Mr. Harral's theme has been how back when Microsoft was getting ready to launch Windows 95, Microsoft first encouraged Novell to adopt its APIs and then snatched them away, de-documenting them. Today, he explains what Novell tried to do to recover from the blow.

The first thing Novell tried, he relates, was to try to work with the premier support people at Microsoft, which they'd done successfully in the past. But Novell noted a change, and after about 3 months, they realized they were on their own. So finally in January of 1995, Novell decided they'd have to just recreate the functionality. Remember, when the switcheroo happened, Novell had already finished about 80% of the work reliant on the APIs that now were not available. It was slow going.

Jump To Comments

We were trying to -- actually it's like trying to reproduce a vintage car in its exact state. But the difficulty of this task is kind of hard. It's kind of -- we had to have, we had to know how the file system is going to work underneath. We had to know what were the new areas that the shell was going to present and if there were ways that we could access that. The -- and we had to do that in a way that, when we taught our applications, since we were the shared code team, we are telegraphing the stems that Microsoft has to the applications that are built on top of us.

And we wanted to telegraph those relation -- those features in their purest form because we wanted to eventually get out of the way and let them talk more directly to the shell. For us to set up our own way to talk would have meant that we would have been in the way more for the life cycle of the application. And we felt that Microsoft had a very good architectural foundation for what they had decided to do and so when we had had the Microsoft representatives earlier on there, we had told them we were really buying into what they were doing for the shell. And so we were intent on undoing that because it would -- in the long run, it would give our application better access to new things that they had, and it would reduce the work that we had to do, which would make the product more stable.

But, in trying to reproduce it, it's kind of like -- I was thinking about this. It's kind of like a Sudoku puzzle. If you -- if you are the maker of a puzzle, you know, you look in the newspaper and you have a key there. You can reproduce the key very easily if you know the answer at the end, but if you're somebody who has to come along and solve it, a very hard Sudoku puzzle, you have to get one number before you can get the next, before you can get the next, before you can get the next. And it takes a lot of time. You may go down a path and you may figure out that you've taken the wrong path, and you have to undo it and go back at it again.

And that's what trying to reproduce the shell was like. If we had had documentation, if we had had even the premier support information trying to help us to reproduce it so that we could solve -- they could help us solve our problem, it would have gone faster. But, because there really was no information forthcoming that would help us with our fundamental problem, it really was just trying to piece through it day-after-day, month-after-month for that time.

And, at the same time, we also had the applications that were trying to expose their functionality, and we are supposed to help them as well. So we are doing it internally, and we are trying to help the rest of the company do it as well. And we would make mistakes, and we would learn that something that we had done inside or an assumption that we had made was incorrect as we found evidence that stated otherwise and we would have to go back and rework it.

And that's painful for the applications because they are setting schedules and then we are telling them, oh, you need another month here because there's this whole new area that we were not aware of before, and you've go to go in and change how it's written, and that became very frustrating for the applications as time went on.

Mr. Harral no longer works for Novell, and yet he turned up willing to testify. Novell's lawyer asks him why:

Q: Mr. Harral, you've told the jury that you have not worked for Novell for a number of years. Why are you here testifying today?

A: Well, the first answer is, is that I -- I believe in the court system because I don't -- I don't want anybody to think I take it for granted. I like that we can work out things in our country. And I can't like that and not be willing to participate with that, although my participation would be much smaller than the people who are doing so here. At the same time, this was a very hard time for the company, and there were a lot of good people who worked in an extraordinary manner on these technologies. They had -- this was a privately held company, WordPerfect was at that time, when they started doing these things, before the acquisition of Novell.

And these people stayed with the company because they believed in what they were doing. They were very proud of the things that they were able to help people solve. And this was a very difficult time for a lot of these good people and lot of these families. And I -- I think that it's nice that finally this subject can be -- can be addressed and it can be looked at because I would -- it would be nice to know what happened, because it was very hard. It was very hard for a lot of people. It was very hard for a lot of our customers, too. And that was really our intention.

MR. JOHNSON: Thank you, Mr. Harral.

But we do have one, and it should be allowed to work its way through these events and come to a determination one way or another. It shouldn't be all right with the legal system that a victim gets no recourse, just gets left by the side of the road to bleed to death. It's what a legal system is for, to readjust the balance, when a more powerful entity takes advantage of power or tricks or whatever and mistreats someone. Conversely, it's also there to pull back an entity that thinks it was mistreated but actually was not. And when the parties don't see eye to eye, that's what the court process is for.

That's why Microsoft mocking Novell for still bothering with this case is troubling to me. It had a legal right to wait while the government's antitrust case was going forward and then there was a window for them to act, and they did.

I wanted to mention one other thing about judges. You just watched the judge in the Oracle v. Google trial bending over backwards to avoid tipping the jury in any particular direction. That's what a judge is supposed to do.

When the jury isn't in the room, it's quite a bit more frank, as you saw. Remember when the judge told David Boies that his theory of infringer's profits was bordering on ridiculous and asked him how a lawyer of his caliber could even try to present it? He'd never say that in front of the jury, but with the lawyers, they speak forthrightly.

Protecting the jury from spitballs, so to speak, is also the judge's job. He is supposed to make sure neither party's lawyer goes too far in what he says to the jury or what evidence he presents. Lots of things a judge can handle, knowing all the picture legally, might throw the jury off, because they are not as familiar with the legal process.

So I thought you would be interested to know that Boies, in the Oracle v. SAP retrial, going on right now, tried for infringer's profits in much the same way, but in even more extreme stye. And once again, he got slapped down by the judge, in this case the Hon. Phyllis J. Hamilton. Here's the Final Pretrial Order [PDF] in the SAP case, as PDF, and I'd like to show you the part about infringer's profits, which came up in a ruling on the parties various motions in limine, and in this trial, Oracle is the plaintiff:

5. Plaintiff’s Motion in Limine No. 5 to exclude testimony by SAP’s expert Stephen Clarke regarding a calculation of infringer’s profits that includes a deduction of expenses from defendants’ revenues is DENIED. Plaintiff argues that because the infringement was willful, infringer’s profits should be equal to gross revenues, and that defendants should not be permitted to offset any of their gross revenues by subtracting expenses. However, the court finds no support for this proposition.

The language of 17 U.S.C. § 504(b) does not support a rule that overhead expenses cannot be deducted from gross revenues to arrive at profits where the infringement was deliberate or willful. Section 504(b) provides that “[i]n establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” There is no mention of willful infringement in § 504(b) – only in § 504(c) – which relates to statutory damages. The language of § 504(c) shows that where Congress intended to punish willful infringement by authorizing different remedies depending on the defendant’s culpability, it clearly knew how to do so. Section 504(b) makes no distinction between willful and innocent infringers. In addition, while the Ninth Circuit’s Model Instruction 17.27 may be considered a guide, the Ninth Circuit does not adopt the Model Instructions as authoritative statements of the law. Dang v. Cross 422 F.3d 800, 805 (9th Cir. 2005). Even less should a “Comment” to a Model Instruction be considered an authoritative statement of the law. Moreover, Model Instruction 17.27 is clearly labeled, “Copyright – Damages - Willful Infringement” under 17 U.S.C. § 504(c)(2), which relates to statutory damages which are not sought by plaintiff here. It is Model Instruction 17.24, “Copyright – Damages – Defendant’s Profits” which relates to the measure of damages under 17 U.S.C. § 504(b) which are sought by plaintiff here. Tellingly, there is no Model Instruction that sets forth the standard plaintiff urges the court to adopt. Nor does the Ninth Circuit’s decision in Kamar Int’l v. Russ Berrie and Co., 752 F.2d 13 1326, 1331-31 (9th Cir. 1984), which is cited in the Comment to Model Instruction 17.27, clearly support the statement in the Comment that defendants’ expenses are generally “denied where the defendant’s infringement is willful or deliberate,” since the court in Kamar had previously determined that the defendant was not a willful infringer. To the extent that the parties dispute which categories of expenses can be deducted (assuming defendants meet their burden of proof), that is a matter for the court, not the jury, to decide.

6. Defendants’ Motion in Limine No. 1 to exclude evidence and argument regarding new claims relating to lost profits and infringer’s profits is GRANTED in part and DENIED in part. The motion to preclude plaintiffs from reversing their approach to deductible expenses in connection with the infringer’s profits claim is GRANTED, for the reasons set forth above with regard to plaintiff’s Motion in Limine No. 5. The motion to exclude testimony and other evidence regarding the calculation of ongoing support/maintenance revenues (after 2008) up to the time of trial, and regarding the increased profit margin percentage applicable to the added revenue, is DENIED. The court is not persuaded that judicial estoppel applies under these facts; and finds further that the supplemental or updated report of Oracle’s expert Paul Meyer is not untimely given that the bulk of the claimed damages were not incurred until after the discovery deadlines preceding the first trial. Thus, it would be unfair to disallow this evidence, subject to plaintiff’s establishing that the claimed damages flow from the pre-2008 infringement. In addition, however, both sides shall make their experts available before trial for further short depositions on this issue and there shall be full disclosure of the claimed damages and any defense thereto.

7. Defendants’ Motion in Limine No. 2 to exclude evidence previously offered solely to support excluded damages theories is DENIED in part and DEFERRED in part. The question whether plaintiff may offer evidence to support the theory of hypothetical license damages (including up-sell and cross-sell and saved development costs) has been resolved by the court, most recently in the ruling on plaintiff’s motion for clarification. Defendants have provided examples of evidence relating to “license factors,” “risk acceptance,” “expected financial gains,” and the “risk to plaintiffs’ investment.” However, because defendants have not sufficiently identified the particular items of evidence they seek to have excluded, and because plaintiff argues that some of the evidence may well be relevant to causation, the court is unable to rule on this part of the motion, and defers further consideration until the further conference to be held on June 8, 2012.

8. Defendants’ Motion in Limine No. 3 to exclude evidence and argument regarding TomorrowNow’s criminal conviction is GRANTED. Any evidence of willfulness that would be reflected by the guilty plea or conviction is irrelevant to any issue being tried in the case in light of defendants’ stipulation to liability. In addition, this evidence may not be used for impeachment purposes pursuant to Federal Rule of Evidence 609 to impeach the testimony of defendants’ witnesses, as it was the corporation TomorrowNow that pled guilty, not any of the individual executives employed by defendants SAP AG, SAP America, Inc., or TomorrowNow. The corporate conviction has no bearing on the credibility of any individual witness who may be employed by a defendant and no individual witness has been him or herself convicted, such that their own conviction might be employed for impeachment. Moreover, unlike the situation in Hickson Corp. v. Norfolk S. Ry. Co., 227 F.Supp. 2d 903, 907 (E.D. Tenn. 2002), liability in this case has been conceded, and is therefore not an issue to be decided by the jury.

9. Defendants’ Motion in Limine No. 4 to prohibit plaintiff from referring during the trial to “theft” or “stealing” of software by defendants is GRANTED. Defendants have stipulated to liability for copyright infringement, and the jury will be so advised. Balancing the potential for prejudice and the value to plaintiff of characterizing defendants’ conduct as theft, the court concludes that the use of the words “theft” or “stealing” would be inflammatory and would likely be unduly prejudicial to defendants, and is furthermore unnecessary given defendants’ stipulation to liability. Moreover, the use of words associated with criminal conduct could potentially confuse the jury about the nature of this case and what they will be asked to find. Plaintiff may argue that defendants “copied,” “took,” or “used” the software “without authorization,” but may not characterize defendants’ conduct as “theft” or “stealing.”

I put it as an update, update 9, to the day Boies got his wings clipped in Oracle v. Google, but I wanted to highlight it. As you can see, when he gets his wings clipped, he just keeps on flying.

I've been puzzling over the why of it. Might he come up with these ideas because when there is no case law on a theme, it more or less guarantees at least one issue for appeal? Or maybe he just likes to gamble. Not being the gambler type, I don't know. Maybe he's working on a level so much higher than I can imagine, I'm not even close to guessing why he does it. It's definitely not what you see in most trials.

The PDFs that cover this day are:

• 406
• 407
• 408

Here's the transcript of the day. Watch the judge's rulings when the jury is in the room and how he discusses the case with the attorneys when the jury has gone for the day or it out for a break, and make your comparisons. Note that it says it was October 18 at one place on the transcript, but it wasn't. Court reporters reuse headers just like I do, I deduce, and sometimes that leads to minor mistakes.

*********************

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

NOVELL, INC.,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

_____________

Case No. 2:04-CV-01045 JFM

_____________

BEFORE THE HONORABLE J. FREDERICK MOTZ

DATE: October 24, 2011

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JURY TRIAL

VOLUME V

Reporter: REBECCA JANKE, CSR, RMR
LAURA ROBINSON, CSR, RPR
PATTI WALKER, CSR, RPR

360

A P P E A R A N C E S

DICKSTEIN SHAPIRO
BY: PAUL R. TASKIER, ESQ.
JEFFREY M. JOHNSON, ESQ.
MIRIAM R. VISHIO
[address]

WILLIAMS & CONNOLLY
BY: JOHN E. SCHMIDTLEIN, ESQ.
[address]

SNOW, CHRISTENSEN & MARTINEAU
BY: MAX D. WHEELER, ESQ.
[address]

NOVELL
BY: JIM LUNDBERG, ESQ.

FOR THE DEFENDANT:
SULLIVAN & CROMWELL
BY: DAVID B. TULCHIN, ESQ.
STEVEN L. HOLLEY
SHARON L. NELLES
[address]

MICROSOFT CORPORATION
BY: STEVE AESCHBACHER, ESQ.
[address]

RAY, QUINNEY & NEBEKER
BY: JAMES S. JARDINE, ESQ.
[address]

INDEX

361

PROCEEDINGS

* * *

THE COURT: Good morning, everybody. The jury is here. Terrific. Let's get started.

MR. JOHNSON: May I bring Mr. Harral up, Your Honor?

MR. JOHNSON: Thank you.

THE COURT: Good morning, Mr. Harral.

THE WITNESS: Good morning.

(Jury brought into the courtroom.)

THE COURT: Good morning, everybody. You all are terrific. I wish everybody involved would be -- Mr. Johnson.

MR. JOHNSON: Thank you very much, Your Honor.

DIRECT EXAMINATION

BY MR. JOHNSON:

Q: Good morning, Mr. Harral.

A: Good morning.

Q: On Thursday last, you testified that you became aware that Microsoft had de-documented the NameSpace extension functionality in the October time frame, and you further testified that, faced with this Microsoft decision, you had three options for continuing to develop

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your products for the Windows 95 operating system. We've made a slide --

Mr. Goldberg.

-- containing, directly from your testimony, the three options you mentioned. Could you just review those for yourself and tell us whether that accurately reflects the three options that you had.

MR. TULCHIN: Your Honor, sorry to interrupt. I wonder if I could get a copy of that.

THE COURT: You've got it right now.

MR. TULCHIN: Thank you.

THE WITNESS: Yes. These are the options that I outlined.

Q: Now, you further testified that the third option was Novell's least favorite choice, and you told the jury that you started the effort -- that third option in January. Can you please explain to the jury what Novell did, if anything, between October of 1994, when you found out that Microsoft had decided to de-document the NameSpace extension functionality, and January of 1995, when Novell turned to option 3?

A: Okay. When we found out about the option or the de-documentation, the first thing that we tried was -- by de-documenting the API's, there are different -- there are different things that can happen.

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Certainly what -- what we felt Microsoft was saying is, you can't count on these things that we are, of course, saying that that can't be used.

That didn't mean that they ceased to exist. It just meant that, in one regard, we would be at risk, which would be the least of the three. We would be at risk if we used them because if they decided that they needed to change them in the future, they could, and we would have more work to do in order to be able to later on, when those changes were made public. That could go all the way to the point of, we really don't want you to use these, and there would be no support whatsoever.

So, we had -- in the past, when I had dealt with Microsoft on -- because I worked on, many years, the presentation of the commands in the application in the past, and there were things that were not documented, but, working with Microsoft, we would find ways that we could get information that would help us to finish what we were doing.

So in -- so the first option we took, which is the first option in this list, was continuing to work with Microsoft's premier support and making queries as to -- as to what we would be able to do or what would be -- what they would help us with. And we -- we spent those three months basically trying to do that, but, over

364

those three months, it became apparent that there would -- there was not a -- that this wasn't about that things were busy, there was just no -- for every query that we made, there was just information not forthcoming.

And so -- from the support. And so, this was a different kind of of handling of the relationship, from the premier support perspective, than we had had in the past. We were -- basically we were on our own is how we interpreted their -- their response to our queries. And then that, basically -- because we would -- we would ask questions, try to probe, okay, we're looking at this recycle bin, you know. How is it supposed to behave.

How do we -- you know, I'm trying to open the file, and it's -- you know, somebody else is doing work there, or I've got a briefcase here, and I want to open the file, but it's synchronizing at the same time so I can't open it. How do I figure it out that it's doing that so that I don't tell the user, you know, yeah, open the file and then it comes on and says, no, I can't do this. It's not letting you open it. Those are -- can be very disconcerting to the customer of the product.

But we just were not getting any of the help that we needed to be able to -- to overcome this problem.

Q: Did Novell ever consider the second option on the list some?

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A: Yes. As I stated before, we did many times. Every time that we went -- we had to -- every time we had to consider an option, this is the option that came back on the table because it would have been an easier option than the third, and it would -- it would -- it would be more supportable going forward. It would be less risky for us. It would be less work for us to take it, and what we hoped -- it was not an option until October. We revisited it in January because, as we had tried to work out on the one side, we were also looking for, you know, the documentation or other information.

It's not just that Microsoft documents information, but there are also -- there were other sources of Windows information, what other companies might learn or be told about them, so we would look for that information to see if we could piece together a picture that would give us a path to be able do it.

But, even in January, we could see that there really was no more information about taking option two and making it viable. So, yes, every time that we considered an option, we would look back at number 2 because we had hoped that there would be some opportunity there, but there wasn't in January.

Q: So, now, moving to option 3, you had testified that Novell had decided, in January of 1995, to take the

366

option 3 and that it took Novell almost a year to recreate the functionality offered by the NameSpace extensions. Can you explain to the jury, generally, why recreating this functionality, option 3, took so long?

A: We were -- we were basically trying to recreate the underpinnings of the Microsoft Windows 95 shell. In trying to -- when faced with the problem of trying to recreate something that looks like somebody else's work, there's -- there are different levels of doing that. One is, you can say, I can do the same thing that you -- that somebody else does. Two different cars operate more or less the same way, but if one of them is for racing and one of them is for four-wheel fun, there are still some fundamental differences. You can see that they are similar, but they are not really for the same purpose.

We are, in this -- we had to have a higher level of reproduction. We were trying to -- actually it's like trying to reproduce a vintage car in its exact state. But the difficulty of this task is kind of hard. It's kind of -- we had to have, we had to know how the file system is going to work underneath. We had to know what were the new areas that the shell was going to present and if there were ways that we could access that. The -- and we had to do that in a way that, when we taught our applications, since we were the shared code

367

team, we are telegraphing the stems that Microsoft has to the applications that are built on top of us.

And we wanted to telegraph those relation -- those features in their purest form because we wanted to eventually get out of the way and let them talk more directly to the shell. For us to set up our own way to talk would have meant that we would have been in the way more for the life cycle of the application. And we felt that Microsoft had a very good architectural foundation for what they had decided to do and so when we had had the Microsoft representatives earlier on there, we had told them we were really buying into what they were doing for the shell. And so we were intent on undoing that because it would -- in the long run, it would give our application better access to new things that they had, and it would reduce the work that we had to do, which would make the product more stable.

But, in trying to reproduce it, it's kind of like -- I was thinking about this. It's kind of like a Sudoku puzzle. If you -- if you are the maker of a puzzle, you know, you look in the newspaper and you have a key there. You can reproduce the key very easily if you know the answer at the end, but if you're somebody who has to come along and solve it, a very hard Sudoku puzzle, you have to get one number before you can get the

368

next, before you can get the next, before you can get the next. And it takes a lot of time. You may go down a path and you may figure out that you've taken the wrong path, and you have to undo it and go back at it again.

And that's what trying to reproduce the shell was like. If we had had documentation, if we had had even the premier support information trying to help us to reproduce it so that we could solve -- they could help us solve our problem, it would have gone faster. But, because there really was no information forthcoming that would help us with our fundamental problem, it really was just trying to piece through it day-after-day, month-after-month for that time.

And, at the same time, we also had the applications that were trying to expose their functionality, and we are supposed to help them as well. So we are doing it internally, and we are trying to help the rest of the company do it as well. And we would make mistakes, and we would learn that something that we had done inside or an assumption that we had made was incorrect as we found evidence that stated otherwise and we would have to go back and rework it.

And that's painful for the applications because they are setting schedules and then we are telling them, oh, you need another month here because there's this

369

whole new area that we were not aware of before, and you've go to go in and change how it's written, and that became very frustrating for the applications as time went on.

Q: Based on your personal experience, did Microsoft's attitude change at all towards WordPerfect after it merged with Novell?

A: The relationship was cooler.

Q: And why do you say that?

A: About the time of that -- of the Acquisition of WordPerfect Corporation by Novell, there was a change in the premier support that we had. We used to have a person that was assigned specifically to WordPerfect that we would deal with. Every time we called we got that person. They knew the problems that we had, the issues that we were facing, and there were many times where, at WordPerfect, we would end up talking with technical people at Microsoft, even the developers of Windows itself, who had worked on specific features that we had concerns about.

And it was a very, very effective relationship from WordPerfect's perspective. It was very helpful in us meeting our deadlines and promoting Windows as the -- as the operating system that we would have going forward. After the -- after the acquisition, our premier support

370

was changed, and we were -- then, every time that we would call, we would end up at a, like, a customer service group, wherever person that we got was different every time. And so they would -- they would have to keep track of the things that we were doing like they did before, but each person would have to come up to speed on what we were asking for.

And so it seemed like we just didn't have access to the same level of support. There wasn't the technical resources brought on board on our conversations as often as they were before, so, it just kind of cooled down.

Q: On Thursday, you talked about the fact take WordPerfect historically had been written for multiple operating systems. Did Novell plan to continue to make PerfectOffice for Windows' 95 cross platform?

A: Yes, it did. We were concentrating on Windows because that was in front of us, but WordPerfect had had a history of working on multiple platforms, and we had -- when you -- when you do new revisions of your product, you're not just doing changes for that operating system, you're also looking at the industry of, how are people working now? And what are the problems they are facing? So, there's also an evolution of the product and its features.

371

And those -- the features that were inside of PerfectOffice were some of the foremost in the company, and they were looking at moving those features, some of them, back into DOS, over to Os2, into the Macintosh. They were looking at -- at Unix and Linux. All of those were plans that they had after the -- the Windows 95 release.

Q: Mr. Harral, had Microsoft not pulled these extensions, what was WordPerfect's plan with respect to these NameSpace extensions?

A: So, I can -- as the architect, actually, I had quite a big view in what were our plans technologically. WordPerfect had tried, in the past, to be what our business customers needed in an application, and when they were printing documents. We have lots of different applications in the industry today. We have things that present graphics. We have things -- you know, we write letters. We -- we manage financial information.

Back at this time, when we're talking about '94, '95, the -- those applications were less pervasive. And then, back to when WordPerfect was written originally, they were almost nonexistent. WordPerfect saw the demise of the -- the loss of the typewriter pool in a company, where you were allowing, now, people to use the computer themselves and use their own skills to do it

372

instead of having to delegate it to somebody else.

So, WordPerfect had grown up from a history of trying to provide people all the tools that they needed so that they were comfortable doing their work. Windows 95 was bringing a lot of thinking in the industry together in, how do people want to see their computer? How do they want to see their information? How do they want to act with it? Dragging and dropping, we talked about how that was very common for lots of PC users, personal computer users.

So, then the question was, what were we going to put into that environment? What we were we going to add to it so that we could once again create this environment and make our customers comfortable? So we knew that we weren't the only application anymore out there. There were applications that were better at doing financials than we were. And so now the question is, can we take things that we have -- we had a stand-alone spell checker we had a stand-alone thesaurus.

So, you know, we would be looking at tasks like, could you be helping people spell check things while they were inside of their financial application, doing notes, or in their e-mail, in their presentations? Those are things that we were looking at. Could we put their graphics in a place, their pictures, that they use

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for building their business documents? Could we put them somewhere where every one of their business applications could use? Could we help manage not only WordPerfect documents but all of the documents so that they could find them easily, so that they could get to the changes that had happened inside of them and get their work done, and not just WordPerfect products, but any product on that platform.

