I/P Engine, Inc. v. AOL, Inc. et al

Filing 310

Declaration re 307 MOTION in Limine #5 to Preclude Plaintiff From Introducing Evidence of Damages Against AOL Inc., Gannett Co., Inc., IAC Search & Media, Inc. and Target Corporation, 301 MOTION in Limine #2 to Exclude Evidence of Entire Market Value of Accused Products and of Defendants' Size, Wealth and Overall Revenues, 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate, 305 MOTION in Limine #4 to Preclude Plaintiff from Offering Evidence or Argument Relating to Defendants' Conduct During Discovery or to Google's Unproduced Licenses, 299 MOTION in Limine #1 to Preclude Plaintiff From Introducing Evidence of Willful Infringement, Pre-Suit Knowledge, or Copying of Joshua L. Sohn in Support of Defendants' Motions in Limine by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Noona, Stephen)

EXHIBIT J

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STATES UNITED DISTRICT COURT

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EASTERN DISTRICT OF VIRGINIA

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NORFOLK DIVISION

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x

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I/P ENGINE, INC.,

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Plaintiff,
v.

: Civ. Action No.
: 2:11-cv-512

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AOL, INC., et al.,

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Defendants.

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x

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12
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CONFIDENTIAL - OUTSIDE COUNSEL ONLY

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Videotaped Deposition of KEITH RAYMOND UGONE, Ph.D.

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Dallas, Texas

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Friday, September 14, 2012

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9:02 a.m.

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Job No. 26021

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Pages: 1 - 237

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Reported by: Tami Lewis, RMR, CRR, CSR

CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
34
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proxy/yardstick/benchmark approach, which is a different

09:44:45

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approach than -- than what Dr. Becker took, which was

09:44:45

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the apportionment approach.

09:44:47

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Q. Right. So you haven't tried to apportion out

09:44:50

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those functionalities that are asserted to be separable

09:44:52

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and noninfringing? You haven't tried to do that, have

09:44:56

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you?

09:45:01

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A. I would say from an indicator of value

09:45:01

perspective, but I haven't come up with a percent, that

09:45:12

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20 percent of the revenues are due to the alleged

09:45:15

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infringement of the patents-in-suit, so I don't have

09:45:19

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that number, but I've done it through what I call this

09:45:21

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proxy/benchmark/yardstick approach.

09:45:24

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A. I do. That was also in combination with some

09:45:50

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other things, but I believe I make that statement, and

09:45:54

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I'm also relying upon the testimony of one of the

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in-house counsel at Google as well as, Mr. Ma --

09:46:02

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Maccoun?

09:46:05

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Q. Maccoun?

09:46:05

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A. Maccoun. I can't pronounce his name, but yes.

09:46:06

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Q. I think it's Maccoun.

09:46:09

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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A. Maccoun, okay.

2

5
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09:46:09
09:46:13

A. I -- actually, I need to say one more thing.
I'm sorry.

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Q. Sure.

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A. If I could go back. So there was the license

09:46:27

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agreements, patent license agreements. There is Mr.

09:46:30

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Maccoun's deposition testimony, and then I also spoke

09:46:34

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with him directly. And I think we tried to always

09:46:36

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indicate for you, you know, when those took place, so

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hopefully we footnoted everything appropriately and you

09:46:44

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can tell that. But never in my wildest dreams would I

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have thought that that word "strong" was inappropriate.

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Q. So it's your understanding that based on your

09:46:55

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communications with Mr. Maccoun, you're paraphrasing

09:47:02

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what he said?

09:47:07

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A. And deposition testimony and then observed

09:47:08

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preference in marketplace with the license agreements.

09:47:12

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Q. Okay. And you've stated that an indicator of

09:47:12

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that is the inbound licenses and acquisitions of Google,

09:47:16

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right?

09:47:16

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A. That's one of those three, yes.

09:47:21

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Q. Did you review all of Google's inbound

09:47:22

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM

CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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licenses?

09:47:27

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A. That were produced in this case, yes.

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Q. What about that weren't produced in this case?

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A. I haven't seen -- let's try it this way.

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Here's the best answer I can give you. I have reviewed

09:47:37

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what was produced in this case. I did not go back and

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look at any other cases that I might have -- we talked

09:48:06

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about the other case. I didn't go back and look at

09:48:06

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those license agreements, but I would be very surprised

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if I reached a different conclusion. If I had done

09:48:06

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that, but with respect to the materials produced in this

09:48:06

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case that I'm aware of at least, I did review those, if

09:48:06

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that answers your question.

09:48:06

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Q. Sure. You didn't go back and ask Google to

09:48:06

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look at all of its inbound licenses before you made that

09:48:09

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opinion, right?

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A. I did not ask that question, and just to make

09:48:14

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sure it's clear, I think when I was talking about

09:48:18

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various ranges and describing those licenses, I was

09:48:22

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always very careful, I believe, to say produced in this

09:48:28

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case.

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Q. Okay.

09:48:30

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A. So I do recognize that there might be some

09:48:30

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licenses I haven't seen that for whatever reason aren't

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relevant to this case that haven't been produced.

09:48:35

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM

CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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Q. Right.

09:48:37

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A. So I suppose one could say, you know, looking

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at the license agreements that were produced that were

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deemed relevant in this case by however that process

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happens, okay, that I drew the conclusions that I did.

