Timebase Pty Ltd v. Thomson Corporation, The

Filing 247

Declaration of Jenna J. Bayer in Support of 246 Memorandum in Support of Motion filed by Timebase Pty Ltd. (Attachments: # 1 Exhibit(s) A - Part 1, # 2 Exhibit(s) A - Part 2, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D - Part 1, # 6 Exhibit(s) D - Part 2, # 7 Placeholder for Exhibit E, # 8 Exhibit(s) F, # 9 Exhibit(s) G, # 10 Exhibit(s) H, # 11 Exhibit(s) I, # 12 Exhibit(s) J, # 13 Exhibit(s) K, # 14 Exhibit(s) L, # 15 Appendix A, # 16 Appendix B, # 17 Appendix C, # 18 Appendix D - Part 1, # 19 Appendix D - Part 2, # 20 Appendix D - Part 3, # 21 Appendix E - Part 1, # 22 Appendix E - Part 2, # 23 Appendix F - Part 1, # 24 Appendix F - Part 2, # 25 Appendix F - Part 3, # 26 Appendix F - Part 4, # 27 Appendix F - Part 5, # 28 Appendix F - Part 6, # 29 Appendix F - Part 7, # 30 Appendix F - Part 8, # 31 Appendix F - Part 9, # 32 Appendix F - Part 10, # 33 Appendix F - Part 11, # 34 Appendix F - Part 12, # 35 Appendix F - Part 13, # 36 Appendix F - Part 14, # 37 Appendix F - Part 15, # 38 Appendix F - Part 16, # 39 Appendix G - Part 1, # 40 Appendix G - Part 2)(Hosteny, Joseph)

Exhibit K

(Selected Pages of Deposition of Timothy Arnold‐
Moore, with Deposition Exhibits 1 and 8)

to

TimeBase’s Memorandum in Support of Its Motion
for Summary Judgment of No Invalidity

TIMOTHY ARNOLD-MOORE, Ph.D.
Timebase v. Thompson Corporation

6/22/2010

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
---------------------------------- )
TIMEBASE PTY LTD.,

)
Plaintiff,

v.

) File Number
) 07-CV-1687

THE THOMSON CORPORATION, WEST

)

PUBLISHING CORPORATION, AND WEST

)

SERVICES, INC.,

)
Defendants.

)

---------------------------------- )
Washington, D.C.
Tuesday, June 22, 2010

Videotaped Deposition of:
TIMOTHY J. ARNOLD-MOORE, Ph.D.,
a witness called in the above-entitled action,
before BESS A. AVERY, RMR, CLR, a notary public in
and for the District of Columbia, taken at Morgan,
Lewis, & Bockius, 1111 Pennsylvania Avenue,
Northwest, Washington, D.C., commencing at
9:35 a.m., when were present:
Olender Reporting, Inc.
Washington, D.C.

[phone]
Baltimore, MD

WORLDWIDE
Florida

TIMOTHY ARNOLD-MOORE, Ph.D.
Timebase v. Thompson Corporation

6/22/2010

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THE WITNESS: Thank you.

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MR. HOSTENY: Let's take a break.
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THE VIDEOGRAPHER: Are we concluded?
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MR. LITSEY: No.
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THE VIDEOGRAPHER: We are going off the
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record at 12:19 p.m.
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(A luncheon recess was taken.)
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THE VIDEOGRAPHER: This marks the
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beginning of Videotape Number 4 in the deposition of
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Dr. Timothy J. Arnold-Moore. The time is 13:10
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hours.
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EXAMINATION BY COUNSEL FOR THE PLAINTIFF: 12
BY MR. HOSTENY:
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Q Dr. Arnold-Moore, am I correct that when
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you use the word "consolidation" you are referring
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to an act with one or more amendments applied to it?
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A That's correct, yes.
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Q Okay. And that would be consistent, I
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think, with if you take a look at your Exhibit
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Number 3, page Roman numeral 5.
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A Yes.
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Q Okay. So the consolidation will represent
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in a broader sense of any legislative document. As
I explained before, in Australian all the
distinction between regulations and primary
legislation or acts of parliment or acts of the
legislature is not as stark as it is here in the
United States, the separation of powers is not as
clear-cut. So what I say about acts typically
applies to regulations in those jurisdictions. But
typically by act I mean an act of parliament.
Q Okay. Something passed by a legislative
body?
A Something passed by a legislative body,
exactly.
Q Okay. And you used a term in your direct
examination to refer to the equivalent of
regulations. I don't recall what it was.
A Well, there are a number of terms:
Subsidiary legislation or subordinate legislation,
statutory rules is another, another phrase I think
that's used in some of the papers.
Q Okay. In those instances would those also
be things enacted or passed by a legislative body?

