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 25

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

2
3
4

BEDROCK COMPUTER
TECHNOLOGIES LLC

)
DOCKET NO. 6:09cv269

5

-vs-

)

6
YAHOO!, INC.
7
8
9

)

Tyler, Texas
1:15 p.m.
April 28, 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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23
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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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correct?

2

A.

That's right, sir.

3

Q.

So in that respect you're a whole lot like

4

Yahoo! because Yahoo! didn't know anything about the

5

candidate code before they got sued in this case.

6

understand that, don't you, sir?

7
8
9
10

You

A.

I don't know one way or the other what they

Q.

Now, sir, you talked about some of the testing

knew.

of Linux that you did, right?

11

A.

Yes, sir.

12

Q.

And you did that testing in order to support

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Bedrock's -- you did that testing to find out whether

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you could support Bedrock in this case; is that fair?

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16
17
18

A.

No, sir.

I did that to understand the

advantages of the patent.
Q.

Okay.

But you did that after the lawsuit was

filed?

19

A.

Yes, sir.

20

Q.

And you did that knowing that one day you

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would have to come down to this courtroom and face this

22

jury and share your results with the jury, right, sir?

23

A.

Yes, sir.

24

Q.

And you knew you had to share all the results

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with the jury, right?

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A.

Yes, sir.

2

Q.

But you can't do that, can you?

3

A.

I can share all the results that I relied

4

upon, yes, sir.

5
6

Q.
did you?

7
8

A.

I believe I reported on all my testing

results, yes, sir.

9
10

Well, sir, you didn't keep all the results,

Q.

You didn't keep all your results, did you,

A.

I didn't keep the results as I was preparing

sir?

11
12

my tests, yes, sir; but once I carried them out, I kept

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them.

14
15

Q.

Okay.

You didn't keep the results that you

were making while you were preparing your tests, right?

16

A.

Yes, sir.

17

Q.

Now, sir, during lunch -- and again, I don't

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know if you can see these numbers here that I've

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written.

Can you see that, sir?

20

A.

Yes, sir.

21

Q.

Now, I read your deposition and I looked at

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your report, and I think I've got this right.

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tested more than just 2.6.31, right, sir?

24

A.

Yes, sir.

25

Q.

You

You tested 2.6.26?

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A.

I believe so, yes, sir.

2

Q.

Do you give me the test results for that?

3

A.

No, sir.

4

Q.

You tested 2.6.28, didn't you?

5

A.

I believe so, yes, sir.

6

Q.

Did you give Yahoo! or me the test results of

8

A.

No, sir.

9

Q.

You tested 2.6.34, didn't you?

10

A.

I believe so, sir, yes, sir.

11

Q.

Did you give Yahoo! or our attorneys or my

7

12

that?

colleagues or me the test results of that?

13

A.

No, sir.

14

Q.

And the only test results you gave us was

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2.6.31, right?

16

A.

Yes, sir.

17

Q.

You know, I hadn't noticed this until I wrote

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this down at lunch, but you tested 2.6.26.

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You didn't

give us the results, right, sir?

20

A.

That's correct.

21

Q.

Yahoo! uses 2.6.27, which you didn't test,

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right, sir?

23

A.

That's correct.

24

Q.

You tested 2.6.28, and you didn't give us the

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results, right?

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A.

That's correct.

2

Q.

Yahoo! uses 2.6.29, but you can didn't test

4

A.

That's correct.

5

Q.

Dr. Nemes talked yesterday about a zigzag

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that?

6

pattern.

I'm kind of just zigzagging going back and

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forth here.

8

So the four versions of the code that you

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tested, you only shared with us the results of one?

10
11
12

A.

The results were all the same, so that's what

I shared, sir.
Q.

Sir, we don't have the backup data to

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determine whether the results are all the same.

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have to take you on your word, right?

15
16

A.

No, sir.

We just

You could have replicated the tests.

I gave all that information.

17

Q.

We could replicate your living room test?

18

A.

Absolutely.

19

Q.

You knew that you were supposed to be sharing

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the test results with this jury whether they were good

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or bad or, as the movie used to go, ugly?

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23
24
25

A.

That's what I did, sir.
MR. STEVENSON:

Objection.

