Microsoft Corporation v. Immersion Corporation

Filing 141

DECLARATION of Alan J. Heinrich re 139 Sealed Document, in support of Immersion's Opposition to Microsoft's Motion for Partial Summary Judgment on Breach of Contract by Defendant Immersion Corporation. (Attachments: # 1 Exhibit 18-25, # 2 Exhibit 26-28, # 3 Exhibit 29, 31-33, 35-38)(Kaplan, David)

Microsoft Corporation v. Immersion Corporation

Doc. 141

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The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON MICROSOFT CORPORATION, a Washington ) No. CV07 936RSM corporation, ) ) Plaintiff, ) DECLARATION OF ALAN J. HEINRICH ) IN SUPPORT OF IMMERSION'S v. ) ) OPPOSITION TO MICROSOFT IMMERSION CORPORATION, a Delaware ) CORPORATION'S MOTION FOR corporation, ) PARTIAL SUMMARY JUDGMENT ON ) BREACH OF CONTRACT Defendant. ) ) ) Note On Motion Calendar: July 25, 2008 ) Oral Argument Requested

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM)

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

Dockets.Justia.com

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I, Alan Heinrich, 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 true and correct copy of excerpts from the

deposition transcript of Kenneth Lustig, whose deposition was taken on April 30, 2008. 3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the

deposition transcript of Barry Spector, whose deposition was taken on April 15, 2008. 4. Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the

deposition transcript of Victor Viegas, whose deposition was taken on May 22, 2008. 5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the

deposition transcript of Patrick Reutens, whose deposition was taken on March 24, 2008. 6. Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the

deposition transcript of Lisa Jean Tanzi, whose deposition was taken on June 13, 2008. 7. Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the

deposition transcript of Jennifer Liu, whose deposition was taken on December 20, 2007 and January 23, 2008. 8. Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the

deposition transcript of Richard Birnholz, whose deposition was taken on June 5, 2008. 9. Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the

deposition transcript of Steve McGrath, whose deposition was taken on June 16, 2008. 10. Attached hereto as Exhibit 9 is a true and correct copy of excerpts from the

deposition transcript of Martin Smith whose deposition was taken on May 20, 2008.

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 1

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11.

Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the

deposition transcript of Marc Brown, whose deposition was taken on April 11, 2008. 12. Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the

deposition transcript of Alan Gordon, whose deposition was taken on June 11, 2008. 13. Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the

deposition transcript of Charles A. Laff, whose deposition was taken on June 9, 2008. 14. Attached hereto as Exhibit 13 is a document Bates-stamped MS 5364 ­ 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. 15. Attached hereto as Exhibit 14 is a document Bates-stamped MS 5330 ­ MS 5349,

produced during discovery in this action. It is a true and correct copy of a Settlement Agreement and Mutual Release between Microsoft Corporation and Immersion Corporation, dated July 25, 2003. 16. Attached hereto as Exhibit 15 is a document Bates-stamped IMRMS 5304 ­

IMRMS 5317, produced during discovery in this action. It is a true and correct copy of a License Agreement between Microsoft Corporation and Immersion Corporation, dated July 25, 2003. 17. Attached hereto as Exhibit 16 is a document Bates-stamped MS 5173 ­ MS 5199,

produced during discovery in this action. It is a true and correct copy of a Series A Redeemable Convertible Preferred Stock Purchase Agreement between Immersion Corporation and Microsoft Corporation, dated July 25, 2003. 18. Attached hereto as Exhibit 17 is a document Bates-stamped MS 5444 ­ MS 5473,

produced during discovery in this action. It is a true and correct copy of a Senior Redeemable Convertible Debenture Purchase Agreement between Immersion Corporation and Microsoft Corporation dated July 25, 2003.

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 2

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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19.

Attached hereto as Exhibit 18 is a document Bates-stamped MS 10743, produced

during discovery in this action. It is a true and correct copy of a computer print out regarding sales by Microsoft of Immersion stock. 20. Attached hereto as Exhibit 19 is a document Bates-stamped IMRMS 3949 ­

IMRMS 3950, produced during discovery in this action. It is a true and correct copy of an email from Victor Vargas to Patrick Ruetens dated July 17, 2003 attaching an article entitled "Microsoft Has Double Reverse in InterTrust Case." 21. Attached hereto as Exhibit 20 is a document Bates-stamped IMRMS 3941,

produced during discovery in this action. It is a true and correct copy of an newspaper article entitled "Microsoft's Patent Problem." 22. Attached hereto as Exhibit 21 is a document Bates-stamped IMRMS 4391 ­

IMRMS 4393, produced during discovery in this action. is a true and correct copy of an article entitled "Sony vs. Microsoft: Showdown In the Digital Rights Corral" dated January 9, 2003. 23. Attached hereto as Exhibit 22 is a document Bates-stamped MS 5046 ­ MS 5064,

produced during discovery in this action. It is a true and correct copy of a July 5, 2003 email from Marc Brown to Patrick Reutens, with attachment. 24. Attached hereto as Exhibit 23 is a document Bates-stamped MS 5065 ­ MS 5096,

produced during discovery in this action. It is a true and correct copy of a July 9, 2003 email from Patrick Reutens to Kara Nortman and Steve McGrath, with attachment. 25. Attached hereto as Exhibit 24 is a document Bates-stamped IMRMS 533 ­

IMRMS 548, produced during discovery in this action. It is a true and correct copy of a Jury Verdict Form dated September 21, 2004 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).

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 3

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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26.

