Here's the transcript from day 6 of the Novell v. Microsoft antitrust trial, as text. That makes it Tuesday, October 25, 2011, and Novell puts on its second live witness, Gregory Lee Richardson. He's a software engineer who first worked for Microsoft, right after school, but then went to work for WordPerfect and then Novell, then Corel, and then back to Novell, and during the relevant time period this trial is about he worked with Adam Harral in the shared code group. His testimony is similar to Harral's, that Microsoft encouraged Novell to use its extensions for Windows 95, and then snatched them away after Novell had invested time and effort based on those now undocumented extensions. He also testifies regarding the dispute over using the Microsoft logo. But first there is a dispute between the lawyers over exchanging slides, and the judge says he doesn't know which side is right or wrong, but he just tells them both to grow up and do what they are supposed to do. And then he describes what he says is his current understanding of Novell's case, and it's rather odd. He seems to be saying that he misunderstood what the case is about.
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And when he states his current understanding, he asks if there is any case to support what he now views as Novell's case, that a monopolist has to help a competitor, and Novell says yes, there is. Novell v. Microsoft, referring to the judge's own opinion [PDF] and ruling [PDF] earlier on Microsoft's summary judgment motion that ended up being appealed and eventually overturned. How could he not have reread that material prior to the trial, I can't help but wonder, if he has memory issues?
Here's the interchange between the judge and Novell's attorney, Jeff Johnson, at the opening of the day about the judge's apparent confusion:
THE COURT: Let me try -- we've got a couple
minutes, I tried to write it out, and I sort of wish I brought
it down. There's going to be a recurring issue in the case.
First, I need to know from Novell now, and you don't need to
give it to me now, maybe back in the briefing on the
instructions I'll understand it better, but I don't quite know
why I hadn't picked this up before. But until I heard the
opening statements, I really thought that WordPerfect --
Microsoft had made Windows 95 incompatible with WordPerfect as
an application system. I don't know why I thought that, and I
probably missed it in the papers. I now understand that is
not the case. That as a word processing application
WordPerfect could be used by Windows 95, and an icon could
have been installed and it could have been used. And to the
extent I just missed this, I apologize, but frankly that's
where I was.
Now that I understand the issue better, and I
understand Novell's position that providing documentation for
the NameSpace extension APIs increase functionality and that
the third way is different than simply sitting on top of
the -- having the application sitting on top of the operating
system. I understand that.
But it does add a new dimension, which is to what
extent a monopolist has to cooperate with a competitor by
providing to the competitor product enhancement that the
monopolist has made to his own product through its own
investment and research and development. And to that, I don't
know if there's -- no case that I thought of comes to mind
that does that. There may be cases out there. I just need to
know at some point, now that I focused upon that issue I need
to know, need to know from Novell what authority there is.
It's almost like I was trying to think of an
analogy since I couldn't stand watching the Raiders. It was
almost like asking somehow the owner of the -- a monopolist
somehow built a railroad around and made three, I think three,
it's three mountains fronting one another, and that the
fourth, the plaintiff sort of required that you extend that
railroad to us, too, so that we can engage in the enhancement
which you made for yourself.
Now, I don't -- I'm sure there is a case, and I
need to -- and I don't need an answer now. But that is -- I'm
just trying to tell you what's been on my mind.
Also, what I went off on yesterday, and it is a
terribly, terribly difficult conceptual issue, and that is it
seems to me there's inconsistency. I understand Novell's
theory. The theory is that Microsoft, as I understand it,
withdrew the documentation through the NameSpace extension
APIs to target Novell because it saw Novell as a potential
middleware threat and because it saw that WordPerfect became
so popular that it would supercede Word and that, therefore,
people would buy WordPerfect and whatever operating system it
was working on and not Windows 95.
This case is not about and cannot be about and,
frankly, it seems to me it was what Mr. Harral was concerned
about is absolutely right. It may be that Microsoft was using
its knowledge of Windows 95 and restricting what it was giving
to competitors, application competitors so that it could make
Word and Office more dominate respectively in the word
processing and the Office suite market. I understand that.
But that is not the claim here. The claim here is
different. It has to work to the operating system. And for
the life of me it seems to me there is an inconsistency
between Novell's theory and the facts, because at least, maybe
not all of the facts, but the facts I've heard from Mr. Harral
and others that testified that clearly he could not have been
clearer that through 1996 at least and for the foreseeable
future thereafter what was going to make WordPerfect
attractive both as a middleware and as a word processor
application was the fact that it was married to Windows 95.
So whatever bad intent Mr. Gates may have had,
maybe he did perceive in the long term, I understand
Mr. Johnson pointed out it's classic hallmark of any
anticompetitive behavior to take a short-term loss in order to
gain a long-term profit. Maybe that was Mr. Gates' intent.
Assuming it was is not the facts, at least the facts that I've
heard so far, which is that WordPerfect wasn't going anywhere
through 1996, which is the relevant time period unless it was
married to Windows 95 which is the operating system.
There is just -- I've struggled with this. I'm
sorry I lost my temper yesterday because it is so hard that
time trying to understand it. And like I say, I woke up in
the middle of the night and drew up some notes, and I tried to
type them out to make my thoughts more clear. But I mentioned
this now only because this is hard. It's going to be hard for
the jury. It's hard for you all. It's going to be hard for
me on a motion for judgment as a matter of law, which I'm
going to undertake seriously.
And I'm just alerting you now to now what my
mindset is so you know what's happening. I don't need a
response, Mr. Johnson, and I don't mean to argue with you.
I'm just telling you where -- why I'm having the problems that
I'm having.
So just bear that in mind, and we'll get through
this.
MR. JOHNSON: Your Honor, if I could since we do
have five minutes, and we will address in a fuller fashion to
Your Honor.
