Software Rights Archive, LLC v. Google Inc. et al
Filing
118
SUR-REPLY to Reply to Response to Motion re 66 MOTION to Dismiss for Lack of Standing filed by Software Rights Archive, LLC. (Attachments: # 1 Exhibit Table of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Errata Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19, # 21 Exhibit Exhibit 20, # 22 Exhibit Exhibit 21, # 23 Exhibit Exhibit 22, # 24 Exhibit Exhibit 23, # 25 Exhibit Exhibit 24, # 26 Exhibit Exhibit 25, # 27 Exhibit Exhibit 26, # 28 Errata Exhibit 27)(Duvvuri, Narasa)
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
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CER11 E()
TRANSCRIP1Civil Case No.
2: 07-cv-511 (CE)
5 v.
8 9
4 SOFTWARE RIGHTS ARCHIVE, LLC
6 GOOGLE INC., YAHOO! INC., lAC SEARCH & MEDIA, INC., AOL,
7 L L C , AN D L Y COS, INC.
October 2, 2008 7:51 a.m.
10
11 The Videotaped Depos i tion of DANIEL EGGER,
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12 taken pursuant to notice on behalf of the 13 Defendants, at the Marriott Hotel at Research
14 Triangle Park, 4700 Guardian Drive, Durham, North
15 Carolina 27703, before Suzanne G. Patterson,
16 Registered Professional Reporter and Notary Public.
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EXHIBIT 1
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
45
1 signature does not appear on that document, on Exhibit
2 A, correct?
3
4
A.
Q.
Just my ini tials.
Did you a t tempt to have an officer of Si te
5 Technologies, Inc. at any point execute Exhibit A as an
6 independent document?
------------~---T- -------7r~----~--r-ì:na-eTsfo-ocr--- t h-i"s-was- .one--crõ-cumeriT;---I--sIg-n-e d--------
8 it, Jeff signed it, I paid him the money, I bought the 9 patents, and that was about my extent of my knowledge
10 of it at the time.
11
MR. WALSH:
I'm going to obj ect to the answer
12 as nonresponsive.
13 BY MR. HUNG:
14
Q.
I'm sorry.
All I'm trying to find out is, did
15 you ever separate this Exhibit A, send it to anyone at
16 Site Technologies, Inc. and ask them to execute it?
17 18
A.
Q.
I don't believe so, no.
To make sure I didn't miss something, the
19 underlying section that, under -- under which your
20 initials appear, you have no recollection as to what
21 that underlining refers to, correct?
22 23
A.
Q.
Yeah.
No, I don't know what that's about.
Do you recall whether you paid, actually paid
24 Si te Technologies, Inc. a hundred thousand dollars in
25 cash for the assets relating to the 1998 Bill of Sale?
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
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1 Q. assignor hereby covenants and agrees that it
2 has. Do you see that sentence?
3 A. Yes.
4
Q.
Do you agree that the statement, assignor
5 hereby covenants and agrees that it has full rights to
6 convey the entire interest herein assigned, is an
7 incorrect statement?
8
A.
Q.
No.
Let me parse this slightly. Would you agree
9
10 that in February 2005, Site/Technologies/Inc. did not
11 have the full right to convey the entire interest in
12 the patents identified in Schedule A?
13
A.
They'd already -- they'd already been
14 transferred it me, had already been sold to me at that
15 time.
16
Q.
So, do you agree that in February 2005, Site
17 Technologies, Inc. did not have the full right to
18 convey the entire interest in the patents identified in
19 Schedule A?
20
A.
My understanding was that nothing was actually
21 transferred or assigned by this document, this was
22 purely for notice. We needed to get something on file.
23
Q.
If you look at the first sentence in the third
24 paragraph in this document, Assignment of Patent, you
1,. 25 will see that it uses the present tense in stating that
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
81
1 the assignor hereby sells, assigns, and transfers to
2 assignee the entire right, title, and interest in and
3 to the patents.
4
Do you see that?
A. Yes, - I do.
Q. To the extent that this document purported to
currently, contemporaneously, assign the entire right,
title, and
5
6
7
8
interest in the patent identified in
Schedule. A, this document would be false, correct?
9
A. Could you repeat the question?
Q.
10 11 12 13
14
Sure.
The statement in the first sentence of
paragraph 3, which states in relevant part, that the assignor hereby assigns -- hereby sells, assigns, and
transfers to assignee the entire right, title, and
interest in and to the patents, that statement is
false, correct?
15
16
17
18
A. I don't know if you can read part of the
sentence without the whole sentence, that's the problem
I'm having with your question.
Q.
19
Okay.
Let me try it this way.
Do you agree
20 21 22 23
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that paragraph 3 of the Assignment of Patent, dated
February 11, 2005, is inaccurate?
A. No, I don't really agree with that, no.
Q. So, it's your understanding that as of
February 11th, 2005, Site/Technologies/Inc., on that
25
date sold, assigned, and transferred to you the entire
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
82
1 right, title, and interest to the patents identified in
2 Schedule A?
3
A.
No, it didn't happen on that date and we were
4 attempting to use the document to describe events that
5 had happened in the past.
6
Q.
Even though you were attempting to describe
7 events that happened in the past, you chose to use the
8 present tense in this document! correct?
9
A.
Q.
Yes.
