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

Filing 771

NOTICE by I/P Engine, Inc. Proffer of Evidence Related to Laches (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 PX 176, # 10 PX 408, # 11 PX 409, # 12 PX 410, # 13 PX 411, # 14 PX 412, # 15 PX 413, # 16 PX 414, # 17 PX 415, # 18 PX 416, # 19 PX 417 I, # 20 PX 417 II, # 21 PX 418, # 22 PX 419 I, # 23 PX 419 II, # 24 PX 421, # 25 DX 21, # 26 DX28, # 27 DX 255)(Sherwood, Jeffrey)

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Exhibit B 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 Veritext Corporate Services 800-567-8658 973-410-4040 8 1 office. 2 Q. 3 time period? 4 A. September 1999 through April 2001. 5 Q. What was your next job after leaving Jones A. I left to take a position as a litigation 6 7 8 When did you work at Jones Day? From what Day? associate at Goodwin Procter in Boston. 9 Q. How long were you at Goodwin Procter? 10 A. From June 2001 through January 2005. 11 Q. What was your next position after leaving 12 Goodwin Procter? 13 A. Associate general counsel at Lycos. 14 Q. What were your responsibilities as 15 16 associate general counsel at Lycos? A. Initially I was responsible for all the 17 litigation ongoing at the company, at the time there 18 was quite a bit. 19 mostly litigation, although I did delve into 20 contract and abuse and subpoenas and other matters. 21 22 Q. So I was brought in to manage How long were you associate general counsel at Lycos? 23 A. Through sometime in 2006. 24 Q. What was your next position at Lycos? Veritext Corporate Services 800-567-8658 973-410-4040 33 1 in 2005? 2 A. Yes. 3 Q. Was Lycos using AdWords in 2005? 4 A. Define what you mean by AdWords as opposed 5 to AdSense for search. 6 Q. 7 AdWords is? 8 A. 9 Sure. Do you have any understanding what I thought you were talking about the sponsored links aspect of Google services, then 10 you'd use AdSense for search for that, so now I'm a 11 little confused. 12 Q. That's fair. So when I'm referring to 13 AdSense for search, I mean the sponsored link on 14 Lycos. 15 sponsored links on Google.com. When I'm referring to AdWords, I mean the 16 A. Okay. 17 Q. That was probably as clear as mud. 18 A. So if you're asking me did we use the 19 sponsored links on Google.com. 20 Q. Yes. 21 A. That would have been shown on Lycos that we 22 23 24 were using them. Q. Would -- let's use the term Google sponsored links to understand the links that were Veritext Corporate Services 800-567-8658 973-410-4040 34 1 used on Lycos.com, was Google using -- was Google, 2 was Lycos using Google-sponsored links in 2005? 3 4 5 MS. ALBERT: A. Objection. Vague. I think for part of 2005 we did. May I clarify? 6 Q. Uh-huh. 7 A. We also may have been using -- it's 8 possible we may have been using Google-sponsored 9 links at certain points indirectly. For instance, 10 we used Ask.com as a search provider at one point 11 and Ask.com's sponsored links are a combination of 12 its own and Google's. 13 would have appeared on our site indirectly through 14 Ask at that period of time. So Google's sponsored links 15 Q. Do you know what period of time that was? 16 A. From sometime in 2006 to 2007. 17 Q. Do you know what Lycos's revenues were in 18 2005 related to its use of AdSense for content? 19 20 MS. ALBERT: A. Objection. Beyond scope. I'm going to -- I don't know the answer, 21 but we switched from sponsored links to AdSense for 22 content, which is contextually targeted. 23 different from sponsored links. 24 would be no though. So it's My answer for both Veritext Corporate Services 800-567-8658 973-410-4040 35 1 Q. 2 were in 2004? 3 Do you know generally what Lycos's revenues MS. ALBERT: Objection. Beyond the scope. 4 A. All of its revenues? 5 Q. Yes. 6 A. I do not know. 7 Q. Do you have any idea what percentage of 8 those revenues, what percentage of Lycos's revenues 9 in 2004 came from its use of Google's-sponsored 10 links? 11 MS. ALBERT: Same objection. 12 A. I do not. 13 Q. Similarly for 2005, do you know what 14 Lycos's revenues were in 2005 overall? 15 MS. ALBERT: Objection. Beyond the scope. 16 A. No. 17 Q. Do you know what percentage of those 18 revenues came from Lycos's use of sponsored links? 19 MS. ALBERT: Same objection. 20 A. No. 21 Q. Did Lycos provide any documents to -- did 22 Lycos provide -- strike that. 23 24 Did Google provide to Lycos any documents regarding how its sponsored links worked? Veritext Corporate Services 800-567-8658 973-410-4040 36 1 MS. ALBERT: Objection. Vague. 