But two short points. First with your -- with
respect to your first comment about duty of a monopolist to
help a competitor, and you asked if there was a case. And
there is a case. It's called Novell vs. Microsoft. And you
addressed this point in summary judgment. In fact --
THE COURT: I was under -- whatever I did, I'll
reread it. I was under -- frankly, and I'm embarrassed I was
under a misapprehension. I thought that WordPerfect would not
run on Windows 95.
MR. JOHNSON: Your Honor, what is important and I
do urge you to reread your opinion --
THE COURT: I will.
MR. JOHNSON: -- because what you said was that
this is not just the normal case of a monopolist withholding
some functionality that it had a right to do so. This was a
case that involved an element of deception.
THE COURT: Well, you tell me also in the evidence
where there is any evidence that when Microsoft first
published the APIs and NameSpace extensions API it knew at
that time that it was going to withdraw them. That would be a
deception claim. What you're dealing with is something, which
frankly what I've heard is Microsoft's own e-mails that you
rely upon is an open question until the very end when
Mr. Gates makes his decision to withdraw. Now, that may have
been wrong. It may very well have been wrong in that it was
favoring Word or WordPerfect, but that's not the claim.
I don't see where there's any evidence that at the
time that in the alpha and beta releases it intended at that
time to withdraw.
MR. JOHNSON: Your Honor, you may recall the
evidence that came in through Mr. Gates at the Hood Canal
Retreat. There was the discussion of the Radical Extreme
which was a plan, a plan, Your Honor, to deny the extensible
shell of Chicago to ISVs.
THE COURT: When was that?
MR. JOHNSON: That was in 1993. Mr. Gates endorsed
that plan. The actions ultimately taken in this case mirrored
that plan.
THE COURT: That's helpful.
MR. JOHNSON: That was deception. That was
anticompetitive. That was -- and had they, had they, Your
Honor, simply denied the extensible shell to all ISVs, that
would have been wrong according to Microsoft's own executives
with respect to this point, but it might have fallen within
what you said, the lack of duty of a monopolist.
THE COURT: That's helpful.
MR. JOHNSON: Which that's not the case that
occurred here --
THE COURT: I don't want to cut you off. It's
8 o'clock. The jury is probably here. Thank you.
In his opinion on the summary judgment back in March of 2010, the judge wrote:Although the claims asserted by Novell in Counts I and VI are for damage caused to its software applications, the reason Microsoft allegedly engaged in the conduct causing the damage was to obtain and maintain its monopoly in the operating system market – the market in which the DOS Products competed.
Novell’s theory as to those claims is that Microsoft intentionally took actions against Novell’s applications because (1) if those applications had retained their popularity, consumers might insist upon purchasing operating systems with which the applications were compatible, thereby threatening Windows 95’s market power; and (2) “PerfectOffice,” developed by Novell, constituted (or nearly constituted) “middleware,” which could have been effectively used with any operating system and that therefore would have “commoditized” Windows 95 and undermined the monopoly Microsoft enjoyed in the operating system market.
In short, Counts I and VI assert claims for damage inflicted upon Novell’s software applications through the prism of the operating system market. As you can see, he understood full well back then that WordPerfect could run on Windows 95 but also on other operating systems, and that the other operating systems were the real threat. In fact, his opinion goes on to quote the Fourth Circuit Court of Appeals in an earlier ruling, that touches directly on this issue:
The Fourth Circuit described Novell’s theory as follows:
Novell contends that the technological connection between operating systems and applications gives rise to a significant barrier to entry into the operating- systems market and thus protects Microsoft's Windows monopoly. Novell maintains that its office-productivity applications [such as WordPerfect and Quattro Pro] could perform well on a variety of operating systems and that, during the relevant time period, they were the dominant office-productivity applications in the market. The thrust of Novell's argument is that its popular applications, though themselves not competitors or potential competitors to Microsoft's Windows, offered competing operating systems the prospect of surmounting the applications barrier to entry and breaking the Windows monopoly. That is, Novell argues its products could provide a path onto the operating-system playing field for an actual competitor of Windows, because a competing operating system, running the popular Novell software applications, would offer consumers an attractive alternative to Windows.
Novell, 505 F.3d at 308. Furthermore, Novell argues that its package of office productivity applications contained middleware and included a desktop shell which could potentially allow PC users to “live” in that desktop shell in lieu of operating in Windows 95, thereby “threat[ening] to become an alternative platform for applications programs that would reduce the need for end-users to upgrade their operating system in order to obtain new application features.” (See Dkt. No. 1952, Exh. 3 at 9 (Noll Expert Decl.).) And here's the part about whether a monopolist has to help out a competitor:
Microsoft attacks Count I by arguing that that Novell has not presented evidence that Microsoft did anything beyond refusing to cooperate with Novell, and refusing to assist a competitor is not anticompetitive conduct in violation of § 2.
Although a monopolist generally has a right to refuse to cooperate with a competitor, this right is not unqualified: a refusal to cooperate may be anticompetitive if it is an “attempt[] to exclude rivals on some basis other than efficiency[.]” See Aspen Skiing Co., 472 U.S. at 600–01, 605 (internal citations and quotations omitted); accord Data Gen. Corp., 36 F.3d at 1183 (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992)). That said, courts should be “very cautious” in recognizing exceptions to the right to refuse to cooperate “because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying the anticompetitive conduct by a single firm.” Trinko, 540 U.S. at 407.
In determining whether a refusal to cooperate is impermissible, a court may consider the entirety of the monopolist’s pattern of conduct, the potential impact on consumers, and the monopolist’s motive—for example, whether the monopolist had a legitimate business justification for its actions or sacrificed short-term profits in an effort to destroy a competitor....