That's traditionally what WordPerfect had done, and that's what it intended to do here. So, basically, we were -- we were thinking that WordPerfect could make Windows the best version of Windows that it could be.

Q: Mr. Harral, you've told the jury that you have not worked for Novell for a number of years. Why are you here testifying today?

A: Well, the first answer is, is that I -- I believe in the court system because I don't -- I don't want anybody to think I take it for granted. I like that we can work out things in our country. And I can't like that and not be willing to participate with that, although my participation would be much smaller than the people who are doing so here. At the same time, this was a very hard time for the company, and there were a lot of good people who worked in an extraordinary manner on these technologies. They had -- this was a privately

374

held company, WordPerfect was at that time, when they started doing these things, before the acquisition of Novell.

And these people stayed with the company because they believed in what they were doing. They were very proud of the things that they were able to help people solve. And this was a very difficult time for a lot of these good people and lot of these families. And I -- I think that it's nice that finally this subject can be -- can be addressed and it can be looked at because I would -- it would be nice to know what happened, because it was very hard. It was very hard for a lot of people. It was very hard for a lot of our customers, too. And that was really our intention.

MR. JOHNSON: Thank you, Mr. Harral.

Pass the witness.

CROSS EXAMINATION

BY MR. TULCHIN

Q: Mr. Harral, good morning.

A: Good morning.

Q: My name is David Tulchin, and as, of course, you know, I represent Microsoft. Mr. Harral, just some introductory questions, if I could, about your position at Novell during the period in question, let's say 1994 and 1995. You certainly weren't trying last Thursday or

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this morning to give the jury or the Court the impression that you were in charge of making strategic decisions for the company, for Novell. Correct?

A: No. I was the -- I was somebody that those people, who would make those decisions, would come to often to ask about -- counsel about direction before they would make it.

Q: Well let me just see if we can get, you know, a straight answer, if I could. You weren't in charge of--

MR. JOHNSON: Objection, Your Honor.

Q: -- strategy.

MR. JOHNSON: There is no reason for him to say he didn't get a straight answer.

THE COURT: The objection is overruled. Just don't argue with the witness. Unless you have to --

MR. TULCHIN: Thank you, Your Honor.

Q: BY MR. TULCHIN: You weren't in charge of strategy for the company, correct?

A: No. I was not in charge of strategy for the company.

Q: Okay. And you weren't in charge of any of the business units that the company had?

A: That is correct. I was not.

Q: You also weren't the chief architect, software architect, for any of the Novell products, correct?

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A: That's correct.

Q: And I looked at the transcript of last Thursday, and I think when you were asked questions about Novell, or you you were asked questions about your own thoughts or reactions or what happened, you said several hundred times -- you used the word "we" in your answer?

A: Uh-huh.

Q: Does that seem right to you?

A: Talking about Novell and WordPerfect, yes. I recall that.

Q: Right. You weren't trying to imply to the jury or to the Court in this case that you were speaking for Novell, correct? You were speaking for yourself?

A: I was speaking for the division for which I was the architect.

Q: Okay. Let's come to that in a moment. It's true, is it not, Mr. Harral, that you were not making product decisions for the company; is that right?

A: Architecture makes product decisions for the company.

Q: Well, what I mean by product decisions is, you weren't the person deciding on the strategy of when products would be released or exactly what functionality the overall product would have, correct?

A: I would make decisions about what the overall

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product would have. Novell relied heavily upon its architects to make that decision. I would not decide on the timing. That is true. But I would help them decide what would be the features that were viable and what we would be giving our users. I had direct access to the usability information of the company, and the architects would talk amongst each other, and we would be the ones that the business people would rely upon about what was possible and feasible for the next versions. We would help chart the road map for the company for our division.

Q: I see in your last answer, just this moment, that you used the word "architects," plural, correct?

A: Yes.

Q: And last Thursday you used the word "architect," singular; is that right?

A: I may have, at times, used both. Yes.

Q: Okay. Am I right, Mr. Harral, that -- and I think you testified to this last Thursday -- that, during this period of 1994, all the way until 1996, your position at the company never changed?

A: That is correct.

Q: And your title didn't change?

A: My manager let me have whatever title I wanted, and he told me that a number of times, so -- he -- I

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guess that makes it non sequitur in that regard because I could have had whatever title I wanted. That's what he told me.

Q: Well, let me be clear about something, Mr. Harral. Regardless of what he told you, your title didn't change, correct?

A: Between -- in our division, my title, my responsibility did not change.

Q: Okay. Fair enough.

A: Okay.

Q: And I think you also said that, after you went to work for Corel in 1996, your position didn't change then either, correct?

A: That's correct.

Q: And would it be fair to say, Mr. Harral, that throughout this whole period, the same two-year period, you never worked in marketing?

A: No. I never did.

Q: And you never worked in sales?

A: Nope. I never did.

Q: And you you were never in charge of any of the business units of Novell?

A: Nope. Never was.

Q: You were a software engineer?

A: Nope, I wasn't just a software engineer.

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Q: Well, let me see if I can try that. You were a software engineer. That's what you were?

A: Yes, I was, I was a software engineer. That was one of my responsibilities.

Q: Okay. Fair enough. And is it also fair to say, Mr. Harral, that throughout this period, you did not rub shoulders with upper management?

A: No. That is not true.

Q: Well, you do remember giving a deposition in this -- sorry, it wasn't in this case. It was in another case. Do you remember that?

A: I do.

Q: You had no deposition in this case, correct?

A: That's correct.

Q: Okay. So, this is the deposition -- may I approach the witness, Your Honor?

THE COURT: Yes.

Q: BY MR. TULCHIN: Let me hand you a transcript. This is a deposition taken of you on December 12, 2001. Do you need a copy, Mr. Johnson?

MR. JOHNSON: No, I have one, if you'll just give me your page references.

MR. TULCHIN: I certainly will.

Q: BY MR. TULCHIN: And if I could ask you, sir, to turn to page 177. Sorry. It's the -- I have to give

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you the second day. My apologies. This was the next day, Mr. Harral, December 13.

A: I didn't even remember there being two days.

Q: Well, I obviously didn't either because I gave you the wrong day.

A: Okay.

Q: So now we have the second day. It's page 177.

A: Okay.

Q: Just let me know when you've found the right page.

A: Let me see here. I'm on the page. Go ahead and ask the question. I'll follow along as best I can.

Q: Are you with me?

A: I think so.

Q: Okay. And the question was -- and I'm going to ask you whether you recall this question and your answer. "Did you gain any understanding, while you worked at WordPerfect, during 1989, first part of '90, about whether the company felt that a character based was better."

And you answered: "I didn't have -- when you say 'the company,' I would assume you mean the upper management in WordPerfect that would make the decisions, and I did not rub shoulders with upper management in the company, so I couldn't say what -- what they felt was

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the -- I only knew the product that I was working on and asked to work on."

A: In 1989 and -- okay. Go ahead. I'm sorry.

Q: Okay. Yes. Just give me a chance to ask the question.

A: Yeah. Sorry.

Q: Do you recall being asked that question and then giving that answer?

A: I do vaguely recall that question, yes.

Q: Okay. And that was true when you spoke it?

A: Uh-huh.

Q: Okay. Now I wonder if you could look at exhibit 372. I'll be happy to give you a copy, if we can -- Plaintiff's Exhibit 372 -- Mr. Johnson?

MR. JOHNSON: Thanks.

MR. TULCHIN: There's a copy for you.

Your Honor, would you like a copy?

THE COURT: No. I'm fine.

Q: BY MR. TULCHIN: Mr. Harral, if you need paper copy, hard copy, let me know. I'd be happy to give it to you. Is it on the screen in front of you, sir?

A: I can almost read it on the screen.

MR. TULCHIN: If I may, Your Honor --

THE COURT: That's better. That's fine.

A: That would be great. Thank you.

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Q: BY MR. TULCHIN: You're very welcome. This is one of Novell's exhibits in the case. And it's an organization chart, correct?

A: Yes. It appears to be.

Q: All right. And on the first page, you'll see in the upper right, just under the Exhibit Number, the date February 16, 1995. You have that sir?

A: I do.

Q: So, this is an organization chart for the business applications development organization?

A: Uh-huh.

Q: As of February of '95, correct?

A: That's correct.

Q: And, as far as your position was concerned, it would have been the same in '94 or '95. I thought you just said that, correct?

A: I do not know what my upper management was representing me as being. I knew, like I said, my responsibilities had not changed. I do not know what they presented at any time as what my position was to the other people.

Q: Well, do you remember seeing organization charts, such as this one, during the period we're talking about, 1994 to '6?

A: Actually, I saw one when we first were acquired

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by Novell, and they would come out infrequently, every three months or four months.

Q: Okay. And just so that we're clear here, the gentleman who was the vice-president of the business applications business unit was Bruce Brereton. Do you see that, sir?

A: Okay. I do see that.

Q: And do you recall, going back to '94 or '95, who Mr. Brereton reported to, who was directly above him?

A: I do not.

Q: And does the name David Moon?

A: I do know --

Q: Is that a familiar name?

A: I do know Dave Moon.

Q: Do you recall that Mr. Brereton reported to David Moon?

A: I do not recall that, but I believe you.

Q: Okay. Do you recall that Mr. Moon was a senior vice-president?

A: I do recall that.

Q: All right. And do you remember who Mr. Moon reported to?

A: No, I do not.

Q: Let's say in '94?

A: I do not recall. I'm sorry. I was kind of

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focused on what I was doing at the time, I guess.

Q: All right. And Mr. Moon actually reported to someone named Ad Rietveld in 1994.

A: Okay.

Q: It's R-i-e-t-v-e-l-d?

A: Okay.

Q: Do you remember Mr. Rietveld?

A: I don't.

Q: And then Mr. Rietveld reported to Mr. Frankenberg, right, the --

THE COURT: He doesn't recall Mr. Rietveld, so he can't --

MR. TULCHIN: All right. Thank you.

Q: BY MR. TULCHIN: Mr. Frankenberg was the boss. He was the chief executive officer.

A: Okay.

Q: Correct?

A: Yes. I do recall that.

Q: All right. And do you recall that, in 1994 and 1995, Novell had somewhere between 7,000 and 8,000 employees?

A: I didn't know that. So...

Q: Does that sound about right to you?

A: It sounds about like where the company was, yeah.

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Q: And this unit, the one that Mr. Brereton was in charge of, the business applications business unit --

A: Uh-huh.

Q: -- at least on Exhibit 372, it seems to show that there are 364 people?

A: Uh-huh.

Q: Is that right?

THE COURT: He doesn't know that. If you represent that, that's fine.

Q: BY MR. TULCHIN: I do.

A: I see that.

Q: Okay.

A: I see that.

Q: Okay. And, Mr. Harral, how many software engineers were there among the 364, if you know, roughly speaking?

A: I don't know.

Q: Okay.

A: I think there was maybe, oh, at this time -- I don't know. I recall at some time there being approximately 120 software engineers.

Q: And I think you said last week that, at least at one time, there was something like 12 hundred, do I remember that right, software engineers at the company?

A: No. There were 12 hundred employees at the

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company. In fact there were over -- almost 2,000 at one time in the company.

Q: I'm sorry. 2,000 software engineers?

A: No, employees.

Q: Well, I thought we just agreed that there were between 7,000 and 8,000 altogether?

A: I said at one time. That was before the acquisition of Novell.

Q: I see. Okay. Fair enough. And then going down, looking again at Exhibit 372, there are ten people, according to the chart, who report directly to Mr. Brereton. Mr. Brereton, again, was the vice-president. You see number 1 is Ed Moss. Then right below him there's Dave Payne, and we won't go through all of them, but, on the next page, the second page, number 9 of the ten is Toom Creighton. Do you see that, sir?

A: I do.

Q: And Mr. Creighton was one of ten who reported to Mr. Brereton, the vice-president of this unit, right?

A: Uh-huh. Yes.

Q: And working for Mr. Creighton, reporting directly to Mr. Creighton, were actually two people. One was Jim Johnson?

A: Uh-huh.

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Q: Manager of PF Core Services, and PF stands for Perfectfit, right?

A: Uh-huh, it does.

Q: If you go down the page a little further you'll see the other person reporting is Chuck Middleton?

A: Uh-huh.

Q: I'm sorry.

Could we take that whole chunk? There we go.

So, reporting to Mr. Creighton is Jim Johnson and Chuck Middleton. And then there were five people reporting to Mr. Johnson. Do you see that, sir?

A: Yes, I do.

Q: And you were one of them. You were one of the five?

A: That is correct.

Q: The other four, who were at the same level you were, Whitney, Cannon -- I hope I pronounce this right -- Mashayekhi and Spencer, those other four?

A: Uh-huh.

Q: Were on the same general level as you were?

A: In the organizational hierarchy of the company, that's true.

Q: Right. And your title at the time, according to this org chart, was Lead Developer Of Core Services?

A: That's correct.

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Q: Do we have that right?

A: Uh-huh.

Q: And you had a total of three people who reported to you?

A: Uh-huh.

Q: Is that right, sir?

A: Yeah.

Q: Okay. Just need a verbal answer.

A: Yes. Sorry.

Q: The uh-huh is hard for the court reporter to get.

A: Sorry.

Q: Thank you, Mr. Harral. And that was true, that there were three people reporting to you, throughout this whole period that we've been talking about, 1994 to '96?

A: Okay.

Q: Is that right?

A: Those are my direct reports, yes.

Q: Okay. So, you didn't mean to give the impression to the jury on Thursday or earlier this morning that, when you said you were the architect, that you were somehow the lead architect for the whole company?

A: No. I was the lead architect for shared code.

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Q: Okay. Shared code?

A: All of Tom Creighton's division.

Q: Tom Creighton, who is the director of Perfectfit technology, correct?

A: That's correct.

Q: And, as we've said, he had 45 people in his unit. Do you see that?

A: That's correct.

Q: One plus 44?

A: Uh-huh.

Q: There were two people who reported to him, Johnson and Middleton?

A: Yeah.

Q: And you were one of five who reported to Johnson?

A: That's correct.

Q: Now, am I right in thinking, Mr. Harral, that, in your testimony last Thursday, you indicated that, during this same period, 1994 to 1996, you didn't work directly -- you weren't directly involved in the WordPerfect product?

A: No. I was not involved in the WordPerfect product.

Q: And you weren't directly involved with the PerfectOffice product?

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A: Shared code code was a part of PerfectOffice, so, yes, we were directly involved in PerfectOffice.

Q: Well, let's go back to Exhibit 372. If you look on the first page again, you'll see that reporting to Mr. Brereton are a number of people who were working -- their titles, at least, are Director of POWin number -- sorry, POWin 95. That would be PerfectOffice for Win 95, correct?

A: Thank you for that.

Q: Am I right about that?

A: Your person on the screen is helping me find it faster than I can find it. So, yes, Gary Gibb was in charge of PerfectOffice Win 95.

Q: And below him there is Eric Meyers?

A: Uh-huh.

Q: Who is the Director of PerfectOffice Win 94. Do you see that?

A: I do.

Q: And then, below him, these are, again, people reporting to Mr. Brereton?

A: They are.

Q: Who was Mr. Creighton's boss, right?

A: Uh-huh.

Q: And Johnson reported to Creighton, and you reported to Johnson, right?

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A: Uh-huh.

Q: Okay. And below that there is Steve Weitzeil, who was the Director of WordPerfect for Windows?

A: Yes.

Q: Correct?

A: Uh-huh.

Q: So, again, you didn't directly work on those products, correct, shared code?

A: On PerfectOffice?

Q: Well, let me back up for a second and see if I can finish my question?

A: Okay.

Q: Sorry if it was confusing.

A: I was confused.

Q: I apologize. The WordPerfect product for Windows 95 was a product that you weren't directly involved in?

A: WordPerfect, the word processor for Windows 95, I was not directly involved.

Q: Right. And would the same be true for Quattro Pro, the spreadsheet?

A: I did not work as a developer on the Quattro Pro team.

Q: Okay. And throughout the same two-year period, you had no direct involvement in any of the strategic

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decisions about those two products, correct?

A: That would not be true. Let me explain my answer. Even though we have an org chart here, now, I know for a fact that -- because I spoke with people at Microsoft -- that their architects would have direct access to managers that they did not report to, and, in fact, that Bill Gates would sometimes meet with certain people that were technologic, and they would bypass the lines of command inside of the organization. We had a similar setup at Novell, where you have the chain of command that assimilates the customer needs and the business requirements that come down, but there was also an ancillary access point that the architects had where they could bypass all of the hierarchy here.

And, for example, you mentioned Eric Meyers. I would talk with Eric Meyers often, even though I was not -- I did not report to him, and the only place in which we commonly reported was way up the chain. But we would talk often about what was possible because most of the -- most of the direction of where the platform was potentially going to go was embodied in the shared code, and so the shared code team was an ancillary point that the business managers would come to, and they would ask, where should the products be going?

And the -- the point is, is that there are

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not -- if you were to go through here, I think you could notice that there are almost no architects specified in this organization. The architects sit independent of this organization and have access to outside of it, even though they are not inside, so they are not bound by this organization as to who they talk to or what they have influence over. And the architects were consulted. One of them is Glen Monson, and I don't know where he sits down inside of the chart, but he was one of the main architects as well outside of shared code.

So that's why it might be confusing about my answer about, do I have influence over these people? Yes, they were talking to us, and they were using our input as to what -- it's not what the business decisions they can make, but it's about the feasibility of those decisions and so we were helping them decide what features would go into the products just from an architectural perspective.

So, yes, I could see how that could be confusing because this chart does not represent the architects in the process of doing that.

Q: Mr. Harral, there were a lot of documents produced in this case by both sides, but I don't recall ever seeing a document that was produced by Novell that shows an org chart of architects.

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A: That's right.

Q: Do you recall any such document?

A: I don't think one was ever made.

Q: Okay. And in an answer you gave just a moment ago, again, you said something like, we were helping them decide what features would go into particular products. Did I get that about right?

A: The architects were helping the product managers decide.

Q: Well, that's what I was going to ask you next.

A: Okay.

Q: "Them," there, refers to the product managers?

A: That's correct.

Q: Okay. And the individual product managers, some of the names were on that org chart that we just looked at, Exhibit 372, they reported to more senior business people?

A: They did.

Q: Like vice-president Bruce Brereton?

A: Yes.

Q: Right? Am I right that the ultimate decision about strategic options for the company was a decision that would be made by upper management?

A: Uh-huh.

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Q: Is that a "yes," sir?

A: It's a yes.

Q: Okay. Sorry to bother you. Just to be clear --

A: No. I'm not using -- I'm sorry.

Q: The "uh-huh" is hard for the court reporter to take down.

A: I understand.

Q: Thank you, sir. And when you spoke about the three options -- and I think we'll come back to them later -- but last Thursday you spoke about the three options, and Mr. Johnson put a demonstrative exhibit on the screen this morning?

A: Yes.

Q: With the three options. Those were strategic options for senior business people to consider and decide, correct?

A: In the end, yes.

Q: Now, Mr. Harral, you've testified that it was -- I think I have your words, in around the October time frame?

A: Okay.

Q: That you heard from premier support, someone at Microsoft working at premier support, that Microsoft would be withdrawing support for the NameSpace extension

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API's, correct?

A: What I said was that they would not talk about the question that I had because they were not allowed to talk about it. That they were withdrawing it was not said.

Q: Mr. Harral, you say they were not allowed to talk about it?

A: That's what they said.

Q: Who is the "they"?

A: That the premier support people that I was talking to were not allowed to talk about these API's that I was asking them about.

Q: But my question was, who is the "they"?

A: Microsoft premier support.

Q: I know. Maybe I should be more specific. I'm trying to find out a name or some names of people.

A: It was different every time I called. That's the way Microsoft set it up.

Q: But didn't you say, Mr. Harral, last Thursday -- and we'll get the testimony later. I don't have it at my fingertips -- but that you recalled three telephone calls, after October, to premier support?

A: Uh-huh.

Q: Is that right?

A: I have recollection of at least three telephone

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calls that we made.

Q: Now you are saying at least. I think last week you said --

A: Because I was --

Q: -- three?

A: Okay. If -- what do you want from that, I guess is the question because, yes, there were three, and I can give -- I was asked to give examples and I gave examples. If I had a question or not, or if I sat in with some other architect because they had a question, the number of calls that we might have or that I might have sat on in, I would need more time than just sitting down for an hour or five hours, and probably with other people, to be able to reconstruct those events. So I gave some useful information. It was there. Whether it was complete or not, I'm sure somebody else could remind me. I know that premier support --

Q: Sorry?

A: -- kept track of that information, so they -- that would probably be the best record is that Microsoft could produce the premier support records and tell me how many calls I have.

Q: Mr. Harral, I'm now trying to get your recollection.

A: I can recall -- I can recall three discussions

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that we had.

Q: Okay. And if I could just ask this question?

A: Okay.

Q: This is where I was trying to go.

A: Okay.

Q: You've testified that you can recall three discussions.

A: Uh-huh.

Q: Can you give us the name or names of any of the people at premier support with whom you had those discussions?

A: During that time, no. They did not offer them.

Q: Well, in an answer a moment ago, you said something about records. And I want to ask you about Novell's records.

A: Okay.

Q: During the period that you were having these discussions with premier support, let's say in late 1994, or even into 1995 --

A: Uh-huh.

Q: -- did you make any written record of what transpired during those discussions?

A: The only records that I know of would be the e-mails that would go back and forth between the

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developers and the management about the result of those conversations.

Q: Now, in this case, Novell has produced no such e-mails that you wrote --

A: Okay.

Q: -- to management or your boss or Mr. Creighton or Mr. Brereton.

A: Okay.

Q: Is it your testimony that you did write those e-mails?

A: We used e-mails to communicate those things both with Microsoft and within the management, yes.

Q: Well, in your answer, Mr. Harral, again you used the word "we." It was the first word. I asked you, did you write such e-mails?

A: I wrote e-mails to people about these events.

Q: Did you write e-mails to people about these phone calls with premier support?

A: Yes.

Q: And we have no such e-mails.

A: I don't know. I don't have access to Novell's -- Novell's e-mails servers. I couldn't do that.

Q: I wasn't asking if you did, sir.

A: Okay.

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Q: I was just representing to you that, as far as I know, we have no e-mails that you ever wrote to anyone at Novell about any conversations you ever had with anyone from premier support, and I'm just asking, in light of that --

A: Uh-huh.

Q: -- are you sure that you wrote such e-mails?

A: Yes.

Q: And I think you said, in an answer about five or so minutes ago, that the ultimate decision about what strategic path to take, such as the decision about the three options that you spoke about this morning and also last Thursday, those type of decisions would be for senior management, correct?

A: That responsibility would fall to them.

Q: Somebody at the level of Mr. Frankenberg, who was the CEO or maybe just below him, correct?

A: Mr. Moon or somebody like that.

Q: And they may have had input from you about that decision?

A: That's correct.

Q: Now, did you provide any input to those people at any time in some writing, an e-mail, a memorandum, something in writing?

A: That kind of information would have been

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provided through Tom Creighton, up to the management, because it was not my responsibility to formulate my opinion, but it was the architects' responsibility to formulate a concerted response, and that would have gone up through Mr. Creighton.

Q: So, if I understand you correctly, Mr. Harral, you would have given information to Mr. Creighton, correct, and he would have communicated directly to senior management?

A: That's what we understood as architects.

Q: And with respect to the three options you talked about, the demonstrative that was on the screen this morning, do you have a specific memory of providing your input to Mr. Creighton about which of those three options to take or what the consequences would be of taking option 1 or 2 or 3?

A: We had -- we had long discussions about those options.

Q: Did you provide anything in writing to Mr. Creighton about the options?

A: No. I don't recall that I did. We would get together, and I do not know who he had tasked as recording that information.

Q: And then, it would be your understanding that, at the time, let's say in 1994 or '5, when you're

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choosing among the options, it would be your understanding that Mr. Creighton would then be tasked with the job of talking to people senior to him?

A: Yes.

Q: Do you ever recall seeing anything in writing, a memorandum, an e-mail, anything at all, from Mr. Creighton to any of these more senior people?

A: We did see -- he -- quote, carbon copy. He would forward to us some of the e-mails that he would send up. I don't know where it would go from there. So we did see such e-mails, but I don't know who they went to.

THE COURT: I assume you don't mean carbon copies?

THE WITNESS: When I say carbon -- it's a term in -- sorry. Yeah. That's a term in e-mails about sending out a copy of something to somebody else that's not intended for you. I apologize.

THE COURT: No, I just wanted to make sure.

