Polaris IP, LLC v. Google Inc. et al

Filing 507

RESPONSE in Opposition re 460 MOTION in Limine Number 1 (Uncharted Prior Art References): Motion to Preclude Defendants' Reliance on or Reference to Uncharted Prior Art References (EZ Reader Manual and CBR Express Manuals) and Hearsay MOTION in Limine Number 1 (Uncharted Prior Art References): Motion to Preclude Defendants' Reliance on or Reference to Uncharted Prior Art References (EZ Reader Manual and CBR Express Manuals) and Hearsay MOTION in Limine Number 1 (Uncharted Prior Art References): Motion to Preclude Defendants' Reliance on or Reference to Uncharted Prior Art References (EZ Reader Manual and CBR Express Manuals) and Hearsay filed by AOL, LLC., Google Inc., Yahoo!, Inc.. (Attachments: # 1 Sistos Decl. ISO Defendants' Response, # 2 Branting Decl ISO Defendants' Response, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit)(Sistos, Antonio)

Polaris IP, LLC v. Google Inc. et al

Doc. 507 Att. 28

EXHIBIT X

Dockets.Justia.com

Page 2
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

BRIGHT RESPONSE, LLC,

) ) Plaintiff(s), ) ) Case No. vs. ) ) 2:07-cv-371-CE GOOGLE, INC., et al., ) ) Defendant(s). ) _________________________________)

VIDEOTAPED DEPOSITION OF DR. L. KARL BRANTING

Held at Quinn, Emanuel, Urquhart 50 California Street, Suite 2200 San Francisco, California

Thursday, July 22, 2010 9:02 a.m. - 6:16 p.m.

REPORTED BY:

JAMES BEASLEY, CSR No. 12807

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there's no interactivity, but in fact there is a reference to this alternative mechanism. Q. Okay. Does anything in Paragraph 112 say any of those references, the ART*Enterprise or CBR Express can be noninteractive? A. The statement that those others can be noninteractive is elsewhere. Q. Dr. Branting, I'm asking you for all of the support in your report for your conclusion -- and I asked you to be specific, so if it's someplace in your report, then show me, please. A. Okay. So I guess what I'm saying is in 112 it doesn't explicitly say that Claim 33 is satisfied, but it states that Allen uses the same case-based reasoning engine as CBR Express. And elsewhere there's a discussion of that fact that CBR Express has other ways, there's another mechanism for non-interactivity. Q. Okay. I did didn't ask you anything about Claim 33 just now. A. Okay. Sorry. Q. Okay. So you say elsewhere there's a discussion of the fact that CBR Express is noninteractive, and I'm asking you to point me to it.

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together in your report as one document, as the CBR Express manuals, correct? A. That's right. Q. Okay. And is the CBR Express Reference Manual incorporated by reference explicitly into the User's Guide? A. Well, in my opinion, yes. Q. Okay. Can you show me where? A. Well, there are three different places in the text. Okay. First on Page 46 in the footnote. And in two other locations; unfortunately, I think I don't have my notes with me as to exactly where it is, so it will take me a minute. I thought it was on Page 10, but I don't see it there. Anyway, two other places. Q. Do you have your notes with you today? A. Well, I do; they're on my computer, though. Q. Where's your computer? A. It's in the next room. Q. And what do you have on your computer that would help you answer this question? A. I wrote down the three different places where the User's Guide incorporates -- explicitly refers to the Reference Manual. Q. And what document is that -- are those

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A. Oh, okay. Okay. So in Paragraphs 137 and 138, there's a discussion of the manner in which CBR Express can be noninteractive. Q. Okay. And here you're referring to the CBR Express manuals, correct? A. Right. Q. And you're referring to two manuals together, the CBR Express User's Guide that we marked as Exhibit 6, together with part of a Reference Manual, correct? A. That's right. (Discussion off the record.) MR. FENSTER: So let me hand you what's been marked as Branting Exhibit 7. (Exhibit 7 was marked for identification.) BY MR. FENSTER: Q. And this is a -- this is a portion of a CBR Express Reference Manual, correct? A. Yes, it is. Q. And this Reference Manual is different than the User's Guide of Exhibit 6, correct? A. Yes. Q. Okay. But nevertheless you refer to these