2 A. I don't know. 3 Q. In 2004 did Google provide to Lycos any 4 documents as to how AdSense for content worked? 5 A. I don't know. 6 Q. Similarly in 2005? 7 A. I don't know. 8 Q. Does Lycos have any understanding of how 9 Google-sponsored links work? 10 MS. ALBERT: Objection. Vague. 11 A. As a general matter? 12 Q. Yes. 13 A. Yes. 14 Q. And what's your understanding as a general 15 matter? 16 A. Did you ask about AdSense for content? 17 Q. I asked about sponsored links. 18 A. Sponsored links. 19 20 As a technical matter, I don't know. MS. ALBERT: A. Objection, vague. They have a whole host of advertisers that 21 bid on keywords and winners of those bid ads show up 22 as sponsored links in response to search queries 23 the search query contains the keyword they bid upon. 24 That's my understanding. if Veritext Corporate Services 800-567-8658 973-410-4040 37 1 Q. Does Lycos have any understanding of 2 Google's use of click-through rate in its sponsored 3 links? 4 5 6 MS. ALBERT: A. Objection. Vague. I know what a click-through rate is. I do not know how Google uses it. 7 Q. 8 score"? 9 A. Yes. 10 Q. Does Lycos have any understanding of how 11 Have you ever heard the term "quality Google uses quality score in its sponsored links? 12 MS. ALBERT: Objection. Vague. 13 A. I don't know. 14 Q. Does Lycos have any understanding of how 15 Google uses quality scoring in AdSense for content 16 product? 17 A. I don't know. 18 MS. ALBERT: 19 MS. O'BRIEN: 20 21 22 23 24 Same objection. I will mark as Exhibit 6 a document produced, G-IPE-0888188 through 192. (Exhibit No. 6, marked; Article dated August 2004.) Q. And you can take your time to look as long or as short as you'd like, I'm going to ask a Veritext Corporate Services 800-567-8658 973-410-4040 38 1 question about the page that ends in 190, but, 2 again, take your time. 3 4 5 A. I've skimmed this, I didn't look at it more clearly, in response to a question I will. Q. So turning to the page that ends in Bates 6 number 190, I think it's page 3 of the article; do 7 you see that page? 8 A. Yes. 9 Q. And going to the second to last paragraph, 10 the one that begins "On FindWhat.com," do you see 11 that paragraph? 12 A. Yes. 13 Q. And then the third sentence in, the one 14 that begins "On Google AdWords," do you see that? 15 A. Yes. 16 Q. It says, "On Google AdWords, positions are 17 given based on the combination of the bid amount and 18 click-through rate." 19 Was Lycos aware in 2004 that AdWords' 20 position to ads on the basis of bid amount and 21 click-through rate? 22 23 24 MS. ALBERT: Objection. No foundation, vague, speculation. A. I don't know. Veritext Corporate Services 800-567-8658 973-410-4040 39 1 2 Q. Did Lycos have any knowledge of AdWords' use of click-through rate in 2004? 3 MS. ALBERT: Same objection. 4 A. I don't know. 5 Q. How about in 2005, did Lycos have any 6 knowledge of Google's use of click -- Google 7 AdWords's use of click-through rate in 2005? 8 MS. ALBERT: Objection. Foundation, vague. 9 A. I don't know. 10 Q. Is there anyone at Lycos that would know 11 about Google AdWords's use of click-through rate in 12 the 2004 time period? 13 A. I don't know. The people who were general 14 managers of our search product are no longer at the 15 company. 16 thereafter are still at the company. 17 know if anyone would know. 18 19 Q. None of them from that time period or So I don't Do you know the names of the people who were responsible for the search product in 2004? 20 A. Yes. 21 Q. And who are they? 22 A. I believe -- excuse me, no, not in 2004. 23 Q. How about in 2005? 24 A. Yes. It was Adam Soroca. And that's Veritext Corporate Services 800-567-8658 973-410-4040 40 1 S-O-R-O-C-A. 2 Q. Do you know when he left Lycos? 3 A. Sometime in 2006, I believe. 4 Q. Did Lycos have its own Internet advertising 5 system in 2004? 6 A. Yes. 7 Q. What was that called? 8 A. AdBuyer. 9 Q. Do you know when Lycos first began using 10 One word, capital B. the AdBuyer product? 11 A. I do not. 12 Q. Do you know when Lycos stopped using the 13 AdBuyer product? 14 A. I believe it was sometime in 2006. 15 Q. Do you have any understanding of how the 16 AdBuyer product worked? 17 A. Just a very general understanding. 18 Q. What's your general understanding? 19 A. General understanding is that, again, Lycos 20 direct advertisers that bid on keywords to appear in 21 sponsored links listings, highest bidder would 22 generally earn the top spots in the sponsored links 23 results in response to search queries. 24 Q. Do you know why Lycos stopped using the Veritext Corporate Services 800-567-8658 973-410-4040 41 1 AdBuyer product? 