MR. TULCHIN: That goes back a long way, the actual carbon copies.

THE COURT: Not that long.

MR. TULCHIN: Sorry, Your Honor.

THE COURT: Not that long.

MR. TULCHIN: It depends on our perspective,

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Your Honor.

THE COURT: Absolutely.

MR. TULCHIN: It seems like a long time ago to me.

THE COURT: Papyrus was a very good thing.

Q: BY MR. TULCHIN: Mr. Harral, again, we don't have anything in writing from Mr. Creighton to any of the senior business people --

A: I wouldn't know.

Q: -- about any these three options.

A: Uh-huh. Okay.

Q: Do you remember seeing any such document, e-mail or memo or anything else?

A: There were -- okay. So the ones that he forwarded to, that he gave us, we would see what would have been the culmination of those discussions, but who they went to, I do not know, but, yes, we did see them.

Q: All right. And when you were telling the jury on Thursday, and also early this morning, I think before 8:30, about the decision about which option to take, those decisions were actually made by people way senior to you in upper management?

A: I hope so.

Q: All right. And, Mr. Harral, something else last Thursday. I'm changing subjects now, just to let

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you know.

A: Okay.

Q: You spoke a number of times about things that customers wanted. You remember that?

A: Yes.

Q: And you testified last week that customers may have wanted certain features or may have anticipated certain features in products, correct?

A: Yes.

Q: And I think you also testified that there were customers of the shared code team; is that right?

A: Yes.

Q: The shared code team was licensing particular products to customers during this period, right?

A: There were Perfectfit licensed -- being marketed to people, and it was essentially the shared code being marketed to people outside of the company.

Q: Okay, so when I said shared code in my question, is that the same thing for this purpose as Perfectfit?

A: Yes. Shared code is Perfectfit branded for people to use.

Q: Right. And in your testimony last Thursday, when you were talking about things that customers wanted or anticipated, you were referring to customers of

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Perfectfit; is that fair?

A: For -- I'm sorry. Say that again. I was trying get around this. I'm sorry.

Q: Sure. Sorry. I know there's a screen between the two of us. If I can move to make a more direct view, let me know.

A: Thank you.

THE COURT: Actually, let's take a short break. I've got to make one call.

MR. TULCHIN: Certainly, Your Honor.

THE COURT: I'll be back in about five minutes.

(Short break.)

THE COURT: Sorry. Let's get started. I've just got to keep things going back home.

(Jury brought into the courtroom.)

THE COURT: Sorry for the delay. I'm trying to juggle two schedules.

Mr. Tulchin.

MR. TULCHIN: Shall I proceed, Your Honor?

THE COURT: Yes, sir.

Q: BY MR. TULCHIN: Mr. Harral, just trying to pickup where we last were. The customers of the shared code teams -- the shared code team, sorry -- were customers who were licensing Perfectfit; is that right?

A: The customers of the shared code team were all

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of the applications in the company and those who licensed Perfectfit.

Q: Okay. Now, when you spoke last Thursday about customers, you actually weren't speaking directly to customers for WordPerfect, were you?

A: Well, yes, because WordPerfect was a platform in which people were solving their business problems on. And these companies had IT departments. They deployed solutions inside of their companies to solve problems that may even be unrelated to or likely were unrelated to WordPerfect, but WordPerfect Corporation and Novell had a technology where they could leverage more than WordPerfect, the word processor, they could -- because once people had used WordPerfect, they had a look and a feel or a way in which the product acted. There were behaviors and features that they had there.

If they could leverage those features into products that they were writing for their own consumption or for their own sale to other place, that would be to their advantage, so that their users would not have to be retrained in that, and so they would have the opportunity to write applications internally that would be congruent with the way WordPerfect was using its interface. So, yes, these were customers of WordPerfect. They weren't constrained to that, but they definitely were that as

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well.

Q: Well, my question, Mr. Harral, was this. In this period of late 1994, after you say you found out that Microsoft was going to withdraw support for the fourth NameSpace extension API's and into 1995, do you remember speaking to any particular specific customers?

A: Those requests came through the support organization to us, so that we would be able to finish our work. Just like we had premier support at Microsoft, WordPerfect had support that they would field those questions with, and then, as those escalated, if they needed to talk to us, then they would come to us as well.

Q: Right, but the customers would be talking to other people, ordinarily, within Novell. They would be talking to the support group at Novell?

A: Yes.

Q: Correct?

A: Unless they needed to talk to somebody on our team.

Q: And my question was, do you recall any conversations with a specific customer, from the period October, '94 and into 1995, about what customers wanted or anticipated from WordPerfect or PerfectOffice or Quattro Pro?

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A: I was not part of the conversations for those customers.

Q: All right. So, when you testified last Thursday that you had some understanding about what the customers wanted --

A: Uh-huh.

Q: -- that understanding was gained as a result of discussions you had with other people at Novell?

A: Yeah, the developers on my team who had talked to those people, yes.

Q: Right. You, yourself did not talk to them?

A: Nope.

Q: All right. I just wanted to be clear about that. Now, I also just wanted to ask about meetings, face-to-face meetings which you had with people from Microsoft.

A: Okay.

Q: On Thursday -- Thursday you testified about one meeting in 1993. Do you remember your testimony?

A: Uh-huh.

Q: Is that a "yes," sir?

A: Which is -- okay there was a meeting in 1993 that we had with Microsoft at the WordPerfect campus.

Q: I'll show you the document --

A: Thank you.

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Q: -- in just a moment.

A: Okay. Thank you.

Q: Sure. Sure. It was Plaintiff's Exhibit 105. But I wasn't entirely clear. I thought you said last week that you remembered no other face-to-face meetings that you, personally, ever had with anyone from Microsoft Corporation. Am I right?

A: No. I think I said that I don't remember a face-to-face meeting discussing the API's.

Q: All right.

A: Because I did have a meeting -- for example, we were licensing the True Type technology, and I did have a meeting with Microsoft about that. So, there were meetings with Microsoft, but not about those API's after they were not available.

Q: Okay. Let me see if I get this one right. I'm going to try. In the period from, let's say, June 9 or 10 of 1994, which is when I think you said you received the documentation for the NameSpace extension API's in the first Beta, remember that? So, from June of 1994, until the time you went to Corel, in 1996, am I correct that you don't remember any face-to-face meetings with Microsoft about Windows 95 or the API's in Windows 95?

A: I did not have a face-to-face meeting. That's the reason I don't remember. I did not have a

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face-to-face meeting with them about these API's.

Q: I'm sorry. I may not have heard that correctly?

A: I did not have a face-to-face meeting with them about these API's after we learned about that in October.

Q: Okay. There were no meetings?

A: None that --

Q: Am I right? No meetings that you participated in?

A: There were none that I participated in.

Q: Okay. Just wanted to be clear about that. And let's go back and look just briefly, if we can, at Plaintiff's Exhibit 105. This was the document that you were shown in your direct examination last Thursday morning. Do you remember this, Mr. Harral?

A: Uh-huh.

Q: Is that a "yes," sir? Again --

A: I'm sorry. Yes, I do.

Q: And I'm sorry to pester you. I just wanted the record to be clear.

A: No. That's fine.

Q: Okay. Now, this is an e-mail written by someone at Microsoft in November, 1993, correct?

A: Yes.

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Q: And it reports on a meeting -- well, sorry. Let me back up for a second. The e-mail that I'm referring to is from David C-O-L, and then on the two line, there are five or six e-mail aliases. Do you see that, sir?

A: Yes.

Q: Okay. And, right at the beginning it says, Jeff T, Brad S-T-R and I went to WordPerfect last Thursday?

A: Okay.

Q: Do you see that, sir?

A: Uh-huh. Yes.

THE COURT: Yes?

A: I'm sorry. Yes, I do. Sorry.

Q: I'll try --

A: You'll teach me eventually.

THE COURT: As far as I'm concerned "uh-huh" was okay. I just didn't want Mr. Tulchin to --

THE WITNESS: Okay.

MR. TULCHIN: I was trying to help the court reporter, Your Honor.

THE COURT: I know. I appreciate that.

Q: BY MR. TULCHIN: Mr. Harral, my question to you is, do you remember this meeting specifically?

A: I do remember this meeting.

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Q: Above and beyond the notes in the e-mail?

A: Yes.

Q: And did you speak to anyone named Brad Struss from Microsoft during that meeting?

A: I did.

MR. WHEELER: Your Honor --

JUROR: We can't hear.

THE WITNESS: Hello. Okay.

THE COURT: Thank you.

THE WITNESS: I do not remember the names of the people that were in this meeting.

Q: BY MR. TULCHIN: All right. Subsequent to November, 1993, to the best of your memory, did you ever have any conversations about any topic whatsoever with Brad Struss, S-t-r-u-s-s, of Microsoft?

A: The answer is I don't -- I don't know if I ever talked to him again.

Q: You have no recollection of doing so?

A: No. I don't -- that doesn't mean that I had the names of the people that I talked to at Microsoft. I do not know if any of the people that I talked to was this person.

Q: All right. Were you aware, in the period of 1994 to 1996, as best as you can remember, were you aware what Mr. Struss' job was or what his responsibilities

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were?

A: No.

Q: And how about David Cole? Do you remember what he did at Microsoft?

A: I don't. I don't know.

Q: Do you remember ever talking to Mr. Cole about the NameSpace extension API's or anything else subsequent to November of 1993?

A: I don't know if any of the people that I talked to was a Mr. Cole.

Q: All right. And to be clear, again, the only people you talked to from Microsoft were people from premier support who answered your calls, correct?

A: Except for when we would attend, like, the developer conference at Microsoft, yes. Any of the other interactions we had were with premier support or people that they would bring to the calls that we would be on.

Q: Right. And in these calls with premier support about the development of Windows 95 and the API and the name space extension API's, you don't remember the names of any of the people at Microsoft with whom you spoke?

A: No.

Q: Okay. Now, I want to look briefly, if we can, as well, at Plaintiff's Exhibit 113, which you were also shown last week. This is the first page.

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A: All right.

Q: Do you remember this, sir?

A: I remember seeing this -- these pages.

Q: Last Thursday?

A: Yes.

Q: Okay. If you need a hard copy, just let me know, and I'll bring it to you.

A: It will be okay.

Q: And I think you testified that you were aware, at the time, that there had been such a meeting?

A: Yes.

Q: Correct?

A: That is correct.

Q: But you said you didn't attend the meeting?

A: I did not attend the meeting.

Q: Is it correct, Mr. Harral, that you weren't invited to attend that meeting?

A: That is not correct.

Q: I see.

A: I had -- I had responsibilities at that time for a product that was shipping out and so I was unable to attend.

Q: All right. Do you recall seeing any e-mails or memos or other documents written by any of the Novell people -- I'm sorry -- I should say WordPerfect people.

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A: Uh-huh.

Q: This was before --

A: It was.

Q: -- Novell acquired WordPerfect. Let me back up and do it again.

A: That's fine.

Q: My error.

A: Okay.

Q: Do you remember any e-mails or memos or other documents written by anyone at WordPerfect, who actually attended this meeting, reporting on anything that Mr. Belfiore of Microsoft had said?

A: Glen Monson did. He was the main person who wrote the summaries for people to consume afterwards, and so he was the one that I recall wrote the summary about this, which sparked the discussions that I had with other people about these topics.

Q: Do you know what happened to that report that he wrote?

A: As I said, I do not have access to the e-mal system for the corporation, so, no, I don't know what happened to it.

Q: And, again, at least as far as I'm aware, we have never received any such report of that meeting. Do you know what might have become of it?

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A: It's probably in the place where the lost socks go.

Q: Somehow in the dryer?

A: Uh-huh.

Q: Maybe the memos are there. Okay. And just to be clear about premier support for a minute, premier support was a hotline that Microsoft set up for developers, correct?

A: Yes.

Q: Outside developers, what we sometimes call ISV's?

A: That was my understanding.

Q: And an ISV had to pay some fee, an annual fee to get access to this hotline?

A: Yes, it did.

Q: And the people at Microsoft who answered the hot hotline were software engineers, correct?

A: That was my understanding.

Q: All right.

THE COURT: To remind the jury, I'm sure they remember what an ISV was, what, an independent software vendor?

MR. TULCHIN: Yes, sir. Thank you, Your Honor. Appreciate that. There are a lot of acronyms.

Q: BY MR. TULCHIN: And, Mr. Harral, there was

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also something called the systems group at Microsoft, correct?

A: I don't recall that. Do you have more about what you're talking about?

Q: All right. Well, regardless of what it was called, there was an entire group of Microsoft employees whose job it was to develop operating systems for the company, operating systems like Windows 3.1?

A: Uh-huh.

Q: And Windows 95, correct?

A: Yes.

Q: And my question to you, sir, is, I gather, from your testimony, that you never spoke to any of the people in the systems group, the people who were actually designing and developing new versions of Windows?

A: No. I actually had opportunity on two occasions to speak to people in the systems group.

Q: My question maybe should have been clearer. You never spoke to people in the systems group about the NameSpace extension API's?

A: That is correct.

Q: Okay. My fault.

A: No.

Q: It was a tail end to the question which I just forgot.

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A: Okay.

Q: And is it your understanding, Mr. Harral, that there were people at Novell, again in the period, '94 to '96 --

A: Did you say "were" or "weren't"? I'm sorry.

Q: There were.

A: Okay.

Q: There were. There actually were people at Novell, during this same period, two-year period, '94 to '96, who, from-time-to-time, had occasion to talk to the systems group at Microsoft?

A: I don't know.

Q: And were you aware, sir, that during that same two-year period, Mr. Frankenberg, the CEO of Novell, from-time-to-time communicated with Bill Gates, who was then the CEO of Microsoft?

A: I do not know that.

Q: That was certainly sort of way above your pay grade? Is that the way to say it?

A: Mr. Creighton may have been aware of that, but I was not.

Q: Okay. Fair enough.

May I approach the witness, Your Honor?

THE COURT: Yes. You all can always approach witnesses without having -- without asking my approval.

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If I think you are harassing a witness, I will be the first to tell you.

MR. TULCHIN: Thank you, Your Honor.

Q: BY MR. TULCHIN: Mr. Harral, I've handed you a copy of what's been marked as Defendant's Exhibit 172. Do you see this, sir?

A: I do.

Q: And this is an e-mail from someone named Scott Nelson. Do you remember Mr. Nelson?

A: I do not.

Q: Mr. Nelson worked at Novell in 1995, am I right?

A: I as I said, I don't know Mr. Nelson.

Q: Do you know whether Mr. Nelson was a software engineer at Novell?

THE COURT: He doesn't know Mr. Nelson.

THE WITNESS: I don't.

Q: BY MR. TULCHIN: Okay. Fair enough. So, it would be fair to say, as well, that you don't know about the contacts that Mr. Nelson was having with people at the systems group in Microsoft?

A: That's correct.

Q: Okay. Well, let me just ask you to look at Exhibit 172, in the third paragraph. And first, just to point out, this is an e-mail from April 7, 1995.

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A: Uh-huh.

Q: And among the people copied there are Glen Mella, Glen M at Novell. Do you see that?

A: Yes, I do.

Q: Do you remember Mr. Mella?

A: I know of him.

Q: All right. And then there was Todd -- was that Todd Titensor of Novell?

A: I don't know.

Q: All right. In any event, if you look the third paragraph. Mr. Nelson writes this e-mail in April, 1995, and he says, "Second, we are now at a point where Win 95 development is our highest priority."

Do you see that, sir?

A: I do see that paragraph.

Q: And, Mr. Harral, does that refresh your memory that it wasn't until about April of 1995 that Novell made development for the Windows 1995 platform a high priority?

MR. JOHNSON: Your Honor, objection. He doesn't even -- hasn't even established that he knows anything about this e-mail.

THE COURT: I know that, but he's just using the document as -- if it refreshes his recollection, it does. If it doesn't, it doesn't. By whatever source.

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THE WITNESS: Okay. Please restate the question.

Q: BY MR. TULCHIN: Sorry. Mr. Harral, does this refresh your recollection that it wasn't until about April of 1995, that Novell made Win 95 development its highest priority?

A: That's not true. It does say here that, at this point, it is our highest priority, but it doesn't say that it begins to be our highest priority. In the shared code group, we -- as I said before, we would be six months to a year in advance of the applications. The Novell had visibility into what -- what shared code did through the applications. The applications were the things that drove what was being marketed outside for the business.

Now -- and so, many times, the communication to upper management about what was happening in shared code would come through the lens of the applications. Down inside of -- as I said before, shared code had to be there long before the other applications could move onto the platform. So, for us -- I do note that Tom Creighton his raised the issue with -- and that information did make its way to Microsoft, that I think the quote that he had is there would be hell to pay if these application API's were removed.

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And he did show me that, his survey, when he forwarded that because we knew, at that time, that that was going to be a big deal, and our management knew that that was a big deal. So, within shared code -- I can't speak for the other applications, but within shared code, this was an issue of the highest priority back in October. And it -- as the critical path raised to surface that it would impact the applications, it would become more and more prominent with them as well.

So it is true here that he says that it is at this time our highest priority, but it doesn't say that it begins to be our highest priority on this date.

Q: Okay. And, Mr. Harral, I want to just point out the next couple of sentences, just skipping one sentence. You're free to read it, of course.

A: Uh-huh.

Q: But Mr. Nelson goes on to say, "We have discovered many problems. Many of them are system problems. The good news is that the cooperation between Microsoft and Novell has been very good."

A: Okay.

Q: Do you see that, sir?

A: I do.

Q: And my question here is, just so that we're clear about something --

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A: Uh-huh.

Q: -- there may have been other people at Novell, people other than yourself --

A: Uh-huh.

Q: -- who were dealing with Microsoft, maybe dealing with the systems group at Microsoft?

A: Uh-huh.

Q: And getting very good cooperation from Microsoft, correct?

A: Yeah. If they weren't asking about the shell API's, I'm sure they were.

Q: All right. And if they were getting good cooperation, that's something you're not aware of?

A: That's right.

Q: And you didn't talk to the systems group people at Microsoft?

A: Nope, was never given an opportunity to do so by the premier support people, unlike in the past.

Q: Well, Mr. Harral, there's always a telephone number to call, for instance, Mr. Struss who visited you in 1993?

A: I do not know his name.

Q: Well, you were at the meeting when he was there?

A: I said, I knew that I was in a meeting with

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people, and we had a discussion.

Q: And Mr. Cole was there?

A: Uh-huh.

Q: And you could certainly have reached out and made a telephone call to either one of them at any time during this two-year period?

MR. JOHNSON: Objection, Your Honor. Argumentative.

THE WITNESS: No, I could not.

THE COURT: Sustained.

Q: BY MR. TULCHIN: Okay. Mr. Harral, am I right that, on the occasions where there were business issues between Novell and Microsoft, that, very often, senior people of the two companies would meet or talk or correspond to try to work out those issues?

A: I heard people speak of such things. I'm not aware of them actually happening.

Q: Okay. And let's look at Exhibit 105 a minute. I just want to -- you said a moment ago that, at a certain period, you were busy. This was the at the Belfiore meeting. You were busy trying to get out some product?

A: Uh-huh.

Q: And just to try to set the time -- I'm sorry -- just to set the time period again, the meeting that you

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did attend was in November of 1993?

A: That's correct.

Q: And when was that meeting that Mr. Belfiore had, where that material was presented, the meeting that you did not attend?

A: I'm unaware of exactly when it was.

Q: Do you know if it was before or after this meeting?

A: It would have been before this, I think. I'm not certain of that, but I think it would have been before.

Q: Now, around the end of 1993, WordPerfect, which had not yet been acquired by Novell, was very busy working on other products, correct?

A: Products other than what?

Q: Well, products other than the one that you were planning to run on Windows 95?

A: Yes.

Q: And WordPerfect 6.0 for Windows had come out in October, 1993; is that right?

A: I -- that sounds correct, about that time frame.

Q: And that was a product that people at Novell often recognized was not received well in the market, correct?

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A: I don't know what the Novell people felt about it.

Q: Do you remember documents at Novell -- I'm sorry. At WordPerfect. I made the same mistake -- saying that WordPerfect 6.0 for Windows was slow and buggy?

A: I remember some people, some trade magazines saying that they felt that way.

Q: And how about internal documents at WordPerfect?

A: I don't recall there being any comments about 6.0 over, I guess, any other initial release that we would do. But, yes, there were comments like that. There were comments like that for, I think, each of the releases that we did in working with customers going through the release process

Q: All right. Let's look just very quickly, if we could, at Defendant's Exhibit 259. This is a document entitled WordPerfect For Windows Eliot. And it's just after the meeting which was in November, 1993. It's December, '93.

A: Okay.

Q: Do you remember this, Mr. Harral?

A: I don't. I didn't work -- I was in the shared code team. I didn't work for the WordPerfect for Windows

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product team.

Q: And looking at the third page of the document, the page that says page 2 at the bottom. You'll see at the top there is a bullet point that says improved speed and reliability.

A: Okay.

Q: And if you need a hard copy, just let me know.

A: Okay.

Q: Do you see that?

A: I do see that.

Q: Does this refresh your recollection that people at WordPerfect were recognizing, at the time, in late 1993, that WordPerfect 6.0 for Windows was considered by the press and many users as too slow, as compared to the competition, and containing too many bugs to be considered sufficiently stable?

A: I don't -- like I said, I didn't work on the WordPerfect team for the product, so I -- whoever wrote this, I believe that they -- that that's true, that they felt that way.

Q: All right. And do you recall that, in 1994, Steve Weitzel -- Steve Weitzel was the guy working on WordPerfect for Windows, correct?

A: He was the WordPerfect for Windows word processor manager.

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Q: Did you attend a meeting that was held outside in early 1994, that Mr. Weitzel convened, to talk about the problems of WordPerfect for Windows?

THE COURT: Wait a second.

MR. JOHNSON: I didn't get a copy of that Exhibit.

MR. TULCHIN: That is an oversight, Your Honor. I beg your pardon.

MR. JOHNSON: Sorry.

THE COURT: That's okay.

MR. TULCHIN: You are absolutely right. My apologies.

MR. JOHNSON: Thank you.

Q: BY MR. TULCHIN: Mr. Harral, just to go back --

A: Yes.

Q: -- WordPerfect 6.0 for Windows had come out in October, 1993, and we just looked at a document about the product.

A: Okay.

Q: And my question now is, do you remember a meeting that Mr. Weitzel held outside, maybe in the parking lot, in early 1994, to talk with developers about the problems in making a good word processor that would run on Windows?

A: I don't recall that.

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Q: All right. And do you recall that, in this same period of late 1993, into early 1994, WordPerfect was scrambling to try to fix these problems, the fact that the product was considered slow and too buggy to be sufficiently stable?

A: I wouldn't know that because that would be the product team, and I wasn't a part of the product team.

Q: All right. Do you remember a product called WordPerfect 6.0A?

A: Yes. I think there was a release of WordPerfect called 6.0A.

Q: And that was around April of '94?

A: I wouldn't know.

Q: Okay. Do you recall that that was an effort to sort of patch WordPerfect 6.0 to try to fix some of the bugs?

A: I wouldn't know.

Q: Okay. Fair enough. Do you recall that, until around May of 1993, WordPerfect had no suite that it had marketed?

A: 1993. I don't know when they looked at that.

Q: All right. And do you recall that, when WordPerfect first developed a suite, I think it was called Borland Office 1.0. Do you remember that?

A: I do remember Borland Office.

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Q: And do you recall that that was a suite that was marketed in collaboration with Borland, the company in California?

A: I do.

Q: And it was before Novell or WordPerfect had acquired Quattro Pro?

A: Yes. I think it was.

Q: And do you recall, as well, that, in 1993, when that first suite came out, Borland Office 1.0, people at Novell recognized that that product wasn't --

THE COURT: Do you mean Novell?

MR. TULCHIN: Sorry. WordPerfect. Thank you, Your Honor, I did it again.

Q: BY MR. TULCHIN: -- people at WordPerfect recognized that that product was not well received either?

A: I am unaware of that. I don't recall any consternation about the Borland Suite while I was at WordPerfect.

Q: You do recall, do you not, Mr. Harral, that, last Thursday, Mr. Johnson showed you, at the back of Exhibit 390, Plaintiff's Exhibit 390, some excerpts from some reviews that were appended to that document. Do you remember that?

A: I remember reviewing things for PerfectOffice

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30. I don't remember any reviews about the Borland Office.

Q: I'm just asking about Exhibit 390. You looked at that last Thursday?

A: Can we -- which?

THE COURT: Show him again.