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notes in? A. It's just a text document consisting of my notes. MR. FENSTER: I ask for production of that document. He's clearly relied on it. MR. WHITE: Clearly relied upon it? MR. FENSTER: Yeah. MR. WHITE: We'll consider it. MR. FENSTER: Well, I want it today during the deposition so that we don't have to ask for another deposition. MR. WHITE: We can talk about it during a break, maybe. THE WITNESS: In any case, there are three different places where the User's Guide explicitly refers to and incorporates the Reference Manual. BY MR. FENSTER: Q. Okay. And if you go get your computer, you'll be able to find the other two? A. Uh-huh. MR. FENSTER: Okay. Why don't we take a break and do that. THE VIDEOGRAPHER: Okay. I'm going to end the tape here. This is the end of Tape 1. We're off the record at 10:57.

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(Recess taken at 10:57 a.m.) THE VIDEOGRAPHER: This is the beginning of Tape 2. We're back on the record at 11:04 a.m. MR. FENSTER: I'll just state for the record that during the break, which we took to allow Mr. -- Dr. Branting to go get his notes to answer the question, Mr. White would not let him go get the -- get his notes to answer the question unless I waived the right to what -- to get what I think we're entitled to, which is the production of that document. So he refused to have Dr. Branting get the -- get his notes, and we've been sitting here waiting while he's reading through the -- through the notes -- through the document. MR. WHITE: Okay. And so obviously that's not exactly what we discussed, as you know. So the question is -- you asked him where in this exhibit it references another exhibit, and he told you that he found one and he thinks that there's two others in those -- in the document somewhere. He said he has a note somewhere that would tell him quickly where those other two references are, but obviously he can also find that answer by

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okay. Q. So you found another reference that you think incorporates Exhibit 7; is that right? A. Yes, I found two, but for some reason I'm having trouble finding the third. Q. Where is the second? A. Okay. So the two that I found so far -- so there's one on Page 46, Footnote 4. There's one on Page 24. Q. Where on Page 24? A. The second paragraph. Q. Okay. So to be clear, what we're -- what I asked you to find is you stated your opinion that Exhibit 7, the Reference Manual, is incorporated by reference into the User's Guide, Exhibit 6, correct? A. Yes. Q. And you said that your basis for that was three places in the text -A. Well, it's not -- that's not the sole basis. There's also the fact that these two documents were delivered to people who purchased this product. They were delivered together. So they were sort of treated as a whole. Q. Okay. So -- and that's -- and the portions in the text that you rely on are -- one is on

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reading the document. You've asked to speed up the process by having him look at those notes, and I said we're happy to do that, so long as you don't use that to bootstrap an argument that now the entire document is discoverable because he relied upon it for his testimony today. He has not relied upon that document for his testimony, and I'm not going to let you force him to do that and then demand production of that document. So the offer still stands that I'll have him look up the answer and get you a quick response to your question if you agree not to use that as a basis to demand production of that document. And it's my understanding that you rejected that. If you change your position, let me know, and we will be happy to have him look at those one. BY MR. FENSTER: Q. So, Dr. Branting, you have been looking through Exhibit 6 -A. I have, and I found another one. You know, I can just do a quick search on my computer without -- what's wrong with doing that? Then we wouldn't have to involve the piece of -- oh,

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Page 24, and specifically the statement that says: "There is additional information on database initialization available in the CBR Express Reference Manual"; is that right? A. That's true. Q. Okay. And you understand that to be an express incorporation by reference? A. Yes. Q. Okay. And on Page 40 -- and the other one that you pointed to was Page 46, Footnote 4, correct? A. Right. Q. And there it says: "The CBR Express Reference Manual contains a section on how to customize this text to include only the information of use in your environment," correct? A. Yes. Q. And it's your understanding that that is an express incorporation by reference; is that right? A. Yes.