2 A. If I remember correctly, it just became 3 somewhat obsolete and not profitable to maintain our 4 own advertiser base. 5 third-party providers that had a larger advertising 6 base. 7 8 Q. It was more profitable to use Does Lycos currently have its own advertising product? 9 A. No. May I clarify? 10 Q. Sure. 11 A. We do not have a sponsored-links 12 advertising product. 13 all throughout our sites, which some of which are 14 sold in-house by our ad sales team. 15 respect we do, but we don't have a sponsored-links 16 product. 17 18 19 Q. So in that Do you know how much revenue was derived by the AdBuyer product in 2004? A. 20 21 We, however, show advertising I do not. MS. ALBERT: Q. 22 Objection. Beyond the scope. How about in 2005? MS. ALBERT: Same objection. 23 A. I do not. 24 Q. Do you know what Lycos's current revenues Veritext Corporate Services 800-567-8658 973-410-4040 42 1 are? 2 3 4 5 MS. ALBERT: A. Beyond the scope. Lycos alone, it projected this year at approximately 28 million. Q. Do you know -- first, does Lycos have a 6 projection of its expected revenues from its use of 7 Google AdSense for content for 2012? 8 MS. ALBERT: Objection. Beyond the scope. 9 A. I'm sure it does. 10 Q. Do you know what that is? 11 A. I do not. 12 Q. How about in 2011, do you know what Lycos's I hope it does. 13 revenues overall were in 2011? 14 MS. ALBERT: Objection. Beyond the scope. 15 A. I believe they were around 30 million. 16 Q. Did Lycos have revenues related to its use 17 of AdSense for content in 2011? 18 A. Yes. 19 Q. Do you know what the amount of those 20 revenues was? 21 MS. ALBERT: Objection. Beyond the scope. 22 A. I do not. 23 Q. Do you know what percentage of Lycos's 24 revenues in 2011 came from its use of AdSense for Veritext Corporate Services 800-567-8658 973-410-4040 43 1 search? 2 MS. ALBERT: Same objection. 3 A. I do not. 4 Q. Other than Lycos's use of AdSense for 5 content, do you know generally what the other 6 sources of revenue were for Lycos in 2011? 7 8 MS. ALBERT: Objection. Vague. Beyond the scope. 9 A. Yes. 10 Q. And what were those sources? 11 A. There's many sources of revenue. So one 12 source would be from Yahoo!, which would be our 13 sponsored links, and all of our -- from search both 14 on Lycos.com and another search website which is 15 Hotbot.com, H-O-T-B-O-T, one word. 16 So we use Google search products now -- 17 excuse me Yahoo! search products now. 18 both part, Web search results as well on sponsored 19 links. 20 And that is So that's one revenue stream. Another revenue stream would be our 21 subscriptions. So we both have, we have an email 22 platform and we have paid subscribers to email. 23 have two Web publishing sites, Tripod.com and 24 Angelfire.com, and those also have paid We Veritext Corporate Services 800-567-8658 973-410-4040 44 1 subscriptions. 2 game site called Gamesville.com and, again, we have 3 paid subscribers to Gamesville. 4 5 And we also have a casual online So the combination of all of those provide the subscription revenue base. 6 We also have advertising revenue unrelated 7 to Google, both within our video games or video ad 8 revenue. 9 different sites. Video ad revenue shows up on a lot of We have another site, 10 Games.Lycos.com, which is similar to Gamesville. 11 have banner advertising throughout our sites, and 12 those are sold either by our ad sales teams or 13 through ad networks. 14 We We also derived a lot of our revenue in 15 2011, I would say the largest percentage from Yellow 16 Book. 17 have various search verticals which are powered by 18 various companies. 19 search vertical. 20 And that was powered by Yellow Book, which was our 21 largest provider. We have -- so in addition to Web search we 22 So in 2011 we had Yellow Pages It's basically a local search. We also had at various times job search, 23 which was Indeed.com. We had a classified, Lycos 24 classified search, which was Oodle, Oodle.com, Veritext Corporate Services 800-567-8658 973-410-4040 45 1 O-O-D-L-E. 2 the provider under Lycos deals. 3 shopping, which was PriceGrabber, I believe. 4 believe they provided the search results for the 5 shopping content. 6 We had Lycos deals, I cannot remember We had Lycos I Of course we also have image search and 7 perhaps video search, which I believe was provided 8 by Blinks. 9 We also derived revenue from domain sales. 10 We have a domain sales product, sometimes these are 11 bundled with our Web publishing, other times they 12 are just independent domain sales. 