Polaris IP, LLC v. Google Inc. et al

Filing 392

SEALED MOTION for Summary Judgment of Invalidity by AOL, LLC., America Online, Inc., Google Inc., Yahoo!, Inc.. (Attachments: # 1 Affidavit of Todd Kennedy, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Affidavit of Bradley Allen, # 18 Exhibit A, part 1 of 2, # 19 Exhibit A, part 2 of 2, # 20 Exhibit B)(Perlson, David) Modified on 7/2/2010 (ch, ). (Additional attachment(s) added on 7/2/2010: # 21 Text of Proposed Order) (ch, ).

Polaris IP, LLC v. Google Inc. et al

Doc. 392 Att. 7

EXHIBIT F

Dockets.Justia.com

Rice, Amy
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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 project. BY MR. PERLSON: Q And you say as far as you know. What -- who question, please. (Whereupon the prior question was read by the court reporter.) MR. PRIDHAM: THE WITNESS: Object to form. As far as I know, it was 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

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What about Ms. Piccolo, if she testified that

EZ Reader was used to respond to e-mails from live customers, would you have any reason to dispute that? MR. PRIDHAM: THE WITNESS: Object to form. I can't think of one. I

never used for that.

don't know why she would say that either. BY MR. PERLSON: Q Mr. Angotti? A Q No. Did you ever find Ms. Piccolo to be Do you believe Ms. Piccolo had an agenda like

would know other than you whether it was actually used to respond to e-mails from live customers? A Q A I don't know. Would -- could the people at Chase know that? I don't know. I suppose. As far as I know,

untruthful, in your experience with her? A Q No. Do you recall that at -- well, before I go on

it never was used because there was a big upheaval when Chemical Bank comes in. Q Okay. Can you describe -- what do you mean

to that, you had mentioned that the EZ Reader was revolutionary. What did you mean by that? It -- there was no other application that we

big upheaval regarding Chemical Bank? A Well, I got basically taken off the project And Chemical Bank was set to And so there

before testing was complete.

knew of that could perform that function. Q A And what function are you referring to? Automatic interpretation and routing of

merge with Chase Manhattan's IT department.

was a lot of questioning about what we were doing, and we pretty much came to a standstill in testing the application. Q A And do you recall the timing of that? No. I can tell you when I was off the

electronic e-mail, as well as response. Q Now, one of the aspects of the EZ Reader was

rule-based reasoning; is that correct? A Yes.

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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 BY MR. PERLSON: Q A Q A Q A Q A What do you mean? He had his own agenda. What was his agenda? I would rather not say. Well, one of the -I mean, it's just an opinion. Why don't you tell me the opinion. I just think he was trying to make a big deal sure. Q That was going to be my next question. When 1 2 I am not I think it 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know? A Q A I don't think it did, and I doubt it. Why do you doubt it? Q

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And rule-based reasoning existed before you

were you off the project? A I think it was in my affidavit. March.

started work on EZ Reader, correct? A Q Yes. Another aspect of the EZ Reader is case-based

It was March or April, maybe May.

was April of -- I guess it would be '95, '96. remember what year. Q

I can't

reasoning, correct? A Q Yes. And case-based reasoning existed before the

If Mr. Angotti testified that the EZ Reader

was in fact used to respond to e-mails of actual customers, would you have any reason to dispute that? MR. PRIDHAM: THE WITNESS: Object to form. I don't believe

development of the EZ Reader, correct? A Q Yes. And do you know whether case-based reasoning

and rule-based reasoning had been combined in an application before? A Q No. You don't think it did or you just don't

Mr. Angotti in any way.

I was in the field for a while and knew a lot I had not ever seen

of people who developed applications. them used together. Q

And the -- are you familiar with the

out of what he saw as -- everyone around the project saw as really exciting development, and he wanted it to -- claim it as his own because of -- you know, internal corporate politics.

ART*Enterprise? A Q A Yes. What is that? It's a software product.