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Q. Okay. And you think there's a third portion that you can't find right now, despite having spent the last 10 minutes looking through Exhibit 6, correct? MR. WHITE: Object to form. THE WITNESS: That's right. BY MR. FENSTER: Q. And you could find it if you looked at your notes quickly, right? A. Or if I did a search on my computer. Q. Okay. A. I mean, we can just do -- anyone can search the text of this document and find the third one that's eluding me right this moment. Q. Okay. So when you refer to the CBR Express manuals in your report, you are referring collectively to both the User's Guide and the reference guide, correct? A. Yes, that's correct. Q. And that's because it's your belief that they are -- that they constitute a single document because one is incorporated by reference into the other, correct? A. Well, not just that, but also because they were distributed to purchasers of CBR Express

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continue looking through this document? MR. FENSTER: I'd like for him to get the answer. So if you can get the answer quickly by searching the document or by searching your notes, however you want to do it, at -- with advice from your counsel, then I would be appreciative if you would do so. MR. WHITE: All right. We can discuss that at a break. You don't want him to continue manually reading this document, correct? MR. FENSTER: No. Off the record. THE VIDEOGRAPHER: We're off the record at 11:11 a.m. (Recess taken at 11:11 a.m.) THE VIDEOGRAPHER: We're back on the record at 11:18 a.m. BY MR. FENSTER: Q. So, Dr. Branting, did you have a chance to search for the third reference that -- in Exhibit 6 that you believe incorporates by reference Exhibit 7? A. Yes, I did. It's on Page 7 on the second paragraph. It states:

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together and were clearly intended to be used together. MR. WHITE: Dr. Branting has stopped looking for the third reference. Do you want him to continue? THE WITNESS: Do you want me to keep going? I -- honestly, I could step -- I could do a quick computer search. If it would be helpful, it would not take long. MR. FENSTER: I would be happy to get the answer to my question, however you want to get it. So if you want to go off the record and go search your computer, that's fine. MR. WHITE: Are you going to demand that, then, whatever he looks at be produced? THE WITNESS: I'm just going to search the manual again. (Overlapping speakers.) THE WITNESS: Sorry. Excuse me. MR. FENSTER: If he searches the manual, then that's not going to be a basis for getting his notes. I think I've got a basis for his notes based on his prior -- on his prior testimony, and I'm not waiving that, Jason. MR. WHITE: Okay. Do you want him to

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"The software packages required for user modification of CBR Express and its databases are described in the CBR Express Reference Manual." Q. Okay. And it's your belief that that is an express incorporation by reference of Document -- of Exhibit 7 into Exhibit 6, correct? A. Yes. Q. And how did you find that answer, how did you find that reference -(Overlapping speakers.) THE WITNESS: I just searched the PDF file for Reference Manual. BY MR. FENSTER: Q. Okay. Thank you. So in Paragraph 137, you state your conclusion -- well, let's see. Strike that. So Paragraphs 137, 138, and 139 is what you base your opinion on that the CBR Express manuals together disclose a noninteractive electronic message, correct? A. Yes. So -- well, those three paragraphs disclose that -- satisfy that element. Q. Okay. Is there any -- in Paragraph 137, can you point to anything in the CBR Express manual

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that expressly discloses that the message can be noninteractive? A. In 137? Q. Yes. A. No. Q. Okay. And there is a figure, a search panel -A. Uh-huh. Q. -- that's shown in Paragraph -- that's reproduced in Paragraph 137; do you see that? A. Yes, I do. Q. What is that search panel? A. Well, it's the interface for CBR Express. Q. Okay. And this interface has, in the middle: "Questions About the Problem"; do you see that? A. I do see that. Q. What are those questions about the problem? A. "Are you having print quality problems? What does the print quality look like?" Q. Are those questions that are posed to the user? A. Yes, they are. So the interface has a window in which questions can be posed to the user.

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distinguish among the possible cases that match the problem being posed. And if the questions have no weight, then that criterion will cause no questions to be posed, just as -Q. Does -A. -- if you had no questions in the system. Q. Does the CBR Express manuals -- strike that. Do the CBR Express manuals expressly state that if the -- strike that. Let me back up. So this is saying that the score for the text can be raised to 100 percent; is that right? A. That's right. Q. Okay. So can we refer to that as the text score? A. That would be fine. Q. Okay. So does the -- do the CBR Express manuals expressly state that if you raise the text score to 100, that no questions will be asked to the user? A. Well, the particular sentence that is quoted here doesn't say that, but in the context of the system as a whole, the way the system works, questions are posed based on their ability to

