I/P Engine, Inc. v. AOL, Inc. et al
Filing
766
NOTICE by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation of Filing of Defendants Proffer Of Evidence Related To Laches (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Noona, Stephen)
<![CDATA[
EXHIBIT
C
Page 1
1
Volume I
Pages 1 - 157
2
Exhibits 1 - 20
3
UNITED STATES DISTRICT COURT
4
EASTERN DISTRICT OF VIRGINIA
5
NORFOLK DIVISION
6
********************
7
I/P ENGINE, INC.,
8
9
10
*
Plaintiff,
*
Civil Action No.
Vs.
*
2:11-cv-512
AOL, INC., et al.,
*
11
Defendants.
*
12
********************
13
14
AUDIO/VISUAL DEPOSITION of LYCOS, INC.,
15
by and through its designee MARK BLAIS
16
Tuesday, July 31, 2012 at 9:00 a.m.
17
Goulston & Storrs
18
50 Rowes Wharf, 7th Floor
19
Boston, Massachusetts
20
21
------ Jacqueline P. Shields, RPR, CSR ------
22
23
24
Job No. CS409539
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APPEARANCES:
2
3
Representing the Plaintiff:
4
DICKSTEIN SHAPIRO, LLP
5
BY:
6
1663 Broadway
7
New York, New York 10019-6708
8
212-227-6715 ~ Fax: 212-277-6501
9
albertd@dicksteinshapiro.com
DAWN RUDENKO ALBERT, Esquire
10
11
Representing the Defendants Google, Inc., IAC Search
12
& Media, Inc., Target Corp., and Gannett Co., Inc.:
13
QUINN EMANUEL URQUHART & SULLIVAN, LLP
14
BY:
15
50 California Street, 22nd Floor
16
San Francisco, California 94111
17
415-875-6600 ~ Fax: 415-875-6700
18
emilyobrien@quinnemanuel.com
EMILY C. O'BRIEN, Esquire
19
20
21
ALSO PRESENT:
Dominic Boucher, Videographer
22
23
24
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connection with preparing for your deposition?
2
A.
No.
3
Q.
Is there anything else that you did in
4
connection with preparing for the deposition?
5
A.
6
memory.
7
here I felt that there wasn't really much to look at
8
that I didn't remember.
9
Q.
Just read the topics and tried to jog my
Since I was involved in a lot of the issues
Are you prepared to testify regarding the
10
topics, the remaining topics in the notice, topics 3
11
through 11?
12
A.
As best as reasonably possible.
13
Q.
Did you have any involvement in the merger
14
between Lycos and WiseWire?
15
MS. O'BRIEN:
One word.
16
A.
No.
17
Q.
Do you know who negotiated on behalf of
18
Lycos with regards to the agreement with WiseWire?
19
A.
I do not.
20
Q.
Do you know anything about the negotiations
21
between WiseWire and Lycos related to that
22
agreement?
23
A.
No.
24
Q.
Do you know if any evaluations were
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conducted of WiseWire's intellectual property in
2
connection with that agreement?
3
A.
4
I do not.
MS. O'BRIEN:
Mark as Exhibit 2 a copy of
5
the document produced to Lycos, 000246 through
6
320.
7
(Exhibit No. 2, marked; Disclosure Schedule
8
to the Merger Agreement by and Among Lycos, Inc.,
9
Wise Acquisition Corp., and WiseWire Corporation
10
11
dated as of April 30, 1998.)
Q.
I'm only going to ask a question about page
12
285, but if you want to, take as much time as you
13
want to look at the document, that's fine.
14
A.
285, did you say?
15
Q.
Uh-huh.
16
A.
Okay.
17
Q.
Do you know if WiseWire and Lycos discussed
18
the patent application 08627436 that's listed on
19
page 285 in connection with their negotiations with
20
the merger between Lycos and WiseWire?
21
22
MS. ALBERT:
A.
Objection to foundation.
I had no involvement in this, so I have no
23
idea if they discussed it.
