Function Media, L.L.C. v. Google, Inc. et al

Filing 99

Additional Attachments to Main Document: 98 Claim Construction Brief,.. (Attachments: # 1 Exhibit E - Stone Tr., # 2 Exhibit F - Jenevein Decl., # 3 Exhibit G1 - 587 Pros. Hist. Part 1, # 4 Exhibit G1 - 587 Pros. Hist Part 2, # 5 Exhibit G2 - 6401075 to Mason, # 6 Exhibit G3 - 6430603 to Hunter)(Brooks, Juanita)

CONFIDENTIAL Page 1

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

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ------------------------------FUNCTION MEDIA LLC, Plaintiff, vs. GOOGLE INC. AND YAHOO!, INC. Defendants. ------------------------------CONFIDENTIAL Videotaped Deposition of LUCINDA STONE, taken at 901 Main Street, Suite 5100, Dallas, Texas, commencing at 8:40 a.m., Friday, April 17, 2009, before Karen L. D. Schoeve, RDR, CRR. ) ) ) No. 2007-CV-279 ) )

PAGES 1 - 340

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 30

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

*** the viewer? A.

CONFIDENTIAL

*** 09:11:22AM Can 09:11:22AM 09:11:26AM 09:11:30AM 09:11:37AM 09:11:39AM 09:11:41AM 09:11:43AM 09:11:45AM 09:11:48AM I 09:11:50AM 09:11:54AM

Well, does it have a link in it? Is it video?

the viewer make it play? have sound? Q. A.

Does it

It's sort of the feel of it.

And what is the feel of a presentation? Exactly what I just said. MR. BRANDON: Object to form. How do I define what the

Q.

(BY MR. WOLFF)

scope is of the feel of an advertisement? MR. BRANDON: A. mean . . . Q. (BY MR. WOLFF) Is an ad or a Objection; form.

I'm not sure what you mean by that.

09:11:57AM 09:11:58AM 09:12:03AM

presentation that is nice, would that be the feel of an advertisement? MR. BRANDON: A. Q. Objection; form.

09:12:05AM 09:12:06AM 09:12:08AM 09:12:12AM 09:12:17AM 09:12:18AM 09:12:20AM

For some viewers it might be. (BY MR. WOLFF) How about a presentation

that's emotionally appealing? MR. BRANDON: Q. (BY MR. WOLFF) Objection; form. Would that be the feel

of an advertisement? MR. BRANDON: A. Object to form.

09:12:22AM 09:12:23AM

I think in some advertising realms, that

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 31

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

*** may apply.

CONFIDENTIAL

*** 09:12:25AM 09:12:30AM 09:12:32AM 09:12:34AM 09:12:36AM 09:12:42AM 09:12:43AM 09:12:44AM 09:12:46AM 09:12:48AM 09:12:52AM 09:12:54AM 09:12:57AM

I think in some ad agencies, they may

talk about that as a feel part. Q. (BY MR. WOLFF) And how was it in your

patent that you described how you would change these aspects of the presentation? MR. BRANDON: A. Q. What do you mean? (BY MR. WOLFF) How would you change Object to the form.

the -- how would you change the feel of the information input by a seller in your patent? MR. BRANDON: A. Objection; form.

The look and feel applies to the

requirements of the media venue. Q. (BY MR. WOLFF) Right. Okay. And so

09:13:01AM 09:13:03AM 09:13:06AM

how does the media venue input the look and feel requirements? A. They could choose color. They could

09:13:08AM 09:13:10AM 09:13:15AM 09:13:22AM

choose size.

They could choose placement and that I'm

would be part of the feel of it, probably. not sure. Q.

Well, how would they choose placement?

09:13:22AM 09:13:25AM 09:13:28AM 09:13:29AM

Where does it describe choosing the placement in your patent? A. I don't know if we do.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 32

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 look?

*** Q.

CONFIDENTIAL

*** 09:13:30AM 09:13:33AM 09:13:34AM

Do you want to look and see in your

patent if it describes that? A. No. MR. BRANDON: Q. Objection; form.

09:13:35AM 09:13:36AM 09:13:40AM

Is there a reason you don't want to

A.

Because I think I threw that out, trying

09:13:40AM 09:13:42AM 09:13:48AM 09:13:49AM 09:13:52AM 09:13:54AM 09:13:58AM 09:13:59AM 09:14:00AM 09:14:03AM 09:14:06AM

to explain what a feel is. Q. (BY MR. WOLFF) How would -- so you've

given me a couple of examples of the feel, you say, which is like the color, and what the size and placement. Are there any other feel

requirements that you can think of? MR. BRANDON: A. would it. Object to form.