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Q. Okay. Did you look at any of Google's outbound
licenses?
A. We looked at -- everything we looked at that

09:48:49
09:48:53
09:48:54

was in -- was in the report, so there were all those

09:48:58

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inbound license agreements. There was also, you know --

09:49:02

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I think there were some technology agreements and so

09:49:04

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forth. I would have to look, but as I'm sitting here

09:49:07

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right now, I don't remember any outbound, perhaps with

09:49:10

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an asterisk.

09:49:20

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Q. Right. You didn't ask to see any of their

09:49:21

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outbound licenses other than if they were produced in

09:49:25

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this case?

09:49:27

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A. Correct.

09:49:27

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Q. Okay. Do you know what I mean when I say the

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Georgia-Pacific factor number 2?

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A. Yes.

09:49:35

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Q. Okay. Would you agree that -- if I say GP,

09:49:35

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will you understand that I mean Georgia-Pacific?

09:49:41

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A. I can handle that.

09:49:42

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Q. Okay. Good. Would you agree that GP 2

09:49:43

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

CONDUCTED ON FRIDAY, SEPTEMBER 14, 2012
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requires consideration of licenses that relate to

09:49:48

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patents comparable to the patents-in-suit?

09:49:52

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A. I do not disagree that that is the concept,

09:49:55

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that obviously in Georgia-Pacific factor 2, you can't

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have an exact match.

09:50:15

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Q. Right.

09:50:16

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A. Because if you did, that would be GP factor 1,

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and that would be for the plaintiff. So I view GP

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factor 2, as well as some other things, as kind of

09:50:23

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falling into my house analogy that I gave you

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previously. Now, the only reason why I'm giving a

09:50:32

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little bit longer answer is that there's probably

09:50:34

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degrees of comparability, and so that would go into the

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mix a little bit because, you know, they're going to be

09:50:43

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a first cousin or a second cousin. So, I think, you

09:50:48

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know, the damage quantifier will, you know, have to be

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cognizant of that.

09:50:54

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Q. Well, would you consider -- strike that.

09:50:56

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In determining a comparable license, you

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generally have two considerations. First, it would be

09:51:08

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whether it has a comparable technology. And I

09:51:16

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understand the -- what -- your statement relating to

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whether it's first cousin or second cousin, but it still

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has to have comparable technology, right, at some level?

09:51:28

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A. With -- with the caveat that you said, yes.

09:51:30

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
PLANET DEPOS I 888.433.3767 I WWW.PLANETDEPOS.COM

CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

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Q. Okay. You haven't seen any documents?

03:06:05

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A. I -- I think I even said that in my answer.

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Q. Okay. And --

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A. But -- but what I was saying is entirely

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consistent with my understanding of how firms behave in

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this high-tech world.

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Q. Okay. And I think my question was in your --

03:06:21

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your report, you don't state that Google believed at the

03:06:25

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time of the negotiation that the patents were valid,

03:06:29

right?

03:06:29

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A. That was a couple of questions ago, but I think
I answered that as correct.

03:06:33
03:06:36

N

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A. Correct.

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N

03:06:54

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A. Correct.

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-

03:07:03

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A. Correct.

03:07:14

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IN

03:07:18

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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A. I have not said that in my report if that's
what you're asking.

A. Correct.

03:07:32
03:07:34

03:07:44

1.1

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A. Of -- of those two buckets that I had
identified, yes.

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Q. Okay. When --

03:08:06

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A. As I said very early on this morning, I tacked

03:08:10

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on that phrase of the licenses produced in this case.
Q. Okay. So you haven't looked at or asked to

03:08:13
03:08:15

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look at all of Google's licenses outside those produced

03:08:17

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in this case?

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A. Correct.

03:08:24

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Q. Okay.

03:08:26
THE WITNESS: We may be at an hour if it's

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convenient.

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MS. ALBERT: Oh, sure.

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THE VIDEOGRAPHER: Off the record, 3:08.

03:08:51

CONFIDENTIAL VIDEOTAPED DEPOSITION OF KEITH RAYMOND UGONE, Ph.D.

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(Recess taken.)

03:08:55

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THE VIDEOGRAPHER: We are on the record.

03:28:55

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The time is 3:28.
Q. (BY MS. ALBERT) Dr. Ugone, you're familiar

03:28:56
03:29:08

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with the Ben Love presentation, right?

03:29:10

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A. I'm -- I'm familiar with the?

03:29:13

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Q. Ben Love presentation, the one that Dr. Becker

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cites to and that you -A. The one that I call the draft presen -- draft
presentation?

03:29:20
03:29:22
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Q. No, the 20 to 40 percent.

03:29:26

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A. Oh, okay. Yes.

03:29:29

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Q. Okay. So I'm going to call it the Love

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presentation --

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A. Okay.

03:29:32

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Q. -- just for efficiency's sake. Is it your

03:29:32

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understanding that that presentation was an internal

03:29:35

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presentation given to Google employees?

03:29:37

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A. I believe so, yes.

03:29:41

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Q. And is it your understanding that Google relies

03:29:43

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on accurate data in creating presentations for its

03:29:54

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employees?

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A. That would have to be an assumption. I didn't

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ask anybody, but I would assume that a professional

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organization would do that.

03:30:01

CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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