Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1317

Emergency MOTION to Strike DEFENDANTS' LATE-PRODUCED DOCUMENTS, VIDEO DEMONSTRATIONS, SOURCE CODE AND PREVIOUSLY UNIDENTIFIED PRIOR ART by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Appendix, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit 1, # 14 Exhibit 2, # 15 Exhibit 3, # 16 Exhibit 4, # 17 Exhibit 5, # 18 Exhibit 6, # 19 Exhibit 7, # 20 Exhibit 8, # 21 Exhibit 9, # 22 Text of Proposed Order)(McKool, Mike)

EXHIBIT 9

Highly Confidential

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies
)
Incorporated,
)
Plaintiff,
)
)
VS.
) No. 6:09-CV-00445-LED
)
Adobe Systems, Inc.,
)
Amazon.com, Inc., Apple,
)
Inc., Blockbuster, Inc.,
)
CDW Corp., Citigroup,
)
Inc., eBay, Inc.,
)
Frito-Lay, Inc., Google,
)
Inc., J.C. Penney Company )
& Co., JPMorgan Chase &
)
Co., New Frontier Media,
)
Inc., Office Depot, Inc., )
Perot Systems Corp.,
)
Playboy Enterprises
)
International, Inc.,
)
Rent-A-Center, Inc.,
)
Staples, Inc., Sun
)
Microsystems, Inc., Texas )
Instruments, Inc., Yahoo! )
Inc., and YouTube, LLC,
)
Defendants.
)
)
______________________________________________________
HIGHLY CONFIDENTIAL
ORAL AND VIDEOTAPED DEPOSITION OF
DAVID M. MARTIN
JANUARY 17, 2012
VOLUME 5

Job No. SD132062
PAGES 791 - 1035
Page 791
Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1
2
3

A.

My recollection of the dates associated with

it were in 1994 or in 1995, or possibly even later.
Q.

Okay.

Are there any versions of the Viola

02:19:42
02:19:53
02:19:58

4

code or browser that you attempted to compile or did

02:20:01

5

compile dated before May 12th, 1993?

02:20:08

6

MR. BURGESS:

Objection, form.

02:20:13

7

THE WITNESS:

I don't recall attempting

02:20:27

8

to compile a version of Viola that was dated prior to

02:20:28

9

May 12th, 1993.

02:20:33

10

Q.

(BY MS. DOAN)

And have you now told me about

02:20:35

11

all the versions of the Viola code or the Viola browser

02:20:38

12

that you've analyzed for this case?

02:20:41

13

A.

Those are the only versions that I can recall

14

analyzing for this case.

15

all of the analysis that I did with respect to Viola.

02:20:59

16

And so if I've overlooked a version it would have been

02:21:03

17

discussed in my rebuttal report, I think, in fairly

02:21:08

18

clear fashion.

02:21:11

19

Q.

Okay.

My rebuttal report describes

02:20:43

And those five versions are the

02:21:12

20

May 12th, '93 version -- or the -- sorry.

21

versions are dated with code dates of May 12th, '93;

02:21:19

22

May 27th, '93; October 16th, '93; February '94; and

02:21:24

23

March '94.

02:21:29

24

A.

25

Those five

02:20:54

Is that fair?

02:21:15

Those are the -- the main dates that I

02:21:30

associate with each one of those versions, yes.

02:21:35
Page 901

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

upon for my opinion.

2

opinion.

3

Q.

It was merely consistent with my

02:47:17
02:47:24

(BY MS. DOAN)

So you may not have indeed

02:47:24

4

preserved these pages for which you're telling this

02:47:26

5

jury that the May 12th browser could not parse.

02:47:30

6

that fair?

Is

02:47:32

7

MR. BURGESS:

Objection, form.

02:47:33

8

THE WITNESS:

I don't recall having

02:47:34

9

specifically set aside these pages in order to produce

02:47:35

10

them.

02:47:40

11

relying upon them for my opinion.

12

Q.

And I wouldn't have done that because I was not

(BY MS. DOAN)

Are you aware of any other

02:47:42
02:47:46

13

Viola browsers prior to May 12th, 1993 that could fetch

02:47:53

14

HTML documents over HTTP?

02:47:59

15

A.

Could you just repeat, please?

02:48:03

16

Q.

Sure.

02:48:05

Are you aware of any other earlier

17

versions of Viola browsers prior to May 12th, 1993 that

02:48:08

18

could fetch HTML documents over HTTP?

02:48:13

19

MR. BURGESS:

Objection, form.

02:48:18

20

THE WITNESS:

I'm not positive about

02:48:21

21

that.

22

discussed along those lines in Dr. Phillips' report,

02:48:38

23

and so I didn't investigate such -- such versions.

02:48:41

24
25

Q.