24
It's obviously on the
schedule, so.
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A.
I don't know when that term was created,
2
but Terra owned Lycos from, I think, early 2000
3
through October 2004 when it sold Lycos to Daum.
4
5
Q.
Do you know if Terra Networks purchased
Lycos in early 2000?
6
A.
Yes.
7
Q.
Do you know for how much?
8
A.
I know that it was reported as 12 billion,
9
10
11
but the actual price was closer to 7 billion.
Q.
Do you know anything at all about the
negotiations related to Terra's purchase of Lycos?
12
A.
No.
13
Q.
Is it relatedly -- do you have any
14
knowledge as to whether the parties discussed the
15
'420 patent in connection with that purchase?
16
A.
No.
17
Q.
Or the '664 patent?
18
A.
No.
19
Q.
And you said in October of 2004 Terra sold
20
Lycos to Daum; is that right?
21
A.
Yes.
22
Q.
Do you know anything about those
23
negotiations between Daum and Terra related to
24
Lycos?
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A.
No.
2
Q.
Do you know if the parties discussed the
3
'420 patent in those negotiations?
4
A.
No.
5
Q.
Similarly, do you know if the parties
6
discussed the '664 patent in connection with those
7
negotiations?
8
A.
No.
9
Q.
Do you know what the purchase price was?
10
A.
95 million.
11
12
MS. ALBERT:
Q.
Objection.
Do you know if there was any valuation of
13
Lycos's intellectual property in connection with the
14
purchase by Daum in 2004?
15
MS. ALBERT:
Objection.
Lacks foundation.
16
A.
No, I do not.
17
Q.
Similarly, do you know if there was any
18
valuation of Lycos's intellectual property in early
19
2000 when Terra purchased Lycos?
20
MS. ALBERT:
Same objection.
21
A.
No.
22
Q.
Do you know what Lycos's revenues were
23
related to the use of Google AdWords in 2003?
24
MS. ALBERT:
Objection.
No foundation.
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A.
No.
2
Q.
We were discussing before that Lycos began
3
4
5
6
7
using AdSense also in 2003; is that right?
A.
I don't know about -- other than reading
this article, I don't know.
Q.
Do you know anything about Lycos's revenues
related to AdSense in 2003?
8
MS. ALBERT:
Objection.
No foundation.
9
A.
No.
10
Q.
How about in 2004, do you know if Lycos was
11
using AdWords in 2004?
12
A.
AdWords or AdSense?
13
Q.
I'm sorry, AdWords.
14
A.
I don't know.
15
Q.
How about AdSense, do you know if Lycos was
16
17
18
19
20
using AdSense in 2004?
A.
I believe we were, based on the fact that
I've seen contracts.
Q.
Do you know what Lycos's revenues were
related to AdSense in 2004?
21
MS. ALBERT:
Objection.
No foundation,
22
beyond scope.
23
A.
No.
24
Q.
How about in 2005, was Lycos using AdSense
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MS. ALBERT:
Same objection.
2
A.
I don't know.
3
Q.
Similarly, was Lycos aware that the quality
4
score in AdWords in 2005 was based on the relevance
5
of your ad text?
6
MS. ALBERT:
Same objection.
7
A.
I don't know.
8
Q.
Similarly, was Lycos aware in 2005 that
9
10
Google AdWords' quality score was based on the
historical keyword performance?
11
MS. ALBERT:
Same objection.
12
A.
I don't know.
13
Q.
Put that one aside.
14
15
Did Lycos have any policies regarding
patent enforcement in 2004?
16
MS. ALBERT:
Objection.
Vague.
17
A.
I don't know.
18
Q.
Did Lycos have any policies regarding
19
patent enforcement in 2005?
20
A.
No.
21
Q.
Did Lycos investigate in 2004 whether
22
Google infringed any of its patents?
23
24
MS. ALBERT:
A.
Okay.
Vague.
I don't know.
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2
Q.