Further, Novell has presented evidence of predatory motives. Just as consumer demand
for the multi-day pass would have increased the monopolist’s short-term profits in Aspen, refraining from misleading Novell about the namespace extensions and print functionality may have increased Microsoft’s short-term profits by increasing Windows 95’s consumer appeal via allowing Novell’s popular applications to achieve better functionality on it. (Cf. Dkt. No. 1952, Exh. 3 at 11 (Noll Expert Decl.).) A fair inference arises that inhibiting WordPerfect’s and Quattro Pro’s ability to achieve functionality on Windows 95 was an effort to “sacrifice short-run benefits and consumer goodwill in exchange for a perceived long-run [anticompetitive impact].” See Aspen, 472 U.S. at 610–11. This inference is particularly believable in light of the substantial concern within Microsoft that popular applications might undermine Microsoft’s monopoly in the PC operating system market.... Further evidence of this anticompetitive motivation is found in:
(1) The history of voluntary, and therefore presumably profitable, Microsoft-Novell cooperation—both generally over the years and specifically in sharing API information pertaining to Windows 95—to optimize application functionality on Microsoft’s operating systems....
(3) The minimum purchase agreements and per system licenses with OEMs, both of which made it harder for WordPerfect and Quattro Pro to access the OEM market. Microsoft argues that “if a monopolist does extend a helping hand, though not required to do so, and later withdraws it . . . does he incur antitrust liability? We think not.” (Dkt. No. 1947 at 32 (internal marks omitted) (quoting Olympia Equip., 797 F.2d at 376).) Microsoft’s alleged conduct here, however, is distinguishable from the conduct in Olympia Equipment. Microsoft did not just withdraw a charitable helping hand; rather, Microsoft allegedly first cooperated in an effort to improve its own product, subsequently misled Novell into relying on information provided pursuant to that cooperation, and then withdrew its cooperation after Novell reasonably relied on Microsoft’s representations.
I quoted large chunks so you will understand why I'm so puzzled that he's waking up nights wondering what the case is about, and if he is, why doesn't he go back and reread his own opinion? I also stress it, because this theme shows up again and again.
The PDFs for the day are:
*********************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION
______________
NOVELL, INC.,
Plaintiff,
vs.
MICROSOFT CORPORATION,
Defendant.
_____________
Case
2:04-CV-01045 JFM
_____________
BEFORE THE HONORABLE J. FREDERICK MOTZ
DATE: October 25, 2011
REPORTER'S TRANSCRIPT OF PROCEEDINGS
JURY TRIAL
VOLUME VI
Reported by:
KELLY BROWN HICKEN, CSR, RPR, RMR
BECKY JANKE, CSR, RPR
PATTI WALKER, CSR, RPR
567
A P P E A R A N C E S
FOR THE PLAINTIFFS: 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, ESQ
SHARON L. NELLES, ESQ
[address]
MICROSOFT CORPORATION
BY: STEVE AESCHBACHER, ESQ.
[address]
RAY, QUINNEY & NEBEKER
BY: JAMES S. JARDINE, ESQ.
[address]
568
I N D E X
WITNESS: GREGORY LEE RICHARDSON
EXAMINATION BY: DIRECT BY VISHIO PAGE 580
CROSS BY HOLLEY PAGE 606
REDIRECT BY VISHIO PAGE 731
RECROSS BY HOLLEY PAGE 745
EXHIBITS RECEIVED INTO EVIDENCE
DEFENDANT'S 627 ... PAGE 705
569
SALT LAKE CITY, UTAH, TUESDAY, OCTOBER 25, 2011
* * *
568
I N D E X
WITNESS EXAMINATION BY PAGE
GREGORY LEE RICHARDSON DIRECT BY VISHIO 580
CROSS BY HOLLEY 606
REDIRECT BY VISHIO 731
RECROSS BY HOLLEY 745
EXHIBITS RECEIVED INTO EVIDENCE
DEFENDANT'S PAGE
627 705
569
SALT LAKE CITY, UTAH, TUESDAY, OCTOBER 25, 2011
* * * * *
THE COURT: Okay. I think I need to hear a dispute
between you -- I think I'd had -- we're here to discuss the
production by Novell to Microsoft certain things, and I
decided to wait to hear it this morning when I heard from
Mr. Johnson just had a long history. Let me hear the history
and --
MR. JOHNSON: Thank you, Your Honor. You know,
prior to the openings, as is my practice, anyway, is to
exchange those opening slides which are summary exhibits and
the like, which both sides used in their openings so that you
could verify that they were accurate summaries and based upon
appropriate data. I asked for those three times, and I got no
response to any of those requests. So I did not take time
after openings Mr. Tulchin requesting all of my slides. And,
moreover, Your Honor, the reason for requesting summary slides
is to make sure that it was being presented as an accurate
portrayal. The openings themselves, of course, are not
evidence.
And, frankly, Your Honor, given what happened in
Microsoft's opening in this case, I'm a bit concerned about
what use may be made of my opening slides. They certainly
have the transcript of everything I said in opening, and I
think that's sufficient since the slides themselves are not
570
evidence and are not given to the jury.
THE COURT: Mister -- I don't know who's going.
MR. PARIS: Discussion with Mister -- Good morning.
Frankly, Mr. Johnson has misrepresented what
actually happened. We had about a week and a half of
discussions back and forth, trying to get to an agreement on a
stipulation that concerned exchange first of underlying -- a
stipulation that dealt with the admissibility of underlying
expert data We went on and on about this for about a week
and a half. I have copies of correspondence that went back
and forth between the parties. I thought at one point Sunday
before trial started that we had an agreement. I spoke with
Mr. Johnson Sunday afternoon and Ms. Vishio about that. We
sent over an agreement, what I thought was an agreement Sunday
evening.
Monday morning after voir dire, we were told that
it wasn't acceptable. We tried to get to an understanding.