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Rice, Amy
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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 true. BY MR. PERLSON: Q A Q Okay. Yes. And when you read it -- I am sorry. When you And that's your signature on page 2? believe that it was just a document given to me by the attorneys that I was supposed to sign for the patent. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Uh-huh. It says, "I have reviewed and understand the 20 21 22 23 24 25 right? A Q Yes. And what's referred to above is application BY MR. PERLSON: Q which -A Q '947 patent? A Q The question was: Did I understand them? Like this whole thing? -- as we've indicated is Cohen Exhibit 3, the The claims in application number 09054233,

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signed it, did you read the paragraph before that said that "I further declare that all statements made herein of my own knowledge are true" and the rest of the language? A Q Yes. And to your understanding, are the statements

Well, let me just start over, because we were

talking over each other, I think. You have -- you state in the declaration, that's Rice Exhibit 2, "I have reviewed and understand the contents of the above-identified specification, including the claims as amended by any amendment referred to above." That's what it says in the declaration,

in this declaration true? A At the time I must have thought they were

I mean, I can read the document later and maybe it

would mean something else. Q Well, if you look at the second paragraph,

starting with "I have reviewed and understand the contents"... A Q

09054233, right? A Q Uh-huh. And I am asking you if you have a

recollection, sitting here today, of in fact actually reviewing and understanding the contents of application number 09054233, including the specification and the claims? MR. PRIDHAM: form. I am going to object to

contents of the above-identified specification, including the claims as amended by any amendment referred to above." Do you see that? Uh-huh.

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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 BY MR. PERLSON: Q Do you remember reviewing the specification, A Q Q And the -- you will see that the application 1 2 3 4 5 6 7 8 9 10 11 MR. PRIDHAM: Object to form. 12 13 14 15 16 17 18 19 The claims of what? MR. PRIDHAM: object to form. You can answer. THE WITNESS: referring to? Which claims are you I am sorry. I am going to 20 21 22 23 24 25 BY MR. PERLSON: Q A What do you mean "not seriously"? THE WITNESS:

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I don't remember this as

number referred to above is 09054233. Do you see that? Yes. And that's the same as the application number

being -- I mean, I can't link these two. BY MR. PERLSON: Q Do you remember reviewing an application in

another form before you signed this declaration? MR. PRIDHAM: form. You can answer. THE WITNESS: No. I really wasn't I am going to object to

that's on the 947 patent? A Q Yes. Now, did you in fact review and understand

the contents of the above-identified specification, including the claims as amended by any amendment referred to above?

involved in the patent, you know, process. BY MR. PERLSON: Q So you don't recall reviewing any patent

You can answer. THE WITNESS: less it were true. I wouldn't have signed it

before reviewing this declaration? MR. PRIDHAM: THE WITNESS: Object to form. Not seriously.

including the claims, as amended by any amendment referred to above? A

Well, I mean I am not a lawyer, so I had no

way of knowing what all this stuff means. Q Well, but that's not what you said in the You said in your declaration, Rice

declaration, is it?

Exhibit 2, "I have reviewed and understand the contents of the above-identified specification, including the claims as amended by any amendment referred to above." Did you not review or understand the contents

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Rice, Amy
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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 BY MR. PERLSON: Q And for the record, this the BR 547 through BY MR. PERLSON: Q A Q A reviewed. Did you review any documents? I reviewed the document I signed. Is that it? I reviewed -- I can't remember what I This just -- this current exhibit doesn't look question. (Whereupon the prior question was read by the court reporter.) MR. PRIDHAM: So I am going to reiterate 1 2 3 4 5 6 7 8 What actions? The actions 9 10 11 12 13 14 15 16 17 18 MR. PERLSON: I will mark another 19 20 21 22 23 24 25 Q

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And did you -- when you reviewed it, did you

understand the contents of it? A Yes. But I didn't read -- I understood the

parts of it that were related to EZ Reader. Q A long time. big. Q A Q A Well, let me -Let me see. Sorry. Go ahead. Were any parts not related to EZ Reader? Well, I haven't looked at this in a really I don't know at this point. I think is just so

the objection to form; reiterate the objection to privilege. I think you can answer the question in general. THE WITNESS:

I took were talking with my lawyers.