Did Lycos investigate in 2005 whether
Google infringed any of its patents?
3
MS. ALBERT:
Objection.
Vague.
4
A.
No.
5
Q.
Did Lycos investigate in 2005 whether
6
Ask.com infringed any of its patent?
7
MS. ALBERT:
Objection.
Vague.
8
A.
No.
9
Q.
Did Lycos have in 2004 any policies
10
regarding patent licensing?
11
A.
What time period?
12
Q.
2004.
13
A.
I don't know.
14
Q.
How about in 2005, did Lycos have any
15
policies related to patent licensing?
16
A.
No.
17
Q.
How about in 2006, did Lycos have any
18
19
20
policies in 2006 related to patent licensing?
A.
It depends on what you mean by "policies."
Do you mean formal written policies?
21
Q.
Let's start with formal written policies.
22
A.
No.
23
Q.
Were there any informal policies that Lycos
24
had related to patent licensing in 2006?
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2
3
4
A.
I don't believe we ever established any
official policies.
Q.
Did Lycos have any negotiations regarding
licensing out of any of its patents in 2004?
5
MS. ALBERT:
Objection.
Vague.
6
A.
I don't know.
7
Q.
Did Lycos have any negotiations regarding
8
licensing out of any of its patents in 2005?
9
MS. ALBERT:
Objection.
Vague.
10
A.
I don't believe so.
11
Q.
And in 2006 did Lycos have any negotiations
12
regarding licensing out of any of its patents in
13
2006?
14
MS. ALBERT:
Same objection.
15
A.
No.
16
Q.
Were there any factors that Lycos would
17
typically consider in licensing out its patents in
18
2004?
19
MS. ALBERT:
Objection.
Vague.
20
A.
I don't know.
21
Q.
Similarly, in 2005 were there any factors
22
that Lycos would typically consider in licensing out
23
its patents in 2005?
24
MS. ALBERT:
Objection.
Vague.
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Q.
Did the terms of that separate settlement
2
agreement impact the royalty payment in this license
3
agreement?
4
MS. ALBERT:
5
(Read back.)
6
MS. ALBERT:
7
A.
I don't know.
Sorry, can you read that back?
Objection.
Vague.
I was not involved in the
8
negotiations of the payment under the settlement or
9
of this royalty, so I don't know.
10
11
Q.
If you turn to page 3 of this agreement,
which is Bates-numbered Lycos 0000914.
12
A.
Yes.
13
Q.
And in particular section 3.1 of the grant
14
of license.
15
A.
Okay.
16
Q.
The first sentence refers to a grant to
17
Lycos of a "nonexclusive, nontransferable,
18
nonassignable limited license under the license
19
patents," do you see that?
20
A.
Yes.
21
Q.
And it refers to, first to the license
22
patents, do you know what patents it's referring to?
23
A.
Referring to patent number 6269361.
24
Q.
Have you ever read the U.S. Patent 6269361?
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A.
No, I don't believe so.
2
Q.
Do you have any understanding of what the
3
4
'361 patent covers?
A.
I just have a general understanding it
5
covers their keyword auction-based advertising
6
system.
7
Q.
At least that's their opinion.
Did Lycos have any opinions as to the value
8
of the '361 patent at the time that they entered
9
into this agreement?
10
MS. ALBERT:
Objection.
Vague.
11
A.
I don't believe so.
12
Q.
Was Lycos aware of any agreements between
13
Overture and any third parties related to the '361
14
patent?
15
A.
If I recall correctly, Overture received
16
stock in Google to settle claims based on these
17
patents at a certain point.
18
recollection.
19
the time against FindWhat, one word, capital F,
20
capital W.
21
Q.
That's just my
And they had pending litigation at
Internet names in the past.
Was Lycos in 2005 aware of any licenses
22
between Overture and any third parties related to
23
the '361 patent?
24
A.
Other than what I recall, between Overture
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2
3
and Google, no.
Q.
And was Lycos aware of any of the specific
terms?