That only concerned the exchange of summary exhibits. What I
then asked them for at the conclusion of opening statements on
Tuesday, so Tuesday evening, was that we simply exchange the
demonstratives that each side had showed to the jury. That
seems like an obvious thing to me since that is the normal
practice that if something is shown to the jury, it goes to
the other side.
We were willing to give them ours. I have one with
571
me today. I've had them with me every day that we've been in
here. So frankly, what Mr. Johnson had to say about the
expert data stipulation, that we weren't able to come to an
agreement on is sort of, it sort of misses the point, you
know. We engaged in those 10 days of discussions. I think
they were good faith discussions. We just had a different
view as to the extent as to which we would preview each
other's summary exhibits. But that really has nothing to do
whatsoever with the exchange of slides that have now been
shown to the jury and on behalf of Microsoft.
I think I can speak for Mr. Tulchin. We take issue
with his characterization of Mr. Tulchin's opening statement.
There was nothing inappropriate about it at all. If they
think there is, they think there is. But that doesn't have --
that's it, has no bearing on whether we exchange exhibits to
each other -- I'm sorry -- exchange slides that were shown to
the jury.
THE COURT: Mr. Johnson?
MR. JOHNSON: The data stipulation which we tried
to reach is wholly apart from the question of exchanging the
summary demonstrative. We asked three times for those data
exchange. In fact, in the last e-mail which Ms. Vishio sent
to Adam, we said, we are prepared to exchange those slides
now. And again, no response.
So once again, I feel like there hasn't been that
572
kind of exchange in the past. And now to ask for my complete
set of slides, which again is not evidence, I just think is
unnecessary and inappropriate, Your Honor. Thank you.
THE COURT: This is by far the most frivolous
dispute that I have ever heard in a case involving good
counsel in 26 years on the bench. I feel like a croupier here
in Salt Lake City presiding over what seems to be a crap
shoot, and I don't know who's at fault. But I'm not happy
about it, as you well know because the reasons I've expressed
before.
I also right now feel like a parent, probably a
mother rather than a father presiding over one of the -- I
know you boys don't like each other, but grow up. Something
shown to the jury, give it to each other. This is crazy. You
ought to be ashamed of yourselves, and I'm ashamed for you. I
will --
Anything else we have to take up this morning?
MR. PARIS: No, Your Honor.
MR. JOHNSON: No, Your Honor.
THE COURT: Let me try -- we've got a couple
minutes, I tried to write it out, and I sort of wish I brought
it down. There's going to be a recurring issue in the case.
First, I need to know from Novell now, and you don't need to
give it to me now, maybe back in the briefing on the
instructions I'll understand it better, but I don't quite know
573
why I hadn't picked this up before. But until I heard the
opening statements, I really thought that WordPerfect --
Microsoft had made Windows 95 incompatible with WordPerfect as
an application system. I don't know why I thought that, and I
probably missed it in the papers. I now understand that is
not the case. That as a word processing application
WordPerfect could be used by Windows 95, and an icon could
have been installed and it could have been used. And to the
extent I just missed this, I apologize, but frankly that's
where I was.
Now that I understand the issue better, and I
understand Novell's position that providing documentation for
the NameSpace extension APIs increase functionality and that
the third way is different than simply sitting on top of
the -- having the application sitting on top of the operating
system. I understand that.
But it does add a new dimension, which is to what
extent a monopolist has to cooperate with a competitor by
providing to the competitor product enhancement that the
monopolist has made to his own product through its own
investment and research and development. And to that, I don't
know if there's -- no case that I thought of comes to mind
that does that. There may be cases out there. I just need to
know at some point, now that I focused upon that issue I need
to know, need to know from Novell what authority there is.
574
It's almost like I was trying to think of an
analogy since I couldn't stand watching the Raiders. It was
almost like asking somehow the owner of the -- a monopolist
somehow built a railroad around and made three, I think three,
it's three mountains fronting one another, and that the
fourth, the plaintiff sort of required that you extend that
railroad to us, too, so that we can engage in the enhancement
which you made for yourself.
Now, I don't -- I'm sure there is a case, and I
need to -- and I don't need an answer now. But that is -- I'm
just trying to tell you what's been on my mind.
Also, what I went off on yesterday, and it is a
terribly, terribly difficult conceptual issue, and that is it
seems to me there's inconsistency. I understand Novell's
theory. The theory is that Microsoft, as I understand it,
withdrew the documentation through the NameSpace extension
APIs to target Novell because it saw Novell as a potential
middleware threat and because it saw that WordPerfect became
so popular that it would supercede Word and that, therefore,
people would buy WordPerfect and whatever operating system it
was working on and not Windows 95.
This case is not about and cannot be about and,
frankly, it seems to me it was what Mr. Harral was concerned
about is absolutely right. It may be that Microsoft was using
its knowledge of Windows 95 and restricting what it was giving
575
to competitors, application competitors so that it could make
Word and Office more dominate respectively in the word
processing and the Office suite market. I understand that.
But that is not the claim here. The claim here is
different. It has to work to the operating system. And for
the life of me it seems to me there is an inconsistency
between Novell's theory and the facts, because at least, maybe
not all of the facts, but the facts I've heard from Mr. Harral
and others that testified that clearly he could not have been
clearer that through 1996 at least and for the foreseeable
future thereafter what was going to make WordPerfect
attractive both as a middleware and as a word processor
application was the fact that it was married to Windows 95.
So whatever bad intent Mr. Gates may have had,
maybe he did perceive in the long term, I understand
Mr. Johnson pointed out it's classic hallmark of any
anticompetitive behavior to take a short-term loss in order to
gain a long-term profit. Maybe that was Mr. Gates' intent.
Assuming it was is not the facts, at least the facts that I've
heard so far, which is that WordPerfect wasn't going anywhere
through 1996, which is the relevant time period unless it was
married to Windows 95 which is the operating system.