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another version of an act with all of the
intervening amendments applied?
A That's correct, yes.
Q Do you sometimes call the change a delta?
A I certainly in some of my papers talk
about the difference between two documents as being
a delta, yes.
Q Okay. Would the delta represent the
actual change of text whether it's an addition or a
deletion?
A That's correct, yes.
Q So a delta would be, for example, if it
were a deletion, it would be some lined out text or
some text to be removed?
A That's usually how it's represented, yes.
Q And if it were an addition then you would
have some sort of insertion to be made to what the
section was?
A That's correct, yes.
Q When you say "act" what do you mean?
A An act of parliment, typically. In some
of my papers when I use the term "act" I'm using it

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MR. LITSEY: Objection, lacks foundation.

1

A They are typically not actually passed by

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a legislative body but made under a power granted by

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an act so they are made by an executive branch,

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ministry or department, and under the authority of

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one or more acts of parliament.

7

BY MR. HOSTENY:

8

Q Okay. If you would take a look at

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Exhibit 1 for a moment, please. And I noted down at

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the bottom right, well, there's a URL reference down

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at the bottom right. Do you see that?
A Yes.

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15

Q Do you also see the date down at the
bottom right, June 22, 2010?
A Yes, I do.

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Q Do you know where this document comes
from?
A I believe it's from a web page.

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Q Do you know who printed it?
A No, I don't actually.
Q Do you know when it was printed?
A I presume, from that date, on June 22,

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Timebase v. Thompson Corporation
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2010, but I don't know.
Q Okay. You mentioned that this was a,
reflected a presentation that you participated in in
September of 1996 as reflected at the third page of
the document?
A Yes, that's correct.
Q Okay. Were you able to find a paper copy
of the presentation as given on September 25, 1996?
A No, I was not.
Q You mentioned that there was a booth at
this same event?
A That's correct, yes.
Q Were you able to find any record of the
visitors to the booth?
A I didn't maintain a record of visitors to
the booth, no.
Q Do you know if there is any record of
persons to whom -- let me back up a bit.
I think you mentioned a one-page handout?
A My memory is that there was a one-page
handout.
Q Were you able to find that one-page

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Tasmania?
A As it was originally created, yes.
Q And a single jurisdiction, that
jurisdiction being Tasmania?
A That's correct, yes.
Q And you could, as part of EnAct, explore
how legislation varied over time?
A That's correct, yes.
Q Okay. Give me a minute here while I
thumb.
A Sure.
Q If I understand -- you want to flip to
Exhibit 8.
Exhibit 8 is a presentation given at some
time in 1999 concerning EnAct?
A That's correct, yes.
Q And EnAct came online in 1998 or 1997?
A I believe -MR. ROTH: Objection.
A I believe it was 1997.
BY MR. HOSTENY:
Q Okay. Let me direct your attention to --

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handout?
A No, I don't believe we kept a copy of that
handout.
Q And do you recall if there was any record
of persons to whom the handout was provided?
A It was sitting on the table, so anybody
could have taken a copy without us taking a record
of who had.
Q Okay.
A I could provide -- I could provide a
partial list of people who I know visited the booth,
but it would be from my own memory. I don't believe
there's any written record. There may be a written
record of attendees to the conference itself that
Allette Systems had that ran the conference.
Allette Systems is a company based in Sidney that
ran this particular conference.
Q Okay. I want to ask you a few questions
about EnAct. EnAct dealt with legislation.
Correct?
A That's correct, yes.
Q And in particular the legislation of

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A Actually, by online you mean in production
in the Tasmanian Government, or do you mean the
website was available to the public?
Q Well, let's split it up. According to -take a look, if you would, at Exhibit Number 15, the
Legislative System Project Newsletter.
A Yes.
Q It says that the implementation of the
EnAct legislation system went, "into the office of
Parliamentary Counsel on 1 December 1997."
You see the upper left paragraph under the
production?
A Yes, mm-hmm.
Q So was it available as of December 1,
1997?
A It went into production on the first of
December 1997 in the Office of Parliamentary
Counsel. They were using the system in system
testing well before that.
Q Okay. How long before, do you know?
A At least six months and possibly up to a
year.

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Timebase v. Thompson Corporation
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Q Take a look back at Exhibit Number 8, if
you would, the second page.
A Second page, yes.
Q Look at the abstract there.
A Mm-hmm.
Q See where it says, I'm not quoting, but it
says the point-in-time capability allows users to
search and browse, et cetera, as it was at any time
since 1 February 1997?
A Mm-hmm.
Q Okay. So if I looked at it at 1 February,
1997, I would not be able to access any legislation
prior to that date, would I?
MR. LITSEY: Objection, lack of
foundation.
A The -- that particular date was chosen as
a date before which Tasmania would not prepare all
the versions of the document, but, in fact, if you
search for legislation before that date, there was
some legislation that was actually in force, at
earlier dates of the complete collection.
BY MR. HOSTENY:

