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, ).

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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. § § § § § § § § § § § 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. Dallas 305454v1 PAGE 1 Date: July 14, 2010. Respectfully submitted, /s/ Jason D. Cassady Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. Email: sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley, Lead Attorney Texas Bar No. 04035500 Email: dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 Email: tstevenson@mckoolsmith.com Jason D. Cassady Texas State Bar No. 24045625 Email: jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 Email: acurry@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 Robert M. Parker Texas Bar No. 15498000 E-mail: rmparker@pbatyler.com Robert Christopher Bunt Texas Bar No. 00787165 E-mail: rcbunt@pbatyler.com PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 2 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 PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 3 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, PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 4 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. PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 5 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. PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 6 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, PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 7 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. PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 8 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. PLAINTIFF’S SECOND RULE 30(B)(6) DEPOSITION NOTICE TO DEFENDANT YAHOO! INC. Dallas 305454v1 PAGE 9

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