There is just -- I've struggled with this. I'm
sorry I lost my temper yesterday because it is so hard that
time trying to understand it. And like I say, I woke up in
576
the middle of the night and drew up some notes, and I tried to
type them out to make my thoughts more clear. But I mentioned
this now only because this is hard. It's going to be hard for
the jury. It's hard for you all. It's going to be hard for
me on a motion for judgment as a matter of law, which I'm
going to undertake seriously.
And I'm just alerting you now to now what my
mindset is so you know what's happening. I don't need a
response, Mr. Johnson, and I don't mean to argue with you.
I'm just telling you where -- why I'm having the problems that
I'm having.
So just bear that in mind, and we'll get through
this.
MR. JOHNSON: Your Honor, if I could since we do
have five minutes, and we will address in a fuller fashion to
Your Honor.
But two short points. First with your -- with
respect to your first comment about duty of a monopolist to
help a competitor, and you asked if there was a case. And
there is a case. It's called Novell vs. Microsoft. And you
addressed this point in summary judgment. In fact --
THE COURT: I was under -- whatever I did, I'll
reread it. I was under -- frankly, and I'm embarrassed I was
under a misapprehension. I thought that WordPerfect would not
run on Windows 95.
577
MR. JOHNSON: Your Honor, what is important and I
do urge you to reread your opinion --
THE COURT: I will.
MR. JOHNSON: -- because what you said was that
this is not just the normal case of a monopolist withholding
some functionality that it had a right to do so. This was a
case that involved an element of deception.
THE COURT: Well, you tell me also in the evidence
where there is any evidence that when Microsoft first
published the APIs and NameSpace extensions API it knew at
that time that it was going to withdraw them. That would be a
deception claim. What you're dealing with is something, which
frankly what I've heard is Microsoft's own e-mails that you
rely upon is an open question until the very end when
Mr. Gates makes his decision to withdraw. Now, that may have
been wrong. It may very well have been wrong in that it was
favoring Word or WordPerfect, but that's not the claim.
I don't see where there's any evidence that at the
time that in the alpha and beta releases it intended at that
time to withdraw.
MR. JOHNSON: Your Honor, you may recall the
evidence that came in through Mr. Gates at the Hood Canal
Retreat. There was the discussion of the Radical Extreme
which was a plan, a plan, Your Honor, to deny the extensible
shell of Chicago to ISVs.
578
THE COURT: When was that?
MR. JOHNSON: That was in 1993. Mr. Gates endorsed
that plan. The actions ultimately taken in this case mirrored
that plan.
THE COURT: That's helpful.
MR. JOHNSON: That was deception. That was
anticompetitive. That was -- and had they, had they, Your
Honor, simply denied the extensible shell to all ISVs, that
would have been wrong according to Microsoft's own executives
with respect to this point, but it might have fallen within
what you said, the lack of duty of a monopolist.
THE COURT: That's helpful.
MR. JOHNSON: Which that's not the case that
occurred here --
THE COURT: I don't want to cut you off. It's
8 o'clock. The jury is probably here. Thank you.
MR. PARIS: Your Honor, I know we need to bring the
jury in, but I very much disagree with what Mr. Johnson said.
THE COURT: I don't want to hear from you all. The
purpose was not to engender argument. It was to tell people
what was on my mind.
MR. PARIS: Thank you, Your Honor.
MR. JOHNSON: Thank you, Your Honor.
(Whereupon, the jury returned to the court
proceedings.)
579
THE COURT: Good morning, again, everybody. I
think we're ready for another witness.
MS. VISHIO: Good morning. My name is
Mariam Vishio on behalf of Novell.
Novell calls Gregory Richardson.
THE COURT: Mr. Richardson, please come forward.
THE CLERK: Please raise your right hand.
GREGORY LEE RICHARDSON,
called as a witness at the request of Plaintiff,
having been first duly sworn, was examined
and testified as follows:
THE WITNESS: Yes.
THE CLERK: Please be seated.
Please state your full name and spell it for the
record.
THE WITNESS: Gregory Lee Richardson.
G-R-E-G-O-R-Y, L-E-E, R-I-C-H-A-R-D-S-O-N.
DIRECT EXAMINATION
BY MS. VISHIO:
Q: Good morning, Mr. Richardson. Mr. Richardson,
where do you live?
A: I live in Pleasant Grove, Utah.
Q: How long have you lived in Utah?
A: I've lived in Utah for over 20 years.
Q: Where are you currently employed?
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A: I work for the Church of Jesus Christ of Latter-Day
Saints.
Q: And what do you do there?
A: I'm a software development engineer. I work in the
genealogy program for the church.
Q: How long have you been employed by the Church of
Jesus Christ of Latter-Day Saints?
A: It will be four years in December.
Q: How long have you been a software engineer?
A: For over 20 years.
Q: Before I get into your work as a software engineer,
would you, please, tell the jury where you went to college.
A: I went to college at Brigham Young University.
Q: And when did you graduate?
A: I graduated in 1988.
Q: What is your degree in?
A: I have a double major in computer science and
Portuguese.
Q: What did you do after you attended Brigham Young
University?
A: My first job was at Microsoft.
Q: And how long have you been employed by Microsoft?
A: For a little less than two years.
Q: And what was your position there?
A: I was a software tech engineer.
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Q: And what were your job responsibilities as a
software tech engineer?
A: My position was to validate that the software that
was being produced worked as it was supposed to, find any
problems and make sure that they were fixed appropriately.
Q: What products did you support?
A: Well, I worked on a variety of products while I was
at Microsoft. Initially I worked on their internal compiler
debugger interpreter, which was a product that they used to
produce their own products. It was used to produce Word and
Excel. Later I worked on a product that provided help in
Windows, WinHelp. I worked on a variety of smaller products.
