
11
12
13

DEPOSITION OF J. ANTHONY PATTERSON

14

San Diego, California

15

Wednesday, August 29, 2012

16
17
18
19
20
21
22
23

Job 53014

24

Reported by:

25

NIKKI ROY
CSR No. 3052
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877-702-9580

Page 21
1

Q.

Could you please tell me what it is?

2

A.

It's a representative copy of our home page of

3
4

our website from 1996.
Q.

Great.

And was this one of the documents that

5

you collected in order to respond to our document

6

request?

7

A.

Yes.

8

Q.

And was this -- it appears that this document

9

was captured using the Wayback Machine, according to the

10

top of the page.

11

is that how that was captured?

Was this in your files, or was this --

12

A.

That's how it was captured.

13

Q.

Great.

Do you believe that this is a true and

14

accurate screenshot from your web page from this period

15

of time here as indicated as being November 15, I guess,

16

1996?

17

A.

Yes.

18

Q.

Great.

And I'd appreciate it if you could

19

please look at the first bullet point.

20

opportunity to take a look at this exhibit?

21

A.

Yes.

22

Q.

All right.

Have you had the

Great.

Appreciate it if you could

23

please look at the first bullet point and read that into

24

the record, please.

25

A.

(Reading:)
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Page 22
1

Instant formatting, period.

Create

2

perfectly formatted organization charts,

3

fishbone diagrams, network diagrams, timelines

4

and other arrays of shapes automatically with

5

new connector objects.

6

Q.

And what does the term "timelines" mean to you?

7

A.

It's a type of --

8

MS. MOORE:

9

MR. MARTIN:

10

Objection; form.
I'm sorry.

I think there

was something else.

11

Ms. Moore, did you make an objection?

12

MS. MOORE:

Thank you, Mr. Martin.

13

for speaking over Mr. Patterson.

14

we're on telephone here.

15

I apologize

the question.

I think that's the fact

I was objecting to the form of

16

You can obviously answer.

17

MR. MARTIN:

18

THE WITNESS:

19

Could you reask the question,

please.

20

Go ahead, Mr. Patterson.

BY MR. HUGHES:

21

Q.

Yes.

I'd appreciate it if you could please let

22

me know what the term "timelines" -- how you would define

23

the term "timelines."

24
25

A.

It's a diagram type that would annotate or show

events over a period of time.

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Page 23
1

Q.

So in this context when you use it, what are

2

you -- what are you referring to when you use the term

3

"timelines" when you use it within the context of this

4

bullet point?

5

A.

6

timelines.

7

Q.

8

The capability of our software to create

And is that a capability that your customers

are interested in?

9

A.

I don't know how to answer that exactly.

10

Q.

Is -- is timeline creation a functionality of

11
12

your software that interests your customers?
A.

I can only assume so.

We had had requests for

13

it, so if you want to call that that they're interested

14

in, you can.

15

product.

16
17

Q.

Certainly it's something we added to the

Okay.

And how -- when was this timeline

creation functionality added to your product?

18

A.

It was added right here in version 3.

19

Q.

Version 3?

20

A.

Uh-huh.

21

Q.

And when was version 3 launched?

22

Do you

recall?

23

A.

It would have been in the fall of 1996.

24

Q.

And beginning in the fall of 1996 when this

25

version 3 was launched, would the timeline functionality
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Page 26
1

management diagrams, electrical diagrams,

2

mechanical diagrams, chemistry diagrams,

3

timelines, space plans, flyers, posters,

4

banners, maps, forms and more.

5

Q.

Thank you very much.

6

And when you reference the term "timelines," is

7

it in connection with the timeline creation capability of

8

your software?

9

A.

Yes.

10

Q.

And is that the same capability that we

11

discussed in connection with Exhibit 7?

12

A.

Yes.

13

Q.

Great.

14

And why did you use the term

"timelines" here?

15

A.

It was descriptive of the feature.

16

Q.

Okay.

Great.

And, again, could you please

17

explain a little bit more about that feature.