Attached hereto as Exhibit 25 is a document Bates-stamped MS 8089 ­ MS 8090,

produced during discovery in this action. It is a true and correct copy of an Amended Judgment dated April 7 , 2005 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). 27. Attached hereto as Exhibit 26 is a documents Bates-stamped SCEA 1418 ­ SCEA

1442. It is a true and correct copy of Order Denying Parties' Motions for Judgment as a Matter of Law and Addressing Other Matters dated January 10, 2005 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). 28. Attached hereto as Exhibit 27 is a documents Bates-stamped SCEA 1413 ­ 1415.

It is a true and correct copy of Order Entering Permanent Injunction and Granting Defendants' Motion to Stay Injunction Pending Appeal dated March 24, 2005 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). 29. Attached hereto as Exhibit 28 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 from the United States Patent and Trademark Office signed by Kenneth M. Schor, mailed June 5, 2007. 30. Attached hereto as Exhibit 29 is a true and correct copy of a press release entitled

"SCE Announces New Controller for Playstation 3" dated May 8, 2003. 31. Attached hereto as Exhibit 30 is a document Bates-stamped IMRMS 4205 ­

IMRMS 4230, produced during discovery in this action. It is a true and correct copy an

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 4

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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Agreement between Sony Computer Entertainment America Inc. and Sony Computer Entertainment Inc. and Immersion Corporation executed on or about February 28, 2007. 32. Attached hereto as Exhibit 31 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 Computer Entertainment of America, Inc. and Sony Computer Entertainment Inc. v. Internet Services, LLC, Appeal Nos. 05-1227, -1441. 33. Attached hereto as Exhibit 32 is a document Bates-stamped IMRMS 565 ­

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. 34. Attached hereto as Exhibit 33 is a document Bates-stamped SCEA 39 ­ SCEA 46,

produced during discovery in this action. It is a true and correct copy of Litigation Escrow Agreement between Immersion Corporation, Sony Computer American Inc. and Sony Computer Entertainment Inc., and JP Morgan Chase Bank N.A. dated January 6, 2006. 35. Attached hereto as Exhibit 34 is a document Bates-stamped SCEA 14 ­ SCEA

25, produced during discovery in this action. It is a true and correct copy of a March 14, 2007 email from Daniel Herp to Glenn Sturman attaching an document entitled Agreement and Escrow Instructions. 36. Attached hereto as Exhibit 35 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.

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 5

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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37.

Attached hereto as Exhibit 36 is a true and correct copy excerpts from Immersion

Corporation's Response to Microsoft Corporation's First Set of Interrogatories and Requests for Production of Documents dated October 11, 2007. 38. Attached hereto as Exhibit 37 is a document Bates-stamped IMRMS 68 through

IMRMS 69, 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). 39. Attached hereto as Exhibit 38 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). 40. Attached hereto as Exhibit 39 is a document Bates-stamped MS 5200 ­ MS 5213,

produced during discovery in this action. It is a true and correct copy of Certificate of Designation of the Powers, Preferences and Rights of Series A Redeemable Convertible Preferred Stock in Immersion Corporation. 41. Attached hereto as Exhibit 40 is a document Bates-stamped MS 5474 ­ MS 5488,

produced during discovery in this action. It is a true and correct copy of a form 7% Senior Redeemable Convertible Debenture of Immersion Corporation. 42. Attached hereto as Exhibit 41 is a document Bates-stamped MS 2606 ­ MS 2622,

produced during discovery in this action. It is a true and correct copy of an email from Mary Smith to Patrick Reutens dated July 18, 2003, with attachments.

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 6

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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43.

Attached hereto as Exhibit 42 is a true and correct copy of the Expert Report of

Alan Gordon dated April 17, 2008 in this action. 44. Attached hereto as Exhibit 43 is a document Bates-stamped MS 10644 ­ MS

10669, produced during discovery in this action. It is a true and correct copy of an email from Lisa Tanzi to Peter Toto and Kara Stoll dated July 16, 2005, with attachments. 45. Attached hereto as Exhibit 44 is a true and correct copy of excerpts from the

deposition transcript of Stephen Ambler, whose deposition was taken on June 12, 2008. 46. Attached hereto as Exhibit 45 is a document Bates-stamped IMRMS 5071 ­

IMRMS 5097, produced during discovery in this action. It is a true and correct copy of an email from Patrick Reutens to Richard Birnholz, Stacy Snowman, James Koshlan, David Leeb, and Ben Griebe dated July 16, 2003, with attachments. 47. Attached hereto as Exhibit 46 is a document Bates-stamped IMRMS 10948,

produced during discovery in this action. It is a true and correct copy of a document provided to Immersion in connection with Immersion's prior patent lawsuit against Microsoft.

Executed on July 17, 2008, at Los Angeles, California. By /s/ Alan J. Heinrich Alan J. Heinrich

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 7

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations

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CERTIFICATE OF SERVICE The undersigned attorney certifies that on the 17th 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 ([e-mail]) Blake Marks-Dias ([e-mail]) Wendy E. Lyon ([e-mail]) 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: [phone] Facsimile: [phone] Byrnes & Keller LLP 1000 Second Avenue, 38th Floor Seattle, WA 98104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Immersion Corporation

HEINRICH DECL. IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOT. FOR PART. SUMM. JUDGMENT ON BREACH OF CONTRACT (CV07 936RSM) - 8

IRELL & MANELLA LLP
A Registered Limited Liability Law Partnership Including Professional Corporations