I worked in a group that provided shared support for all the
applications. And so there was a small product dialog
management. There was a bug tracking system, a variety of
small pieces used by all the applications.
Q: And what operating systems do you support?
A: In my group we supported Windows, we supported DOS,
we supported the MacIntosh, and we supported OS2.
Q: Do you recall when you left Microsoft?
A: I left Microsoft in spring of 1990.
Q: And what did you do after you left Microsoft?
A: I went to work for WordPerfect Corporation.
Q: What was your position then?
A: I was a software development engineer.
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Q: And as a software development engineer what were
your job responsibilities?
A: I developed software specially initially
WordPerfect for Windows 5.1. So I was a software developer
that help create the first word processor that WordPerfect did
for Windows.
Q: And what did you do after that?
A: After the initial version of WordPerfect for
Windows, WordPerfect for Windows 5.1 shipped, we took a
portion of the code that we had written for WordPerfect for
Windows and made it into a shared code that could be shared by
other applications for Windows that WordPerfect was creating.
We also took functionality from other WordPerfect products
such as the mail program and used those in that same base so
that everybody could share that functionality.
Q: And how long were you on the shared code team?
A: I worked in shared code from the end of the 5.1
product until -- I was -- several years later after Novell had
purchased WordPerfect and Corel had purchased WordPerfect. So
probably eight or nine years I worked in shared code.
Q: Do you know Mr. Adam Harral?
A: I do.
Q: Was he a member in the shared code team?
A: He was.
Q: Do you recall approximately when WordPerfect was
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acquired by Novell?
A: Novell purchased WordPerfect in 1994.
Q: Did the merger affect your day-to-day job
responsibilities as a software developer?
A: No. I continued to work on the same products. I
continued to work in the same office. There wasn't really a
direct impact on me and my duties.
Q: You had mentioned that after Novell that Corel had
acquired WordPerfect, the application, as well. What did you
do at Corel?
A: I continued to work on WordPerfect in the shared
code group for about a year. And then I was transferred to
another product called Remagen, R-E-M-A-G-E-N, that is a
client server. Remagen was a Citrix-like product. It allowed
you to run an application on the server and have a
representation of that product on a client's machine in an
attempt to make it easier to manage the software, that the
server would have the software installed in a controlled
environment, and then clients could log into that server and
access the server.
Q: How long were you employed by Corel?
A: I worked at Corel for just less than two years.
Q: And what did you do after you left Corel?
A: I returned to Novell.
Q: And what was your position there when you returned?
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A: Once again, I was a software development engineer.
And I worked in the advanced development group. The product
that I worked on initially was a product that accelerates
access to the Internet. So that when your browser attaches to
a web server like CNN and Google, that happens more quickly.
Q: How long were you employed by Novell the second
time around?
A: I was employed by Novell the second time around
about nine years. So I went there in 1988 and left in 2007.
Q: Why did you leave?
A: I was laid off.
Q: And what did you do after you left Novell?
A: After I left Novell I came to work for the Church
of Jesus Christ of Latter-Day Saints.
Q: Let me return to your employment at WordPerfect.
Did Microsoft have a practice of promoting its operating
systems to WordPerfect?
A: That was common. Every time there was a new
release of Windows we would get advanced information about it.
And we talked with Microsoft personnel at their conferences to
learn about the conference and learn about the new features
and what were the advantages of this operating system.
Q: Before I get into your experience with those
conferences, are you familiar with Microsoft's logo
certification program for Windows 95?
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A: I am.
Q: And can you explain to the jury what you know
generally about that program?
A: The logo program was a seal of approval that
Microsoft gave to applications indicating that they had looked
at them and they worked well on Windows 95. So it was a logo
that you could put on your software that indicated that
Microsoft approved of it.
Q: How would a software developer obtain the logo?
A: There were a variety of requirements. The
requirements that I specifically dealt with were related to
compatibility of the application that we were running on
Windows 95 and Windows NT. The requirement was that the
various executables, the same version of the code had to run
both Windows 95 and Windows NT. So my responsibility was to
take the shared code and make it work in both places.
Q: Were you successful?
A: I was not.
Q: Why not?
A: As I attempted to take that functionality, import
it to Windows 95 and Windows NT, I encountered a variety of
circumstances where the functionality was either incompatible,
it being done so differently I couldn't make it work both
places, or functionality was entirely missing in Windows NT.
The requirements were that the software would degrade
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gracefully where there wasn't compatible functionality, but I
ran into the obstacles that were so large that I couldn't make
enough work to make it worth while to move the software into
Windows NT.
Q: How long did you try to make the code compatible
between Windows 95 and Windows NT?
A: I spent two months doing that.
Q: What happened next? Did Novell obtain a logo?
A: My understanding is Novell did not obtain the logo.
Q: Let me get back to your earlier testimony about the
conferences that you mentioned previously. You testified
earlier that Microsoft held conferences to promote the
operating systems to WordPerfect. Did you ever attend any
such conferences where Microsoft promoted Windows 95 prior to
its release?
A: I attended two conferences. The first conference
was early in 1993. It was a very early preview of what was
planned for Windows 95. They didn't have any code actually
ready to show to us to show something working, but they wanted
to present this new model, which was a pretty dramatic
departure from the way things had been done previously where
access to information on Windows became document centric and
object oriented. It was a really new concept, and they wanted
to kind of sell that to us, that concept really early in the
process and get by on that concept.
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Q: And what is the object-oriented concept that you're
referring to?
A: So that's a little bit difficult to understand.
Object orientation moves from having just a list of APIs that
you called access functionality in the operating system to
dealing with objects that then have functionality associated
with them. And so it's a stronger model. It was a good move.
It was a good change, and we were able to see the advantages.
And we were very excited about that and wanted to move forward
with that technology. We thought it was a great idea.