18

specifically would it allow consumers to do?

19

MS. MOORE:

20

THE WITNESS:

What

Objection; form.
A consumer can create a time

21

horizon and attach events by date and get a visual view

22

of -- of events over a specific period of time.

23

BY MR. HUGHES:

24
25

Q.

And why did you use the term "timeline" in

connection with that capability?

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Page 40
1

parties objecting to your use of that term?

2

MS. MOORE:

3

THE WITNESS:

4
5

Objection; form.
None of which we're aware.

BY MR. HUGHES:
Q.

Has SmartDraw ever been asked to stop using the

6

term "timeline" or "timelines" in connection with its

7

timeline software?

8

MS. MOORE:

9

THE WITNESS:

10
11

Objection; form.
No.

BY MR. HUGHES:
Q.

Clarify that question.

Has SmartDraw ever been

12

asked to stop using the term "timeline" or "timelines" in

13

connection with its SmartDraw software?

14

A.

No.

15

Q.

Is SmartDraw aware of any instances of consumer

16

confusion arising from its use of the term "timeline" in

17

connection with its SmartDraw software?

18
19

MS. MOORE:

22

Objection;

foundation.

20
21

Sorry, Brendan.

THE WITNESS:

No.

BY MR. HUGHES:
Q.

Has plaintiff Timelines, Inc., ever asked

23

SmartDraw to cease using the term "timeline" or

24

"timelines" in connection with its software?

25

A.

No.

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Page 41
1

Q.

Has any third party asked SmartDraw to cease

2

using the term "timeline" or "timelines" in connection

3

with its software?

4

A.

No.

5

Q.

Has SmartDraw ever filed an application to

6

register the term "timeline" -- a trademark application

7

to register the term "timeline"?

8

A.

No.

9

Q.

Has SmartDraw ever attempted to enforce any

10

trademark rights in the term "timelines"?

11

A.

No.

12

Q.

Clarify.

13

Has SmartDraw ever attempted to

enforce any rights in the term "timeline"?

14

THE DEPOSITION OFFICER:

I'm sorry.

Brendan,

15

I'm sorry.

16

first question "timelines," plural or singular, and is

17

the second question -- I'm not hearing the plural, if

18

there is one.

19

This is Nikki, the court reporter.

MR. HUGHES:

Was the

The first question was plural, and

20

the second question was singular.

21

THE DEPOSITION OFFICER:

22
23
24
25

second, please.

Okay.

Let me have one

Thank you.

THE WITNESS:

I'm going to have to ask you to

re- -- to ask the question again.
(The record was read as follows:

TSG Reporting - Worldwide

877-702-9580

Exhibit 49

Exhibit 50

Contains Confidential Portions

Page 1
1
2
3
4
5

6

7

8

9

10

11

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
-------------------------------)
)
TIMELINES, INC.,
)
)
Plaintiff, )
)
)
v.
) Civil Action No.
) 11-cv-06867
)
FACEBOOK, INC.,
)
)
Defendant. )
-------------------------------)

12
13
14
15
16
17
18
19

**CONTAINS CONFIDENTIAL PORTIONS**
30(b)(6) DEPOSITION OF
TOM SNYDER PRODUCTIONS, INC. THROUGH ITS DESIGNEE
RICHARD ABRAMS
New York, New York
Thursday, September 13, 2012

20
21
22
23
24
25

Reported by:
ASHLEY SHUGAR
JOB NO. 53493
TSG Reporting - Worldwide

800-702-9580

Contains Confidential Portions

Page 14
1

R. ABRAMS

2

A.

So what's the question again, sorry?

3

Q.

How would you describe the goods and

4

services that Tom Snyder Productions provides its

5

customers?

6

MR. LICK:

7
8

A.

Elementary, middle school.

So it's

software to help teachers teach.

9
10

Today?

Q.

Is the educational consumer the only

target audience of Tom Snyder Productions?

11

A.

12

products.

13

I suppose our market is educational, K through

14

12.

That is the target market for the
A parent could potentially purchase.

