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 21

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BEDROCK COMPUTER
TECHNOLOGIES LLC,
Plaintiff,
v.
SOFTLAYER TECHNOLOGIES, INC.,
et al.
Defendants.

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CASE NO. 6:09-cv-269-LED
Jury Trial Demanded

PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION
NOTICE TO DEFENDANT YAHOO! INC.
To:

Defendant, Yahoo! Inc., by and through its attorney of record, Yar R. Chaikovsky,
MCDERMOTT WILL & EMERY LLP, 275 Middlefield Road, Suite 100, Menlo Park,
California 94025.
In accordance with Federal Rule of Civil Procedure 30(b)(6), please take notice that

Plaintiff Bedrock Computer Technologies LLC (“Plaintiff” or “Bedrock”), by and through its
counsel, will take the oral deposition of Defendant Yahoo! Inc. (“Yahoo!” or “Defendant”),
commencing August 31, 2010, at 1:00 p.m., and continuing from day to day until completed, at
the offices of McKool Smith P.C., 300 Crescent Court, Suite 1500, Dallas, Texas 75201 or such
other location, date, and time mutually agreed upon by the parties.
The deposition will be conducted before an officer authorized to administer oaths. The
deposition will be recorded stenographically and will be videotaped.
Bedrock will examine Yahoo!’s representative on the matters in the numbered paragraphs
set forth below in Schedule A. In accordance with Federal Rule of Civil Procedure 30(b)(6),
Yahoo! is to designate one or more persons to testify on Yahoo!’s behalf with respect to the
matters described in Schedule A and set forth, for each individual designated, the matters on
which the individual will testify, no later than five (5) business days before the depositions.
PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC.
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Date: July 14, 2010.

Respectfully submitted,
/s/ Jason D. Cassady
Sam F. Baxter
Texas Bar No. 01938000
McKOOL SMITH, P.C.
Email: [e-mail]
104 E. Houston Street, Suite 300
Marshall, Texas 75670
Telephone: [phone]
Facsimile: [phone]
Douglas A. Cawley, Lead Attorney
Texas Bar No. 04035500
Email: [e-mail]
Theodore Stevenson, III
Texas Bar No. 19196650
Email: [e-mail]
Jason D. Cassady
Texas State Bar No. 24045625
Email: [e-mail]
J. Austin Curry
Texas Bar No. 24059636
Email: [e-mail]
McKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Facsimile: 214-978-4044
Robert M. Parker
Texas Bar No. 15498000
E-mail: [e-mail]
Robert Christopher Bunt
Texas Bar No. 00787165
E-mail: [e-mail]
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
Telephone: [phone]
Facsimile: 903-533-9687
ATTORNEYS FOR PLAINTIFF
BEDROCK COMPUTER
TECHNOLOGIES LLC

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CERTIFICATE OF SERVICE
The undersigned certifies that, on July 14, 2010, the foregoing document was served on
counsel of record via Electronic Mail.
/s/ Jason D. Cassady
Jason D. Cassady

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SCHEDULE A

Definitions
1.

“Yahoo!,” “Defendant,” “you,” and “your” means Defendant Yahoo! Inc., and

any past or present predecessor, successor, parent, subsidiary, division or affiliate thereto, and all
persons (defined below) acting on their behalf including, without limitation, present and former
officers, directors, employees, attorneys, agents, and representatives thereof.
2.

“Bedrock” means Plaintiff Bedrock Computer Technologies LLC, and their

subsidiaries, divisions, affiliates, present and former officers and directors, employees, agents,
and all of those persons (defined below) acting on their behalf.
3.

“Person” means any natural person, corporation, or other business, legal or

governmental entity or association, as well as all officers, directors, employees, agents, and
attorneys thereof.
4.

The term “any” or “each” should be understood to include and encompass “all.”

5.

The terms “and,” “or” and “and/or” shall be construed either conjunctively or

disjunctively so as to include the broadest meaning possible.
6.

The term “’120 patent” or “patent-in-suit” refers to United States Patent No.

5,893,120, entitled “Methods and Apparatus for Information Storage and Retrieval Using a
Hashing Technique with External Chaining and On-the-Fly Removal of Expired Data.”
7.

“Accused Version of Linux” means the following Linux kernel versions or

software based on the following Linux kernel versions: 2.4.22.x, 2.4.23.x, 2.4.24.x, 2.4.25.x,
2.4.26.x, 2.4.27.x, 2.4.28.x, 2.4.29.x, 2.4.30.x, 2.4.31.x, 2.4.32.x, 2.4.33.x, 2.4.37.x, 2.6.0.x,
2.6.1.x, 2.6.2.x, 2.6.3.x, 2.6.4.x, 2.6.5.x, 2.6.6.x, 2.6.7.x, 2.6.8.x, 2.6.9.x, 2.6.10.x, 2.6.11.x,
2.6.12.x, 2.6.13.x, 2.6.14.x, 2.6.15.x, 2.6.16.x, 2.6.17.x, 2.6.18.x, 2.6.19.x, 2.6.20.x, 2.6.21.x,
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2.6.22.x, 2.6.23.x, 2.6.24.x, 2.6.25.x, 2.6.26.x, 2.6.27.x, 2.6.28.x, 2.6.29.x, 2.6.30.x, 2.6.31.x, or
versions beyond 2.6.31.x.
8.