Q: Do you remember any specific functionalities that
Microsoft was promoting for Windows 95?
A: What I recall is a variety of places where they
kind of turned this view perspective around to making it
object oriented. They included the ability to drag and drop
things from various places and pick up an icon and move it
someplace and have it be received wherever you dropped it.
They had a new way of looking at the way you would interact
with clipboard. So you would copy something and then paste it
someplace else, how it all works.
And then, of course, the file system which changed
to be more object oriented where you would take a document and
look at the document to see what you could do with it rather
than go to the operating system to see what files you could
operate on.
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Q: Are you familiar with the term NameSpace extension?
A: I am.
Q: What are those?
A: NameSpace extensions were the way that this new
object-oriented file system allowed you to present a
collection of items to the operating system. So when you have
a folder and it has a variety of items in it, a NameSpace
would be provided to that folder and would enumerate the items
within that. The NameSpace extension allowed you to provide
different kinds of collections rather than just files on a
hard drive.
Q: Did Microsoft promote this NameSpace extension
functionality to WordPerfect?
A: My recollection is that they were very excited
about this, and we became very excited about this as we
understood the technology.
Q: Mr. Richardson, if you would, please turn to
Plaintiff's Exhibit 113 in your binder. It's also on the
screen in front of you and behind you.
Have you seen this document before?
A: Yes. I believe I have.
Q: What is this document?
A: This is a presentation describing functionality
that was being provided in Windows 95 to promote those
features.
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Q: On the bottom right-hand corner of the page in
front of you, you'll see an NOV number with the number 71 at
the end. Do you see that?
A: Yes, I see that.
Q: If you can turn to Page 90, I'd like to direct your
attention to the slide entitled, "Explorer Integration
Details."
A: Okay.
Q: First of all, Mr. Richardson, what is the Explorer?
A: The Explorer is one of the places you can go to go
explore the names. So if you want to look for files or other
things that are presented by NameSpaces, this is the place you
go. It's kind of the replacement for what had been the
Windows file manager in Windows 3.1. You would start up the
file manager, and you could browse through your drives and
your different files, and then you would find a file and could
launch an application from there.
So this Explorer is kind of the same kind of
functionality, but it did go by going through NameSpace
extensions rather than just by going and looking through the
drives.
Q: And what is your understanding of what Explorer
integration is as shown in this slide?
A: So as we see right over here, this area right here
is a tree that represents the things that are available, the
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places that are available for me to go. So we have the
drives, A drive, floppy drive, C drive. My Computer is one of
those NameSpaces. It's the place where you start. You go to
that NameSpace, and it has a collection of things within it.
In this case, we have the A drive and the C drive. But the
C drive then is expanded to contain a variety of folders
within it.
At this point right here, it looks like it's
presenting a custom NameSpace. So this is a place where
someone can come in and say, I want to present a new
collection of items. And this is a custom NameSpace here with
the items enumerated by that NameSpace, which are not
necessarily files on the file system.
Q: Did WordPerfect want to integrate into the
Explorer?
A: We saw pretty quickly that there's some really
powerful things that we could do with this. This was a very
powerful new paradigm. And there was a lot of advantages.
There was a variety of things that we could do that could
present very useful functionality to our users to making their
experience of using our product better.
Q: And how would you achieve creating these custom
folders?
A: So there were a series of new functionalities
available in Windows 95. The shell extensions that allowed us
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to create our own extensions register those with Windows, and
then they would show up within the browsers of those
NameSpaces. There's two dominate browsers; the Explorer
itself, and then the file open dialogs that were presented
inside applications. So if you're in an application and you
want to go find something, you would go to either the file
open dialog or the Explorer, and you could navigate to
whatever item you're looking for.
Q: Mr. Richardson, I'd like to direct your attention
to the first couple of bullets there. The first bullet point
says:
Not for most applications, and states that Explorer
integration, quote, only should be used if your application
displays a pseudo-folder, electronic mail, document
management, et cetera, end quote.
Did WordPerfect plan to display pseudo-folders for
electronic mail?
A: They did.
Q: And did WordPerfect plan to display pseudo-folders
for its document management system?
A: They did.
Q: What other custom folders, if any, did Novell plan
to integrate into the Explorer?
A: There were a number of other custom NameSpaces that
we intended to provide. One of them was a collection of bit
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maps with our presentations program, like to create slides.
So we navigated to the bit map depository. Even though it was
just a big compressed file with a lot of bit maps in it, it
would appear with a series of folders with files in them, so
you could find a bit map to put into your document.
We also created or intended to create NameSpaces
that allowed us to access things on the Internet. So we
created an FTP NameSpace an HTP NameSpace that allowed you to
browse the Internet. We also integrated our QuickFinder
technology so that the results of a search would show up in a
NameSpace.
So, for example, if you're in the file open dialog
and you're working on a document but you can't remember where
you saved it but you could remember something what it had in
it, you might be able to look for Mr. John Smith, and the
search technology would then search all of your drives for all
files that had Mr. John Smith in them and present those files
that had that name in it as members of a folder in the
NameSpace extension.
Q: Are you familiar with a browser from Netscape
called Navigator?
A: I am.
Q: And what is Netscape Navigator?
A: Netscape Navigator is a Web browser or an Internet
browser just like Internet Explorer. And it was one of the
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very first browsers that could talk to a web server and
present the content to you on your local machine.
Q: Did Novell have any relationship with Netscape?
A: They did.
Q: And what was that relationship?
A: Well, my relationship -- or my involvement with
that relationship was that Novell got rights to the Netscape
Navigator source code. So I took the Netscape Navigator
source code and constructed a NameSpace for the Internet, so
that in this location right here rather than seeing a list of
files, you would see a web page. So if I were to go to Google
or CNN, that content would show up right here. You could then
follow those links, browse them to some location, and this was
available in our file open dialog so you could hit the open
binder and it would bring that content into the application
we're using. So you could insert a graphic off of the
Internet, or you could take a web page that had other content
in it and open it directly into the word processor.