10
And the use of the present tense was incorrect,
Well, I was told by my attorney, Chris Lynch,
11 correct?
12
A.
13 that this was the correct form to provide this notice,
14 and he gave it to me this way and I relied on his
15 advice and I signed it and we filed it.
16
MR. WALSH:
I'm going to obj ect to the answer
17 as nonresponsive.
18 BY MR. HUNG:
19
Q.
As you sit here today, you would agree with me
20 that the use of the present tense in paragraph 3 in
21 discussing, hereby sells, assigns, and transfers to
22 assignee the entire right, title, and interest, that 23 use of the present tense is incorrect, right?
24
A.
I would agree with you that it would have been.
25 better to use the past tense.
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
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1
Q.
You were not attempting to provide notice of
2 from whom you acqui red the patents?
3
A.
I
I was trying to provide notice that I
4 owned them and I wasn't aware that there was a
5 meaningful distinction between Site Technologies with
6 or without a Slash.
7
8 between
Q.
a
DO, you understand that there is a distinction
corporation in Delaware and a corporation in
9 California?
10
11
A.
Q.
Of course, yes, of course.
Do you understand that the 2005 Assignment of
12 Patent refers to Si te/Technologies/lnc., a Delaware
13 Corporation, correct? A. Yes, yes. 14
15
Q.
And this document was supposed to provide
16 notice of a transfer to you that occurred in 1998,
17 correct?
18
A.
Q.
Also correct, yes.
19
And that transfer that is reflected in the 1998
20 bill of sale, that had been a transfer between Si te
21 Technologies, Inc., a California Corporation, to you,
22 correct?
23
A.
You know, I'm not really sure right now, I'm
24 not really sure right now about the distinction between
25 Site with a Slash and Site without a Slash as of 1998.
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
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1 sale to me in the filing that we made in
2 February 2005.
3 BY MR. HUNG:
4
Q.
Are you aware of any documents in the 2005 time
5 frame during which this 2005 assignment was recorded
6 that used this notice of sale terminology?
7
A.
There i S many documents that lIm aware of but I '
8 don i t know whether they use that term or not.
9
Q.
Did you and Mr. Lynch discuss in the 2005 time
10 frame the fact that absent this 2005 Assignment of
11 Patent, you would be unable to record notice of the
12 sale of the patents to you with the Patent and
13 Trademark Office?
14
A.
The way it was put to me was, we should provide
15 notice of the sale to you before we file the notice of
16 assignment from me to Software Rights Archive, Inc.
17 18
Q.
Why did Mr. Lynch tell you this was necessary?
MR. KAPLAN: Objection; form.
THE WITNESS: I don i t know.
Q.
19
20 BY MR. HUNG:
21
22
Did he tell you why this was necessary?
A.
He said that you i re supposed to provide notice
23 and there was no notice of the 1998 sale, and we should
24 provide it.
(
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25
Q.
He told you that you should provide notice of
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
110
1
Q.
Mr. Lynch, in his Declaration, refers to this
2 concept of the winding-up authori ty of the companies.
3 My question for you is, did you discuss this concept of
4 winding-up authori ty wi th Mr. Lynch?
5
6
A.
Q.
Not really, no.
You and Mr. Lynch never discussed whether you
7 were empowered as a former executive of
8 Site/Technol~gies/lnc. toexecute the February 2005
9 assignment on behalf of Site/Technologies/Inc., is that
10 right?
11
A.
Can you ask the question a li ttle simpler, I
12 los t the thread there, I'm sorry.
13
Q.
Sure.
Sure.
Did you and Mr. Lynch ever
14 discuss whether you were empowered as a former
15 executive of Site/Technologies/Inc. to execute the
16 February' 05 assignment on behalf of
17 Site /Technologies! Inc. ?
Okay. We never discussed it on behalf of 19 Site/Technologies/Inc., I didn't distinguish these
18
A.
20 different entities. We did discuss that I had the
21 authority to sign the document, the February 11th, 2005
22 Assignment, he said that I had the authority to sign it
23 as a former officer.
24
Q.
As a former officer at any point in time, you
l 25 had the authority to sign the February 2005 document?
Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
176
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CERTI FICATE
2 STATE OF NORTH CAROLINA: COUNTY OF WAKE:
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I, Suzanne G. Patterson, do hereby certify that I 4 placed under oath the deponent, Daniel Egger, at the time and place herein designated.
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Witness my hand this 7th day of October, 2008.
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Suzanne G. Patterson, RPR Notary Public, County of Wake State of North Caroilna My Commission Expires: 9/5/2010
12 I, Suzanne G. Patterson, Registered Professional
f~.,..:::;
Reporter, certify that I was authorized to and did 13 stenographically report the foregoing proceedings at the time and place herein designated; and that the 14 foregoing pages consti tute a true, complete and accurate transcription of my said stenotype notes. 15 I further certify that I am not of counsel for, 16 related to, or employed by any party hereto or attorney involved herein, nor am I financially interested in the 17 outcome of this action.
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Witness my hand this 8th day of October, 2008.
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Suzanne G. Patterson, RPR Notary Public, Wake County State of North Carolina My Commission Expires: 9/5/2010
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Doerner & Goldberg New York * A Veritext Company 1350 Broadway * New York, NY 10018 * 212-564-8808
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