15

Q.

Okay.

16

A.

Timeliner is educational software

What is the Timeliner product?

17

that's delivered on a CD that allows teachers or

18

students in their class to type in dates and

19

facts and the computer will create a scaled

20

timeline that you could print out.

21

simply store and look at on the screen and that

22

is the functionality of Timeliner.

23

Q.

You could

Is Timeliner only delivered on a CD

24

or is it available by any of the other delivery

25

mechanisms?
TSG Reporting - Worldwide

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Contains Confidential Portions

Page 15
1

R. ABRAMS

2

A.

It is delivered on a CD.

3

Q.

Only?

4

A.

Yes.

5

Q.

Have there been different versions of

6

Timeliner --

7

A.

Yes.

8

Q.

-- from inception to the current --

9

A.

Yes, there were a number of versions.

10

Q.

Do you know when it was first

11
12
13
14
15
16

created?
A.

Yes, we worked and created it in 1986

and I believe the first date of shipment is 1987.
Q.

Do you have any idea of how many

versions of Timeliner there have been?
A.

If it's acceptable to think about it

17

generally, there have been more than three and

18

less than 15, so a number.

19
20

Q.

Okay.

And is there sort of a typical

change or evolution from one version to the next?

21

A.

Yes.

22

Q.

And what would that be?

23

A.

We would fix bugs for a new release.

24

We would accumulate teacher feedback to improve

25

the program and would support newer operating
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Contains Confidential Portions

Page 22
1
2
3
4

R. ABRAMS
A.

Of the events or facts that you're

looking at, at the time.
Q.

Under the heading "A Natural for

5

Social Studies" it says, "Timeliner is quickly

6

becoming a basic tool in social studies and

7

history classes around the country.

8

comes complete with many historical timelines."

9
10

Timeliner

What did that mean?
A.

Yes, the primary purpose of Timeliner

11

was to create scaled timelines like the ones we

12

just spoke about, a family timeline.

13

also use it, kids or teachers could use it for

14

in-class projects or homework, whatever.

15

share it comes complete with historical

16

timelines, means I'll give you an example.

17

you were studying the history of the United

18

States in the 20th century, you might type in

19

information about your life, your family life,

20

your town history and you might want to compare

21

it to what was happening.

22

United States at that time, who was president,

23

when there were wars.

24

burden on teachers and students from having to

25

type in all of that factual data, when did World

You could

So I'll

If

As an example, in the

To relieve some of the

TSG Reporting - Worldwide

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Contains Confidential Portions

Page 23
1

R. ABRAMS

2

War II start, when did it end, when did we land

3

on the moon, when was the polio vaccine,

4

whatever, we would create some pre-made

5

timelines.

6

the ability to merge timelines, so with the push

7

of a button I could merge my family timeline, my

8

personal timeline with the history of the United

9

States.

One of the features of Timeliner was

Push of a button, gee, I didn't know mom

10

and dad were X age when we landed on the moon in

11

1969.

12

more useful for educational purposes.

It was our way of making the product even

13

(Exhibit 5, Scholastic/Tom Snyder

14

Productions Fall 2008 Catalog cover and excerpt,

15

Bates stamped TSP0000068 through TSP0000069 and

16

TSP0000093 through TSP0000094, was marked for

17

identification.)

18

Q.

19

Mr. Abrams, I've handed you what's

been marked as Exhibit No. 5.

20

Have you seen this document before?

21

A.

I have seen this document before.

22

Q.

What is this document?

23

A.

This is a catalog cover and it looks

24

like some of the pages from the catalog.

25

some of the pages.
TSG Reporting - Worldwide

800-702-9580

Yes,

Contains Confidential Portions

Page 37
1
2

R. ABRAMS
A.

This document is the getting started

3

guide or a subset, as you described, of the

4

getting started guide.

5

Q.

And what is the purpose of the guide?

6

A.

The purpose of this guide is to

7

provide a document that would allow a student or

8

teacher who's interested in using Timeliner.