THE WITNESS: Can you show me again? I'm sorry.

MR. TULCHIN: Can you just put the 390 on the board?

Q: BY MR. TULCHIN: Do you remember this document? It was PerfectOffice 3.0. And that product actually was released to the market at the very end of 1994, correct, December?

A: Yes. PerfectOffice was released then.

Q: Okay. Good. And am I right, Mr. Harral, that throughout 1994, WordPerfect, and then Novell when it took over in June of 1994, were working fast and furious to try to get out on the market some products that would live up to the WordPerfect standards to run on Windows 3.1, WordPerfect and PerfectOffice 3.0 and Quattro Pro?

A: I recall that the applications divisions were working very hard to produce products for that platform. That's about all that I understand about that. I wasn't on those teams.

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Q: All right. So, during the calendar year 1994, while WordPerfect and then Novell were working on these new products, and PerfectOffice 3.0 came out in December of that year, you don't remember specifically what they were doing, but you do remember that they were working very hard to come out with new versions of this software to run on Windows 3.1; is that right? They were working very hard to produce versions of software for Windows.

Q: And, all through that year, that was the period when the NameSpace extension API's were first documented in June in the beta release, and then when, in October, Microsoft said that it would withdraw support for them, correct?

A: June of '93 versus?

Q: '4.

A: No. We had the information in June of '93, because then they told us in June of '93 about -- that's June of 93 to October of '94. That's the year, as I recall.

Q: Well, actually, not, Mr. Harral. My question was, the first documentation you received, in the first Beta for Windows 95, came to Novell or WordPerfect --

A: Okay. That would -- okay. I thought you said when we knew about --

Q: In June --

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A: I'm sorry. I misunderstood. We knew about when they came and visited us, and we had information at that point, which is November.

Q: That was November?

A: of '93. Okay. They didn't withdraw until October of '94. We've got almost a year there from that time.

Q: Well, but, Mr. Harral, you didn't have any documentation about these API's until June 9 or 10 --

A: That's correct.

Q: -- right, of '94?

A: But that does mean we weren't working on it.

Q: Well, you certainly couldn't be working to write code to run on those API's when you didn't know anything about the API's, correct?

A: That's not true. That's not true.

Q: That's your testimony?

A: Right. My testimony is -- my testimony is, that I've talked before about how WordPerfect had a long history of working on engines and code that would tie into certain things. We still had already been working, like for WordPerfect, they had been working on 32 bit applications in Next, in Os2, and they had years of experience already working in those areas. We had years of experience already working on our -- on our image

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browsing because we had already done that. We had already done viewers. This was code that was an engine that, in fact, you would show where Chuck Middleton was the head of the -- all of the things that were exterior for shared code, he was tasked with having all of these things that were outside of shared code coming into it. And these were things this had been worked on for a long time.

The only part that we are talking about, then, is, how do we tie this working system into these API's, which should be a small amount of work. So, yes -- so, to characterize the effort, if we are talking about, had we worked on anything? Yes. These things were solid and working in other platforms and were already running in those platforms, and we were going to move them like we had, for almost a decade before, about engine versus libraries. And so we had a lot that was already working and going to run.

Q: And I think you just said in your answers that, until you got the first Beta in June of '94, and the documentation, you couldn't do anything, write any code to tie into --

A: To the libraries.

Q: -- those API's.

A: -- that is correct.

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Q: Okay. Thank you, Mr. Harral. Maybe my question hadn't been phrased properly. Thank you for your answer. And am I also right, Mr. Harral, that, in your prior answer, just a minute ago, you said that doing that work, to tie into the NameSpace extension API's, was something you could do very quickly?

A: From the representation that we had from the Microsoft representatives, it should not take us a long time to be able to move that code to tie into what they had described would be available to us.

Q: Okay. So, actually writing code to tie into these NameSpace extension API's was something you could have done in, what, a day or two?

A: No, but I would anticipate that a developer, given a month, should be able to work out the issues of tying in their feature to leverage all of the code that had already been written inside of the Windows 95 shell.

Q: And did that happen? Did Novell, in 1994, write all the code necessary to leverage all the features that Microsoft was providing in the Beta?

A: I did not work on each of those. We had -- I know of problems with us not having -- okay. So, did we tie into them? Yes. Then there's the question of testing it through to see if everything works right, and

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so, to my knowledge, they had been tied in, and they were being used before October of '94.

Q: Okay.

Let's look, if we could, at Plaintiff's Exhibit 181.

This is a document that you were shown last week. And I think you pointed out, Mr. Harral, that at the very top, you'll see the numbers 06/09/94. Right?

A: Yes.

Q: And that's meant to stand for the date June 9, 1994, correct?

A: Yes. That's the release of this file, that build.

Q: Am I right, Mr. Harral, that Plaintiff's Exhibit 181 is a printout of what would have been given to WordPerfect or Novell on a disk?

A: Yes. It's the computer description of trying to tie into the API's, not the documentation for people.

Q: Right. And the disk itself would have contained the entire Beta, what's called the M6 Beta?

A: Yes.

Q: And the disk itself would have contained some other information as well, like the reviewers' guide. Is that right?

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A: I'm not familiar if that, there was other information on that disk as well. There were some samples for different pieces, but the -- what we would consider the API documentation was not there yet.

Q: Mr. Harral, we'll put the first page on the screen, but --

A: Okay.

Q: I'm handing you Plaintiff's Exhibit 388. This is a Novell exhibit in the case.

And, Mr. Johnson, here's one for you. Sorry I forgot the last time.

And just take a minute to look at this. The document itself is quite thick, but, just for the moment, I want to focus on the very first page.

A: Okay.

Q: Plaintiffs Exhibit 388. Do you remember that this came on the same disk that you were provided in June of '94? By "you," I should say WordPerfect and Novell was provided in '94, June of 1994?

A: I did not see this guide.

Q: All right. Do you know whether or not the Windows Chicago reviewers' guide -- and then beneath that it says Beta 1 --

A: Yes.

Q: -- came to Novell and WordPerfect along with

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the disk that we talked about earlier, the same disk that had Plaintiff's Exhibit 181 on it, that we -- that you printed out?

A: As I said, I have not seen this guide before, so I don't know. I don't know if it was there or not.

Q: Okay. And if I could draw your attention just to the first page -- well, let me stop for a minute. This is clearly something that Microsoft wrote. Do you agree with that?

A: Yes. It says at the bottom -- okay. I see Microsoft on it. Yes.

Q: And it was something given to ISV's, independent software vendors?

A: Yes.

Q: With the Beta release, is that your understanding?

A: From what you said, yeah, this looks like it would be intended for them.

Q: I just want to direct your attention, if I could, to the paragraph just under Beta-1.

A: Yes.

Q: And it says there, "The information discussed in this guide is based on features and functionality present either in the Beta-1 release of Chicago or planned for a future release."

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A: Yes.

Q: "The discussion of Chicago herein does not represent a commitment on the part of Microsoft for providing or shipping the features and functionality discussed in the final retail product offerings of Chicago." Do you see that?

A: I do see that paragraph.

Q: And was it not your understanding, in 1994, that this was exactly the case, that the Beta was being provided to ISV's under these terms, that there was no commitment by Microsoft to provide any particular features or functionality included in that Beta?

A: Okay. So, that is an interpretation that could be given to this paragraph. The way that the software industry works is that you get your partners on board, and you help them build their products. If you're of the habit, which Microsoft was not, of removing API's, then you're not going to have a very successful launch of your operating system if those partners are not able to be there.

And so, my understanding here, with this language, is that they are stating more along the line of, if there's a behavior and it's a recycle bin that we are going to do something else, you better be aware that you may have to change.

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We have never had an instance before, where a feature was removed. It is more a language of, these things may still change. And that's how we interpret this kind of language, as developers.

Q: Well, when you say "we" in your answer, you used the word "we" --

A: The shared code group.

Q: -- several times. You are referring to yourself. You are not testifying --

A: And the shared code group.

Q: Mr. Harral, I mean, clearly, you're not here to testify for other members of the shared code group, right, you're testifying for yourself?

A: I am testifying as the architect of what we acted upon in the shared code group, being the Architect of the group.

Q: Well, let me go back to my question, then, if I can. In your last answer, when you said "we" understood certain things, are you speaking, then, for you and the three people who worked for you, the three software engineers who we saw in Exhibit 372?

A: I am speaking for the people that worked under Tom Creighton, as the architect for that entire group.

Q: And it's your testimony here today, in 2011, Mr. Harral, that you can speak for all those people and

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what they thought and understood back in June of 1994?

A: My understanding of what we discussed is what I have represented.

Q: And, Mr. Harral, in the answer you gave a couple of moments ago, I think you said that, as far as you knew, Microsoft had never removed a feature in an operating system before?

A: To my knowledge.

Q: To your knowledge.

A: That's correct.

Q: But, didn't you tell us a few minutes ago that you hadn't worked on the products that WordPerfect wrote for Windows, including WordPerfect 6.0, which was released in 1993?

A: Uh-huh.

Q: Right?

A: Yes.

Q: You didn't work on that?

A: I did not work on that.

Q: And you didn't work on Borland Office 1.0 that came out in May of '93?

A: That's correct.

Q: And you didn't work on any of those products that were written to run on Windows 3.0 or Windows 3.1?

A: I did not write any of the code for those

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products. I was an architect for, and a consultant because that was one of the roles I had, so -- and I said that the shared code team did maintain most of the linkages from the engines, which those are engines, into the Windows platform. And so, if a Windows API had been removed, I would probably know about it because we were the ones that brokered those engines into the platform.

So, no, I did not write the code on those products, but if something would have moved in the operating system, I would have known about it.

Q: Well, I think you said "probably" in your answer, and I just want to be very clear.

A: Okay. So, I said --

Q: Could I ask the question?

A: Sorry.

Q: Thank you. Sorry. Didn't mean to interrupt, but just trying to go one at a time.

A: I understand.

Q: Sitting here today, you don't know whether or not Microsoft may have made changes between Beta versions of Windows 3.0 and the final product or Beta versions of Windows 3.1 and the final product. Am I right? You don't know?

A: I don't know if there were changes that were made that they removed functionality. I never came

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across an instance of that.

Q: So, it's certainly not your testimony that it never happened, it's your testimony that you never came across it?

A: It's my testimony that it never happened in the shared code group.

Q: Well, again --

A: That I would have known. I would have known if it was the shared code group.

Q: Yes, but you weren't working on the products themselves that were written to those operating systems.

MR. JOHNSON: Objection, Your Honor. Cumulative. Argumentative. We've been through this.

THE COURT: I think he's finished. Go on to something else.

Q: Mr. Harral, last week you talked a little bit about critical path, and you said that the work of the shared code team, the work you were doing, you and others, was a critical path, in order to get out products for Windows 95, right?

A: Yes.

Q: Now, for PerfectOffice, the suite, it was also critical path that Quattro Pro be ready; is that right?

A: No. I don't know if it was or not. I know that it needed to be ready, but whether it was critical

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path, I don't know that.

Q: Well, let me ask the question this way, then, Mr. Harral. A suite, like PerfectOffice, always included a spreadsheet, right?

A: I can't think of one than didn't.

Q: All right. That would -- that would include Office always had Excel in it, right? And Borland Office or PerfectOffice always had spreadsheet functionality that was provided by Quattro Pro, true?

A: I think so. I'm not familiar with the history of the evolution of what they had done with the suites, but, yeah, let's say that there's always been a spreadsheet there.

Q: All right.

A: All right.

Q: Do you know what the status of development was -- well, let me back up for a minute. The Quattro Pro product was purchased by Novell in June of 1994 from Borland, right?

A: Right.

Q: And Borland was located in California?

A: Uh-huh.

Q: Somewhere in Silicon Valley, not too far from Palo Alto or San Jose, right?

A: Yes.

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Q: And when Novell purchased the Quattro Pro product, the software engineers, who were working for Quattro Pro, stayed there in California, right?

A: Yes. Novell had -- Novell had a campus there, and they were comfortable having Quattro Pro people remain in California.

Q: Right. As of late 1994, or 1995, did you have any understanding of how the Quattro Pro people were progressing in trying to write a version of Quattro Pro for Windows 95?

A: I don't.

Q: Did you have any understanding of what problems they were trying to confront?

A: No. The Novell wanted Quattro Pro -- just as they wanted with WordPerfect when they acquired WordPerfect, they wanted WordPerfect to not be interfered with the process of trying to get the suite out and integrating it, you know, with the company and with other people. So, it was my understanding that we were kind of a little bit removed so that we could concentrate on the task at hand.

My understanding of Quattro Pro was that they would have some autonomy that they could also concentrate on getting their product out and not be interfered with from outside influences for awhile from Novell. That was

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my understanding.

Q: And, Mr. Harral, just so that I understand this, and I hope this isn't repeating what you just said, but in late 1994 and 1995, there was no way to get a suite out onto the market, a suite for Windows 95, until you had something ready to go from Quattro Pro?

A: I wouldn't think so. I don't make those decisions, as you have pointed out, so I don't -- I would assume that they needed to have a product ready. All of us have to have a product ready.

Q: I wonder if I could show you Exhibit --

THE COURT: Okay. Go ahead. If the court reporter needs a short break again, that's fine. Or somebody. In any event, it doesn't matter. We'll take a -- we'll take a short break. And I'm ready any time, I can go.

(Short break.)

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(10:10 a.m.)

THE COURT: Please be seated.

THE CLERK: Are we ready?

THE COURT: Absolutely.

(Whereupon, the jury returned to the courtroom.)

THE COURT: Sorry to bother you with a scheduling issue which really wasn't ripe yet, but a break for everybody doesn't hurt anybody.

Mr. Tulchin?

MR. TULCHIN: Thank you, Your Honor.

Q: (By Mr. Tulchin) Mr. Harrol, I am going to hand you Defendant's Exhibit 98?

A: Thank you.

Q: Um, which I have given to Mr. Johnson. And just ask you for the moment to look at the first page. Do you recall in 1995 seeing this document or documents like it?

A: Let me have a second here. I recall some documents like this.

Q: And this particular document says product Thunder. Do you see that, sir, on the first page?

A: I do see that.

Q: That was a code name used at Novell at the time, correct?

A: I don't recall that but, um, possibly called Lightening. It is very possible that they called it that.

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Q: Mr. Harrol, do you recall that the code name Thunder was used to describe the WordPerfect product that was under development?

THE COURT: It is fine to represent that but that is true.

MR. TULCHIN: I do represent that Thunder was used to refer to WordPerfect.

THE WITNESS: Okay.

Q: (By Mr. Tulchin) The product that was being under -- that was under development at the time. And Sid Cragun, do you remember him, he was a software developer?

A: I remember Sid Cragun. He was the developer on the WordPerfect team for shell integration.

Q: Okay. And he is writing a document talking about shell integration on the Thunder product the WordPerfect product for Windows 95?

A: WordPerfect word processor for Windows 95.

Q: Right. And this concept design specification document was a document that was written and modified from time to time to describe where in the development process Novell was, am I right?

A: I don't -- I don't know with -- I don't know what WordPerfect did for the documentation of their -- of their process.

Q: I see. I guess I should ask you then, in the

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shared code group did you or any of the three people who worked for you from time to time prepare similar documents perhaps with the same type of title concept design specification for what you were working on?

A: I don't know. That would have been at Tom Creighton's level, and I don't know who he had prepare documentation for these things.

Q: Okay. Do you remember seeing concept design specifications prepared in the shared code group, someone working for Tom Creighton in '94 or '95?

A: I recall that the file open systems had concept design documents.

Q: Do you know what became of those?

A: I don't.

Q: Um, in connection with --

MR. JOHNSON: Your Honor, objection. Those are exhibits in this case. What became of those as though they disappeared.

THE COURT: Well, we'll take that up when it comes up. But right now the objection is overruled. Go ahead.

Q: (By Mr. Tulchin) Mr. Harrol, just --

THE COURT: Obviously something that is an exhibit in this case or was kept and given to Mr. Tulchin, a design exhibit maybe it isn't, so we'll find out.

Q: (By Mr. Tulchin) Maybe I should be more precise

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in my question. Do you know how often the concept design specification that was written in the shared code group was modified or amended?

A: I don't know.

Q: Um, do you recall seeing any such documents in connection with your preparation that you did for your testimony here?

A: A concept design document for shared code?

Q: Yes.

A: I don't recall one. Do you have one?

Q: Well, Mr. Harrol, um, this document --

THE COURT: I'm going strike that answer.

THE WITNESS: Okay, I sorry.

Q: (By Mr. Tulchin) Let me ask my question if I could, Mr. Harrol. This document, Exhibit 98, apparently written by Mr. Cragun in February of 1995?

A: Yes.

Q: Was this something that you think you saw in 1995?

A: I don't know if I saw the document. I know that there was discussions that we had with Sid Cragun that could have led to documents like this.

Q: Could I ask you to look at the very last page of Exhibit 98. And at the top there is the word "procedures" and then underneath it says, "filing instructions". "A

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printed copy should be signed, witnessed and filed with the project director. An electronic copy should be placed in the product directory on the network at a particular address." Do you see that?

A: I see that.

Q: Was the same requirement in effect for any concept design specifications or similar documents that were prepared in the shared code group?

A: I don't know.

Q: And you don't remember writing any yourself?

A: No, I did not. It would have been the purpose, it would have been the responsibility of the developers, which Mr. Cragun is. It would have been the responsibility of them to produce one for each of the areas that they had responsibility because the architect I would not have enough depth in their individual features to be able to -- I'm fine to consult with them, but I would not have been the one to produce the documentation.

Q: All right. And Mr. Harrol, thinking about the period let's say from October 1994 and going forward let's say about six months, so I am just directing you to October, November, December 1994 into the first three months of '95, let's say to April 1st, '95?

A: Okay.

Q: In that period, do you recall writing any e-mails

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or memos to any of your superiors at the company in which you lay out what the impact might be on the shared code group or any of the work you were doing of Microsoft's decision to withdraw support for the namespace extension APIs?

A: I'm trying to think because I -- I didn't find out that they were withdrawing them. I didn't talk about them. Um, the -- they never told me they were withdrawing them. But as far as laying out the consequences of not being able to use them, those are discussions that I had with Tom Creighton and we transacted e-mails about that, we had discussions in his office, we had discussions with other people outside of our group about those impacts.

Q: Well again, Mr. Harrol, um, as far as I know, we don't have any such e-mails?

A: Okay.

Q: So let me try this question, I hope my last one was clear. In this same six-month period, October '94 until about April 1st, '95 --

A: Uh-huh (affirmative).

Q: -- do you remember writing any documents to anyone else at the company about the impact that the namespace extension issue, let's say your inability if you want to call it that to use them, had on any of the work you were doing?

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A: I think I said that I wrote e-mails and those are the documents. So yes, I wrote e-mails to Tom Creighton.

Q: Anything else?

A: Not that I recall.

Q: Um, according to your testimony here in the courtroom, this was an event that was important; correct?

A: Uh-huh (affirmative).

Q: Um, you said last week that around the October timeframe you learned something about the namespace extension APIs. I thought you said that Microsoft was withdrawing support for them, but maybe it was something else. I don't remember exactly what you said about what you learned then.

A: Okay.

Q: But whatever it was, um, according to your testimony this had a big impact on you and the work you were doing?

A: Uh-huh (affirmative).

Q: Is that a yes, sir?

A: Yes. Yes, sorry. Yes.

Q: Thank you. Um, did you personally convey that information to Bruce Brereton, who we saw in Exhibit 372, was the head of the group, the business applications business unit?

A: No, that was Tom Creighton's responsibility.

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Q: Okay. Um, and did you convey it to anyone above Mr. Brereton like David Moon or Ad Rietveld or Bob Frankenberg?

A: No. I never had occasion to do so.

Q: And in the period after April 1st, 1995, let's say for the rest of that whole year, calendar year 1995, do you -- do you recall writing anything, other than the e-mails that you talked about to Mr. Creighton, that sets out the impact on the shared code group or on PerfectFit or on any of the work that you were doing of the namespace extension API issue?

A: Other than the e-mails, there were no documents that I produced.

Q: Am I correct, Mr. Harrol, that when we talk about the namespace extension APIs we're talking about four APIs?

A: No, I thought that I -- I thought that I mentioned that, that there is a difference between -- are we talking about our use of them or are we talking about the documentation of them?

Q: Well, let me back up for a second. The beta version of Windows 95 that came to Novell in WordPerfect in June of '94, had thousands of APIs that were documented?

A: I believe you. I never counted them. I don't know.

Q: You didn't count them. That sounds about right,

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thousands?

A: Okay.

Q: You agree?

A: I would agree that there is probably more than a thousand and probably more than two, so yes, I would agree.

Q: All right. Um, am I right that the namespace extension APIs that were in the subject as far as you knew of Microsoft's decision in October '94 to withdraw support for them, that those were four?

A: No, it wasn't four it was the whole set. They -- I believe they withdraw any because if I am not able to get information from the contacts at Microsoft regarding the other APIs, effectively for me they had to withdraw it as well. And so -- but it still we're still talking about what may be a dozen, maybe two dozen, um, which is still a small set compared to the 2000 plus that you're mentioning.

Q: Well, um, let me just make sure I understand one thing, um, and I will go back and show you the e-mail that you looked at on direct examination. But you spoke last week of the fact that Microsoft and Windows 95 was providing functionality to Novell and other ISVs that allowed you to extend the shell, correct?

A: To interact and extend it, yes.

Q: And the shell extensions were a group of APIs that included much, much more than just the namespace

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extensions, correct?

A: Yes.

Q: Um, so -- just so, and I am happy to show you some documents if you want, but let me see if we can agree on a couple of these. And actually, Mr. Harrol, do you remember in 1995 looking at this book, Programmer's Guide to Microsoft Windows 95?

A: I don't remember that.

Q: This was a book that was published by Microsoft?

A: Uh-huh (affirmative).

Q: Is that right?

THE COURT: Show it to him.

MR. TULCHIN: I would be happy to show it to you.

THE WITNESS: Thank you. That monitor is in the way. Thank you.

Q: (By Mr. Tulchin) This has been marked as Exhibit 559, Your Honor.

A: So it is from Microsoft Press so it looks like Microsoft.

THE COURT: For the record, plaintiff's or defendant's?

MR. TULCHIN: Defendant's, Your Honor, my apologies.

THE COURT: Okay.

Q: (By Mr. Tulchin) And this was a book that was made available to any developer, any ISV, who wanted to get

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it, correct?

MR. JOHNSON: Your Honor, we do have an objection to this exhibit.

THE COURT: As of now, it is just marked for identification.

MR. JOHNSON: Thank you, Your Honor.

THE WITNESS: Okay, I'm sorry. Say it again.

Q: (By Mr. Tulchin) The point is that in 1995 Microsoft published this book, the book that is in front of you, and anyone who wanted it could have obtained a copy?

A: Do you know when in '95 it was published? If it was December, that was a little late. But if it was January, it might be pertinent.

Q: My memory is that it was sometime around the middle of the year, but I can't say that I can remember exactly when.

A: Okay.

Q: And I may be wrong.

A: That would make sense because you would want it to be out about the time that Windows came out which is in the middle. Well it was going to be the middle of '95.

Q: Right. Yes and it came out in August ultimately?

A: Okay.

Q: All right. You don't remember seeing the book yourself?

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A: No.

Q: Other people at Novell had copies of this; correct?

A: I don't know.

Q: Do you know if this was something published by Microsoft to assist the developers in trying to write their applications for Windows 95?

A: I would presume that that is why they wrote it.

Q: All right. Um, could I ask you to turn to Page 219 of this book. And Your Honor, I am giving Mr. Johnson a copy of the chapter to which I am now referring. This is article 12. We have marked this as 559-A.

Mr. Harrol, do you see that?

A: I do see that chapter.

MR. JOHNSON: Your Honor, if they're going to publish this, we would like to have our objections.

THE COURT: Okay. Approach the bench and tell me what the objection is.

(Whereupon, a bench conference was held.)

MR. JOHNSON: Hi, Your Honor. This is hearsay and irrelevant. I don't believe this discusses the namespace extensions --

MR. TULCHIN: The purpose of this --

MR. JOHNSON: -- we're talking about.

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THE COURT: Just speak.

MR. TULCHIN: The purpose of this, Your Honor, is to show the witness the shell extensions that were made available in Windows 95 and to see if I can get him to agree. It is a shorthand way, instead of going through these in great depth. All of these shell extensions were made available by Microsoft. Um, the namespace extension APIs were a small subset of the shell extensions as a whole. I don't think that the jury understood that from the testimony last week where he talked generally of shell extensions and at least to my ear made it sound as if the namespace extensions were the shell extensions. It was much, much more functionality that Microsoft made available.