Looking at it now, I mean, I don't think

that -- well, I am just having trouble with the length of the document, and then, you know, being able to answer your question. Q Let me ask you another question. If you go

like the same thing I reviewed, but... Q Okay.

to BR 567 in exhibit -- Rice Exhibit 3. A Q A Q Okay. You see there is a series of claims there? Uh-huh. Did you understand those claims at the time

exhibit as Rice Exhibit 3. (Defendants' Exhibit 3 was marked for identification, described in index.)

you signed the declaration that's Rice Exhibit 2? MR. PRIDHAM: form. THE WITNESS: I can't remember. This is I am going to object to

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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 BY MR. PERLSON: Q A So you did review it? Yes, I did review this. form. before? A Q A Q A Q BR 585. Have you ever seen this document before? Yes. What is it? It looks like a patent application. Okay. And if you look in the -- if you look 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MR. PRIDHAM: I am going to object to 21 22 23 24 25 BY MR. PERLSON: Q A Yes. Like are you talking about EZ Reader? Are BY MR. PERLSON: Q all marked up. BY MR. PERLSON: Q A It's the form that was given to us. I don't remember understanding -- or

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receiving a marked-up document. Q Okay. Well marked-up or not, do you recall

on the first page on the side vertically there is a number there, it says 09054233. Do you see that? Uh-huh, yes. Is that the same number that's on the

understanding the claims in the application you did review? MR. PRIDHAM: form. (Whereupon the prior question was read by the court reporter.) THE WITNESS: Yes. I am going to object to

declaration, that Rice Exhibit 2, which is your declaration? A Q Yes. And so have you reviewed Rice Exhibit 3

Do you recall whether in the course of that

Just the 253 application -- 233 application? A This looks like what I reviewed. What do you mean by "review"? Well, in your declaration, Rice Exhibit 2, So I use

review you noticed anything in here that was incorrect? MR. PRIDHAM: THE WITNESS: Object to form. Incorrect?

(Indicating.) Q

you said you reviewed it, in the second paragraph. that language.

you talking about the claims of the patent? Q I am talking about anything. In your

declaration Rice Exhibit 2, you said that "All statements made herein of my knowledge are true and that all statements made on information or belief are believed to be true." And

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Rice, Amy
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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 yeah. Q And this sentence says that the application say? What does that statement say? A Q A Q A Starting "To reviewers"? No. Oh. Yes. "Refinements to the case-base and rules were With "Refinements." "Refinements to the case base"? 1 2 3 4 5 6 7 8 9 10 11 Yes. This is the EZ Reader application, 12 13 14 15 16 17 18 19 Object to form. Go ahead. It was actually approved I mean, I 20 21 22 23 24 25 BY MR. PERLSON: Q Handing you what has been marked as Rice Do you Q A What is that? It sounds like what? No, I

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It sounds like someone from Long Island.

I don't -- I don't recall if I know of a Bradley Allen. could have. Q A engineer. Q A Q At Inference? If it's the same Daniel Lee, yeah. Okay.

There were hundreds of people I met at Chase. What about Daniel Lee? Daniel Lee is -- I think he was a software

made and verified in subsequent abbreviated tests before the application was approved for production." Q So the article states here -- and just to be

clear what's being referred to in this sentence is the EZ Reader, right? A

Are you aware of any work that Daniel

Lee had done in connection with case-base reasoning or rule-based reasoning? A No. However, you know, I have read his bio

on LinkedIn and stuff like that, so I know he did do that stuff. Not at that time though. Q You don't believe he did it at that time or

was approved for production, right? A Q Yes, that's correct. Does that refresh your recollection as to the Or is this also an

you just don't know? A I don't know. (Defendants' Exhibit 4 was marked for identification, described in index.)

timing of the approval for production? incorrect statement as written? MR. PRIDHAM: I'm sorry. THE WITNESS:

for production more than once.

think that when they heard what this application could do, they were so

Exhibit 4, which is Rice 1403 through 1406. recognize this document?