9

It's a guide that would help them learn how to

10

use the program, the features of the program, the

11

benefits of the program, et cetera.

12
13

Q.

If you flip to the sixth page of the

exhibit, which is Bates No. TSP ending 133.

14

A.

Okay.

15

Q.

There's a letter from the producer?

16

A.

Yes.

17

Q.

Just starting with the second

I'm there.

18

sentence of that first paragraph to the end, if

19

you wouldn't mind just reading that.

20

A.

"I used it to make banner timelines

21

that printed on a continuous feed ImageWriter and

22

taped above the chalkboard in my classroom.

23

timelines were a great visual reference to help

24

my students keep track of how everything fit

25

together chronologically.

The

But the program was

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Contains Confidential Portions

Page 38
1

R. ABRAMS

2

limited.

3

black and white with no images."

4
5

Q.

You could only make banner timelines in

Who's the sort of author of this

introduction?

6

A.

The person whose name is on this page

7

is Hedrick Ellis.

8

and his responsibility was to manage the

9

development and launch from a marketing point of

10

He was an executive producer

view, the XE version of Timeliner.

11

Q.

Is it important to use the term

12

"timeline" to describe the functionality of the

13

Timeliner product?

14

MR. ROSENTHAL:

15

A.

Objection.

I'm not sure what important means,

16

but if we were describing to a teacher what

17

Timeliner does, we would use the word "timeline"

18

in our sentence in describing what Timeliner

19

does.

20

Q.

And why is that?

21

A.

Because the program creates

22

timelines, so it would be natural to use the word

23

"timeline" as we describe what Timeliner does.

24
25

(Exhibit 9, a Timeliner 5.0 timeline
of Florida History 1500-1700, Bates stamped
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Exhibit 51

Page 1
1
2

3
4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
_______________________
TIMELINES, INC.,
)
)
Plaintiff,
)
) Civil Action
V.
) No. 11-cv-06867
)
FACEBOOK, INC.,
)
)
Defendant.
)
_______________________
)

10

11

12

International Reading Association
800 Barksdale Road
Newark, Delaware
September 10, 2012
2:42 P.M.

13
14
15

16

ORAL RULE 30(b)(6) DEPOSITION OF
International Reading Association
Through Its Designee
Bridget Hilferty

17
18
19
20
21
22
23
24
25

Reported by:
DEBRA SAPIO LYONS, RDR, CRR, CCR, CPE
JOB NO. 53016
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877-702-9580

Page 17
1

B. Hilferty

2

Q.

Okay.

So it's just the one student

3

interactive Timeline Tool, is that what you call

4

it?

5

A.

The Timeline Tool, yes.

6

Q.

Timeline Tool.

7
8

Okay.

And it's available -- is it web
based?

9

A.

Yes.

10

Q.

And when did International Reading

11

Association start offering the web-based Timeline

12

Tool?

13

A.

It would have been around 2003.

14

Q.

And since that time has it always

15

called it the Timeline Tool?

16

A.

Yes.

17

Q.

And why does it call it the Timeline

A.

It creates a timeline.

18
19
20

Tool?

MS. MAYALL:

Okay.

Miss Lyons, can

21

you please identify what was previously marked

22

as Facebook Exhibit 2, and I'm going to enter

23

this in as Deposition Exhibit 4.

24
25

COURT REPORTER:

Okay.

Would you

like me to mark it?
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Page 31
1
2

B. Hilferty
Association is providing?

3
4

MS. MOORE:
foundation.

5
6

Objection to form and

You can answer the question.
BY MS. MAYALL:

7

Q.

Ms. Hilferty?

8

A.

Yeah.

9

Q.

If International Reading Association

Um, yes.

10

was prevented from using the term timeline, would

11

it be at a competitive disadvantage in the

12

marketplace?

13
14

MS. MOORE:

Objection, form,

foundation.

15

You can answer.

16

MS. MAYALL:

17

me -- sorry.

18

I'll step back.

Let

BY MS. MAYALL:

19

Q.

I'll rephrase.