MR. JOHNSON: And Your Honor, this is a frolic and a detour. We have -- yes there were other things that allowed certain amount.

THE COURT: You can cover that on redirect. The objection is overruled. I think there -- I think the jury is being asked to absorb a lot of information and if they -- they may think somehow the API namespace extensions completely affect the shell and it may or may not but you're free to ask on redirect.

MR. JOHNSON: Your Honor, so you're sustaining the objection?

THE COURT: No, I'm overruling the objection.

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MR. JOHNSON: Talking about redirect that would be me.

THE COURT: Yes, you can ask questions. If you want to clarify something you can. But as far as I'm concerned, there could be jury confusion so Mr. Tulchin can do what he wants to do.

MR. TULCHIN: Thank you.

(Whereupon, the bench conference concluded.)

THE COURT: I am going to overrule the objection. You all can ask questions on redirect. Mr. Johnson can try to clarify what is going on. But basically, we're just trying to find out the relationship between namespace extensions and the shell. I think it would be helpful to ask the question.

Q: (By Mr. Tulchin) Mr. Harrol, we're looking at Page 219.

THE COURT: I guess the whole exhibit -- well, I'm not going to allow the whole exhibit but I'm just going to allow this page right now to be displayed to the jury.

MR. TULCHIN: Thank you, Your Honor.

Q: (By Mr. Tulchin) This is Exhibit 559-

A: It is one chapter or article from the larger book that I gave you.

THE COURT: Ladies and gentlemen, frankly what is most important here is the testimony. By showing this to the witness, Mr. Harrol, it helps the testimony go along. The testimony is really what we are mostly interested in.

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Q: (By Mr. Tulchin) And here are my questions, Mr. Harrol. In the final version of Windows 95, there were a number of shell extensions that Microsoft made available for ISVs; correct?

A: Um, yes, that I recall.

Q: These were all shell extensions that were in the first beta from June of '94; correct?

A: Yes.

Q: And as far as you know they were never modified?

A: As far as I know.

Q: All right. So one of the shell extensions was context menu handlers, do you see that?

A: Yes.

Q: And those add items to the context menu for a particular file object?

A: Yes.

Q: Correct?

A: Yes.

Q: Next there were icon handlers?

A: Yes.

Q: We won't go through these in any --

THE COURT: Well, the bottom line is that the withdrawal of support for namespace extension APIs did not constitute -- well, I'll ask you because I understand your point is it did not affect all shell extensions, there is

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still access to some shell extensions is that --

THE WITNESS: Is that the question you're asking?

Q: (By Mr. Tulchin) Yes.

A: And the answer to that is that back in M6 when we first got the extensions, um, see this is -- I am going to go home and get a copy of this actually but --

THE COURT: Right now I'm going it take it home and read it during halftime.

THE WITNESS: Sleeping is not something I think you want.

MR. TULCHIN: This is not a quick read, Your Honor.

THE COURT: No.

THE WITNESS: No. But the point is that back in June when we got these extensions we were told about getting documentation later on.

In October, we were told that there were things that would be unavailable. The problem, one of the big problems that we were having is that what you are looking at right now is what we expected in October. And so, um, and in fact the namespace extensions were not documented until 1996, sometime later on. And the documentation that was available then is pursuant to this. And because I have read that and I was just looking through it while you were talking. And this information is what I would have loved to have had back in October of 1994 and I expected to have. But if it is

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coming out in the middle of '95, that does me no good.

Q: Mr. Harrol, I am right, am I not, that in the M6 beta that you got in June of '94, you had --

A: Uh-huh (affirmative).

Q: -- all of the documentation that you needed for the context menu handlers, the icon handlers, the data handlers?

A: No.

Q: That is the next one the drop --

A: No. This is -- this is documentation for people. I have the machine description of those things. I did not have the people descriptions of what was the behaviors and what are the recommendations. That is what is sitting here. This is what I wanted back when I had those shell extensions back in 1994. And I did not have this in 1994.

MR. JOHNSON: Your Honor, may the record reflect that he is talking about 559? Exhibit 559, Defendant's?

THE COURT: Sure.

Q: (By Mr. Tulchin) Is it your testimony, Mr. Harrol, that in '94 you did not have documentation for these shell extensions: The context menu handlers, the icon handlers, the data handlers, the drop handlers, the property sheet handlers, the copy hook handlers, and the drag and drop handlers?

A: I did not have the documentation that we have

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come to expect from Microsoft for these things for people. I did have them for the machines which is not sufficient.

Q: When you say you had them for the machines, you had M6 beta in June, um, the APIs were sent out there for the machines?

A: The header files were there. Header files is what the machine reads to be able to tie into the libraries that are provided.

Q: Okay.

A: And there was some -- there was some rudimentary documentation, for example, that were provided in the M6 beta as well, but it is not to the level of what you have presented right here (indicating).

Q: Could you go back and look at Exhibit -- I'm sorry, I'm sorry, um, it is Plaintiff's Exhibit 394 which was shown to you last week. Just give me a minute, Mr. Harrol, I'm confused about an exhibit number.

A: That is fine, I can't find it either so --

Q: Well, let me hand you exhibit -- Defendant's Exhibit 8?

A: Okay.

Q: Which I believe is an identical copy --

A: Okay.

Q: -- of a document that you were given last week and somehow I'm not pulling up out of my mind the proper

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exhibit number for it.

A: 369.

Q: 369?

A: Yes.

Q: I think I said 394. I was a little bit off.

A: I think that is the same one we're looking for.

Q: Right. And I just want to be clear about something. On Defendant's Exhibit 8, you looked at this document last Thursday; correct?

A: Yes, I did.

Q: And if you look at the second page, just look at the top above the word "requirements"?

A: Yes.

Q: Um, this was a document written in 1994; correct?

A: Yes.

Q: And does this not indicate to you, Mr. Harrol, that everything you needed to use the shell extensions was given to you in the June 1994 beta; correct?

A: No.

Q: I mean the book wasn't published until '95, but the book is just a compilation of information that Microsoft had given ISVs earlier?

A: I don't know that.

Q: Correct?

A: I don't know that.

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Q: You don't know that?

A: No, because, for example, um, when I was working on Windows 3.1, um, I had a discussion with a Microsoft systems engineer about menus. And the person who was working with me, the premier support individual, um, was there listening to my questions with them. That individual later wrote an article for Microsoft Systems Journal based upon our conversation that was published to everybody else in the industry.

And so the information can be compiled here, but it doesn't mean it was generally available to everybody. They -- they discovered these things as they go through the process of the beta and eventually it becomes generally available in the form of like a book like this, but it doesn't mean that everybody had that same information individually before the publishing of that book.

Q: Well, maybe it doesn't. But in this case am I right that the information in the book, Exhibit 559, was a compilation of things that Microsoft had made available to ISVs earlier?

A: I don't know. If you'll give me some time to read the book and to go through it and compare it, I might be able to say that. But from my knowledge right now, no, I don't know that.

Q: Could we look at Defendant's Exhibit 8, which is

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also the same thing as Plaintiff's Exhibit 369, Page 9?

A: Okay.

Q: Now, at the top under the word extension handlers, and again this was written in -- sorry, in 1994 by Sid Cragun; correct?

A: Yes, that is correct.

Q: All right. And Mr. Cragun, in 1994, is writing about five shell extension handlers?

A: Yes, that is correct.

Q: Including the five that I mentioned in my question to you a few minutes ago?

A: That is correct, yes.

Q: Correct?

A: Yes.

Q: Does this not indicate to you that um, at that time Novell had from Microsoft all of the documentation it needed to use these shell extensions?

A: No, because I -- in fact if you -- there was another exhibit that I was shown of the header file. In fact you showed it to me. The information that Mr. Cragun was able to derive is inside of that machine file. But that doesn't tell me the behaviors of how that API is supposed to work. It doesn't tell me if I go in and I -- it is talking in here about context menu handlers, for example. It doesn't tell me what the different context menu items on the

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-- on the recycle bin are going to do or when you can or cannot use them or when they may or may not be available. Those -- those semantic behaviors, the way that the system behaves, are what we expect in people documentation that we don't get from machine documentation, can I lift out of the machine documentation a one paragraph summary about what these things do? Yes. Will I be able to do a month's worth of development based just on that? No way.

Q: Well, Mr. Harrol, Microsoft, in fact, provided all of this functionality to Novell, for example, these five extensions; correct?

A: Provided --

Q: In Windows 95, all five of these extensions?

A: Are there.

Q: Yes.

A: Yes. Yes, they are.

Q: They were. And, of course, Microsoft is developing that functionality, those extensions?

A: Uh-huh (affirmative).

Q: Through the efforts of Microsoft's software engineers, correct?

A: I presume so.

Q: And Novell or WordPerfect before that of course needed to use its own efforts to be able to tie into the APIs that Microsoft was providing to Novell?

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A: Uh-huh (affirmative).

Q: Is that a yes?

A: Sorry. Yes. Thank you.

Q: So it is not your testimony that it was Microsoft's obligation to do all of the work for Novell, was it?

A: It never was.

Q: Okay. Novell certainly had to do some of the work itself to figure out how to tie into the APIs and how best to use them for Novell's own products?

A: That is correct.

Q: And that was partly your job and the job of Sid Cragun and the WordPerfect team and other engineers?

A: That is correct.

Q: Okay. And again looking at Exhibit 8?

A: Uh-huh (affirmative).

Q: A copy of PX-369. Could I ask you to turn to Page 3. If you need a hard copy let me know.

A: I actually have one. I am trying to be --

Q: 369?

A: Okay.

Q: Good. My apologies earlier for getting the number wrong. Too many numbers.

A: Yes. I agree.

Q: Um, on Page 3 of the very bottom you will see

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Mr. Cragun writes, "functional requirements". Do you see that?

A: I do at the bottom of the page.

Q: Right, the very bottom. And then he has some -- a list of features currently provided by WordPerfect at the shell level. And it goes on to the next page. Um, you will see at the top continued list of features currently provided by WordPerfect at the shell level; right?

A: Yes.

Q: Drag and drop printing support. Drag and drop opening of documents. Support for OLE drag. Do you see that?

A: Yes, the one with a D there?

Q: Yes. And then below that Mr. Cragun writes, features that should be implemented using shell extensions?

A: Yes.

Q: Do you see that, sir, next to the number two?

A: Yes, number two.

Q: And this was a list of features that Mr. Cragun thought at the time, in October of 1994, WordPerfect might want to use features in Windows 95?

A: That WordPerfect the word processor might want to use.

Q: Correct?

A: Uh-huh (affirmative).

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Q: And he starts with A, and then there is a B and a C and a D. And then if you look at the next page, Page 5, right in the middle it says, um, "the following option will not be implemented" and he says "a detailed view menu item will not be implemented," right? Page 5, next to the item three?

A: I'm reading through it so --

Q: Towards the top.

A: Just let me read through. Okay. Okay, I see. I have read through that.

Q: And then we go through the rest of page 5 on to Page 6. These are again items that Mr. Cragun is saying might be put into WordPerfect, the word processor; correct?

A: Right.

Q: And when we get to K, at the bottom of Page 6, and K, I think, is the eleventh item, I think K is the eleventh later, we see A through K there, he says registration of custom folders which function as object containers with the same behavior as a folder.

A: Yes.

Q: Do you see that?

A: Uh-huh.

Q: And that was the functionality that the namespace extension APIs would have provided to WordPerfect?

A: I think they would have needed that to do that

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feature that he is outlining here.

Q: Right. You see the very next sentence he says this type of shell extension is referred to as a namespace browser. Do you see that?

A: I do see what he wrote.

Q: And then it is bolded in what Mr. Cragun wrote he says, last sentence, "we will not take advantage of this feature since Microsoft has discontinued support of the required API since this document was originally written."

A: Okay.

Q: Do you have that?

A: I see that there.

Q: Now, is it fair to conclude from what Mr. Cragun wrote in October of 1994?

MR. JOHNSON: Objection, where did that date come from?

THE COURT: I thought the witness testified it was a date that came on the first page of the document I thought but I --

THE WITNESS: Well is that -- so well, it is easier to go back to the revision history and see what is the latest one here. So the latest revision we have is September 30th. So October, I guess that should be okay because the last time he says he updated was the 30th of September, 1994.

Q: (By Mr. Tulchin) Right. And um, let's just

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spend a couple of minutes on this. The first page this is just a document that Mr. Cragun wrote; correct?

A: Uh-huh (affirmative).

Q: Okay. And the first page says revision history, most recent first?

A: Okay.

Q: And the most recent then says 30 September '94?

A: Uh-huh.

Q: Correct?

A: Uh-huh (affirmative).

Q: But we know this had to be in October, right, because --

A: Or later.

Q: -- or later because in item K that we just looked at and we'll go back to, on Page 6?

A: Uh-huh.

Q: There is reference to this decision to discontinue support for the namespace extension APIs?

A: We really can't tell when this was written, in fact, because there is no revision history. This could have been just an intermediary revision that Mr. Cragun was even doing. So we really don't know when this was written.

Q: Well, Mr. Harrol, we can agree, can we not that --

A: It should be after the time that the

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documentation of the -- the documentation of the APIs happened.

Q: Let me just finish my sentence.

A: Sorry.

Q: Sorry. This was written after the namespace extension APIs were de-documented?

A: Yeah, that is what -- that is yeah -- that is what I'm saying.

Q: So it couldn't have been earlier than October of '94?

A: I don't think so.

Q: All right. And, um, to go back to where we --

THE COURT: Just for the sake of the jury, there is a date at the top, I think you covered it before much later, but that is immaterial, correct? Isn't there a November 15th, 2000 --

MR. TULCHIN: Yes, Your Honor.

THE COURT: That is just irrelevant. Everybody agrees that is irrelevant.

MR. TULCHIN: Yes, sir.

THE COURT: I just wanted to point that out.

Q: (By Mr. Tulchin) Okay. Mr. Harrol, my question about this item K?

A: Uh-huh.

Q: Is that what Mr. Cragun is indicating is that for

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Thunder, that is the project to develop a version of WordPerfect for Windows 95, there wasn't going to be any need to take advantage of the namespace extensions?

A: That is --

Q: Right?

A: That is a leap. Um, what he is saying is that WordPerfect doesn't need to commit any resources to do this. They're not going to write any and they didn't need to any way. Um, the only thing that WordPerfect was looking at was maybe most recently used file view inside of their product. The shared code would have a different perspective. The mail product would have a different perspective. But for Sid Cragun and the people that he was talking to to gather information, um, it would be reasonable to say that a most recent files view though would being useful would not be impactful enough for them to take that effort to do that. And so, yes, from his perspective with the product, they would not need to have that to release their product.

Q: Right. And you testified last Thursday, and here are your words, quote, "I don't know anything that WordPerfect word processor needed to do for a namespace extension," unquote?

A: That is what I just said here. I don't think he needed to do that for his product. That is correct.

Q: Okay. So I hope this isn't repetitive, just to

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be clear. As far as you know now, and you knew in 1994 and 1995, WordPerfect, the word processor, had no need for the namespace extension APIs?

A: To ship their product.

Q: Correct.

A: But they were dependent upon our product.

Q: Okay. Um, in your testimony last week when you were talking about customers of the shared code group and I think we said today that is the same thing as PerfectFit, correct? PerfectFit product was what the --

A: PerfectFit product was an incarnation of the shared code.

Q: Okay. Um, did those customers pay to use the PerfectFit product that they licensed from Novell?

A: I don't know.

Q: Um, is it correct, Mr. Harrol, that Novell gave PerfectFit to other ISVs without any fee or charge?

A: I actually don't know what their licensing model was.

Q: In that last sentence when you said their, their licensing model who are you referring to?

A: I do not know what Novell's licensing model was for PerfectFit.

Q: So PerfectFit, which was the product of the shared code team, right?

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A: Uh-huh (affirmative).

Q: Was a product that Novell was licensing to customers?

A: Uh-huh (affirmative).

Q: Is that a yes?

A: Yes.

Q: Thank you.

A: Thank you.

Q: Sorry to keep doing that.

A: No, keep going. That is fine.

Q: And as far as you know, Novell wasn't charging for it?

A: I do not know whether or not they were charging for it.

Q: Are you aware one way or another, Mr. Harrol, that in October 1994 Mr. Struss of Microsoft --

THE COURT: You better say someone at Microsoft because he doesn't know Mr. Struss.

THE WITNESS: I don't know Mr. Struss.

MR. TULCHIN: Okay. Thank you, Your Honor.

Q: (By Mr. Tulchin) Someone at Microsoft told Mr. Creighton, who was running the shared code group, right?

A: Yes.

Q: Someone at Microsoft told Mr. Creighton that Microsoft had decided to withdraw support for the namespace

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extension APIs?

A: No, I'm not aware of -- the conversation was that he, Mr. Creighton, had told me that they were considering it. I don't -- he did not convey to me that there was a decision. So that is all I know.

Q: Do you know whether or not Mr. Creighton, who was your boss's boss, right, you reported to Johnson, Johnson reported to Creighton?

A: Yes.

Q: Do you know whether Mr. Creighton ever indicated to Microsoft in October of '94 that Novell and WordPerfect were okay with the withdrawal of support for those APIs?

A: I have been made aware in the -- through the course of this whole thing that Mr. Creighton did convey to Microsoft that he was not okay with the removal of the namespace extensions.

Q: Is that something that you were made aware of in preparation for your testimony?

A: It was something that -- um, yes.

Q: Well, let me go back now to the period in question. Let's say 1994.

A: Uh-huh.

Q: Last three months of the year. Did you become aware at that time that Mr. Creighton, your boss's boss at Novell, had indicated to Microsoft that Novell was okay with

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the decision to withdraw support for the APIs?

MR. JOHNSON: Objection, asked and answered.

THE COURT: Well, it was asked but not answered. Go ahead.

THE WITNESS: Okay. He had indicated to me, um, okay so I'm sorry, say it again so I can get the right answer. Sorry.

Q: (By Mr. Tulchin) I'm sorry, sir, do you want me to ask the question again?

A: Please, again. Thank you.

Q: At any time in the last three months of 1994, did you become aware that Mr. Creighton had told someone at Microsoft that Novell was okay with the decision to withdraw support for the namespace extension?

A: I was never made aware of the time that Mr. Creighton had conveyed to Microsoft that it was okay to withdraw the namespace extension.

Q: Have you talked to Mr. Creighton about this recently?

A: No, I have not actually.

Q: So the information that you have came from the lawyers for Novell?

A: No.

MR. JOHNSON: Objection.

THE WITNESS: No, that is not.

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THE COURT: We are so -- we are so in the realm of hearsay right now just move on.

MR. TULCHIN: Thank you, Your Honor.

Q: (By Mr. Tulchin) You mentioned last week of a product called Quickfinder. Do you remember that?

A: I do remember that product.

Q: And I think you said, tell me if I have this right, that Quickfinder was a product that the shared code group was working on?

A: No, they were brokering it. We had a division at WordPerfect. I didn't mean to mischaracterize that if I did. Um, there were many efforts in many technologies that WordPerfect would work on. The -- what we called the word tools. Word tools, sorry, the speller, Thesaurus, the Quickfinders search technology, grammar checker, Wonderware was another one that they had internally. These were all produced by the languages division. And normally these would be -- they would evangelize these products to the products at WordPerfect. But when the share code group came into being, because we already had a good rapport with the other divisions, the languages division then worked through us to be able to deliver their product and so we could -- we could help evangelize their products along with the other things that we did.

So we did not write the Quickfinder, but we did

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distribute it to the other applications that we were aware -- that we were aware of.

Q: Okay. Maybe I will get it right this time. Let me try. I hope I understand this.

A: Okay.

Q: Was it the case that the Quickfinder product was being included in what the shared code group was making available for the other products?

A: Yes.

Q: And that was what you were doing in 1995 in part was putting Quickfinder into the PerfectFit product that was going to run with WordPerfect and PerfectOffice?

A: We did distribute Quickfinder was one of the things that we had with the products.

Q: All right. Just a couple of things about Quickfinder and let me see if I get this right. Quickfinder was something that could run by itself?

A: It could also do that. There was a -- there was an application that was written that would use the Quickfinder technology and present it as an application of its own. That was one of the things that there was with it.

Q: When this suite was actually released by Corel in 1996 um, the suite that you were working on, right, that Novell was working on in 1995?

A: Uh-huh.

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Q: That was released in 1996 by Corel?

A: Okay.

Q: Right?

A: I think so.

Q: Okay. When the product was released, is it correct that there was an option given to the user on whether or not you wanted to include Quickfinder?

A: Um, I don't know. That would have been a call of the install team.

Q: Well was it right that --

A: There may -- there could have been.

Q: Was it correct that WordPerfect could run without it? The WordPerfect that came out from Windows 95?

A: With the Quickfinder inside WordPerfect or with the separate product outside of the WordPerfect. Which one are you referring to?

Q: Either?

A: Um, I think that both were an option. You could, just like in Word, whether I could include language dictionaries or not I can also include in WordPerfect I would assume that they had the ability to say whether or not you wanted the Quickfinder as part of the application or whether you wanted it in or not in the shell.

Q: Okay. And am I right that Quickfinder was something very difficult to write?

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A: I don't know that. I didn't work on it.

Q: All right. Do you know how much time it took to write the Quickfinder product?

A: I do not. I do not.

Q: And am I right that Quickfinder itself has nothing to do with the namespace extension APIs?

A: I don't know what they intended to do with it. I don't know.

Q: All right. Well, let me ask you it this way. As far as you know, the Quickfinder product used none of the functionality that the namespace APIs provided and never intended to?

A: Okay. I know that we had discussions with them. That they never intended to, that would not be true. Because if I wanted to, um, if I wanted to show a list of documents that had the -- the results of the search, then that would have been a namespace because it would have been on the desktop, it would have been on the list of folders and it qualifies as a namespace at that point. If I wanted to go further and maybe show a little highlight of what was the text that I found inside of those documents, then that would have actually been a -- that would have required IShell browser, IShell View to do, to be able to change the view to do that. Whether they intended to do that or not, um, I don't know what their -- what their milestone

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documents were for what they intended to do, but I do know that we had discussions about how they could use the namespaces in the product. But I did not control their -- I did not control their releases and I can't speak to what they intended to do.

Q: One thing I am hoping we can clear up and that is whether or not, um, the Windows common file open dialog in Windows 95 allowed a user to browse through the Windows namespace including network neighborhood and my briefcase.

A: In the versions that we looked at for Windows, we could browse into the briefcase, we could browse in the recycle bin, we could browse through the network neighborhood.

Q: Okay. So am I right then that in the beta version of Windows 95, and in the final product that came out in August of 1995, Windows 95, a user using the Windows common file open dialog could get to and browse network neighborhood, my briefcase, the Windows namespace?

A: Uh-huh (affirmative). From what we could tell, they could browse all of the namespaces.

Q: And that was functionality that Microsoft put into Windows 95 that was available for Novell to use if it had chosen to go that route?

A: If -- okay. All right. Could Novell have chosen to use the common dialog and they would have had the ability

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to browse those namespaces if they used the common dialog? Is that what you're saying? Yes.

Q: Yes, sir?

A: Yes.

Q: I'm sorry your answer is yes?

A: Yes. They would have been able to have use the -- the namespaces that were in Windows if they had used the common dialog.

Q: Now, Mr. Harrol, I want to hand you what we have marked as Defendant's Exhibit 114?

A: Thank you.

Q: Now, you will see on the very first page of Defendant's Exhibit 114. It says at the top PerfectFit 95, open file dialog function and issues. And then the date on the right hand side July 11, 1995; correct?

A: I see that that is -- yup, I see that.

Q: Is this a document that you think you saw way back in 1995?

A: I don't -- I would have to read through it to see.

Q: Okay. Well, um, let's just look at the first paragraph. It says right at the beginning, this main purpose of this document is to provide a functional description of the open dialog for Storm. Do you see that?

A: Okay. I see that at the top, first paragraph.

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Q: Do you remember that Storm was Novell's code name for PerfectOffice?

A: I recall that, yes.

Q: All right. And does this appear, just looking at the first page, and take a look at if you want to, does this appear to reflect a debate about what open dialog functionality would be included in the new PerfectOffice for Windows 95?

A: I would have to go through the list here. It would take me -- do you want me to take a moment?

Q: Yes, if it --

A: Okay.

Q: If you can.

THE COURT: A moment, yes.

THE WITNESS: Okay.