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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 BY MR. PERLSON: Q But that was after this -- that was after enthusiastic about it. They knew it was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 It was verbally approved, but we were not 18 19 20 21 22 23 24 25 today? A Yes. so... A Q A Q declaration? A Q David Pridham. I am not a lawyer. Sorry. A Q A refer to? Q A looking at. Q A Q A Q A There is a date on the last page. Okay. Yes. Yes, I am familiar with this document. What is this? I think this is an affidavit. January 12, 2004? On this declaration or the article? Oh, I am sorry. On the document we are Let me take a minute and look at it. Sure.

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going to go into production. We -- those were just verbal approvals. I know that we did get an e-mail from Rosanna saying it was approved for production.

Is there a date on this article that I can

this article was submitted? A Q Yes. So what production approval are you referring

to in the article? A I attribute that statement to their

enthusiasm for getting it into production to save the cost to ChaseDirect and provide all the other benefits that were outlined in the paper. Q production? A So it wasn't actually approved for

Is that what

you would call it in legal terms? Q Well, it says "Declaration of Amy Rice,"

Did you draft this declaration? I helped draft it. Who else worked on the drafting of this

able to put it into production because there were certain rules that the information technology department had to enforce before we put it into production. So we hadn't

obtained all of the approvals for production yet. Q A Long Island. Do you know who Bradley Allen is? Bradley Allen, it sounds like someone from

David Pridham, who is representing you here

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Rice, Amy
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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 BY MR. PERLSON: for. is for. MR. PRIDHAM: Same objection as to BY MR. PERLSON: Q I asked you if you know what this declaration Q A Q actually filed? A Q A Q No. You just don't know one way or the other? I don't. Do you know what this declaration was for? MR. PRIDHAM: I am going to object on To the extent your Anyone else? I don't remember if there was anyone else. Do you know whether this declaration was ever 1 2 3 4 5 6 7 8 9 10 11 12 13 I forget which question I 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. PERLSON: Q If you could refer back to Rice Exhibit 1, is BY MR. PERLSON: Q Are you aware of any incorrect statements in

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this declaration, that's Rice Exhibit 4? A Q No. Were you a consultant of Firepond at the time

you signed this declaration? MR. PRIDHAM: THE WITNESS: Object to form. No.

the basis of privilege.

response requires you to divulge privileged communication, I am going to instruct you not to answer. THE WITNESS: am answering now.

that your consulting agreement with Merchant & Gould? A Q Yes. Is that dated before your declaration that's

Rice Exhibit 4? A Q Yes, it is dated before. So does that refresh your recollection at all

as to whether you were a consultant of Firepond at the time when you signed the declaration that's Rice Exhibit 4 in January 2004? A dates are. I understand what the difference between the I didn't ever see myself as a consultant of

privilege, and instruct you not to answer to the extent your response requires you to divulge a privileged communication. THE WITNESS: I don't know what this was

Firepond because my contract was with Merchant & Gould. Q A Q Okay. So that's why I said no. Did you understand you were a consultant of

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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 BY MR. PERLSON: Q A Q Mr. Pridham? MR. PRIDHAM: THE WITNESS: other than? Object to form. Could it have been anyone So, yes, I Do you know who asked you to sign it? I don't remember. Could it have been anyone other than BY MR. PERLSON: Q Was it because you were asked to do it? MR. PRIDHAM: Objection, privileged. BY MR. PERLSON: Q You have no idea? MR. PRIDHAM: THE WITNESS: Object to form. Correct. Q Why did you sign it? MR. PRIDHAM: instruction. THE WITNESS: I don't know. Same objection. Same 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 BY MR. PERLSON:

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Merchant & Gould at the time you signed the declaration in January 2004, that's Rice Exhibit 4? A Q Yes. And were you being compensated at that time

by Merchant & Gould pursuant to the contract that's Rice Exhibit 1? A Q A Q Yes, I was. Yes? Yes. Did you ask why you were being asked to sign

a declaration under penalty of perjury in January of 2004? MR. PRIDHAM: privilege. Object to -- objection,

Instruct you not to answer to the extent your response would require you to divulge any privileged communication. THE WITNESS: about it. I don't know anything else

To the extent your response would

require you to divulge an attorney/client communication or a privileged communication, I am going to instruct you not to answer. So I think you can answer it yes or no, but... THE WITNESS: Do I remember whether or

not I was -- what was the question again? MR. PERLSON: Can you just read it back.