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Q That's an example of a, that Figure 1 is
an example of a paper Markup of -- let me back up.
That Figure 1 is an example of a paper
Markup to achieve a consolidation?
A That's correct, yes.
Q Okay.
A In fact, I think that particular image was
actually scanned from one of the paper documents
that was being used in the Tasmanian Drafting Office
before the EnAct system went live.
Q Okay. In any of the exhibits that you've
seen today is there any discussion of examining or
-- let me rephrase that.
Is there any discussion of studying
legislation in variations other than time, if you
follow what I'm saying?
MR. LITSEY: Object as vague and lacks
foundation.
A Well, I think I talk about other aspects
of legislation in some of those papers; for
instance, the regular structure, the fact that it
involves cross-reference. I made quite a tight

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Q When was EnAct online, available to any
user who wished to consult it?
MR. ROTH: Objection.
MR. LITSEY: Objection, lacks foundation,
vague.
BY MR. HOSTENY:
Q Let's back up. Was it ever online?
MR. ROTH: Object.
A There was a website that was built from
the EnAct system that was made available in 1998
that was available -- which made Tasmanian
legislation and the contents of the EnAct database
available to the public in 1998, but it depends what
you mean by "online."
BY MR. HOSTENY:
Q I mean available to anyone who wished to
determine the content of Tasmanian legislation
electronically?
A As a website it was available in 1998.
Q Okay. Page -- look at Figure 1, if you
would. It's several pages into Exhibit number 8.
A Mm-hmm.

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reference of cross-reference links. So time is one
of the aspects that's relevant, but in some of the
papers I discuss other aspects of legislation that
make it different from other document types.
BY MR. HOSTENY:
Q Okay. Let me find that. I want to ask
you about that figure, while I'm at it. Give me a
moment. What I'm looking for is the document that
had the figures in it that you were describing to
Mr. Litsey.
A The screenshots?
Q Yes, that's it.
A That would be Exhibit 8.
Q Is that 8? Okay. Let's go back to that
one. I think you are probably right.
A Is it the AustLII paper? No, it was the
digital libraries paper. 7, my mistake.
Q Seven. Okay. By the way, what is Themis?
A The EnAct system was originally called
Themis while we were working on it as a project.
There were some trademark issues with using that
name so the name was switched to EnAct.

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Timebase v. Thompson Corporation
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A Of Themis, yes. It then became EnAct.
Q When I say it's new, did you ever become
aware of any system that was available prior to
Themis that did that?
MR. LITSEY: Object as lacking foundation.
A The prior search which is a research
system, I think from Carnegie Mellon, I couldn't be
sure, does some similar things. It doesn't
necessarily -- it's not focused on SGML but it does
break up hypertext documents into nodes which
roughly correspond with elements in an SGML
document.
So there was some -- there were some
systems that did actually store documents in pieces
and had hypertext links between them before EnAct.
So would I say it was new in the sense that nobody
had ever done it before, probably exactly the way we
did it, no, but certainly the concept of breaking a
document up to store it in a hypertext system, that
wasn't novel.
BY MR. HOSTENY:
Q Okay. How many years did you and your

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Q What's the difference between a delta and
a chained delta?
A Well, version control systems at the time
use the concept of delta to describe an encoding of
a description of the changes between two versions of
a document. So a delta was, effectively, something
that you could apply to one document to get the next
version.
And the idea of chain deltas is that,
well, if there's multiple versions between the
version you are interested in and the version that
you had, you would apply a chain of those deltas to
get the final version you're interested in. Or, in
fact, typically, in versions for old systems, it was
the other way around, you kept the most recent
version and chained back to the old versions.
Q Why are you mentioning deltas and chained
deltas in here?
A Because that was the language that was
being used by the Version Control Systems at the
time, and there were some parallels between Version
Control Systems and what we were trying to achieve

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colleague spend working on Themis and EnAct?
A I believe the project started in, it was
either late '94 or early '95. We started -- we were
awarded the tender. The final system was delivered
in December, I think, first of December '97, one of
the exhibits said that was when the system went
live. Complete versions of it had been delivered
before that but there was system testing and fixes
and so on before that, so probably a period of two
years, roughly.
Q Was it your belief based on your work on
Themis to the effect that there was not an available
system that could accomplish the same thing that
Themis could accomplish?
A There certainly wasn't an off-the-shelf
solution that could do all the things that Themis or
EnAct could do.
Q Yeah. Okay. Now, you mentioned at page
179 the use of delta operations.
A Yeah.
Q And chained delta operations.
A Mm-hmm.

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with EnAct.
Q Did you use what you would call an
inverted file index in Themis?
A Yes, the Structured Information Manager,
as it was called then, or TeraText database at the
moment, it uses an inverted file index to index all
the words that appear in a record that's indexed.
Q Did Themis use an inverted file index?
A It did. It made use of that.
Q Does EnAct still use an invert -A It still does, yes.
Q Is an inverted file index an index of
individual words appearing in a document?
A That's correct, yes.
Q And SIM, that's the Structured Information
Manager?
A Yes.
Q Did that become TeraText?
A That's correct, yes.
Q And TeraText was a product of InQuirion,
if I pronounced that correctly?
A Yeah, well, the Structured Information

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