THE COURT: An hour, no.

THE WITNESS: I don't want to either. This looks -- looking at the history, I was looking at the history, it appears that there appears to be a discussion about what -- with people that I recognize as worked on the file open dialog.

Q: (By Mr. Tulchin) Well Mr. Harrol, just to move along --

A: Go ahead. No.

Q: If you need time, let me know but --

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A: That is fine go ahead.

Q: But I'm sensitive to trying to move along a little bit. Um, right at the top in the first paragraph it says, "this document was necessary to alleviate differences of opinion of how this dialog would be implemented." Do you see that?

A: I do.

Q: And we're talking here about the open -- the file open dialog, correct?

A: Yes.

Q: And one of the questions even in July of 1995, so this is now ten months after the decision to withdraw support for the namespace extensions, one of the decisions that Novell was facing was whether to use the common file open dialog provided by Microsoft in windows?

A: That would be --

Q: Or --

A: -- sorry.

Q: Or some special file open dialog that Novell was working on?

A: Yes. One of the things that I have said before is that every time the discussion came up, we were willing to look at if there was enough information out there to be able to fulfill our needs. We never took an option off the table and including the one that you just mentioned.

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Q: Okay. So to be clear, even as late as July, this says July 11th, um, no decision had been made yet about which file open dialog to use, the one that came from Microsoft or some special file open dialog that the shared code group was working on?

A: That is not true. Um, what I said is we would revisit it. It didn't mean that works did not happen. Um, as we were going through, for example, um, we might have conquered the recycle bin but maybe briefcase was giving the developer an extraordinary amount of problem. And all of the time, while our work is going on, while we are trudging through the mire, so to speak in this, we are willing to come back and say you know what, if we have to refocus all of the people that we have and see if we can get a better solution because we are worried about our customers, then we will -- we will bring everybody to bear and we will do it. But this does not indicate that there was not work being done at all. All this says is that we are willing to reconsider something at any time if we have gotten enough information from Microsoft to be able to take another course.

Q: I hope I didn't indicate in my question that I didn't think work was being done. But what the document says it was necessary to alleviate differences of opinion?

A: There were some people outside of shared code

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that would raise the question is there another way to do this? And they were right to do so because they were dependent upon it. But the decision had been made, the decision was being acted upon. And like I said, if somebody wanted if a -- as you have pointed out, if a business decision maker decided that we needed to take a different road, we would listen to that. But the decision had been made until they changed their mind which they didn't.

Q: Okay. Fair enough. Um, could you look on the same page, the first page of Exhibit 114?

A: Yes.

Q: There is an entry next to the date June 9th, June 9, 1995?

A: Yes, Tom Creighton. Tom C.

Q: Tom C. that is Tom Creighton; right?

A: That should be, yes. I would think so.

Q: Right. And what this document indicates is that it was not until June 9th that Tom C. instructed all not to pursue the alternative design. Do you see that?

A: Yes.

Q: So it was not until June 9th, '95, almost half way through the year, that Mr. Creighton decided which design would be used for the file open dialog; correct?

A: Okay. It says alternative design. This could just as easily have been, and like I said I haven't read

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this, this could just as easily have been we also looked at multiple ways of how we would reimplement the features. He could just as easily in alternative design be talking about maybe we were looking at some better way to implement that design. We were going to not pursue the alternative design because we were going to pursue what we had already done. There is not enough information here to tell which way this goes.

Q: Well, you're certainly not testifying that it means anything other than what I have said; right?

A: Um --

MR. JOHNSON: Objection.

THE WITNESS: I am.

MR. JOHNSON: He just did.

MR. TULCHIN: Well --

THE WITNESS: I am. I am saying that there is not enough information here to be able to say that this alternative was an alternative to the common dialog or to a rewrite of what we had. There is not enough information to do that. So the alternative could just as easily be an alternative to the work we were already working on, he could be saying, plow straight ahead, keep going, we're not going to be distracted by the alternative design.

(Whereupon, the reporter slowed the witness down.)

THE WITNESS: Okay, plow straight ahead because it was

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not uncommon for the business makers to come back with the -- with the critical path being the file open dialog to re-investigate whether there was an alternative to what we could do. This alternative design would more likely be, from my experience in shared code, an alternative proposed by somebody higher up that we take. And I would say that this alternative design he would say do not pursue it, we would -- we would continue to pursue what we had been working on all the time. That would be my interpretation in lack of not being able to read the entire document.

Q: (By Mr. Tulchin) Well, let me just try a couple of questions, Mr. Harrol.

A: Okay.

Q: The entry right below that for June 2nd?

A: Uh-huh.

Q: Refers to a meeting that was called by Jack Young on June 2nd. Do you see that?

A: Uh-huh.

Q: Apparently it was a meeting you didn't attend; correct?

A: No. Apparently not. I don't see my name on the list.

Q: And it was a meeting to discuss a proposal for the file open dialog, correct?

A: Um, let me -- hold on. In fact, I would assume

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that is the alternative that Tom C. is talking about.

Q: Okay. And then on June 9th, as we saw --

A: Uh-huh.

Q: Exhibit 114 says that Tom Creighton instructed all not to pursue the alternative design?

A: So to me it says that he is discounting what was said on the 2nd.

Q: And it wasn't until June 9th, 1995 that Mr. Creighton made a decision about which design for the file open dialog would be pursued. Is that fair?

A: He made a decision that that would be pursued. He made that decision many times during this whole course. He decided when he first assigned this and every time that this came down he decided again. So, yes, he decided again, um, that this is not a beginning of the decision. This is a decision about whether we're going to change gears or whether we're going to proceed. Um, he decided back in October that we were going to pursue, there was a design that we're writing against and so, um, the inference that there is a beginning here is unfounded. There is no beginning here. Yes, a decision was made, but it is a decision between proceed as follows or do what we were doing. That is how I see this.

Q: Well, um, Mr. Harrol, now you're providing an interpretation of this document though you say you didn't

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see it at the time, am I right?

MR. JOHNSON: Your Honor, that is what he was asked to do.

THE COURT: That is true.

MR. JOHNSON: Thank you.

Q: (By Mr. Tulchin) Am I right, Mr. Harrol, that coding was supposed to occur beginning in June and July 1995?

A: No. Coding did occur back in June of '94.

Q: Well, was more coding necessary once Mr. Creighton made a decision in June 1995 not to pursue the alternative design for the file open dialog?

A: There was still work to be done that -- and that would be why a query would be made of Mr. Creighton do we need -- the upper management wanted to understand what was going on. They wanted to help. And we were working through issues. Um, okay, so part of -- and maybe that is -- maybe that is something that bears explanation. Um, when we work on the file open dialog, we are able to get it to a point where it is usable and we have to deliver that to the application so that they can begin coding as well. Um, sometimes we call that a strawman, sorry.

THE COURT: No problem if you want to pick it up that is fine.

THE WITNESS: We call that a strawman so that the

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applications can -- can proceed with their functionality. But whether I can drive and drop a file inside of the open dialog has little pertinence to whether the engine can open up and let you edit it. But that is a burden that falls upon the file open team to make sure that all of their features are grounded and working properly. So even though we were able to using the documentation that Microsoft provided, we were able to get our file open dialog up and functioning to where we could hand it to the applications with the strawman. But it was as we were trying to work out the details of can we get the namespaces on board which is our problem, not the applications, that is work that we have to do and we're continuing to do. And we were not late because WordPerfect was late, we were late because we couldn't ship because our responsibilities were because I'm sorry I will -- I will -- because shared code was late. WordPerfect was not late. Quattro Pro was not late. It was shared code that was late. We needed to finish our features so that when people got into our file open dialog, it behaved properly and as expected. So I can -- I can see the -- both of these scenarios happening which is, um, the management is coming down and saying why is shared code being late because it is not tradition in the case that we are, but it is now and they're trying to help us. And so they want to come in and say, well, you know, make an

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executive decision, you know, can we move aside or can we do something else. And so we were, through this entire process, we were forever remaking this decision. Is there something better we can do? We were not blind sided that we could do something else. But the answer is, it always came back that the executives could see at least from inferring from the fact that we were never redirected to do anything else, is we needed to proceed as we had, we were going to give the users what they wanted, and preserve functionality for the franchise of WordPerfect products. So here I would say that Tom Creighton, you asked me, you know, what do I see even though I wasn't here for this document, what do I see? This is one of the queries that Tom -- that was made of Tom about are you guys doing everything you can or is there a better way to do it and somebody had this discussion and we're not going to go and do alternative, we're going to proceed like we had because I have talked to them and it is -- and I have talked to them and it appears that it is still the best course to do what we had done and continue to do. We needed to fix our bugs and get it shipped.

Q: (By Mr. Tulchin) Was it the case, Mr. Harrol, that around this time, June July of 1995, Novell decided to support the file open dialog from Microsoft, the one in Windows 95?

A: I don't know those details because I was not the

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one who was actually -- I would council with the developers, but there were other people who would direct their day-to-day. They would only ask me if they needed some direction for where Windows was going and maybe what options were available. But I was not directing the file open dialog's day-to-day efforts. That was somebody else. I wasn't even the developer nor the person directing them.

Q: And when you spoke last Thursday about the file open dialog, you didn't mean to tell the jury or the court that you were involved in the decision about whether to use Microsoft's?

A: I was consulted on that and yes, I did help make that decision but I did not say which APIs to use, whether it was the common dialog. That is what I inferred from your question which is did I infer or was I saying um, was I aware that they would use the common open dialog or not. That was the decision of the developer to whether they would do that and that went back and forth a number of times, it was my understanding.

Q: Could I ask you to turn to Page 10 of Exhibit 114.

A: Okay.

Q: Towards the bottom of the page there is a heading MISC, perhaps means miscellaneous, and then there is item three below that. Do you see common open dialog?

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A: I see that.

Q: And underneath it says, "we will support common open dialog functionality within our open wrapper."

A: Uh-huh (affirmative).

Q: Now, did that mean, as far as you know, looking at this document and given your experience at the company, that a decision had by then been made to support the common open dialog provided by Windows 95?

A: I don't know that from here because when it says functionality, we can still mimic it and provide functionality and not have provided dialog. I can't tell. The person who wrote this wasn't detailed enough to be able to tell that.

Q: All right. Right under that it says, "the installation default would be the PerfectFit," right, PF open dialog?

A: Uh-huh.

Q: And then the user, this is what people were thinking at the time, June and July '95, the user specifies to use the common open dialog that would be what Windows provides, or the Novell PerfectFit open dialog at custom installation; correct?

A: That is what it says here.

Q: And as far as you can tell, that was the plan in the middle of '95 to allow the user to use either the file

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open dialog in Windows 95, or the Novell PerfectFit open dialog, correct?

A: It looks that they had both of those options.

Q: And what you were working on was the PerfectFit open dialog, right?

A: Um, no. Okay, I was working on that.

Q: The shared code team?

A: The shared code team would have worked on both of those potentially because the -- there would have been one call to the open dialog and it would have been up to shared code. If that switch were possible, which I assume it is from here, it would still have been shared code they would have been calling. So it would not have been outside of shared code to do that.

Q: Is it correct to say that given what this document says that at the time in the middle of '95, Novell was planning in its products to allow users either to utilize the Windows common file open dialog or Novell's own technology that was being created by the shared code group?

A: So in this incarnation of the document, it looks like that they were pursuing an option for doing that. So I don't know what the final incarnation was because I know that there are comments in the documents that say that there are things missing and so I don't know what the final incarnation of the document is but it looks like in this

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incarnation that was something that they were considering.

Q: In the product that ultimately came out, the product Corel released the next year?

A: Uh-huh.

Q: Could you, if you were a user, utilize either the Windows file open dialog or the Novell technology the PerfectFit open dialog?

A: I don't know the answer to that.

Q: And am I right that if Novell had chosen, had made the choice in 1995, to put out a product that used only the Windows file open dialog, there would have been no need to wait for the work of the shared code group on the PerfectFit open dialog?

A: If they had made that decision?

Q: Yes.

A: You're asking me to make the decision for the business makers of the -- I don't know what they -- they had reasons to want the functionality. We're talking what, we're talking 1996 now? When they released?

Q: 1995 my question was?

THE COURT: I think yours was about the Corel release.

THE WITNESS: Yeah, so we're talking 1996.

MR. TULCHIN: That was the prior question, Your Honor.

THE COURT: Sorry. Rephrase, I'm confused.

MR. TULCHIN: May I ask a new question, Your Honor?

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THE COURT: I'm confused. I'm sorry.

THE WITNESS: Sorry.

Q: (By Mr. Tulchin) Sorry about that. Mr. Harrol, if it had been the case in 1995, around the time that Exhibit 118 was written, that Novell had decided that it was going to release PerfectOffice with -- allowing the user to use the Windows common file open dialog, that could have been done, correct?

MR. JOHNSON: Objection, calls for speculation.

MR. TULCHIN: This witness has testified about lots of choices.

THE COURT: Overruled. Overruled.

THE WITNESS: Okay. So could they have made the decision in 19 -- early on at the beginning to use the common dialog?

Q: (By Mr. Tulchin) Well, I asked about '95?

A: The 1995, the Windows 95 dialog, could they have made that decision earlier? Um, I think yes I said that they could have made that decision. The question is whether it was -- whether it was desirable to do so.

Q: I gotcha.

A: Okay.

Q: And I think what you said last Thursday is that as far as you were concerned --

A: Uh-huh (affirmative).

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Q: -- it made sense to try to add functionality to what Windows provided?

A: Yes.

Q: That is, to add this Novell technology, the PerfectFit open dialog?

A: No, to add it to the common dialog.

Q: Right.

A: Yes.

Q: Maybe I misspoke.

A: Sorry.

Q: Let me try it again. I'm sorry.

A: All right.

Q: What you said last Thursday and what you're telling us now is that Novell could have come out with a product in '95 that utilized the Windows common file open dialog. That was a choice that Novell had?

A: That was the choice that they had.

Q: You thought, in your testimony, and I think you're telling us the same thing now, that it made sense for Novell to develop some additional technology that could be put on top of the Windows 95 file open dialog?

A: No. We weren't developing new technology. We had existing technology that had been there for a number of years and we were needing to make sure that it was represented in Windows 95. So it is more of an issue of

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servicing, we're not writing anything new, we're just trying to figure out what Windows 95 is doing.

Q: Okay. So let me modify my question. What you're saying is, um, what you thought Novell should do was to utilize these other Novell technologies with Windows 95 so that users of Windows 95 would be able to get to the PerfectFit open dialog as well as the Windows file open dialog?

A: To get to the technologies they had already come to expect.

Q: From Novell?

A: From Novell.

Q: Right. And that was a choice Novell had to try to, in effect, with the PerfectOffice product that was going to come out for Windows 95, to try to provide to users of PerfectOffice this Novell technology that you say they had been used to using the PerfectFit technology, correct?

A: Yes.

Q: And as far as you're concerned, that was a choice that was necessary to make sure that customers got the same Novell technology, the PerfectFit open dialog that they had been used to seeing in prior versions of the product?

A: Uh-huh (affirmative).

Q: Right?

A: Yes.

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Q: At the same time, if you had wanted to get a product out around August of '95 or some time not long thereafter, that could have happened using just the windows file open dialog. That was a choice?

A: I guess that is -- I don't want to say anything inappropriate. In regards to that there are lots of choices you can make. Um -- um, Michael Dell told Steve Jobs to liquidate Apple. Michael Dell told Steve Jobs to liquidate Apple. That is a choice he could have made. At the time, we could have made the choice to use the common open dialog in 1994 so to ship '95 but that also would have been a choice to have disenfranchised our customer base and apparently they were not willing to make that choice at that time.

Q: Mr. Harrol, you remember, sir, that last Thursday Mr. Johnson showed you some figures or slides I think sometimes they're called. Could we show figure seven. This was, I think you will remember, something that you looked at last week, correct?

A: Yes. I recall this from last week.

Q: And this -- sorry. This is a screenshot of the Windows 95 desktop with some things on top of it; correct?

A: Yes.

Q: Now, I think you said that using Windows 95, Novell could have put an icon for WordPerfect or

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PerfectOffice right on the desktop; correct?

A: Yes. I know -- whether they wanted to or not they could do that.

MR. TULCHIN: And if I may approach the screen, Your Honor.

THE COURT: I think it is a good idea to show. I think I know where but --

Q: (By Mr. Tulchin) So you could have had an icon saying WordPerfect or Quattro Pro or PerfectOffice right on this sort of light blue stuff right here (indicating)?

A: Yeah.

Q: I mean there is a lot of stuff blocking the screen?

A: Or up above it or yeah.

Q: I can't reach that.

A: I don't want you to try to stand up there.

THE COURT: Somebody had a neat laser. Do you have that, Mr. Johnson?

MR. JOHNSON: Yeah, we do have a laser around here some where.

THE COURT: Do you want to use his laser?

MR. TULCHIN: That would be great if it is handy.

THE COURT: If it is not handy, just do what you were doing.

MR. TULCHIN: I wish I were taller.

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Q: (By Mr. Tulchin) That was something that Microsoft provided to Novell in Windows 95, the ability to put --

MR. JOHNSON: Mr. Tulchin, there you go.

THE COURT: The cooperation is breaking in.

MR. TULCHIN: I hope I know how to use it.

MR. JOHNSON: Just push the little red button there. Just press it and don't point it at anybody's eyes.

MR. TULCHIN: High tech.

Q: (By Mr. Tulchin) So right there, for example?

A: Yes.

Q: Or over here (indicating)?

A: Uh-huh (affirmative).

Q: And, in fact, here is an icon for network neighborhood?

A: Yes.

Q: Right. And so that was technology that Microsoft gave Novell so that Novell could put an icon for WordPerfect or PerfectOffice or Quattro Pro right on the desktop; correct?

A: Yes.

Q: And in addition on Windows 95, there is something called the start button, right here (indicating)?

A: Yes.

Q: Thank you for letting me borrow this,

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Mr. Johnson. And um, if you clicked on the start button, you could also get to a point on the start button, though it is not shown here, where again you could find WordPerfect or PerfectOffice?

A: Yes.

Q: And you could click there and get to those products and --

A: And they did that, in fact.

Q: Right. I just want to make sure that is correct. And that was all stuff that Microsoft gave to Novell without charge?

A: That was all things -- a lot of that was already available industrywide, in fact.

Q: Are you sure that --

A: Yeah. There is a place in the application browser in Windows 3.1 where I could put my icon and I can click on it and start it up.

Q: Same for the start menu?

A: Start menu was a new thing. That was a nice addition that they made.

Q: Okay. And it allowed Novell to make sure that users of its products could get to those products very easily?

A: Uh-huh (affirmative).

Q: And use all of the functionality that those

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products provide, true?

A: Use all of the functionality that those products traditionally provided, yes.

Q: Right from the start button. Okay.

THE COURT: Or the icon.

MR. TULCHIN: Correct.

Q: (By Mr. Tulchin) Now, um, Mr. Harrol, I want to look at your figure nine from last week if you could put that up. And I just want to make sure that we understand something. Was it your testimony last week that this is a screenshot from Windows 95?

A: This appears to be a Windows 95 open dialog.

Q: That is not correct, is it, sir? It is actually a screenshot of Windows 2000; isn't that right?

A: I don't -- I wouldn't know the nuances to be able to tell the difference.

Q: Well, My Network Places, you see that, maybe I can come back on the screen, I can reach this one?

A: Yes.

Q: My Network Places there (indicating)?

A: Yes.

Q: That was something first made available on Windows 2000, am I right?

A: Um, I don't know because you also have the ability to rename the icon. So I didn't know if the person

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who was actually doing this might have just renamed them.

Q: Well, let me just understand it. Is it your testimony that this is a screenshot of Windows 95 or something else or you don't know?

THE COURT: He doesn't know. He doesn't know.

THE WITNESS: I don't have enough time to be able to discern that nor the machine on which it was taken. If I had that, I could tell you.

Q: (By Mr. Tulchin) All right. Let's look at slide 11. This is something that you prepared or was prepared for you; is that correct?

A: Yes.

Q: And the red box on the left, the left pane is the tree view, right?

A: Yes, that is -- that is what some people call it, yes.

Q: I think you called it that last week. If I am wrong tell me?

A: It is a tree. It is a folder browser view because you browse the folders there and then you browse the files on the other side. So I try to use different terms depending on the people I talk to to make sure I communicate properly. That is why there are different names for these things.

Q: Okay. Are we comfortable calling it the tree

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view?

A: Yeah, I think that is fine.

Q: All right. Now, um, the material within the red box that was placed on this slide 11, that is what is known as the custom folders; is that right?

A: These are the folders on the disk that I see right now. The disk is the physical hard drives that are on the machine or, you know, and then I see my computer above it, so these are the folders underneath the C drive on this computer.

Q: Well, the functionality that the namespace extension APIs provided to ISVs including Novell --

A: Uh-huh (affirmative).

Q: -- was the ability to put custom folders in the tree view within the red box, am I right?

A: That is one of the things that it provided. That was not all it provided, but that is one of the things that it provided.

Q: Well, is it correct, Mr. Harrol, that everything to the right of the tree view, and let's look at the pane just to the right in the center, do you see that?

A: Uh-huh (affirmative).

Q: Everything in that pane was something that if Novell wanted to do that it was going to have to do for itself. The namespace extension APIs didn't provide that

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ability?

A: No, that is actually IShell view. That is what IShell view provides is that panel.

Q: The center panel. You're saying that the IShell view, the IShell View API was provided by the center panel?

A: Yes.

Q: Um --

A: Now, there are -- there are default ones inside of Windows and they provide these lists. But part of IShell View and IShell browser is like the dialog, or it is like the browser window. It is the place where everything is going to live. And IShell view is okay I have got my like you said I have got this folder, I got a place and what am I going to present in that place. The person presenting it could choose to present a list. The person could just as easily as in one incarnation of the file open dialog, he chose to present web pages. So I could put a web page up there and we did that in a later incarnation. It just depended upon how much effort a programmer wanted to put into IShell view. And our mail product, for example, this is their intention but they wanted to put the mail system over in that pane. And so that was one of the de-documented APIs. That is why the mail group, unlike the shared code, Lynn Monson, as I talked with him my understanding from him was that he was, um, much more concerned about the

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de-documentation because it affected their whole product more so than it did the shared code.

Q: Well, let's just talk about a shared code for a minute.

A: Okay.

Q: Um, the material in the right pane where it says compensation proposal, do you see that?

A: The view?

Q: Um --

A: On the right hand side.

Q: All the way to the right.

A: Yes. Yes, I see that.

Q: Everything in this pane, this box?

A: Uh-huh.

Q: That was material that Novell itself would have to provide?

A: Yes, they did. Yes.

Q: And the namespace extension APIs didn't give you that ability?

A: Um, when you say that do you mean icon dialog browser as well or just are you talking about the four APIs or talking about the namespace extensions themselves?

Q: The namespace extension APIs that Mr. Gates decided to withdraw support for in October of '94?

A: It would include that.

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Q: It is your testimony that those APIs would have given you the ability to write compensation proposal to put that in the right pane?

A: What -- okay. So one of the things that the common dialog browser did is that you could -- when you, um, built it, and a common dialog came up, it gave you the ability to change what space was available on the dialog. So for example if you can go back to the previous, um, file open view on the regular common so that I can --

Q: I think it was figure nine. The one --

A: I'm glad you keep track of these because I can't.

Q: Is this the one you wanted us to go back to?

A: That is the one. Thank you very much. So, okay, so to represent the other dialog, I need when this dialog comes up to be able to create space on the side where this list is at. And I can't do that except through icon dialog browser. That is where I negotiate with these dialogs and say I need more space over here, I need a new button down here. So being able to get to be able to control the place where things are displayed, that was one of the things that we needed access to. So, yes, one of the de-document APIs directly affected our ability to tie into the common dialog and leverage it with what we were trying to do in the shared code.

Q: Have you spoken to Ronald Alepin, Novell's

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technical expert in this case about that point?

A: I have never -- I do not know who Ronald Alepin is.

Q: Never talked to him?

A: I have never had -- not that I know of. If I knew his face, maybe I might say but I don't know who he is.

Q: Let's look at figure 12. And here I think that what you were depicting is that a user had clicked on the find file tab. I should have brought that pointer back. The find file tab up here, is that right? Is that what your slide 12 was meant to depict?

A: Slide 12.

Q: This is figure 12?

A: Uh-huh.

Q: You saw this last week.

A: Right.

Q: You were testifying about the find file tab?