4
A.
Only what was recorded publically.
5
Q.
Did the agreement between Overture and
6
Google have any impact on the terms that Lycos
7
agreed to to license the '361 patent?
8
A.
I don't know.
9
Q.
Do you know what factors, if any, were
10
considered by Lycos in agreeing to enter into this
11
licensure agreement for the '361 patent?
12
A.
It was partly because we wanted to continue
13
our AdBuyer business, get rid of cost in litigation,
14
and we were at the same time settling all types of
15
matters with our previous parent company under the
16
acquisition agreement with our then present parent
17
company.
18
matters and we were trying to reach a global
19
settlement to settle everything.
20
of it because we had an indemnification, so we were
21
trying to settle this up as quickly as possible to
22
clean up the rest of the matters.
23
24
Q.
There were all types of disputes and
And this was part
Were there any other factors that Lycos
considered in entering into this agreement with
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2
3
Overture for the '361 patent?
A.
I honestly don't know.
I didn't negotiate
the financial terms of this.
4
Q.
Do you recall who did on behalf of Lycos?
5
A.
I believe that would have been Peter Karol.
6
That's K-A-R-O-L.
He was our general counsel at the
7
time, and he was the one that participated in face-
8
to-face meetings, I believe, that ultimately led to
9
an agreement, I believe.
And I believe our outside
10
patent counsel at the time may have been Ropes &
11
Gray.
12
I don't remember.
Q.
Turn to page 4 of the agreement which is
13
Bates-numbered Lycos 000915, and in particular
14
section 4.1 under the term of license.
15
that?
Do you see
16
A.
Yes.
17
Q.
The term of license states that "The
18
license granted under the license patents by this
19
license agreement shall terminate six years from the
20
active date of this license agreement."
21
why the term of license was six years from the
22
effective date?
Do you know
23
A.
No, I do not.
24
Q.
Do you know if that term had any impact on
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the amount of royalties that Lycos was willing to
2
agree to in order to license the '361 patent?
3
A.
I don't know.
4
Q.
Do you know if that term had any impact on
5
the type of royalty that Lycos was willing to enter
6
into with Overture?
7
MS. ALBERT:
Objection.
Vague.
8
A.
I don't know.
9
Q.
And then going to the next section, 5.1 on
10
royalties, do you see that section?
11
A.
Yes.
12
Q.
Second paragraph, the one that begins "for
13
AdBuyer product," do you see that?
14
A.
Yes.
15
Q.
I'm paraphrasing, but it says that the
16
licensee shall pay Overture royalties in the amount
17
of ten percent of gross revenue.
Do you see that?
18
A.
Yes.
19
Q.
Do you have any understanding of how the
20
parties reached the agreement that the, that the
21
amount paid would be ten percent of gross revenue?
22
A.
No.
23
Q.
Did Lycos have any knowledge of royalty
24
rates that, of customer royalty rates in the
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industry?
2
MS. ALBERT:
Objection.
Vague.
3
A.
I don't know.
4
Q.
And similarly, the second sentence refers
5
to Websites owned by syndicatees or subsyndicatees;
6
do you see that?
7
A.
Yes.
8
Q.
And it refers to earned royalties in the
9
amount of eight percent in the gross revenue
10
attributable to such links; do you see that?
11
A.
Yes.
12
Q.
And do you have an understanding how the
13
parties reached an agreement of eight percent of
14
gross revenues for syndicatees or subsyndicatees?
15
A.
No.
16
Q.
Do you know if those terms were negotiated
17
by the parties?
18
A.
Yes.
19
Q.
Do you have any knowledge of specific
20
offers made by Lycos to license the '361 patent?
21
A.
No.
22
Q.
Do you recall when Lycos stopped using the
23
24
AdBuyer product?
A.
Sometime in 2006.
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2
Q.
Do you know the amount of royalties paid by
Lycos to Overture under this agreement?
3
MS. ALBERT:
Objection.
4
A.