May I

approach, Your Honor?
THE COURT:

Yes, you may.

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of minutes ago that all the test results are the same

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and that's why he didn't produce it.

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didn't produce them because of some Court order.

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didn't say he didn't produce it --

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6

THE COURT:

All right.

He

You can go back

and do it on redirect -- or recross.

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8

He didn't say he

(Bench conference concluded.)
Q.

(By Mr. Morisseau) As I was saying, Dr. Jones,

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you knew that you were going to have to come down here

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and share all the test results, whether they were good

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or bad or ugly, to the members of the jury.

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that, sir?

You knew

13

A.

Yes, sir.

14

Q.

But you don't have them, do you, sir?

15

A.

I'm sorry, couldn't hear you.

16

Q.

You don't have them, do you, sir?

17

A.

I reported the results that are all

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19
20
21
22

consistent, yes, sir.
Q.

You don't have the test results of 2.6.26,

2.6.28 or 2.6.34, right, sir?
A.

They are consistent with 2.6.31, and I didn't

run all the same tests.

23

Q.

You didn't run all the same tests; is that

24

right, sir?

25

A.

No, sir.

What I did was I did preliminary

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experiments to find out that they were all the same and

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then ran my tests on the one that was all the same.

3
4
5
6
7

Q.

Your preliminary experiments, you ran it on

three and then just picked one?
A.

I ran it on four and found they were all the

same, equivalent, and then reported those results.
Q.

You found that they were all the same, but the

8

version you picked was kind of the one in the middle

9

instead of the first one or the last one?

10

A.

Yes, sir.

11

Q.

I want my question to be clear.

I'm not

12

asking whether the test results are consistent or not;

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I'm asking whether you have the results for the test

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results 2.6.26, 2.6.28, 2.6.34 so we can see and so the

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jury can see?

16

A.

No, sir, I don't.

17

Q.

Now, sir, in your report, I don't know if you

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mentioned this or not, but I have read your report

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several times and there is a section in there about a

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statistical analysis.

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your report?

22

A.

Yes, sir.

23

Q.

And as I understand it, when Linux is

Do you recall that section of

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delivered to someone like Yahoo! there's a length of a

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list which is kind of hard-wired -- not hard-wired but

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straighten me out.

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at a time.

3
4

And I want to go through these one

You did not test for denial of service, did
you?

5

A.

That's correct, sir.

6

Q.

You didn't test Yahoo!'s network architecture,

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did you?

8

A.

I did not, sir.

9

Q.

You didn't try to duplicate Yahoo!'s network

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architecture, did you?

11

A.

That's correct.

12

Q.

You didn't test the versions of Linux that

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Yahoo! uses?

14

A.

That's correct.

15

Q.

You didn't keep all your testing data?

16

A.

That's correct.

17

Q.

No one else has confirmed your test results,

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19

have they?
A.

Again, I found results that agree with mine,

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but I have not had someone go and verify my exact

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numbers.

22

Q.

And that's what was my question.

No one, no

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one, not your interpretation of other test results, my

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question was no one has confirmed your test results; is

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that right?

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A.

Again, people have gotten the exact same

2

numbers, but I don't have someone confirming my test

3

results, that's right.

4
5

Q.

That's me.

One last question.

No one's confirmed your

living room test?

6

A.

That's right.

7

Q.

And you made several mistakes, right, sir?

8

A.

In filling out that data, yes, sir.

9

Q.

Well, you made mistakes on the witness stand

10

this morning when you testified about the wrong version

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of code, right?

12

A.

Yes, sir.

13

Q.

And when you talked about the memory leak,

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right, sir?

15

A.

That wasn't a mistake, sir.

16

Q.

And if you had to do it all over again, you

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18
19

would do a few things differently, wouldn't you?
A.

would certainly know the version of code, yes, sir.

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21

I would fill out that chart differently, and I

MR. MORISSEAU:
witness.

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THE COURT:

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24
25

Your Honor, I pass the

All right.

Redirect.

REDIRECT EXAMINATION
BY MR. STEVENSON:
Q.

Dr. Jones, just a few follow-up questions.

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2

Let me ask you about these code versions, and
the version we had was 2.6.9 versus 2.6.18.