It may be how the viewer would interact Could they click on it, could they hear

it, would it move. Q. (BY MR. WOLFF) Are those aspects

09:14:08AM 09:14:11AM 09:14:12AM 09:14:12AM 09:14:21AM 09:14:24AM 09:14:28AM

described in your patent? A. Q. A. Yes. Where are they described in your patent? I'll have to look. I think if you go to

our definitions where we talk about presentations, that might be it. I could be wrong, but . . .

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 33

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

***

CONFIDENTIAL

*** 09:14:41AM 09:14:43AM 09:14:46AM It 09:14:49AM 09:14:52AM 09:14:55AM 09:15:01AM 09:15:03AM 09:15:08AM 09:15:13AM 09:15:19AM 09:15:20AM 09:15:22AM 09:15:26AM 09:15:28AM 09:15:30AM 09:15:30AM 09:15:36AM 09:15:39AM 09:15:42AM 09:15:44AM

"Any content intended to inform or influence the viewers or readers of a given media venue. It may be in a advertisement, public

service, editorial format or any other format. may be text, graphics, audio, multimedia or a combination of any communication methods." Q. (BY MR. WOLFF) Right. And what my

question -- what I meant to ask in my question was how your central controller changed the information input by the seller to make it one of these other formats? A. Well, it would be something that a

programmer would be able to do and I'm not a programmer. Q. So how do you know a programmer would be

able to do it? A. Because this is a teaching format, and

when you put parameters of what you want a programmer to do, you ask them to do it and most proficient programmers would be able to do that part of it. Q. All right. And how would I take --

09:15:46AM 09:15:48AM 09:15:52AM

let's say that I was a seller and I input text information for a presentation.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 34

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

*** A. Q.

CONFIDENTIAL Okay.

*** 09:15:54AM 09:15:54AM 09:15:56AM 09:16:02AM 09:16:06AM 09:16:10AM 09:16:13AM 09:16:18AM And how 09:16:20AM 09:16:21AM 09:16:25AM

How, according to your patent, would I

convert that into a -- an audio presentation? MR. BRANDON: A. Objection to form.

You don't convert text into an audio

unless you have a program in there that allows for that. I think when we were doing this in 1997,

there wasn't anything like that. Q. (BY MR. WOLFF) All right.

about if I wanted to convert it into an image? How would I do that? MR. BRANDON: A. Q. Objection to form.

09:16:26AM 09:16:27AM

You would add an image to it. (BY MR. WOLFF) What do you mean? You

09:16:30AM 09:16:32AM 09:16:34AM 09:16:38AM 09:16:38AM 09:16:38AM 09:16:39AM 09:16:41AM 09:16:43AM 09:16:44AM 09:16:50AM

add an image to the text? A. Q. You would add image along with the text. And who would "you" -- would "you" be

the seller or "you" would be the -A. Q. The seller would do that. Okay. But the central controller

wouldn't be the thing that was inputting that information? A. Q. No, the seller would input it. How would you control the look and feel

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 36

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

***

CONFIDENTIAL

*** 09:18:08AM 09:18:10AM 09:18:14AM 09:18:16AM 09:18:16AM 09:18:17AM 09:18:20AM

your patent and see? A. Q. Okay. Did you review your patent before you

came here today? A. Q. patent? A. Q. A. Q. A. Q. I don't know. More than ten? No. No. Yeah, I did. How many times have you reviewed your

09:18:21AM 09:18:22AM 09:18:23AM 09:18:25AM 09:18:27AM

More than five? Probably. All right. And when was the last time

09:18:29AM 09:18:30AM 09:18:33AM 09:18:34AM

you read your patent? A. Q. A. Several days ago. All right. (Witness examined exhibit.) What was

09:18:36AM 09:18:39AM

the question you asked me? Q. (Examined realtime screen.) Let me

09:19:09AM 09:19:17AM 09:19:20AM 09:19:23AM 09:19:32AM 09:19:37AM

start over with the question.

According to

your -- what's described in your patent, how would the central controller customize the presentation to conform it with the look and feel requirements of the media venues.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 37

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

*** A.

CONFIDENTIAL

*** 09:19:39AM 09:19:41AM 09:19:45AM

Well, I think it's communicating with

information it gets from the media configuration program. Q. Right. I understand it's communicating

09:19:47AM 09:19:49AM 09:19:51AM 09:19:53AM 09:19:56AM 09:19:57AM 09:19:58AM 09:20:00AM 09:20:02AM 09:20:04AM

that information, but how is it actually doing it? A. I don't know. I'm not a programmer. Objection to form. But this is your patent,

MR. BRANDON: Q. (BY MR. WOLFF)

this is your invention. A. Q. This is my patent, yes. Could you have implemented the central

controller that would do this? A. Q. Not me, no. All right. Okay. Can you think of

09:20:05AM 09:20:16AM 09:20:17AM

any -- could Mr. Dean have implemented something like this? MR. BRANDON: A. Q. A. Q. He probably could. (BY MR. WOLFF) He could do this? Some. Objection; form.