(Whereupon the prior question was read by the court reporter.) THE WITNESS: No.

I don't remember.

guess it could have been someone else.

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Rice, Amy
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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 BY MR. PERLSON: Q You just weren't involved in that? BY MR. PERLSON: Q Right? MR. PRIDHAM: THE WITNESS: Object to form. I can't say for sure. I wasn't But BY MR. PERLSON: Q Right. But when the EZ Reader was there, human intervention was always required before any response was delivered." A Q Yes. I mean, doesn't that suggest that some

responses were in fact delivered? MR. PRIDHAM: THE WITNESS: Object to form. Some responses -- well, And so they

ChaseDirect was operational.

always had a human in the loop before any response was delivered. And that would have

been true regardless of whether or not EZ Reader was there.

they were able to take what was generated by the EZ Reader and send it to customers? MR. PRIDHAM: Object to form.

I can't say that there wasn't. there, so...

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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 BY MR. PERLSON: Q I notice in paragraph 15 you say "While I was A Well, I know -- I know what they were going

through, but I don't -- no, I wasn't there to see whether or not they actually delivered responses from EZ Reader. Q Do you have personal knowledge of anything

that's in paragraph 11? A Q A Yes. What? That Chase did not implement the response

return function during the experiment, because I would have heard of it if they did. Q Okay. So you're -- even though you weren't

at the experiment, you're saying that they didn't implement -- you have personal knowledge of the fact of what they didn't implement? A Yeah. Because I was still friendly with And you know, I would just check

Rosanna and Ms. Piccolo. to see what was going on. Q

But just to be clear, you were not personally

involved in the experiment? MR. PRIDHAM: THE WITNESS: Object to form. That is right.

not personally involved in negotiation of terms" -A Uh-huh.

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Rice, Amy
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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 WITNESS: MR. PERLSON: Next question. She said you weren't

representing her at the time. MR. PRIDHAM: on it. I can give you my position

But you can ask the next question. I don't want to give you a

Your call.

speaking objection. MR. PERLSON: Well, I would like to know

the basis of the assertion of privilege given the fact that she said that at the time you weren't representing her. MR. PRIDHAM: I think the agreement

between Ms. Rice and the various counsel that have represented the patent holder in this case, including Merchant & Gould; Latham & Watkins, it's very clear that the patent holder will indemnify Ms. Rice for activities related to the patent and disputes involving the patent. And that's the nature of the

attorney/client relationship. If you look at the -- Rice Exhibit 1, you can see an example of those. BR 1264, I

think the second full paragraph, "Firepond agrees at its sole expense to defend you against and to indemnify you and hold you

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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 harmless from any and all claims or suits by any third party, including current or former contractors, customers against you and any liabilities or judgments based thereon which are related to the consulting services performed hereunder or arising from any products which result from the consulting services." So -- and this agreement was transferred from Firepond to the ultimate patent holder in this case. At all times since this

agreement was entered into, first Firepond, then O'Ryan, then Bright Response, have paid for Ms. Rice's representation; that includes representation by Merchant & Gould and representation by Latham & Watkins, representation by Leonard Street and Deinard, representation by Williams Morgan & Amerson, by myself and all those firms and individuals at those firms, including others that I haven't mentioned that represented Ms. Rice. MR. PERLSON: Okay. So this -- I see.

So you're -- to the extent it's saying that "This agreement inures to the benefit of and its binding upon successor and interest of

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