Microsoft Corporation v. Immersion Corporation

Filing 131

DECLARATION of David R. Kaplan filed by Defendant Immersion Corporation re 129 MOTION for Partial Summary Judgment Regarding Microsoft's Claim of Breach of the Implied Covenant (Attachments: # 1 Exhibit (Ex. 2), # 2 Exhibit (Ex. 6), # 3 Exhibit (Ex. 7), # 4 Exhibit (Ex. 8), # 5 Exhibit (Ex. 9), # 6 Exhibit (Ex. 10), # 7 Exhibit (Ex.11), # 8 Exhibit (Ex. 12), # 9 Exhibit (Ex. 13), # 10 Exhibit (Ex. 16), # 11 Exhibit (Ex. 17))(Kaplan, David)

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Microsoft Corporation v. Immersion Corporation Doc. 131 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 26 The Honorable Ricardo S. Martinez UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON MICROSOFT CORPORATION, a Washington ) No. CV07 936RSM corporation, ) ) DECLARATION OF DAVID R. KAPLAN Plaintiff, ) IN SUPPORT OF IMMERSION'S ) MOTION FOR PARTIAL SUMMARY v. ) ) JUDGMENT REGARDING IMMERSION CORPORATION, a Delaware ) MICROSOFT'S CLAIM OF BREACH OF corporation, ) THE IMPLIED COVENANT ) Defendant. ) ) Note On Motion Calendar: August 8, 2008 ) Oral Argument Requested ) KAPLAN DECL. IN SUPPORT OF IMMERSION'S MOT. FOR PART. SUMM. JUDGMENT RE. MICROSOFT'S CLAIM OF BREACH OF THE IMPLIED COVENANT (CV07 936RSM) IRELL & MANELLA LLP A Registered Limited Liability Law Partnership Including Professional Corporations Dockets.Justia.com 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 26 I, David R. Kaplan, declare as follows: 1. I am an attorney at Irell & Manella LLP, co-counsel of record for defendant Immersion Corporation ("Immersion") in the above-captioned action. I am a member in good standing of the California State Bar and am admitted to practice before this Court in this case pro hac vice. I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. Attached hereto as Exhibit 1 is a document Bates-stamped MS 5364 through MS 5380, produced during discovery in this action. It is a true and correct copy of a Sublicense Agreement by and between Microsoft Corporation ("Microsoft") and Immersion dated July 25, 2003. 3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from Microsoft's Responses To Immersion's First Set of Interrogatories dated February 13, 2008. 4. Attached hereto as Exhibit 3 is a document Bates-stamped IMRMS 16 through IMRMS 43, produced during discovery in this action. It is a true and correct copy of an email from Laura Peter to Kenneth Lustig dated May 14, 2007, that attaches a true and correct copy of an Agreement by and between, on the one hand, Sony Computer Entertainment America Inc. and Sony Computer Entertainment Inc., and on the other hand, Immersion, executed on or about February 28, 2007. 5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the deposition transcript of Victor Viegas, whose deposition was taken on May 22, 2008. 6. Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the deposition transcript of Laura A. Peter, whose deposition was taken on March 21, 2008. 7. Attached hereto as Exhibit 6 is a true and correct copy of a Notice of Withdrawal of Appeals and Consented to Motion to Dismiss By Appellant Sony Computer Entertainment Inc. and Sony Computer Entertainment America Inc. dated March 1, 2007, in the action in the United States Court of Appeals for the Federal Circuit entitled Immersion Corporation v. Sony KAPLAN DECL. IN SUPPORT OF IMMERSION'S MOT. FOR PART. SUMM. JUDGMENT RE. MICROSOFT'S CLAIM OF BREACH OF THE IMPLIED COVENANT (CV07 936RSM) - 1 IRELL & MANELLA LLP A Registered Limited Liability Law Partnership Including Professional Corporations 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 26 Computer Entertainment of America, Inc. and Sony Computer Entertainment Inc. v. Internet Services, LLC, Appeal Nos. 05-1227, -1441. 8. Attached hereto as Exhibit 7 is a document Bates-stamped IMRMS 565 through IMRMS 566, produced during discovery in this action. It is a true and correct copy of an Order dated March 14, 2007 in the action in the United States Court of Appeals for the Federal Circuit entitled Immersion Corporation v. Sony Computer Entertainment of America, Inc. and Sony Computer Entertainment Inc. v. Internet Services, LLC, Appeal Nos. 05-1227, -1441. 9. Attached hereto as Exhibit 8 is a true and correct copy of a check from Sony Computer Entertainment America Inc. made payable to the order of Immersion Corporation dated March 20, 2007. 