So if -- you said it would be

20

difficult for International Reading Association

21

to communicate to its consumers the type of

22

product it's providing if it wasn't able to use

23

this timeline -- to use the term timeline;

24

correct?

25

A.

Yes.
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Page 32
1

B. Hilferty

2
3
4
5
6
7
8
9
10

MS. MOORE:
BY MS. MAYALL:
Q.

Okay.

And why would that -- why

would it be difficult?
A.

Because the tool is essentially

having students create a timeline.
Q.

Okay.

So if you couldn't call it a

timeline, you wouldn't have anything else to call
it; is that right?

11
12

Objection, form.

MS. MOORE:

Objection, form,

foundation.

13

THE WITNESS:

14

MS. MAYALL:

Not sure.
Okay.

Let's move on to

15

Facebook Exhibit -- what was previously marked

16

as Facebook Exhibit 7.

17

And, Miss Lyons, if you could please

18

mark this in as -- are we at 9?

19

9, Deposition Exhibit 9.

20

Yes.

Exhibit

(Exhibit Hilferty-9, document

21

previously marked as Facebook Exhibit 7 entitled

22

WebTrends Usage, is marked for identification.)

23
24
25

COURT REPORTER:

Okay.

BY MS. MAYALL:
Q.

Okay.

Ms. Hilferty, what's this

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Page 55
1
2

B. Hilferty
if I may.

3

- - -

4

E X A M I N A T I O N

5
6
7
8

- - BY MS. MAYALL:
Q.

Okay.

Ms. Hilferty, are you a

trademark attorney?

9

A.

No.

10

Q.

Have you ever read any books on

11

trademarks?

12

A.

No.

13

Q.

Have you ever studied what a

14

trademark is?

15

A.

No.

16

Q.

Is timeline a common name for your

17
18

student interactive?
A.

19
20
21

Yes.
MS. MOORE:

Objection, form.

BY MS. MAYALL:
Q.

Okay.

Have you -- has International

22

Reading Association used the term timeline

23

continuously without interruption?

24

A.

Yes.

25

Q.

Okay.

Has International Reading

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1

B. Hilferty

2

Association ever received any letters stating an

3

objection to its use of the term timelines?

4

A.

5
6
7

No.
MS. MOORE:

Objection, form.

BY MS. MAYALL:
Q.

Has International Reading

8

Association ever been asked to stop using the

9

term timelines in connection with its student

10

interactive Timeline Tool?

11

MS. MOORE:

12

THE WITNESS:

13
14

Objection, form.
No.

BY MS. MAYALL:
Q.

Is International Reading Association

15

aware of any instances of consumer confusion

16

arising from its use of the term timeline in

17

connection with its timelines tool?

18

MS. MOORE:

19

THE WITNESS:

20
21

Objection, form.
No.

BY MS. MAYALL:
Q.

And has Timelines, Inc. ever asked

22

International Reading Association to cease using

23

the term timelines in connection with its

24

Timelines Tool?

25

MS. MOORE:

Objection, form,

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Page 57
1
2

B. Hilferty
foundation.

3
4
5

THE WITNESS:

No.

BY MS. MAYALL:
Q.

Okay.

Before Timelines, Inc. sued

6

Facebook, was International Reading Association

7

aware of Timelines, Inc.?

8

MS. MOORE:

9

THE WITNESS:

10
11

Objection, form.
No.

BY MS. MAYALL:
Q.

Before International Reading

12

Association was served with the subpoena, was it

13

aware of Timelines, Inc.?

14

A.

No.

15

Q.

Has anyone at International Reading

16

Association communicated with Timelines, Inc.?

17

MS. MOORE:

18

THE WITNESS:

19
20
21
22

Objection, form.
No, aside from myself

in communicating with Raven.
BY MS. MAYALL:
Q.

Okay.

And what did you communicate

with Ms. Moore about?

23

A.

About the deposition today.

24

Q.

Can you go in a little bit more

25

detail about what was discussed?
TSG Reporting - Worldwide

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