J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 85

DECLARATION of Jennifer L. Barry in Support re: 83 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Robert T. Scherer.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1 (REDACTED), # 2 Exhibit 2 (REDACTED), # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Cendali, Dale)

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EXHIBIT 7 Page 1 1 IN THE UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 3 4 5 J.T. COLBY, INC., et al., 6 Plaintiffs, 7 vs. 8 APPLE, INC., CASE No. 9 11-CIV-4060 Defendants. ___________________________/ 10 11 12 13 VIDEOTAPED DEPOSITION OF LISA WIDUP 14 REDWOOD SHORES, CALIFORNIA 15 FRIDAY, SEPTEMBER 21, 2012 16 17 18 19 20 21 BY: 22 CSR LICENSE NO. 9830 23 JOB NO. 53419 ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR 24 25 TSG Reporting - Worldwide 877-702-9580 Page 210 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allegation that Apple was using the IBOOKS trademark in connection with the use in commerce of computer software used to support and create interactive user-modifiable electronic books in Class 9? A Well, as you just talked about, it's hard to read the specimen. But I do remember preparing it, and I know what it is. And like I think I said, that it was a screen shot from the App Store showing the iBooks software available for download. So, you know, if you're asking me what was my -- the facts for my basis to say that it was in use in commerce, the iBooks software does a lot of things. It allows users to take an ePub file or whatever sort of electronic book file, and then create an electronic book that then you can then read on your iPad or on your iPhone through the iBooks software. It allows users to modify the book, interact with the book. They can highlight it. They can change the font. They can change the background to make it more readable. They can highlight words to say, "Okay, I -you know, I don't know that word." And if you, you know, hold your finger on it, it pops up a thesaurus or a dictionary and pops you out to another application, where it will tell you what the word Page 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 means. So, I mean, that's the software that Apple was using when I filed the Section 8 and 9, or that's the software that it was providing under the IBOOKS mark, to be more accurate. Q You just testified that the iBooks software allows users to take an ePub file or whatever sort of electronic book file and then create an electronic book that you can then read on your iPad or on your iPhone through the iBooks software. What did you mean when you said it allows the users to create an electronic book that you can then read on your iPad or on your iPhone through the iBooks software? A Well, I mean, you know, a computer file is not a book; right? So the software lets you open up that computer file so you can then read the book. And then you've got a book now you can read, an electronic book. Q So because the software allows the user to read a computer file as an electronic book, that -that's the basis for your allegation that the use of iBooks is in connection with computer software used to support and create interactive user-modifiable electronic books? Page 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. CENDALI: Objection. THE WITNESS: That's part of the reason. MR. CHATTORAJ: Q. That's one of the reasons? A Yeah. Q It sounds like another reason was that users were able to highlight text in the books? A That's one of the features that I was thinking about. Q Another reason is that users were able to look up words, like, in a dictionary by tapping on a word; right? A Uh-huh, uh-huh. Q Anything else? A Just the things I mentioned earlier, you know, changing the font and changing the background to make it easier to read. You know, the iBooks -- if -- if we could read the specimen better, I could tell you all the things that it says. But I can even see that, you know, if you click that "More" button that -- you know, or that text that's in the specimen when you're inside the App Store, it brings down a whole list of all the descriptions of all of the features and everything. Page 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide But it wasn't in this specimen. I think when -- you know, when I filed the Statement of Use or the Amendment to Allege Use, I created a different specimen that did give you all the features that were available at the time. And then, you know, we could read that and look at that. But that's not the time period you're asking about, so... Q Are you referring to the document that you filed on March 13th, 2012, which was marked as Widup Exhibit 6? A Yes. So if you look at the last page, which is the same as the third-to-last page, I guess, it's the one that shows iBooks 2, so it was the second version of the iBooks software. So it's not identical to what the specimen was I had used when I filed the 8 and 9, but it's -Q When was iBooks 2 -A -- to give you an idea of what the description would have looked like. Q Pardon my interruption. Did you have anything else to say? A No. Q When was iBooks 2 released? A I'm going to -- I don't know for sure, but 877-702-9580 54

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