Microsoft Corporation v. Immersion Corporation

Filing 144

MOTION to Seal Certain Supporting Documents re: Immersion's Opposition to Microsoft's Motion for Summary Judgment Regarding Immersion's Affirmative Defenses by Defendant Immersion Corporation. (Attachments: # 1 Proposed Order) Noting Date 7/25/2008 (Kaplan, David)

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The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON MICROSOFT CORPORATION, a Washington ) corporation, ) ) Plaintiff, ) ) v. ) ) IMMERSION CORPORATION, a Delaware ) corporation, ) ) Defendant. ) ) ) ) No. CV07 936RSM DECLARATION OF ROBERT VAN NAARDEN IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S "MOTION FOR PARTIAL SUMMARY JUDGMENT ON BREACH OF CONTRACT" Re-Noted on Motion Calendar: 7/25/2008

VAN NAARDEN DECLARATION IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE BREACH OF CONTRACT (CV07 936RSM)

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I, Robert Van Naarden, declare as follows: 1. I am a member of the Board of Directors of Immersion Corporation

("Immersion"). 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. I have served on Immersion's Board of Directors since October 2002. In June

and July 2003, I participated in meetings and discussions between representatives of Immersion and Microsoft relating the settlement of Immersion's then-pending patent suit against Microsoft. 3. One topic that was discussed while I was present concerned the "Sublicense

Agreement" between Immersion and Microsoft, including the terms under which Immersion might have an obligation to pay Microsoft in the event that Immersion elected to settle the Sony Lawsuit. Microsoft initially proposed terms requiring Immersion to pay Microsoft substantial sums if Immersion settled or recovered on a verdict. Immersion rejected this proposal. Mr. Viegas explained to Ken Lustig and the other Microsoft representatives that it made no sense for Immersion to agree to pay Microsoft a fixed sum based on a verdict because Immersion had no way of knowing what the amount of the verdict or judgment entered on the verdict would be. 4. I also participated in further discussions on this subject of what obligation, if any,

Immersion would have if Immersion dropped its district court case by settling with Sony midstream, rather than Immersion bearing all the risk and substantial expense of taking the case through verdict and judgment. Microsoft expressed the concern that Immersion might reach a settlement with Sony and hence deprive Microsoft of any benefit it might obtain from having the ability to sublicense Immersion's patents to Sony. Microsoft accordingly wished to create a disincentive for Immersion to settle. It was very clear in the parties' discussions that Immersion electing to "settle the Sony Lawsuit" did not encompass a situation where the suit went in Immersion's favor and Immersion collected on a judgment. The final Sublicense Agreement reflected the parties' agreement reached through the course of discussions and negotiations that

VAN NAARDEN DECLARATION IN SUPPORT OF IMMERSION'S OPPOSITION TO MICROSOFT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE BREACH OF CONTRACT (CV07 936RSM)