09:20:18AM 09:20:19AM 09:20:19AM 09:20:20AM 09:20:21AM 09:20:23AM 09:20:24AM 09:20:34AM

I mean he knows programming.

Could he have done this at the time the

patent was filed? A. Q. Probably. And what are "design and style

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 75

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

***

CONFIDENTIAL THE VIDEOGRAPHER:

*** 10:49:51AM 10:50:04AM 10:50:08AM

This is the

beginning of Tape 3. back on record. Q.

The time is 10:49 a.m. We're

(BY MR. WOLFF)

Before we went off the

10:50:10AM 10:50:15AM 10:50:20AM 10:50:22AM 10:50:22AM

record, we were looking for an example -- specific example in your patent of automatically applying or comparing size requirements, I believe; is that correct? A. Q. Correct. And you were looking through your patent

10:50:28AM 10:50:29AM 10:50:30AM 10:50:34AM 10:50:34AM 10:50:36AM 10:50:37AM 10:50:40AM 10:50:46AM 10:50:51AM 10:50:54AM 10:50:57AM 10:51:04AM 10:51:07AM 10:51:10AM 10:51:13AM

to see if you could find an example of -A. Q. Correct. -- this process of applying the size

requirement. A. Well, and I already found where we And those

mention size of images and like that.

are represented in the databases, so any programmer would know how to apply those. Q. And how was it that you envisioned the

size of the advertisements would be changed? A. Well, there's a couple of ways for it to It could be changed dynamically or it

be changed.

could be changed by prompting the seller to put in a different image or a different size of an image.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 76

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

*** Q.

CONFIDENTIAL

*** 10:51:16AM 10:51:20AM 10:51:24AM 10:51:27AM

Is there a process described -- an

algorithm described in the patent that explains how you would dynamically change the size of an image? MR. BRANDON: A. Q. Object to the form.

10:51:28AM 10:51:29AM 10:51:30AM 10:51:33AM 10:51:33AM 10:51:35AM 10:51:38AM 10:51:40AM 10:51:43AM 10:51:46AM 10:51:53AM 10:52:02AM 10:52:05AM 10:52:08AM 10:52:11AM 10:52:15AM

I'm not sure this is. (BY MR. WOLFF) You're the not sure

there is or -A. Well, I mean, a programmer if he is

looking at databases that contained this information and database that contained that information, he would know how to do the applying. Now, I didn't write the specifications. write the claims. I didn't

I was involved in the concept,

the overall concept of what this invention does. Q. So you wouldn't be able to give me any

technical details of how this was implemented? A. Q. Correct. Or how you envisioned this being

implemented. MR. BRANDON: A. patent. Objection; form.

10:52:16AM 10:52:18AM 10:52:21AM 10:52:23AM

I can tell you what we envisioned as a I'm not a programmer. I can't tell you

how each thing was implemented.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 77

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 page.

*** Q.

CONFIDENTIAL (BY MR. WOLFF)

*** 10:52:26AM 10:52:27AM 10:52:31AM 10:52:34AM 10:52:36AM 10:52:38AM 10:52:39AM 10:52:43AM 10:52:47AM

So other than what's

said in the patent, you can't tell me how you would have implemented it or how a computer programmer would have implemented it. A. It's up to a computer programmer to

implement it. Q. And you came up with all these ideas in

1997/1998 time frame? A. Yes. MR. BRANDON: Q. (BY MR. WOLFF) Objection; form. Was it within a

10:52:48AM 10:52:49AM 10:52:53AM 10:52:56AM

programmer's skill at that time to have been implemented your ideas? MR. BRANDON: A. Q. I believe so. (BY MR. WOLFF) All right. Can you tell Objection; form.

10:52:58AM 10:52:59AM 10:53:00AM 10:53:02AM 10:53:07AM 10:53:10AM 10:53:13AM 10:53:15AM 10:53:18AM 10:53:23AM 10:53:27AM

me what an advertisement generation program is? A. I believe that that is a software

program that displays an ad. Q. All right. And can you give me an

example of an advertisement generation program? A. It could be an applet that's on an html It could be a browser. It could be any

type of software that would display an ad.

Veritext National Deposition & Litigation Services 866 299-5127