A: This is -- this is -- okay. So find file would be one, we're coming to this because this is the Quickfinder being leveraged, this isn't about file open dialog. The Quickfinder being leveraged that is why the different tabs here and not the find open dialog. So like the question you asked about could the Quickfinder be there or not, I would assume if you said not then this tab would disappear, for example.

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Q: Okay. Well I think you answered my question which was, um, the find file utilized the Quickfinder technology; correct?

A: Yes. Not having written it, and my understanding is that the find file used the Quickfinder technology.

Q: And that was Novell's technology and had nothing to do with the namespace extension APIs; right?

A: The file, the Quickfinder didn't have anything to do with the namespace APIs.

Q: Right. And if we could look at slide 13, here this is similar except now the tab that has been clicked on towards the top is find content. Do you see that?

A: I do.

Q: And again, that would be some way of utilizing a specific Novell technology; right?

A: It is where you are -- it is an application listing from Novell, yes. Now, keep going I'll tell -- I'll say it later.

Q: Now the question, Mr. Harrol, and then we can move on is that in figure 13, that you showed the jury last week, this was all technology that Novell wanted to install to augment Windows; correct?

A: This is part of the technology. Okay, so the Quickfinder team I think wanted to install this technology in Windows.

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Q: And again, Quickfinder was something that was built without using the namespace extension APIs?

A: That is correct.

Q: There was no need to use them to build Quickfinder?

A: No, not to build Quickfinder. Um, well, okay, there is a problem there. And so the answer I have to give is yes on the surface but no not really. Um, they did need the namespace technologies in a way as well because the -- they can't adequately browse the documents in a briefcase, for example, unless we give them access to that. Um, they can't edit, they can't traverse network neighborhood to get it out to the file to get out to the network. Um, they -- because what we found is the cases that when we got out into the namespaces trying to get to the network through the namespaces, that when we would get into the namespace to a new -- let me back up. When we would try to list the networks that were there, Network Neighborhood had a special way of showing those networks. And if we could not make sense of that space, we couldn't jump off into the networks. And so Quickfinder had some dependencies on shared code. And even though the -- just like every other product, just because the Quickfinder team did not use namespaces, they still used shared code and shared code was the bridge that they were going to get. So if Quickfinder wouldn't be able

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to search and show you the documents in your recycle bin properly unless shared code could interpret the recycle bin properly. So we're reading again the namespaces and we can't see them.

Q: Now, Mr. Harrol, when Novell sold --

THE COURT: We're going to break for lunch. I think their lunch is here. Let's take 20 minutes for lunch and then continue.

(Lunch recess.)

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BY MR. TULCHIN:

Q: Mr. Harral, when Novell sold WordPerfect and Quattro Pro to Corel, you went along to Corel, correct?

A:I did.

Q: So did Jim Johnson, who would be your boss at Novell?

A:Yes, he did.

Q: And at Corel in 1996, Jim Johnson reported to a man named Paul Skillen, S-k-i-l-l-e-n; is that right?

A:I think so.

Q: Mr. Skillen was the vice president of engineering, I think, for Corel?

A:Yes. I recall that's the case.

Q: He hadn't come over from Novell, he was a Corel person, correct?

A:Yes, he came from I think Canada.

Q: Right. Now do you recall that in 1996 Mr. Skillen told Mr. Johnson, Jim Johnson, this is while you were at Corel, that your group, the shared code group, should use the standard file open dialog in Windows 95 so as to get the WordPerfect and Quattro Pro products out on to the market?

A:I don't know if he told Mr. Johnson that. If they had decided that, they would have told us and we would have done that. But I don't know if he told them that or not.

Q: Do you remember that Mr. Skillen actually fired Jim Johnson in 1996?

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A:I do remember that Jim Johnson was fired in 1996.

Q: Do you recall that he was fired because he did not comply with Mr. Skillen's directive to use the Windows common file open dialog in order to get the products out?

A:They did not divulge to me the reason for him leaving the company.

Q: Okay. I want to go back to 1994, just briefly. I think you said earlier today that between June 10th and October you wrote a version of the file open dialog that called the namespace extension APIs?

A:Yes.

Q: Now what happened to the code that you wrote?

A:That you being the shared code group?

Q: Yes, sir, because we don't have it. It's not --

MR. JOHNSON: Objection, Your Honor. There was no source code --

THE COURT: The question was who was you.

MR. JOHNSON: There was no source code produced in this case. Both sides objected to it.

THE COURT: Let me hear the question. As far as I'm concerned, the only exchange was who was you are -- who was you.

BY MR. TULCHIN:

Q: You wrote code that called on the namespace extension APIs; is that right?

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A:The shared code group wrote code that called upon the namespace extension APIs.

Q: Was that code that was written preserved in some fashion?

A:That code was the same code that was used by WordPerfect in their development later on. So it was in use -- I know it was in use after December still because WordPerfect would not have -- would have been running on it to do their development, but we wouldn't have done our APIs at that point. So I don't know whether it ever saw the light of day in the actual shipped product. That I wouldn't know.

Q: Whether it saw the light of day in a shipped product, was it preserved somehow at Novell electronically, let's say placed in a particular file or on a server?

A:Well, I don't know -- I don't know if they archived it. Any of the releases of WordPerfect that they were working on and testing would have had that code inside of it.

Q: Was there ever a written specification describing the work that was done to write code to the namespace extension APIs?

A:I don't know if the person who wrote that code did such a thing.

Q: Well, you didn't write the code?

A:I did not write the code.

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Q: Was it one of the people who worked for you who wrote it?

A: It was one of the people who worked for Tom Creighton that wrote it.

Q: You don't know if there was ever a specification, prepared something in writing describing what was done?

A: I am unaware of a specification for it.

Q: Now was it the case, Mr. Harral, that during 1995, one of the difficulties that the shared code team was having in creating Perfectfit that could be used with PerfectOffice stemmed from, let's say, disagreements that shared code people were having with some of the other Novell people like the Netware people?

A: I don't know -- I don't know to what you are referring.

Q: Was it true that people in the shared code group, in the group that Mr. Creighton was running, and people elsewhere at Novell were at each other's throats during this period?

A: I'm not aware of that. In fact, later on Mr. Creighton was taken off by Novell and wasn't even in charge of the shared group. I'm not aware of any problems that he might have been having or if there were any problems whatsoever.

Q: If I could just show you Defendant's Exhibit 347. This is an e-mail written it says in 1995, August 27th. So it's just about a month or month and a half after that other

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document we looked at, Exhibit 118. And this is an e-mail written by Mr. Creighton, correct?

A:It says that it is.

Q: And Mr. Creighton is writing to someone named Dave Miller. Do you see that?

A:Right underneath Mr. Creighton's name I see that.

Q: Do you recall who Dave Miller was at Novell back in let's say August of 1995?

A:I don't.

Q: And in the first sentence of the e-mail Mr. Creighton says, in principle I have no argument with the proposition. It is strategic for the company to have all groups work together to form a synergy resulting in greater revenue than we could do alone. Do you see that?

A:I do.

Q: Do you recall a debate in 1995 at the company about the extent to which different groups should work together?

A:I don't. I don't recall.

Q: Do you recall Mr. Creighton thinking that one of the problems in producing software was that various groups at Novell were at each other's throats?

A:I don't know about that.

Q: Would it be fair to say again that was sort of at a different level above you if that was going on?

MR. JOHNSON: Objection.

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THE COURT: Is this somewhere or I'm just missing this -- at each other's throats?

MR. TULCHIN: I'm about to show that, Your Honor.

BY MR. TULCHIN:

Q: If we look at the first page --

A: Well, you asked me a question first.

Q: Go ahead and answer.

A:So as I said before, the WordPerfect -- at least from the developers' perspective, there was limited interchange between us and Novell so that we could get our product out. So there was -- if there were requests that were going on between Novell and our division with applications, they were probably keeping that to a minimum so we could get the product out.

Q: One of the things that was going on around this time is that the Netware people at Novell were pressing people in the applications group to include some Netware technology in the applications that were being written, correct?

A:Like I said, I don't know.

Q: You don't know.

If you look at Mr. Creighton's e-mail, it's just about halfway down, there is a big thick paragraph that starts I'm quite aware of some strong feelings. Do you see that?

A:I do.

Q: Does this refresh your recollection at all that there

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was some strong feelings in the system group at Novell that there's a lack of commitment on the part of applications people to support Netware fully?

A:I don't remember any conversations like that.

Q: And Netware was Novell's main product, correct?

A:Yes, the Netware operating system was their main product.

Q: The Netware operating system accounted for, would you say like half of all of Novell's revenues or maybe more?

A:I couldn't say. I don't have any numbers.

Q: Then going down to the next paragraph which starts with remember, the first sentence says -- this is Mr. Creighton writing to Mr. Miller -- remember also that it's not easy to make dramatic changes to existing code.

Now was that a reference to the fact that in 1995 there were some people at Novell asking the shared code group to make dramatic changes to the code in order to incorporate some of the Netware technology into the applications?

A:There was a polling of -- as I said, there were a limited number of interchanges because of our schedule. At the beginning, with the acquisition of WordPerfect, there was an initial polling about what kind of synergy there could be between the groups. And we had milestone charts that said, you know, here's what we plan in the year, here's what we plan in two years, three years, four years, five

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years.

So we then had discussions with people and I -- at the time, it was my understanding they would take that information and they would work that into the plan. Where those ended up, I do not know. If there was trouble with that, I do not know. We were of the habit of taking that input and integrating it.

They could have been upset that we weren't doing it. They could have been upset that we weren't doing it soon enough. I don't know what that would be. I have no knowledge of the interchanges here beyond the query of can we do something and we said yes, but just not now.

Q: Is it the case, Mr. Harral, that part of the reason for the delay in getting the Perfectfit product, the shared code product out, that the delay you talked about was trying to make these sorts of dramatic changes to the existing code, the source code?

A:No. We never did the integration that Novell wanted, that they talked about at this time.

Q: And if we look at the very next paragraph down the page, it says, we cannot make this happen if we are at each other's throats or if we snipe at each other.

Do you recall that part of the reason for the delay was that people at Novell were sniping at one another?

A:I guess Mr. Creighton did a very good job of keeping

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all those things from us so we could do our work.

Q: We talked about Mr. Miller a moment ago, and I want to hand you a document that we've marked at Exhibit 6. This is a one-page document and it's dated October 16th, 1995.

THE COURT: Again, this is just the same thing. When you say an exhibit, the record will reflect that it's a defense exhibit unless you otherwise indicate.

MR. TULCHIN: Yes, I'm sorry.

THE COURT: No, no, no.

MR. JOHNSON: We have an objection to this exhibit.

THE COURT: Come up and tell me what the objection is.

(Side-bar conference held)

MR. JOHNSON: Your Honor, this is about Netware.

THE COURT: Is Netware DOS and DOS technology?

MR. JOHNSON: No. Netware is a server.

THE COURT: It's a server. Nothing to do with PCs.

MR. JOHNSON: This is all Netware related stuff. That has nothing to do with what we're talking about here. These bugs being talked about have to do with bugs in Windows 95 that were causing problems with existing products, not the product that was being planned for, Windows 95, backwards compatibility required. In other

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words, Windows 95, you had to be able to run your old products on Windows 95. So what they are talking about is bugs that had to do with running existing products like Netware. Nothing to do with this case. We're only confusing the jury as to the significance of this completely irrelevant document.

MR. TULCHIN: Your Honor, I don't know that that is the case. It strikes me that this is a business record. And Mr. Richards says this, worked in the legal department at Novell, submitted an affidavit to the Court in connection with the motion to compel saying that he wrote this, if I remember correctly, or maybe a different document. I hope I have got the right one, but this is a business record of Novell. It reflects something other than the ability to get these products out in 1995. I guess the witness can say so. I hear what Mr. Johnson is saying.

MR. JOHNSON: Here's another problem. He's going to show that the problem that we had, we had with development.

THE COURT: A lot of things that he says, there is a difference in interpretation in what the documents mean. Certainly some you have introduced. I have confidence in the jury. It's got nothing to do with this and, again, you can bring it on later.

(Side-bar conference concluded.)

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THE COURT: Ladies and gentlemen, this document may look very dramatic. It's going to be for you to determine the significance. There's going to be subsequent questioning in the case that maybe has nothing to do with PCs or with Netware, which is a server product.

MR. TULCHIN: Let's not quite show it yet.

BY MR. TULCHIN:

Q: Mr. Harral, before we publish the document to the jury, this is Defendant's Exhibit 6, let me ask you, sir, are you familiar with this document? Do you recall having seen it before?

A:I do not recall having seen this document before.

Q: Can you tell from the second paragraph which begins, the important matter in Dave's mind whether this has anything to do with the Netscape -- sorry, namespace extension APIs?

A:I don't know.

Q: When there's reference here to the beta release, can you tell whether this is a beta release of Windows 95, such as the first release that you got in 1994?

A:I don't know.

THE COURT: I think -- this witness knows nothing about the document. It's just for identification right now.

MR. TULCHIN: Under the circumstances, Your Honor, I think I will not use it.

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THE COURT: Thank you, Mr. Tulchin.

MR. TULCHIN: I am about to finish my questions with Mr. Harral.

BY MR. TULCHIN:

Q: Mr. Harral, I think this the last question.

When you showed these three choices, the three options that you referred to, one was to continue to use the namespace extension APIs. That was one number one, correct?

A:Yes.

Q: Number two was not to the use them -- not to use the APIs, but to try to proceed without that extra functionality, correct?

A:No. Let me back up here. I need to make sure what you are saying is that we had three options. One was to use the APIs. The second one was to use the common dialog and enhance it such that we could leverage those functionalities within the framework of the common dialog. The third was, as we were told, reproduce exactly what was -- what was there.

Now you rightly state that the bad side of the common dialog is that if we couldn't leverage what we were doing, we would end up with just the common dialog, which is not the option we were looking for. That's why if we could get beyond just the common dialog, we could then use that option. If we couldn't get beyond just the common dialog,

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we wouldn't be able to -- and, in fact, didn't use that option many times.

MR. TULCHIN: Your Honor, if this isn't too much of an imposition, could I ask the plaintiff's team to put this demonstrative on the screen? It's demonstrative 15 that they showed this morning.

MR. JOHNSON: Not a problem, Your Honor.

BY MR. TULCHIN:

Q: I'm sorry, Mr. Harral. I didn't mean to spend as much as time on this. But the first option was to continue to use the namespace extension APIs, correct?

A:And see if we somehow fit it, yes.

Q: Those APIs never went away, they remained there?

A:What we're referring to there is icomdlg browser.

Q: Mr. Harral, you testified earlier those APIs were never removed, they remained there in the product?

A: They were re-documented. That one was re-documented.

Q: The APIs were not removed, they actually remained in the beta and were in the final version for Windows 95, correct?

A: That is correct.

Q: Here was my question. On the second option, you said last Thursday, and this slide reflects what you said, page 342, the second option would be to see if we could somehow fit within the framework that they had given us and reduce

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functionality.

A: Uh-huh.

Q: My question to you is this: What you are referring to there in the second option is using the Windows common file open dialog, correct?

A: Using -- do you mean using it wholly --

Q: Yes.

A: -- or using it and then working with it?

Q: No, using it as the file open dialog --

A: No, that's not what we were intending. Because it says work within that framework. Okay. There's still work to do. Okay. We're not just putting up the dialog and that's what we're going to have. What we're saying is could we work with Microsoft and find a way that we could still expand what real estate we had access to. Could we get the viewer on there even if we couldn't maybe get the namespaces up. This is a wide vista of possibilities.

The question is as we work with Microsoft, do we get enough help that we think it's adequate, or are we going to be so reduced, i.e., by just the common dialog that it's not an option. It always came back to we could never get enough help so that we could work with it. So that option always came on and we always looked at it and we said, but it doesn't look like it yet, but we still have enough information to do that, and it always went off.

531

Q: Did we not look earlier at Exhibit 118, Defendant's 118, from July -- I will get you another copy if you want?

A: I hope I still have it. I'm running out of space on my desk.

THE COURT: When Mr. Tulchin said that was going to be his last question before, you didn't believe it, did you?

MR. TULCHIN: Last subject matter I hope I said.

THE WITNESS: That's okay. Maybe I can remember. Tell me about it.

BY MR. TULCHIN:

Q: The document written in July, which talks being Mr. Creighton's directive in June, remember that, about which alternatives, and he didn't --

MR. JOHNSON: Your Honor, I would like him to have the document, please.

MR. TULCHIN: Well, if I may proceed, Your Honor? If I may proceed?

THE COURT: Go ahead.

MR. TULCHIN: But let me do this and we'll try to move along. It's the wrong document, 118, and my memory was wrong about what document.

MR. JOHNSON: That's exactly why I wanted him to have it, Your Honor.

MR. TULCHIN: Shall I proceed, Your Honor?

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THE COURT: Just proceed.

BY MR. TULCHIN:

Q: Am I right in thinking that we looked at a document earlier today where Novell recognized that it was possible to use the Windows file open dialog, the file open dialog provided by Microsoft, and still get out the product?

MR. JOHNSON: Your Honor, asked and answered innumerable times.

THE COURT: Overruled. This is a predicate for the next series, the subject matter in which we have now resolved.

Go ahead.

THE WITNESS: So, okay. I think this is the document.

THE COURT: Did you hear what I said? The subject matter in which we now reside. Didn't make any sense.

THE WITNESS: So if you are referring to when we were talking about the document where Tom Creighton said we were no longer going to consider the alternative, then that was a discussion -- in my view, that was a discussion of a representative above Tom Creighton wanting to know why things are going the way they are. And that is why Tom Creighton said, we're not going to do anything with the alternative. I think the representative who asked that

Q:uestion was given information and Tom was allowed to make

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that decision. And so I think at that point everything went the same way, the representative didn't tell Tom to do differently, and that's where it stood.

BY MR. TULCHIN:

Q: But certainly you told me earlier this morning that if you decided to use the Windows file open dialog, you could have gotten the product out in 1995?

A: If that was an acceptable solution, it would have been easier to get it out.

MR. TULCHIN: Nothing else, Your Honor. Thank you.

THE COURT: Mr. Johnson.

MR. JOHNSON: Thank you, Your Honor.

REDIRECT EXAMINATION

BY MR. JOHNSON:

Q: Why was it not an acceptable solution?

A: Because we had customers who had been on WordPerfect for a decade and we had -- WordPerfect Corporation had a -- knew that its customers had made a great investment in their product. If we were to -- there were many, many, many discussions as we moved into Windows, because Windows had a huge amount of standards that it taught people. And we knew that as people moved on to Windows, they were adopting those standards.

As the people that we had that were already using DOS,

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they already had entrenched standards. How they had -- the people who ran their day around trying to work with the documents they had created with WordPerfect. And only when they chose to move would they be saying they were going to adopt these different standards. We weren't trying to force them to move in any direction. We wanted to provide functionality wherever they were at.

If we brought out a version of WordPerfect -- and there was a discussion about this. When we tried to move forward, I talked about how you would record things that you did so you could play them back later so you didn't have to do the work yourself over and over again. There were huge discussions in WordPerfect about how do you bring forward this way that they've done it on DOS into Windows when Windows had totally different ways to do it. We could invalidate all the work that they've invested in our product as they moved to Windows. So we had lots and lots of meetings and discussions with the DOS group to make sure that we didn't only do what Windows wanted but we were able to bring forward these people so that their work was not invalidated.

At the same time, we knew that their way of living in the product was what we were talking about as well with the file open dialog. If we wanted them to live in the product and feel like -- we wanted them to feel like, oh, here's

535

where it's at now. We didn't want them to feel like, oh, can I even do this anymore. That wasn't the option we didn't have. Because if you disenfranchise your customer, usually what my experience has been is they will -- if they have to go look at something else, they will look at all the options and you're at the bottom of the list because you just hurt them. We did not want to be in that position.

Just like we wanted to make sure their work of capturing work they had done was brought forward, we wanted the place that they lived in to be brought forward. We knew that new people would live in the Windows 95 shell. But we had to make sure that the people who were going to be coming forward, they felt comfortable as well. The people in the Window 95 shell, we thought there were features they would like. So we wanted to make sure that people using WordPerfect on Window 95 and all the other products that leverage that, that they were going to have the same -- they felt -- nobody felt like a second class citizen, whether they were in Windows or whether they were inside of our products. That was the goal that we had.

Q: Thank you.

Going back early on to the cross-examination by Mr. Tulchin, he asked a large number of questions and almost all of them were framed during the period of 1994 to 1996, and he kept referring to that period in time. Then he asked the

536

A:I do have it.

MR. JOHNSON: Can we get that deposition up? We don't have that one. Can we put this on the Elmo?

BY MR. JOHNSON:

Q: Mr. Tulchin referred you to this testimony that you had given in this deposition -- not in this case --

A:Which page was this again?

Q: But in some other case.

177.

A:Thank you.

Q: And I just wanted to be clear here that the question about --

A:Rubbing shoulders.

Q: -- rubbing shoulders had to do with a much earlier period in time back when you were with WordPerfect in 1989 and 1990?

A:I was -- one of the things that I noted here is that the context of the comment, in 1989 and 1990, when I was first hired, I was hired in 1989 at WordPerfect. And in to

537

1990 when I'm still working in the printing group at WordPerfect, the only interaction I had with the upper management really was that the head of the company interviewed me to get hired. After that, I never talked to them. So in that time frame, that wasn't something that I really had the opportunity to do.

Q: But if we turn to the time period that Mr. Tulchin kept talking about, which is the time period between 1994 all the way through 1996, it would be fair to say that you did rub shoulders with upper management at Novell?

A:Yes.

Q: Thank you, Mr. Harral.

MR. JOHNSON: Can we put up Defendant's Exhibit 172, please?

BY MR. JOHNSON:

Q: Do you have that document before you, Mr. Harral?

A:I'm searching through the dead trees that I have here right now.

THE COURT: It's on the screen.

BY MR. JOHNSON:

Q: Can you read it on the screen there?

A:Yes, I actually think I can.

Q: There's a simple question I have about this. I know you didn't even know who Scott Nelson was. Down at the bottom it says he was apparently some product marketing

538

director, NBA. Do you know what that means, NBA?

A: No.

Q: This document is about compatibility of PerfectOffice 3.0. On the new operating system, Windows 95, that hadn't even shipped yet; is that right?

A: That's what it says here. Because PerfectOffice, we would have concern in shipping a Windows product and operating system that had not been yet been released.

Q: PerfectOffice 3.0, which had already been released, I think you testified, in December of 1994, it was important that that product be at least able to work on Windows 95; is that right?

A: Yes, that would be a big concern. Because when you release a new operating system like the -- one of the companies that I came from, as I dealt with the IT department and my frustration they had not upgraded Windows in a while, I would talk to them and they told me it would take them a year to deploy an operating system. So it takes a while for a new operating system to end up in businesses where they are using it day to day. So we could have this older product in place for a long time after afterwards and some people could use Windows 95 and some may not. So even though we wouldn't have everybody over, if somebody was trying it on Windows 95, that could determine whether they wanted to use our product or not from just those small

539

tests. We wanted to make sure -- we were concerned that they would have a good experience of this older product for the new operating system.

Q: Thank you.

MR. JOHNSON: I think we can turn that one off.

BY MR. JOHNSON:

Q: There were quite a number of

Q:uestions from Mr. Tulchin with respect to e-mails and memos and things, and a discussion of your discussions with Premier Support. At one point you said that Premier Support kept records of the phone conversations that you would have had with them. How do you know that?

A: Well, because when I called Premier Support and I wanted to follow up on an issue that I had submitted with Premier Support, there is no way that the person I just happened to get on the phone could know, one, what my issue was and, two, what the status was unless there was a recording system that they would maintain those incidents from call to call.

Q: So based upon your knowledge of how this worked, Microsoft should have a record of all those phone calls you made to Premier Support?

A: Yes.

Q: I have looked through all of Microsoft's document in this case and I haven't seen those records. Have you seen

540

any of those records in this case, Mr. Harral?

A: I have not, and I don't get the chance to look through all the documents that you do.

Q: Let's turn to Defendant's Exhibit 259. If you would turn to the second page. Mr. Tulchin referred you to one bullet point, I believe it was the first bullet point, and talked about the slow and too many bugs part of this particular bullet point. Do you recall that?

A:I do recall this page.

Q: Let's go up to the top of the page, executive summary, first paragraph. It states, WordPerfect 6.0 for Windows has done many things to help establish WordPerfect Corporation as a leader in Windows word processing. The product has been correctly positioned, advertised and reviewed as the most comprehensive word processing program in the market.

Is that consistent with your recollection of the reviews with respect to WordPerfect 6.0 for Windows?