13 14 I believe that's all, or at least most of it. We are always looking for new revenue streams. 15 One website I failed to mention was 16 WhoWare.com, one word, WhoWare. 17 search results from which we derived revenue from 18 both -- we derived revenue on that deal from Super 19 Pages. 20 Q. That also had local It's another local search provider. Does Lycos have its own -- when we were 21 talking about advertising, does Lycos have its own 22 contextual advertising product? 23 24 MS. ALBERT: A. Objection. Misleading. No. Veritext Corporate Services 800-567-8658 973-410-4040 46 1 2 3 Q. Has Lycos ever had its own contextual advertising product? A. 4 I don't believe so. MS. O'BRIEN: Why don't we go ahead and take 5 a break and switch the tape, and it would be a good 6 time to take a break. 7 8 VIDEOGRAPHER: 1, going off record. 9 This will be the end of tape The time will be 10:25. (Recess was taken at 10:25 a.m.) 10 (Reconvened at 10:36 a.m.) 11 VIDEOGRAPHER: We are back on the record, 12 beginning of tape 2, the time is 10:36, you may 13 continue. 14 MS. O'BRIEN: I would like to mark as 15 Exhibit 7 a document entitled "Google Inside 16 AdWords," in particular "Answers to Your New Keyword 17 State Questions," dated April 19th, 2005. 18 (Exhibit No. 7, marked; Article entitled 19 Answers To Your New Keyword State Questions, dated 20 August 19, 2005.) 21 A. Okay. 22 Q. Have you ever seen this document before? 23 A. No. 24 Q. I'm just going to ask you a question Veritext Corporate Services 800-567-8658 973-410-4040 47 1 regarding question No. 3, if you see that in the 2 article. 3 A. I see it. 4 Q. Great. Look at the second sentence of 5 that. Question No. 3 states, "Will the minimum bid 6 for my keyword change?" 7 below it, the second line says, "Remember, the 8 minimum bid is determined by your quality score, 9 which looks at your keywords click-through rate If you look at the answer 10 (CTR), relevance of your ad text, historical keyword 11 performance, and other relevancy factors." 12 see that? Do you 13 A. Yes. 14 Q. Was Lycos aware in 2005 that in Google 15 AdWords the minimum bid is determined by your 16 quality score? 17 MS. ALBERT: Objection. No foundation, 18 speculation. 19 A. I don't know. 20 Q. Was Lycos aware that the AdWords quality 21 score looked at keywords click-through rate, 22 relevance of your ad text, historical keyword 23 performance, or other relevant factors in 2005? 24 MS. ALBERT: Objection. No foundation, Veritext Corporate Services 800-567-8658 973-410-4040 48 1 speculation, compound. 2 A. I don't know. 3 Q. Is there any reason why Lycos couldn't have 4 had access to this Inside Google AdWords blog post? 5 MS. ALBERT: 6 A. 7 Objection. Vague, speculation. No. MS. O'BRIEN: Just for the record, since it 8 didn't print here, I'll note that this document was 9 produced as G-IPE-0888221. I have no idea why it 10 didn't print properly, other than it doesn't like 11 me. 12 13 MS. ALBERT: Q. 14 Okay. It happens. You can put that one aside. MS. O'BRIEN: I would like to mark as 15 Exhibit 8 a document titled "Google Inside AdWords, 16 Answers to Your Keyword State Questions," dated 17 July 18th, 2005, which, for the record, was produced 18 as G-IPE-0888219, though again is not printing on 19 the document. 20 (Exhibit No. 8, marked; Article entitled 21 Answers To Your New Keyword State Questions, dated 22 July 18, 2005.) 23 A. Go ahead. 24 Q. Have you ever seen this document before? Veritext Corporate Services 800-567-8658 973-410-4040 49 1 A. No. 2 Q. Is there any reason that Lycos would not 3 have had access to this document in July on 4 July 18th, 2005? 5 6 MS. ALBERT: Objection. Vague, speculation, no foundation. 7 A. Not as far as I know. 8 Q. And then just looking at the part that says 9 10 question No. 2, "What is the quality score?" Do you see that? 11 A. Yes. 12 Q. And the sentence below it states that "The 13 quality score is simply a new name for the predicted 14 CTR, which is determined based on the CTR of your 15 keyword, the relevance of your ad text, the 16 historical keyword performance, and other relevancy 17 factors." 18 AdWords was using a quality score? 19 20 Was Lycos aware in 2005 that Google MS. ALBERT: Objection. Vague, misrepresentation, speculation. 21 A. I don't know. 22 Q. Was Lycos aware in 2005 that Google's 23 quality score was determined based on the CTR of 24 your keyword? Veritext Corporate Services 800-567-8658 973-410-4040 50 1 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. Veritext Corporate Services 800-567-8658 973-410-4040

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