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Q. Okay. And you would agree that those questions being posed to the user are an example of an interactive electronic message, correct? A. Well, yes, I would. Q. Okay. A. So CBR -- yes. Q. Is there anything in Paragraph 138 that you can point to from the CBR Express manuals collectively that expressly discloses that the message can be noninteractive? A. Well, the quote from the Reference Manual on Page 14 that states that: "One can raise the case score that's attributed to the text to 100 percent," meaning that no questions are asked. Q. Does it mean that no questions are asked or that the questions are ignored? A. Well, it means no questions are asked. Q. How do you know that? Does it say that expressly? A. It has to do with the nature of question/answering case-based reasoning systems, that the purpose of the question is to -- the questions are posed based on their ability to

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distinguish among the cases. So in context it's clear that if questions have no weight, they're not -- they won't be posed. Q. Can you answer my question, please? MR. WHITE: Object to the form. BY MR. FENSTER: Q. My question is -A. That as far as I -- as far as I know, the words: "No questions will be asked if the text weight is 100 percent," don't appear in the Reference Manual. Q. Okay. Do the CBR Express manuals anywhere expressly state that if the text score's raised to 100, that no questions will be asked of the user? MR. WHITE: Object to the form. THE WITNESS: I believe that one of ordinary skill in the art would understand that -BY MR. FENSTER: Q. That's not my question. MR. WHITE: You can't interrupt him. You've got to let him finish. THE WITNESS: -- would understand that if questions are ignored, if there's zero weight on -it would be a very poor design of the system if it asked a question which had zero significance to the

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purpose of the system. BY MR. FENSTER: Q. Dr. Branting, I didn't ask you that. Can you answer my -- please try to focus on my question -A. Okay. Q. -- and answer my question specifically, okay, and narrowly. A. All right. Q. Answer what I ask you; will you, please? A. I will. Q. Okay. Do the CBR Express manuals expressly disclose that if the text score is raised to 100, then no questions will be posed to the user? MR. WHITE: Object to the form. THE WITNESS: Okay. The manuals do not contain those words. BY MR. FENSTER: Q. Do they expressly say it in other words? A. Well, I think they do. I think that that's what that quote says. Why else -- I mean, that's the ordinary -- a person of ordinary skill would interpret it that way. It wouldn't make it sense to ignore questions that, in fact, it asked. That would be --

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on Page 53 of your report? A. Um, yes, I do. Q. Okay. And that is the only portion that you cite from the '664 Patent text itself in support of your conclusion that the message can be noninteractive, correct? A. As best I can tell now, that's the only quote from the Allen -- from the '664 Patent, that's what you're asking, in support of -- other than the incorporation by reference, but the only explicit language from the patent itself, I believe, is what's in 113. Q. Okay. And that's at Allen Column 9, Lines 19 to 29, correct? A. Correct. Q. Okay. Now, the portion at Allen Column 9 that you quoted in 19 to 29, what that says is that: "If the match quality is high enough, then it will perform -- it may perform the best case and following steps"; Correct? MR. WHITE: Object to the form. THE WITNESS: That's right. Sorry.

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Q. Okay. A. It's just not sensible. Q. Okay. So, in fact, what the CBR Express manuals say is that you are permitted to raise it, meaning the text score, to 100 percent if you want to ignore questions completely, correct? MR. WHITE: Object to the form. THE WITNESS: Right. And ignore questions means not pose questions. BY MR. FENSTER: Q. Okay. And what you're quoting there is the -- is from the Reference Manual -A. That's right. Q. -- not the User Guide, correct? A. That's right. Q. And did you cite to any disclosure in your report from the User Guide itself, as distinct from the Reference Manual, that says that the message can be noninteractive, expressly? A. I don't believe so. Q. Now, going back to Paragraph 113 of your report; do you see that? A. Uh-huh. Q. Okay. You cite a portion from the '664 Patent at Columns 9, Lines 19 to 29; do you see that

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BY MR. FENSTER: Q. It does not expressly say that -- strike that. Now -- so that portion states that if the match is high enough, then it may go on to do -perform the best case step in following steps, correct? A. Yes. Q. And if the match is not high enough, then it will proceed with the interaction with the user, correct? A. Well, yeah, let's see. I don't know if it explicitly -- this particular quote says that, but, yes, that's true. Q. Okay. A. Provided -- provided there are additional rules. Q. Okay. A. And provided that the user doesn't just select the top case, which is also an option. Q. The system described in Allen does provide for interaction with the user, at least in some circumstances, correct? A. Yes. Q. Okay. And what you're saying in

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