A:It was.

Q: Let's not leave this to doubt, Mr. Harral.

MR. JOHNSON: Could we put up Plaintiff's Exhibit 110, please? And turning to the second page. This is a December --

MR. TULCHIN: I would object to the let's not leave this to doubt comment on direct -- or redirect.

THE COURT: Sustained.

541

BY MR. JOHNSON:

Q: Mr. Harral, I'm drawing your attention to Plaintiff's Exhibit 110 and looking at this computer magazine from December of 1993, and turning to the first page there, WordPerfect 6.0, at the top it says, looking for the ultimate Windows processor, and it talks about WordPerfect 6.0.

Do you recall that this was the type of reviews that WordPerfect 6.0 was receiving?

A: I do. I didn't see this review, but I do recall that is the sentiment we had about the product.

Q: Reading form the top of the review, it states, WordPerfect 6.0 for Windows isn't just another software program. It is a computer user's garden of unearthly delights, an MVP award winner. The latest version of WordPerfect makes major gains in the word processing features war adding functions available in its chief rival, Microsoft Word for Windows, and then some.

Is that consistent with what you recall at the time about the reviews of WordPerfect 6.0?

A: Yes, it is.

Q: Turning now to Plaintiff's Exhibit 126. This is much like Plaintiff's Exhibit 390 that we looked at in your direct examination where WordPerfect had excerpted some of the reviews with respect to PerfectOffice 3.0. This is the

542

same thing for WordPerfect 6.0. And by looking through these blurbs, can you tell us, are these also consistent with your memory that WordPerfect 6.0 for Windows received high praise?

MR. TULCHIN: Objection, Your Honor, both because apparently it's being offered for the truth and because this witness has already said he wasn't familiar with the marketing or advertising.

MR. JOHNSON: Your Honor, we've already instructed the jury that these are offered to show its impact on the consumers and not for the truth of the statements made.

THE COURT: I think under the circumstances, I think Mr. Tulchin opened the door a little bit, but I think you've gone through it. Sustained.

MR. JOHNSON: Your Honor, may I show a couple reviews for the other WordPerfect version that he talked about, which was not 6.0 but 6.0A?

THE COURT: Yes. I don't remember him being asked, but that's fine. Go ahead.

BY MR. JOHNSON:

Q: Turning now your attention to WordPerfect 6.0, Mr. Harral, was that a subsequent version of WordPerfect?

A:Yes, by the number it would be. It is.

Q: And drawing your attention to Plaintiff's Exhibit 233, in this business services industry article with respect to

543

WordPerfect 6.0A says, WordPerfect 6.0A for Windows named best word processor for second year in a row. WordPerfect for Windows chosen over Microsoft Word for Windows as the best word processor of 1994.

MR. TULCHIN: Object.

THE COURT: I'm going to tell you all later this case is not about monopolizing or attempt to monopolize in the application market. It's important for you all to understand this. This is not a case about whether -- I'll not get into this war, but I might as well say it now. It's time it's stated clearly by me, this is not a case against Microsoft for attempting to leverage any monopoly it has in the operating systems market into the applications market. That is not what the case is all about except to the extent that somehow it's a basis for destroying -- to the extent that it affects the operating system. It's a very hard concept to understand, but you will have to -- putting all these things up, this is not a case about somehow Microsoft monopolizing or attempting to monopolize the word processing application market. It's very important for you to understand that.

BY MR. JOHNSON:

Q: Mr. Harral, now turning your attention --

MR. JOHNSON: This will be the last one of these, Your Honor. This is actually Mr. Gates speaking.

544

BY MR. JOHNSON:

Q: -- to Plaintiff's Exhibit 162. And drawing your attention to the top of this e-mail, e-mail from Mr. Gates to Mr. Pete Higgins and Mr. Mike Maples dated Wednesday March 30th, 1994. The subject is with WordPerfect 6.0A. Mr. Gates states, I'm amazed at their responsiveness. This is very scary and somewhat depressing. This is as much as we plan to do for 1995. A lot of work in this release.

Do you recall, Mr. Harral, that the press was saying that you had done a lot of work for this release, this 6.0A release of WordPerfect?

MR. TULCHIN: Objection, Your Honor. This document --

THE COURT: Sustained.

MR. TULCHIN: Can they take it off the screen, Your Honor?

THE COURT: It's off.

BY MR. JOHNSON:

Q: Mr. Harral, there were a number of questions asked by Mr. Tulchin with respect to whether or not there were reports that came out after Microsoft's developer conferences that you would have seen at the time. I just want to show a couple of these. Plaintiff's Exhibit 63.

If you can take a look at that, would that be an internal document within WordPerfect where somebody had gone

545

to the conference, details for everybody else what occurred and what was presented at the conference?

A:Yes, it is.

Q: And, similarly, if we take a look at PX-78. Is that another one of these types of internal things at WordPerfect where people that had been at the conference are telling everybody else what happened there and all the features and things that were being discussed?

A:Yes, it is.

Q: Mr. Tulchin also asked you a number of questions relating to whether or not there had been any work done prior to receipt of the beta in June of 1994 with respect to WordPerfect for Windows 95. I would like to show you what has been marked --

MR. JOHNSON: Before you put that up, I think you have an objection to this one. So it's PX-172. If you don't, I will put it up. If you do --

MR. TULCHIN: I don't know what the document is, Your Honor.

We do, Your Honor.

THE COURT: Approach the bench.

THE COURT: Has the witness ever seen it before? Has the witness ever seen this document?

MR. JOHNSON: The witness has seen this document.

(Side-bar conference held at bench.)

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MR. JOHNSON: Your Honor, this document, the articles of the development efforts for 132 Windows 95 was the first 32 bit operating system for Microsoft. This goes in detail through the chronology of work that had been done with respect to getting ready for Windows 95, the 132 development process.

MR. TULCHIN: None of this is work that he did or is familiar with, at least that was his testimony today. It also, Your Honor, has nothing to do with what work they did in reliance on the statements at the meeting in November of 1993. There is no question whether they had done any work. It's whether they had done any work based on anything they were told at the conference, at least as I remember we just went through.

THE COURT: What is the testimony going to be?

MR. JOHNSON: Your Honor, in opening he said over and over again we're late, we're late, we're late. We were always late. This document shows we were not late. We were on top of our development efforts for Windows. That's when we begin Windows 95. Windows 95 was the first 32 bit operating system.

THE COURT: I am going to allow the testimony. It's only marked for identification right now, but you can put it on the screen.

(Side-bar conference concluded.)

547

BY MR. JOHNSON:

Q: Mr. Harral, drawing your attention to Plaintiff's Exhibit 172.

THE COURT: This document is not in evidence, but will let Mr. Harral testify about it and you all can look at it as he testifies. Maybe it comes in later. I just haven't made up my mind.

BY MR. JOHNSON:

Q: Does this document summarize the development efforts begun at WordPerfect going all the way back to 1992 in preparation for the first 32 bit operating system from Microsoft, which would have been Windows 95?

A:Okay. I was -- sorry. I was confused about the first part because it's talking about the win NT.

These would have been efforts for Windows 32 bit development that would have led up to the Windows 95 release.

Q: So even as far back as November of 1992, WordPerfect at least was engaged in development efforts looking forward to the first Windows 32 bit product?

A:Yes.

Q: Thank you, Mr. Harral.

MR. JOHNSON: Can I have this entered into evidence, Your Honor?

THE COURT: Not right now. I will decide it

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later.

MR. JOHNSON: Thank you.

THE COURT: It may very well be admitted. This witness didn't author it.

BY MR. JOHNSON:

Q: Mr. Harral, there were some questions to you by Mr. Tulchin concerning concept design specifications, and this was Defendant's Exhibit 98.

MR. JOHNSON: Can we get Defendant's Exhibit 98 up there?

BY MR. JOHNSON:

Q: And this was with respect to thunder, which you weren't really certain exactly what that was. But there was a suggestion by Mr. Tulchin in his questions that they weren't able to find any of these concept design specifications for Perfectfit and the file open.

So I would like to draw your attention to PX-91, please.

MR. JOHNSON: And if we could put -- maybe we could put those kind of side by side. Is that possible? If we could do that.

BY MR. JOHNSON:

Q: So turning your attention to this PX-291, would this be the concept design specification as of March 31, 1995 for Perfectfit 95 with respect to the file system and the file

549

open?

A:Yes. That's what it says.

Q: Turning to --

MR. JOHNSON: I'm going to require a little help on this, Your Honor. Just a moment.

BY MR. JOHNSON:

Q: Turning to the page Bates stamped 186, which is page 15 of the document, and it has a glossary of new terms. The very first one is namespace. So this would have been a glossary of new terms in connection with the file open dialog for Perfectfit. And the namespace being referred to here, Mr. Harral, does that relate to the namespace extension APIs that we've been talking about in this case?

A:Yes.

Q: Thank you, Mr. Harral.

There was a series of

Q:uestions by Mr. Tulchin with regard to Quattro Pro and whether or not they were somehow the reason for the delay. I recognize that you said appropriately that that wasn't what you were doing, the product Quattro Pro was not your thing. But let me ask you this. Would Gary Gibb be a person that would know if

Q:uattro Pro was the problem?

A:Yes.

Q: Why?

A:Because he was at the level of management to look over

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the various products. All I would be able to report to Gary through Tom was what our reasons were and convey those. I would be unaware of that. Gary would be the person that would be able to talk more about that.

Q: Drawing your attention now to another exhibit used by Mr. Tulchin. It was actually marked as Exhibit 559-A because it was a portion of that big book in front of you that was apparently a 1995 -- mid 1995 publication of some type.

MR. JOHNSON: Can we bring that up? You don't have that?

We don't have it, Your Honor, because we didn't --

THE COURT: No, it's not yours. In fact, you objected to it, as I recall.

BY MR. JOHNSON:

Q: Drawing your attention to this 559-A exhibit, which is a portion of this book, and all I want to ask you, in this list of shell extensions that Microsoft apparently published some information about sometime in 1995, is there anything here in this list of shell extensions about namespace extensions?

A:On this first page I don't see anything about namespace extensions.

Q: I'm sure if there's a reference to namespace extensions in there, Mr. Tulchin will bring it to your attention.

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MR. TULCHIN: Objection, Your Honor.

THE COURT: Sustained.

BY MR. JOHNSON:

Q: Now could we turn to Defendant's Exhibit 347.

Mr. Harral, you were referred to this exhibit during the cross-examination. And Mr. Tulchin highlighted the first sentence in the fifth paragraph there. If we could just draw out that you whole paragraph.

Mr. Creighton was apparently reporting that there were some strong feelings in the systems group that there was some sort of lack of commitment by the applications people to support the network fully. So mr. Creighton goes on, does he not, to say that is not the case?

A:Yes, it says it's simply not the case.

Q: And doesn't he go on in this paragraph to say that what's really important here is we've got to be make very sure that whatever we do doesn't cause our products undue delay in release? Doesn't he say that, sir?

A:It does later on there, yes.

Q: That, in fact, he actually suggests that -- and he says, there is also a fairly strong desire to maintain our jobs.

Can you tell us why Mr. Creighton would be concerned about his job in case of a late release of this product?

A:A late release, there are two things that would happen.

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When developing software, you have got to deliver -- you've got to be able to deliver what you said you would and you have to be to able to deliver it in a timely fashion. So you always weigh that -- the Windows team in WordPerfect Corporation had a good history of delivering what they said they would and when they said they would. And you don't get the chance to keep doing it if you consistently show that you can't do it, that you can't release the product on time and release the product that you said you would.

So Tom is pointing out rightly so here that we understand the risk here. We are not -- we are not taking this for granted. We are trying to weigh very difficult decisions with things that are potentially, depending upon how things fall out, very much out of our control, and trying to chart the best course that we can to release this product, and Tom understood that fully.

Q: Thank you, Mr. Harral.

MR. JOHNSON: I think the last thing I wanted to do was -- and I think I owe an apology for this. Figure 11, which was the common file open -- I think it was 11. No, it wasn't 11. What was it?

MR. TULCHIN: I believe, Your Honor, it was nine.

MR. JOHNSON: There it is.

I blamed myself for this. As Mr. Tulchin said this is the file open dialog for Windows 2000. I'm sure he

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didn't get that wrong. Could we put up one now that came from one of the exhibits in the case that is the file open dialog for Windows 95? And if we could enlarge that.

BY MR. JOHNSON:

Q: Is that substantially different, Mr. Harral, from the file open dialog in Windows 2000?

A: It's not significantly different, which is why you would want to take some time to discern which operating system it came from. Functionally they are not significantly different.

Q: Thank you.

MR. JOHNSON: I apologize for that, Your Honor.

Thank you, Mr. Harral. No further questions.

MR. TULCHIN: Very few, Your Honor.

RECROSS-EXAMINATION

BY MR. TULCHIN:

Q: Mr. Harral, you were shown on redirect two memos, one is Exhibit 63 and the other is Exhibit 78, written by people at WordPerfect in 1993 about meetings or conferences with Microsoft, right?

A:Yes.

Q: And just so that I'm sure about this, you have never seen any memos about the November 1993 meeting that you testified about, correct?

A: Never seen any memos about --

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Q: Sorry. Let me ask a better question.

Exhibit 63 is about 15 pages long, and it's all about a design preview in July of 1993, right?

A:Okay.

Q: Exhibit 78 is about a workshop in September '93 and it's about 12 or 13 pages, right?

A:Okay.

Q: And I think what I asked you on cross -- and I'm just going to make sure that I've got this -- is that there are no memos of which you are aware about this 19 -- November 1993 meeting when Mr. Struss and Mr. Cole talked about what might be in the beta versions of Windows 95?

THE COURT: I think we've been through that. You better say people at Microsoft.

BY MR. TULCHIN:

Q: People at Microsoft. There is no memo about that as far as you know?

A:As far as I know.

Q: Lastly, you were shown Plaintiff's Exhibit 291, concept design specification, March 31, 1995.

A:Yes.

Q: Do you recall any document with a similar title or same title for Perfectfit that goes back to 1994?

A:The reason there may not be is because -- so the answer is I wouldn't recall any because it would be entirely

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different because back in 1994, that was close to the acquisition time and WordPerfect had a different way of maintaining its information. This is a Novell document that going forward they would do it in this form. So I don't know what -- so would there be something similar to it? There were documents that were produced that we worked from, but I don't -- I haven't seen any of them yet.

Q: Let me just see if I can get this straight. In the last six months of 1994 when Novell owned WordPerfect, was there any concept design specification for Perfectfit as far as you can remember?

A:I don't recall concept design specification.

MR. TULCHIN: Nothing else, Your Honor.

THE COURT: Thank you very much. I'm a little worried we're running behind schedule, but still this is just a natural time to break. I will stay here with counsel and Mr. Harral for a second and see you all at eight o'clock in the morning. Thank you all very much.

(Jury excused)

THE COURT: Sorry, Mr. Harral. I know you need to get back on the road, but let me ask you a couple

Q:uestions which I'm not sure are different from the ones I asked you last Thursday. Everybody else seems to understand all of this better than I do. I don't have the transcript from this morning, although I think it's been prepared.

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But your testimony this morning and on Thursday seems to me to be that you all -- when I say you all, I will say you. I guess you and the members of your group, I don't want to get hung up on that. You saw that Windows was a technological breakthrough. It was adding things that other operating systems had not in the past conceptually, correct? Features, something?

THE WITNESS: No. I have not characterized that well.

THE COURT: No, you probably did. I just didn't understand.

THE WITNESS: So it was new for the PC. I could look to the McIntosh and I could find some of the things --

THE COURT: Excuse me, for the PC. It was something -- in the PC area it really was different?

THE WITNESS: Yes.

THE COURT: You wanted, and I think you said it very well before, you wanted, and I wish I had it, you wanted WordPerfect to be -- to make the best of the new product, the best of Windows?

THE WITNESS: I wanted -- we wanted Windows to be the best it could be because of that.

THE COURT: So as I understand it, at least from your perspective, you wanted Windows to succeed, but you just wanted WordPerfect to succeed along with it?

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THE WITNESS: Yes.

THE COURT: And so you were expecting consumers and end users to be buying Windows so it could be used with this new wonderful application for WordPerfect as it developed?

THE WITNESS: The way that -- we had people still using DOS. And we felt that if we started producing very compelling products in Windows 95, that those people -- we would remove one more reason that people would hold off going over to Windows and would move over to Windows.

THE COURT: So the consumer would buy -- it was a better -- a new better product that Microsoft had produced which you wanted to have consumers buy?

THE WITNESS: Yes.

THE COURT: That's what you wanted?

THE WITNESS: Yes.

THE COURT: What your concern was, and I don't quite know how to put this, but essentially it's quite frankly the case is not all about, you were worried about Microsoft using its access to the operating system, Windows, to leverage its knowledge there and make WordPerfect and eventually win out over WordPerfect and eventually Perfectfit because it was going to be able to tie into the -- it sounds like I know what I'm talking about, but I don't -- this rich expansive environment that Windows 95

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provided, that it was going to be, respectively, a word and --

THE WITNESS: And the operating system.

THE COURT: Together it was going to connect the hooks. It wasn't going to allow you all to connect to the hooks. So therefore it was going go to a better product?

THE WITNESS: That's right.

THE COURT: So your real concern really was that Microsoft was trying to use its knowledge to monopolize or attempt to monopolize the applications part of it?

THE WITNESS: That was one of the concerns we had.

THE COURT: What was the other concern, if any?

THE WITNESS: Even if you don't monopolize it --

THE COURT: Be dominant, without getting into legal terms.

THE WITNESS: Yes, because --

THE COURT: To win out over WordPerfect?

THE WITNESS: Yes.

THE COURT: And that was a concern?

THE WITNESS: Yes.

THE COURT: Perfectly understood. But from your perspective, that's what the concern was?

THE WITNESS: Yes.

THE COURT: In fact, no matter what happened, you were trying to connect WordPerfect and whatever it exposed

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in terms of its own APIs or everything else, it was going to be operating on the Windows 95 operating system?

THE WITNESS: Yes.

THE COURT: No matter what happened. And if somebody could use what it exposed in terms of APIs and use them eventually as whatever, it was still going to be operating on the basis of the Windows 95?

THE WITNESS: Yes.

THE COURT: Thank you. I understand and I understand. Thank you. I will take a recess.

I'm getting impatient. I'm getting very, very inpatient.

Is there anything we need to discuss about tomorrow, if there is a tomorrow?

MR. TULCHIN: Your Honor, we did deliver a letter, we filed it this morning, asking -- I don't know if the Court had a chance to see this. It was filed earlier this morning before court. Mr. Johnson played a bunch of slides during his opening and we asked in writing two or three times for copies of them. He didn't respond until Saturday when he told Mr. Holley that he wouldn't give us copies unless he was ordered to do so. And we filed that letter this morning with the Court. And my request now is that the Court tell Novell to provide us with copies of what he showed to the jury in his opening.

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MR. JOHNSON: Your Honor, the letter that went to you omitted some facts that I think are relevant here. Prior to the openings, we had requested of Microsoft that they provide us copies of all their summary charts and exhibits that they expected to use in opening. I asked three times and I got no response from them. Prior to --

THE COURT: I'm sorry. We'll it take this up at 8:45 tomorrow, if there is an issue.

Is there anything else for tomorrow that we have to decide?

MR. TULCHIN: Not from us, Your Honor.

MR. JOHNSON: No, Your Honor.

THE COURT: I hope the reason for my impatience is clear. This case is not about trying -- about the dominance that Word might have obtained over WordPerfect. And it's not. That claim is time barred and that ruling is subject to appeal. And the Fourth Circuit has ruled on it. The Tenth Circuit can do it. But the fact of the matter is to the extent this is about acquiring or maintaining monopoly in the operating systems market, and your own client just testified and your own witness just testified that it was a better product and WordPerfect was going to use it and it was going to be -- it's clear as a bell to me. And I'll take a recess.

MR. JOHNSON: Your Honor, may I respond to that

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just very briefly?

THE COURT: You are going to have to sometime.

MR. JOHNSON: I think this is important that we bring this back to what the Fourth Circuit said and why we're here. Okay. Remember that what Mr. Raikes said was that if we own these key franchises, and that may have to do with monopolization of the applications market, that may yet to do, but that's not what we're trying here. What Mr. Raikes, if we own those key franchises, if we dominate on top of Windows, we widen the moat protecting Windows operating --

THE COURT: Your own client just testified that if WordPerfect was the word processing application, it would be using Windows 95 too. That is what he just testified to. It doesn't matter. Whatever Mr. Raikes perceived, the fact of the matter is the realty of the marketplace was that they had a better product, it was somebody else's work, as the witness already testified to. And the fact of the matter is whether it was WordPerfect or whether it was Word or whatever, it was going to use Windows 95, and this case is about Windows 95, and it was a better product. And maybe somebody wanted to back into the DOS system, but if they wanted to back into the DOS system by reverse engineering, then this claim is barred by the moat, the asset purchase agreement.

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MR. JOHNSON: Your Honor, this has nothing to do with DOS, respectfully. And what the witness said was actually they were looking to try to move those users over to Windows 95.

But what Your Honor asked Mr. Harral last week was very probative. You asked him, this is crazy, according to your testimony, Microsoft was hurting it's own product.

THE COURT: Absolutely, and that's why I thought more about it over the weekend. The fact of the matter is it was still intending whatever -- I understand that. But Microsoft, under your theory, was embarking upon a course of conduct to maintain its monopoly frankly after 1996, which itself is an issue. But I will give you the benefit of the doubt on that. The fact of the matter is Novell and eventually Corel wanted to use -- wanted these APIs and namespace extensions so that it could take advantage of the technological superiority of the new product that Microsoft had produced.

MR. JOHNSON: That's right, Your Honor. Please, because those questions you asked are very probative. You said they were prepared to take a short term loss. You said that. They were prepared to stop WordPerfect and take the loss to make their product, Windows 95, less valuable, less innovative in order to get rid of WordPerfect.

THE COURT: That's why I asked last --

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MR. JOHNSON: That is a classic formulation of anticompetitive conduct. You take a short term loss for a long term gain.

THE COURT: That's why I asked last Thursday. What I asked just now was WordPerfect, and your own client testified to it, he wanted WordPerfect to be -- I forget what it was -- to make Windows the best it could possibly be. The fact of the matter is widening the moat is going to be irrelevant vis-a-vis WordPerfect because WordPerfect was going to be using Windows anyway, at least according to the evidence so far.

MR. JOHNSON: But the point is, Your Honor --

THE COURT: That's the whole purpose. Of course, you had a very honest witness. He was trying -- also it seems to me you just wanted to turn Microsoft into an open platform, which by the way -- which the government didn't order, but the D.C. Circuit reversed.

MR. JOHNSON: Your Honor, the important part here is that Microsoft was willing to -- in order to hurt WordPerfect was willing to make it a less valuable piece of property, which is --

THE COURT: Maybe that was its intent, but it had nothing to do with the fact happening in the marketplace because WordPerfect wanted to use Windows.

MR. JOHNSON: Of course, they did, Your Honor.

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THE COURT: Because it was a better product.

MR. JOHNSON: But the effect of this conduct, Your Honor, which is different obviously for Mr. Harral, the impact is with respect to his product, the PerfectOffice Suite. But the impact on the operating systems market, that's not something Mr. Harral is interested in.

THE COURT: He's interested in this product which you wanted to connect with Windows.

MR. JOHNSON: But the point of this case, which is monopoly maintenance of --

THE COURT: You want to put some expert on the stand who is going to ignore what was happening when they were actually developing the product.

MR. JOHNSON: He's not going to ignore that at all, Your Honor. He's going to speak to it and speak how Microsoft's actions both with respect to WordPerfect, with respect to Lotus, with respect to Netscape, and with respect to these other products --

THE COURT: I will allow the case to continue and hear it all, but what I've said before I continue to say, and there are problems in your case having to do with the facts. It's not just the theory. It's a wonderful theory. I understand it. That's how you got this far. The fact of the matter is I've now heard some of the evidence, and the fact of the matter is your developer, your very good guy

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here, who frankly got a lot of people at Microsoft to believe that, look, the way to do this is to develop the best operating system. We owe that. It ought to be socialized. And people -- the competition ought to be in the applications market. That is a way to approach it. But the fact of the matter is I have heard testimony so far that Windows 95 was a qualitative improvement, it was a superior product that WordPerfect itself wanted to write to. That's what I've heard.

Court is in recess.

(Whereupon, the trial was continued to Tuesday, October 25, 2011 at 8:00 a.m.)

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