10. Attached hereto as Exhibit 9 is a true and correct copy of excerpts from Immersion's Responses To Microsoft's First Set of Interrogatories and Requests For Production of Documents dated October 11, 2007. 11. Attached hereto as Exhibit 10 is a document Bates-stamped IMRMS 563 through IMRMS 564, produced during discovery in this action. It is a true and correct copy of a Notice of Satisfaction of Final Judgment dated March 19, 2007 in the action in the United States District Court for the Northern District of California entitled Immersion Corporation v. Sony Computer Entertainment of America, Inc. and Sony Computer Entertainment Inc., Northern District of California Case No. C-02-00710 CW (WDB). 12. Attached hereto as Exhibit 11 is a document Bates-stamped IMRMS 561 through IMRMS 562, produced during discovery in this action. It is a true and correct copy of a Stipulation and Order Dissolving Permanent Injunction dated March 19, 2007 in the action in the United States District Court for the Northern District of California entitled Immersion Corporation v. Sony Computer Entertainment of America, Inc. and Sony Computer Entertainment Inc., Northern District of California Case No. C-02-00710 CW (WDB). KAPLAN DECL. IN SUPPORT OF IMMERSION'S MOT. FOR PART. SUMM. JUDGMENT RE. MICROSOFT'S CLAIM OF BREACH OF THE IMPLIED COVENANT (CV07 936RSM) - 2 IRELL MANELLA LLP IRELL && MANELLA LLP A A Registered Limited Liability Registered Limited Liability Law Partnership Including Law Partnership Including Professional Corporations Professional Corporations 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 26 13. Attached hereto as Exhibit 12 is a document Bates-stamped IMRMS 9666 through IMRMS 9671, produced during discovery in this action. It is a true and correct copy of a Current Report on Form 8-K filed March 1, 2007 for the period ending February 28, 2007 on behalf of Immersion Corporation with the U.S. Securities and Exchange Commission. 14. Attached hereto as Exhibit 13 is a document Bates-stamped IMRMS 50 through IMRMS 52, produced during discovery in this action. It is a true and correct copy of an email from E.J. Bastien to Laura Peter dated May 11, 2007, with attachment. 15. Attached hereto as Exhibit 14 is a true and correct copy of excerpts from the deposition transcript of Charles A. Laff, whose deposition was taken on June 9, 2008. 16. Attached hereto as Exhibit 15 is a true and correct copy of excerpts from the deposition transcripts of Jennifer Liu, whose deposition was taken on December 20, 2007 and January 23, 2008. 17. Attached hereto as Exhibit 16 is a true and correct copy of excerpts from a Quarterly Report on Form 10-Q filed May 10, 2007 for the period ending March 31, 2007 on behalf of Immersion Corporation with the U.S. Securities and Exchange Commission. 18. Attached hereto as Exhibit 17 is a document Bates-stamped IMRMS 3808- through IMRMS 3812, produced during discovery in this action. It is a true and correct copy of a decision by the United States Patent and Trademark Office mailed June 5, 2007. Executed on July 16, 2008, at Los Angeles, California. By /s/ David R. Kaplan David R. Kaplan KAPLAN DECL. IN SUPPORT OF IMMERSION'S MOT. FOR PART. SUMM. JUDGMENT RE. MICROSOFT'S CLAIM OF BREACH OF THE IMPLIED COVENANT (CV07 936RSM) - 3 IRELL & MANELLA LLP A Registered Limited Liability Law Partnership Including Professional Corporations 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 26 CERTIFICATE OF SERVICE The undersigned attorney certifies that on the 16th day of July, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Paul J. Kundtz (pkundtz@riddellwilliams.com) Blake Marks-Dias (bmarksdias@riddellwilliams.com) Wendy E. Lyon (wlyon@riddellwilliams.com) Riddell Williams P.S. 1001 Fourth Avenue Plaza, Suite 4500 Seattle, WA 98154-3600 Attorneys for Plaintiff /s/ David R. Kaplan David R. Kaplan Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Byrnes & Keller LLP 1000 Second Avenue, 38th Floor Seattle, WA 98104 Telephone: (206) 622-2000 Facsimile: (206) 622-2522 Attorneys for Defendant Immersion Corporation KAPLAN DECL. IN SUPPORT OF IMMERSION'S MOT. FOR PART. SUMM. JUDGMENT RE. MICROSOFT'S CLAIM OF BREACH OF THE IMPLIED COVENANT (CV07 936RSM) - 4 IRELL & MANELLA LLP A Registered Limited Liability Law Partnership Including Professional Corporations

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