Any versions of Viola prior to May 12th were not

(BY MS. DOAN)

02:48:27

Regardless of whether they were

02:48:44

discussed in Dr. Phillips' report, you haven't analyzed

02:48:46
Page 918

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

any Viola browser prior to May 12th, 1993.

2

Is that

fair?

02:48:48
02:48:52

3

A.

That sounds correct, yes.

02:48:52

4

Q.

So you can't tell this jury whether or not

02:48:55

5

they actually could fetch HTML pages over -- over HTTP.

02:48:57

6

Is that fair?

02:49:04

7

A.

I do discuss in my report the problems in

02:49:05

8

receiving any file over HTTP in the May 12th and

02:49:20

9

May 27th versions.

02:49:26

10

Q.

You do.

02:49:27

11

A.

Yes.

02:49:27

12

Q.

And I'm talking about now prior to May 12th.

02:49:28

13

And I'm assuming since that's not part of your analysis

02:49:31

14

then you have no opinion as to whether there is a Viola

02:49:33

15

browser prior to May 12th, 1993 that indeed could fetch

02:49:38

16

HTML pages over HTTP.

02:49:42

17
18

MR. BURGESS:

Objection, form.

There is

no question pending.

02:49:49
02:49:50

19

Q.

(BY MS. DOAN)

Do you understand my question?

20

A.

If you could rephrase it for me, please.

02:49:56

21

Q.

Sure.

02:50:00

You haven't conducted any type of

02:49:55

22

analysis with respect to any Viola browsers prior to

02:50:05

23

May 12th, 1993, right?

02:50:10

24
25

A.

The earliest Viola code that I analyzed was

May 12th, 1993.

02:50:12
02:50:16
Page 919

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

Q.

Sure.

And so you don't have an opinion as to

02:50:17

2

whether there's a Viola browser before May 12th, 1993

02:50:19

3

that indeed could fetch HTML pages over HTTP; is that

02:50:23

4

correct?

02:50:34

5

A.

One moment.

My analysis is that the -- the

02:50:34

6

two closest versions of the Viola browser that were

02:51:20

7

made available in this case, that is, the May 12th and

02:51:24

8

the May 27th, together with the testimony of Pei Wei

02:51:27

9

and Scott Silvey regarding the May 7th demonstration,

02:51:32

10

indicates that the May 7th demonstration was, likewise,

02:51:39

11

not even capable of receiving a hypermedia document

02:51:45

12

from the remote network server.

02:51:49

13

158 of my report.

14
15
16

This is in Paragraph

02:51:52

MS. DOAN:

Objection, nonresponsive.

Move to strike.
Q.

02:51:54
02:51:55

(BY MS. DOAN)

My question is different.

02:51:56

17

Prior to -- and the question is, have you

02:51:57

18

conducted any type of analysis of a Viola browser prior

02:51:58

19

to May 12th, 1993?

02:52:02

20

have not.

And I believe you answered that you

Is that fair?

02:52:06

21

A.

That sounds correct.

02:52:07

22

Q.

Okay.

02:52:08

So I'm assuming that you don't have any

23

opinion with respect to whether there is a Viola

02:52:10

24

browser dated prior to May 12th, 1993 that indeed could

02:52:13

25

fetch HTML documents over HTTP.

02:52:18

You just don't have an

Page 920

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

opinion one way or the other.

Is that fair?

02:52:25

2

MR. BURGESS:

Objection, form.

02:52:27

3

THE WITNESS:

No, I don't think that's

02:52:28

4
5
6
7
8
9

fair.
Q.

02:52:29
(BY MS. DOAN)

What Viola browser code have

you analyzed prior to May 12th, 1993?
A.

02:52:32

I did not say that I have analyzed Viola code

base prior to May 12th, 1993.
Q.

02:52:30

02:52:36
02:52:40

And indeed you have not; is that fair?

02:52:43

10

MR. BURGESS:

Objection, form.

02:52:46

11

THE WITNESS:

That's correct.

02:52:46

12

Q.

(BY MS. DOAN)

So it's my understanding, then,

02:52:47

13

you don't have an opinion as to whether there is a

02:52:49

14

Viola browser dated prior to May 12th, 1993 that indeed

02:52:52

15

could fetch HTML pages over HTTP?

02:52:56

16

MR. BURGESS:

Objection, form.

17

THE WITNESS:

Again, I disagree.

02:53:04
This is

02:53:06

18

a topic that I took -- that I take up in Paragraph 158

02:53:08

19

of the report --

02:53:12

20

Q.

(BY MS. DOAN)

Right.

21

A.

-- with respect to the browser that I know

02:53:12
02:53:12

22

indicates existed, or that testimony indicates existed

02:53:15

23

on May 7th, which is prior to May 12th.

02:53:16

24
25

Q.

And you're telling me that that couldn't fetch

documents, right?

And my question is exactly the

02:53:19
02:53:20
Page 921

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

opposite.

2
3

Okay?