The term “related to” mean anything that constitutes, contains, evidences,

embodies, comprises, reflects, identifies, states, refers to, deals with, comments on, responds to,
describes, analyzes or is, in any way, relevant to that subject.

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Topics

1.

For each Defendant’s business unit using, running, or relying upon to any degree

a server or network of servers executing any Accused Version of Linux, for each quarter from
2003 to the present, the following world wide financial information: (a) revenues net of any
returns, allowances, or credits; (b) costs; (c) all other expenses, with the data segregated by
whatever classifications Defendant makes in its normal course of business; (d) profits before
taxes net of any returns, allowances, or credits.
2.

For each Defendant’s business unit using, running, or relying upon to any degree

a server or network of servers executing any Accused Version of Linux, for each quarter from
2003 to the present, the following United States financial information: (a) revenues net of any
returns, allowances, or credits; (b) costs; (c) all other expenses, with the data segregated by
whatever classifications Defendant makes in its normal course of business; (d) profits before
taxes net of any returns, allowances, or credits.
3.

The identity, content, and interpretation of documents sufficient to show financial

data requested by Topic 1 and 2.
4.

The identity of all persons who have knowledge related to the information

requested by Topics 1 through 3.
5.

For each Defendant’s business units falling under topic 1 and 2, any and all

reasons why the revenue earned by each business unit would not be susceptible or vulnerable in
any way or by any degree to a denial of service attack against the Linux servers that business unit
uses or utilizes in any way. Included in this topic, without limitation, is the dollar amount of any
revenue that would be unaffected by a denial of service attack against the Linux servers that that
business unit uses or utilizes in any way.
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6.

For each Defendant’s business units falling under topic 1 and 2, the cost, in terms

of dollars, of downtime, for each and every duration of downtime, for each business unit.
7.

For each Defendant’s business units falling under topic 1 and 2, the reasons why

the revenue earned by each business unit would be susceptible or vulnerable in any way or
degree to a denial of service attack against the Linux servers that business unit uses or utilizes in
any way. Including, but not limited to, the dollar amount of any revenue that would be affected
by a denial of service attack against the Linux servers that business unit uses or utilizes in any
way.
8.

For the business units identified under Topics 1 and 2, for each quarter from 2003

to the present (or by year if the information is not available by quarter), the identity of the
product and companies that compete with them, the market which they are part of, and the
market share of the competitors in the market.
9.

The identity, content, and interpretation of: (a) any patent license produced or

identified by Defendant in this case, (b) any patent license agreements executed within the past
ten years to which you are a party, (c) any patent license that pertains to any computer equipment
configured with or utilizing software based on one or more of the versions of Linux of which you
are aware, and (d) any patent license that pertains to any version of Linux of which you are
aware.
10.

The facts and circumstances surrounding the negotiation and signing of the patent

licenses identified in response to Topic 8, including without limitation the persons involved in
the negotiation, the persons involved in the ultimate decision to execute the license, the persons
involved in the execution of the license, the terms, nature and scope of the licenses, whether the
licenses contemplate lump sum payments or running royalties, the stated or implied royalty rate,

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the duration of the licenses and whether the licenses are restricted in any way, and the identity
and location of documents sufficient to show the foregoing.
11.

For Bedrock’s patent-in-suit, any information that would affect, either positively

or negatively, the reasonable royalty to be awarded to Bedrock in this action.
12.

Defendant’s patent licensing efforts.

13.

Any established policy, procedure, or program related to licensing (in-bound or

out-bound) or use of intellectual property by Defendant.
14.

The bases for customer demand or preference for reliable web service.

15.

Any consumer research or studies undertaken with respect to servers or networks

of servers executing any Accused Version of Linux that concern its absolute or relative
advantages or benefits.
16.

The identity, content, and interpretation of any marketing material, training

material, and/or instructions for use related to servers or networks of servers executing any
Accused Version of Linux
17.

The Defendant’s responses to Plaintiff’s interrogatories #1, #2, and #4.

18.

The actual or anticipated cost of designing around the Patent-in-Suit including

without limitation, the cost of equipment, materials, manpower and facilities for such a design
around and any cost from loss of sales or market share from such a design around, and the
commercial acceptably of such a design around in the marketplace.
19.

All efforts made by Defendant to design around the Patent-in-Suit.

20.

Any allegedly non-infringing alternatives to the invention claimed in the Patent-

in-Suit and the acceptability of such allegedly non-infringing alternatives in the marketplace.
21.

Any valuation or appraisal of intellectual property created or updated since 2000

concerning intellectual property assets held or acquired by Defendant.
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22.

The dates on which Defendant first made, used, and/or sold a server or network of

servers executing any Accused Version of Linux.
23.

The date, time, duration, and cause of any downtime or outage of any server or

network of servers executing any Accused Version of Linux.
24.

The date, time, duration, and cause of any downtime or outage of any server or

network of servers.
25.

The identity, content, and interpretation of any documentation related to topic 22

through 24.
26.

Any and all marketing or promotional material related to any Accused Version of

27.

Any and all marketing or promotional material related to the reliability of your

Linux.

services and/or products.

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