Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 842

Opposed MOTION for Attorney Fees Yahoo!'s Motion to Declare this an Exceptional Case and for Attorneys' Fees and Costs Pursuant to 35 USC Sec. 285 by Yahoo! Inc.. (Attachments: #1 Affidavit B. James Decl., #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, #9 Exhibit 8, #10 Exhibit 9, #11 Exhibit 10, #12 Exhibit 11, #13 Exhibit 12, #14 Exhibit 13, #15 Exhibit 14, #16 Exhibit 15, #17 Exhibit 16, #18 Exhibit 17, #19 Exhibit 18, #20 Exhibit 19, #21 Exhibit 20, #22 Exhibit 21, #23 Exhibit 22, #24 Exhibit 23, #25 Exhibit 24, #26 Exhibit 25)(Chaikovsky, Yar) (Additional attachment(s) added on 6/7/2011: #27 Text of Proposed Order) (mll, ).

EXHIBIT 11

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

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BEDROCK COMPUTER
TECHNOLOGIES LLC

)
DOCKET NO. 6:09cv269

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-vs-

)

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YAHOO!, INC.
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)

Tyler, Texas
1:15 p.m.
April 27, 2011

TRANSCRIPT OF TRIAL
AFTERNOON SESSION
BEFORE THE HONORABLE LEONARD DAVIS,
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S
FOR THE PLAINTIFF:

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MR. DOUGLAS A. CAWLEY
MR. THEODORE STEVENSON, III
MR. SCOTT W. HEJNY
MR. JASON D. CASSADY
McKOOL SMITH
300 Crescent Court, Ste. 500
Dallas, TX 75201
MR. ROBERT M. PARKER
MR. ROBERT CHRISTOPHER BUNT
PARKER, BUNT & AINSWORTH
100 E. Ferguson, Ste. 1114
Tyler, TX 75702
COURT REPORTERS:

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MS. JUDY WERLINGER
MS. SHEA SLOAN
Proceedings taken by Machine Stenotype; transcript was
produced by a Computer.

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MS. DOAN:
Page 702.

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Casey, if you'll go to 471,

471, Page 702.
sorry -- 471 -- 147.
Q.

471, Defendant's -- I'm

I'm sorry.

(By Ms. Doan) The reexamination certificate is

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what you just went over with Mr. Cawley, so we know you

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didn't look at the Yahoo! code, right?

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A.

Correct, ma'am.

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Q.

And we know you didn't look at the code that's

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in Linux 2.6.9 or any of the accused versions on the

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internet, right?

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A.

Correct.

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Q.

And we know you didn't look at the Kuznetsov

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code, right?

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A.

Correct.

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Q.

And we also know that you didn't look at the

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NRL code either, right?

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A.

That's correct, ma'am.

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Q.

And if you'll look at the references that are

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on the reexamination certificate -- and I'm sorry that I

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left off some of it -- it looks like they're on Page 1

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and then again on Page 2.

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None of those references mention the NRL code,

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do they, sir?

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A.

You know, I'd have to go through this and

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look.

Would you like me to -Q.

You haven't done that before you got in front

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of this jury to testify about the reexamination

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certificate, did you, sir?

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A.

No.

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Q.

So you're not prepared to testify on this, are

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you, sir?

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A.

That's correct, ma'am.

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Q.

Any reason you don't believe me that the NRL

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code is not on the references on the reexam?

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A.

I have no reason not to believe you.

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Q.

Okay.

And obviously, of course, if it were on

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the references for the reexam, that would mean that the

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Patent Examiner considered it, right?

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here, it would mean that it was considered in reexam,

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right?

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A.

If it were listed

I'm not -- I'm really not familiar with the

internal operations of the Patent Office.
Q.

Okay.

But it's your understanding that the

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rule is that if it's listed on the face of the reexam,

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it's been considered, right?

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A.

I'm not sure.

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Q.

Do you know if the Kuznetsov 1995 old Linux

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code, whether that's listed on the face of the reexam,

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either on Page 1 or Page 2?

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A.

I have no idea.

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Q.

You don't have any evidence, as you sit here

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today making a claim against Yahoo!, that the Kuznetsov

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code or the NRL code has been submitted to the Patent

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Examiner, do you, sir?

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A.

I have no idea.

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Q.

And you know, of course, since the patent is

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in reexam or was in reexam and it's your patent, the

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'120 patent, that you had a duty to produce all code,

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all known prior art code, or accused prior art code to

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the Patent Examiner, right?

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A.

I am not a patent attorney.

I'm really not

sure about that.
Q.

But you understand that it's your duty to

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produce everything in this litigation to the Patent

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Examiner, as well as any other type of prior art that's

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being accused, right?

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A.

I'm not certain of that, no.

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Q.

Do you know whether you, sir, have produced

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the NRL code to the Patent Examiner?

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A.

I did not, no.

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Q.

Did you produce it to them in the original

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application for the '120 patent?

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A.

No, I did not, ma'am.

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Q.

And you didn't produce it to them in the

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reexamination either, did you, sir?

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A.

Me personally?

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Q.

You or -- you or Bedrock?

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A.

I -- I wasn't the one that submitted things

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for the reexam, so I can't say what others did.

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personally did not do that.

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Q.

But I

You are the representative of Bedrock, right,

in this --

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A.

Yes.

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Q.

And you're bringing a big lawsuit for $32

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million against Yahoo!, right?

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A.

That's correct, ma'am.

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Q.

And you can't tell this jury -- you've known

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that our defense is the NRL code as well as the '495 as

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well as -- as well as other prior art, correct?

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A.

I've heard that today, ma'am.

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Q.

All right.

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And you can't tell this jury that

you submitted it to the Patent Office in reexamination?

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A.

I personally did not submit it, ma'am.

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Q.

And you can't tell this jury as a

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representative of Bedrock that you were sure that your

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company did?

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A.

I'm not sure what my company did, ma'am.

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Q.

You agree you have a duty of candor to the

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Patent Office?

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A.

Yes, I do, ma'am.

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Q.

But you can't tell this jury that you have, in

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fact, complied with that duty of candor as far as

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production of the NRL code, can you, sir?

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A.

I can't testify to the NRL code in the reexam.

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Q.

I think I misstated this before.

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The NRL code is not on -- not listed as one of

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the publications in the reexamination certificate, is

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it, sir?

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A.

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list --

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Q.

I would have to read through the entire

Even though you knew the NRL code was one of

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our major pieces of prior art and you're the

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representative of Bedrock, you're not prepared to review

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the reexamination certificate and tell this jury what it

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says?

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A.

Well, I am willing.

If you would like, I

could go through this and tell you if it's on the list.
Q.

I tell you what, if it's on the list, I am

sure that your attorneys will bring it out.

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Now, I want to talk about your Claim 1 on the

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'120 patent.

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to describe a particular lock.

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of lock, right?

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A.

You told Mr. Cawley that it doesn't have
It can describe any type

There are many mechanisms for achieving a

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