Are we -- are you with me yet?

MR. BURGESS:

Objection -- objection,

form.

4

02:53:23
02:53:26
02:53:27

THE WITNESS:

The -- the way you've been

02:53:27

5

phrasing your question it does not appear to me to be

02:53:28

6

exactly the opposite.

02:53:31

7

and we'll agree.

8
9
10

Q.

(BY MS. DOAN)

So maybe we can just try again

02:53:34
Sure.

Can you tell me of a

02:53:34

Viola browser prior to May 12th, 1993 that indeed could

02:53:37

fetch HTML pages over HTTP?

02:53:41

11

MR. BURGESS:

Objection, form.

02:53:47

12

THE WITNESS:

I -- sitting here today, I

02:53:52

13

can't indicate a version of the Viola browser prior to

02:53:54

14

May 12th -- or the May 12th version, for that matter,

02:53:58

15

that could receive HTML documents over HTTP correctly.

02:54:01

16

Q.

(BY MS. DOAN)

Okay.

And the earliest

02:54:14

17

analysis that you've done is with respect to the

02:54:17

18

May 7th Sun demonstration.

02:54:20

19

A.

Is that fair?

That sounds correct.

I don't recall having

02:54:24

20

performed analysis of prior versions of Viola, that's

02:54:29

21

correct.

02:54:34

22

Q.

Is it your opinion that the Viola browser

02:54:35

23

could not parse an HTML document in -- the Viola

02:54:49

24

browser dated October 16th, 1993?

02:54:55

25

A.

October 16th?

02:55:00
Page 922

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

Q.

Yes, sir.

02:55:22

2

A.

It's my recollection that the Viola alpha

02:55:24

3

version of October 16th, 1993 was able to parse and

02:55:48

4

render some HTML documents.

02:55:52

5

Q.

And is it fair that you don't have any opinion

02:55:57

6

about any type of Viola browser dated before the Sun

02:56:04

7

demonstration, May 7th, 1993, as to whether there was

02:56:07

8

such a browser that -- Viola browser that would parse

02:56:12

9

HTML documents?

02:56:17

Is that fair?

10

MR. BURGESS:

Objection, form.

02:56:20

11

THE WITNESS:

The earliest browser

02:56:22

12

that -- that I've expressed an opinion on is the May 7,

02:56:24

13

1993 browser --

02:56:29

14

Q.

(BY MS. DOAN)

15

A.

-- as far as I can recall, unless I'm

16
17

Okay.

So you --

02:56:30
02:56:31

forgetting something in my report, which I doubt.
Q.

I'm not trying to trick you.

02:56:34

I don't think --

18

I don't see one or I would show you.

19

point it out.

20

there's not something else as you sit here today for

21

which you have an opinion that I haven't explored.

22

trying to do my job.

Okay?

I -- we would

02:56:35
02:56:37

So I just want to make sure

02:56:40
02:56:42
I'm

Okay?

02:56:45
02:56:48

23

A.

I understand.

02:56:50

24

Q.

Okay.

02:56:50

25

So before May 7th, 1993, you don't have

any opinion one way or the other as to whether there's

02:56:53
Page 923

Veritext National Deposition & Litigation Services
866 299-5127

Highly Confidential
1

a Viola browser that could parse HTML documents.

2

Is

that fair?

02:56:56
02:57:00

3

MR. BURGESS:

Objection, form.

02:57:01

4

THE WITNESS:

I have not offered an

02:57:03

5

opinion about that.

I did not set out to -- I did not

02:57:10

6

set out to form an opinion regarding that, and I guess

02:57:14

7

I don't understand you to be asking me to form one now.

02:57:19

8
9
10

Q.

(BY MS. DOAN)

I'm not.

I'm just trying to

02:57:22

make sure that I'm not going to be surprised at trial.

02:57:24

Is that fair?

02:57:27

11

A.

I understand, yes.

02:57:27

12

Q.

Okay.

02:57:28

Now, focusing on the October 16th, 1993

13

Viola browser code, you gave an opinion that it's not

02:57:33

14

prior art with respect to 102(a).

02:57:36

15

that?

Do you remember

02:57:39

16

A.

The October 16th Viola alpha code, yes.

02:57:41

17

Q.

Okay.

02:58:09

The October 16th, 1993 alpha code would

18

be prior art under 102(b), would it not?

02:58:14

19

MR. BURGESS:

Objection, form.

02:58:21

20

THE WITNESS:

I'm not positive.

02:58:32

21
22
23

Q.

(BY MS. DOAN)

way or the other.
A.

You don't have an opinion one

Is that fair?

Sitting here today, I can't say whether Viola

02:58:34
02:58:35
02:58:40

24

alpha from October of 1993 qualifies as prior art under

02:59:08

25

102(b).

02:59:13
Page 924

Veritext National Deposition & Litigation Services
866 299-5127