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)
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
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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?
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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
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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
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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?
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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.
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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
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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,
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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?
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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?
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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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