I don't know.
5
Q.
Did this license of the '361 patent apply
6
to any products other than the AdBuyer products?
7
A.
No, specifically limited to AdBuyer.
8
Q.
Turn to page 6 of the agreement, which is
9
Bates-numbered Lycos 0000917.
10
A.
Got it.
11
Q.
And in particular this section on cross
12
license agreement; do you see that section?
13
A.
Yes.
14
Q.
Do you know what Lycos patents, if any,
15
16
17
18
19
were covered by the cross license agreement?
A.
I don't recall any specific patents being
discussed.
Q.
Do you know if any value was placed by
Lycos on the cross license agreement?
20
MS. ALBERT:
Objection.
Vague.
21
A.
No, I don't know of any value.
22
Q.
Do you know if the '420 patent was included
23
24
within the cross license agreement?
A.
I do not know.
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28, 2004.)
2
3
MS. ALBERT:
number is or not?
4
5
MS. O'BRIEN:
Yes, I do.
I lied, I don't.
I thought I had it.
6
7
Do you know what the Bates
MS. ALBERT:
Maybe you can just send that to
us.
8
MS. O'BRIEN:
Sure.
Not a problem.
9
A.
Okay.
10
Q.
Do you recognize this document?
11
A.
No.
12
Q.
Okay.
13
If you look about the paragraph that
begins "Lycos advertising base," do you see that?
14
A.
Yes.
15
Q.
And that's the paragraph I'm going to ask
16
about.
17
document.
18
Take as much time as you want to look at the
First sentence says, "Lycos advertising
19
base revenue structure was largely dependent on
20
Google AdWords, which are distributed on U.S.
21
properties," and then it has a list of U.S.
22
properties, do you see that?
23
A.
Yes.
24
Q.
Do you know if Lycos's advertising base
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revenue was largely dependent on Google AdWords in
2
2004?
3
MS. ALBERT:
Objection.
No foundation.
4
A.
I don't know.
5
Q.
Now as of 2004 was Lycos using Google-
6
sponsored listings?
7
MS. ALBERT:
Objection.
Foundation.
8
A.
I believe so.
9
Q.
And as of 2004 was Google using -- was
10
Lycos using Google's AdSense for content product?
11
MS. ALBERT:
Same objection.
12
A.
I believe so, yes.
13
Q.
Do you know what other sources of revenue
14
Lycos had in 2004 besides Google products?
15
MS. ALBERT:
16
A.
Same objection.
Well, I wasn't at the company, however, we
17
had, again, subscription-based revenue.
18
we owned Matchmaker, which was an online dating
19
site.
20
subscription to Matchmaker.
21
subscribers, we no longer own that, but at the time
22
they had subscribers, Raging Bull we no longer own,
23
that was related to Quote.
24
boards, so probably no independent revenue.
We since sold that.
At the time
You had to have a
Quote.com also had
Those just have message
Tripod
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and Angelfire, again, had subscribers.
So they had
2
a subscription base that paid users who built
3
Websites for users, for users are the ones that get
4
the contextually targeted ads on their pages.
5
also had a subscription aspect to it.
6
online news site that we no longer own.
7
domain sales, email subscription, at the time we
8
would have had banner ads throughout our properties,
9
sponsorships, subscribers to Gamesville.
Wired
It was an
We had
Again, all
10
types of advertising both in games and outside the
11
games on Gamesville.
12
right now.
13
Q.
That's all I can think of
Of course we had AdBuyer.
Do you know the amount of Lycos's
14
advertising-based revenue that was derived from its
15
use of Google products in 2004?
16
MS. ALBERT:
Objection.
Vague, no
17
foundation.
18
A.
No, I don't.
19
Q.
Do you know the amount of advertising-based
20
revenue that was derived from Lycos's AdBuyer
21
product in 2004?
22
MS. ALBERT:
Objection.
Foundation.
23
A.
No, I don't.
24
Q.
Similarly in 2005, was Lycos using Google's
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