3

Now, I noticed some of the line numbers were

4

off a little bit.

5

substantive difference in those two codes?

6

A.

No, sir.

Other than that, is there any

All those codes with respect to the

7

candidate and generation code, those codes are the same

8

thing.

9
10

Q.

And are your opinions any different from 9

versus 18?

11

A.

No, sir.

12

Q.

Is the code the same, essentially?

13

A.

Yes, sir.

14

Q.

Now, let me ask you a little bit about the

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Turner tests.

16
17

I've examined all of them.

You were asked some questions about
Mr. Turner, remember that, the Xs and the checks?

18

A.

Yes, sir.

19

Q.

What was Mr. Turner testing?

20

A.

His results were focused on denial of service

21

tests, sir.

22

Q.

23
24
25

And how many advantages are there for the

patented invention?
A.

Well, there's denial of service protection

advantages as well as efficiency advantages, so two.

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Q.

And those are separate, right?

2

A.

Yes, sir.

3

Q.

Did your 10- to 20-percent testimony about

4

performance gains depend in any way, shape, or form on

5

denial of service?

6

A.

No, sir.

7

Q.

I mean, let's pretend denial of service never

8

existed, that there was never a hacker born.

9
10
11

Would it matter, then, to your performance
testimony?
A.

No, sir.

I was not trying to simulate or show

12

what would happen with a denial of service attack.

13

was trying to show the efficiency gains for ordinary or

14

regular peak traffic.

15

Q.

16
17

I

So let's talk about those efficiency gains.
One thing you didn't put on this chart is

tested real-world IP addresses and mixes.

18

A.

Yes, sir.

19

Q.

Is that the big difference between you and

20

Dr. -- or Mr. Turner?

21

A.

Yes, sir.

22

Q.

And explain to the jury, despite all these,

23

what's the big difference in your tests versus his

24

tests?

25

A.

Yes, sir.

Well, in the tests that I ran, I'm

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All right.

2

Q.

Mr. Cassady, you may proceed.

(By Mr. Cassady) I believe when we left off,

3

Mr. Weinstein, I was asking you if you had done any

4

calculations of what would happen to Yahoo! if they were

5

hit by a denial of service attack today; is that right?

6

A.

Yes, sir, I did.

7

Q.

Okay.

Did you perform any calculations as to

8

what would happen to Yahoo! if they were hit by a denial

9

of service attack today?

10

A.

I did.

11

Q.

Okay.

12

A.

What I did is I went to financial information

And what was that calculation?

13

that I was furnished from Yahoo! and I -- based on that

14

information I made a calculation of what losses, the

15

revenue losses would be if Yahoo!'s website went down.

16

Q.

Okay.

And I'm putting it up right now.

Is

17

this the chart with the calculations you're referring

18

to?

19

A.

Yes, sir.

20

Q.

Okay.

21

looking at?

22

A.

Yes.

Can you explain to the jury what we're

I had access to certain Yahoo! financial

23

information that showed its annual revenues.

And what I

24

did is converted that to revenue per hour and also

25

revenue per day based on the financial information and

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then a description of some of that information by a

2

gentleman from Yahoo!, Samuel Wolff.

3

So what I found is that if its site --

4

Yahoo!'s site were down for just one hour, it would lose

5

approximately $289,000 in revenue based on its average

6

hourly revenue.

7

it would be about $6.9 million.

8

Q.

And if you multiply that out to a day,

So if Yahoo! is hit by a denial of service

9

attack and they're down for a day, you're saying it

10

would be $6.9 million just in the revenue that they

11

would lose?

12

A.

Correct.

13

Q.

That doesn't take into account the long-term

14
15

effects of customers having problems with Yahoo!, right?
A.

Right.

And we know that there is an impact.

16

If customers are frustrated because they can't get to a

17

site, then on average over time they go to that site

18

less often.

19

Q.

Okay.

And if it happened more than one day in

20

a given year or over the time period that this patent

21

has been used by Yahoo!, are we talking about

22

multiplying times every day that they get hit like that?

23

A.

Correct.

24

Q.

I think we've finished talking about factors

25

7, 8, and 9; is that right?

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