Q: Mr. Richardson, if you would, please turn to
Plaintiff's Exhibit 344 in your binder. Again, this will be
on the screen in front of you and also behind you. This is a
Microsoft document entitled Web-Like Shell, Architecture, and
the subheading, "Internet Explorer integration, in place
navigation and page view" followed by the date November 8th,
1995. Do you see that?
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A: Yes.
Q: When you were working at Novell, had you ever seen
this document before?
A: No, I had not.
Q: I'd like to direct your attention to the second
page of this document, specifically the second full paragraph
that bears the heading, Windows 95 Shell NameSpace Extension.
Do you see that?
A: I do.
Q: This paragraphs states, quote:
Although we haven't clearly defined how we
present documents on WWW to the end user on the
Explorer left pane, i.e., the hierarchy, we know
that they don't belong to any of existing folders,
shell's NameSpace. It is quite natural to use the
NameSpace extension mechanism, see picture below,
to plug the URL NameSpace into the Explorer's
NameSpace, end quote.
Mr. Richardson, is this what you were describing
earlier with Novell's plans for integrating Netscape Navigator
into the Explorer?
A: Yes. It sounds very similar.
Q: And why would Novell want to integrate Netscape
Navigator into the Explorer?
A: Well, the significance of the Internet was becoming
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very important. There were lots of contents on the Internet.
There was a lot of graphics, bit maps, clip art that was
available. Plus there was a desire for WordPerfect to be a
place where you could edit your web content. So you could go
out to a web page, load that document into WordPerfect, edit
it and then save it back out to the Internet after having
edited in WordPerfect.
Q: In addition to the Explorer were users able to
access Novell's custom folders anywhere else on the desktop?
A: Yes, they could.
Q: And where was that?
A: So NameSpace, once it's registered, would appear in
the Explorer. And they'd also appear in any file open dialog
or any application that was unable to make use of NameSpaces.
So once you extended a NameSpace in the system, it was
available to everybody.
Q: Are you familiar with the term common file open
dialog?
A: I am.
Q: And what is that?
A: The common file open dialog is a file dialog that
allows you to open file, attain a file or to select a
directory. It's used by every application. If you're going
to want to access any of your data, you have to be able to
load it and you have to be able to save it.
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So the common dialog was a simple dialog that
happen to traverse these NameSpaces.
Q: Would Novell's custom folders have appeared in the
common file open dialog?
A: Well, we initially thought they would, but when we
tried to, our NameSpaces didn't show up in the common file
open dialog.
Q: Did WordPerfect plan to use Microsoft common file
open dialog as its file open dialog for WordPerfect?
A: Well, once again, we evaluated that when it first
became available, when we first got the first copy of Win95
functionality. And we evaluated and we considered making use
of it, but we determined there was two problems for us that we
couldn't overcome with the file open dialog. The first was
that part of the history of WordPerfect was extremely strong
in file management support. So in WordPerfect for DOS it was
common for people to open up WordPerfect and just stay in
WordPerfect for doing all of their file management because the
file management was so strong in WordPerfect for DOS.
Moving into Windows 3.1, 3.0 and 3.1, we had
extended that capability that we had with our DOS product into
the Windows' arena. And so we had functionality available to
us that hadn't been available through the standard operating
system. For example, the ability to do file operations like
copy and delete from within the file open dialog hadn't been
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available in DOS and hadn't been available in 3.1. We also
had -- in the DOS product, we had extended the ability of the
user trying to interact with their document over what was
available in DOS. Some of you who may remember DOS remember
that your files had 8.3 names. They had eight characters and
a dot and three characters, and that was all you could use to
describe a document.
Well, WordPerfect had extended that to allow you to
have a long file name, and we restored that name with the top
of the document before the rest of the data of the document.
In our file management system when you look at a list of
files, you could see that long name, that descriptive name.
That was functionality that wasn't available prior to that in
Windows or in DOS. We wanted to have that same information
available to us. That information that had been in the
WordPerfect documents has to move into Windows 5.1. As we
looked into expanding the common dialog of customizing it, we
couldn't get enough customization into it in order to support
the level of functionality we had in previous versions of
WordPerfect Windows and in DOS product.
The second problem we had related to these
NameSpaces, our custom NameSpace, and, in fact, not even all
of the Microsoft NameSpaces showed up when we first evaluated
the Win95 product. It seemed to a certain subset of those
NameSpaces that were available, and so our extensions didn't
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show up. So we determined that we wouldn't be able to make
use of the common file open dialog.
Q: Mr. Richardson, please take a look at the image
marked for identification as demonstrative Number 10 on the
screen in front of you. What is this image?
A: This is a picture of the file open dialog that we
created for Windows 95 in WordPerfect.
Q: And you testified that Novell wanted to add
additional NameSpaces or custom folders. Can you explain to
the jury where Novell's custom NameSpaces or custom folders
would have been able to appear on this screen?
A: So the NameSpaces would appear in a variety of
places. This area right here we mentioned before is the tree,
and we see My Computer up there, which is the desktop. We see
some of the items that contained there are drives, the floppy
and C drive. So they would appear in this area right here.
This window is a special window being used for QuickFinder
technology which was search-and-indexing technology.
So one of the things that we wanted to do to help
our users to be able to access their documents was as they
worked on documents, loaded them, they saved them, we would
automatically index them and put them in the special
NameSpaces. So we wanted these NameSpaces to be very easy for
them to find, very easy for them to access.
In addition, NameSpaces could be nested within
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other NameSpaces so you could have a NameSpace that was
contained within another NameSpace. In that circumstance, it
would be possible to have NameSpaces show up in this window,
and it would just show up as another folder.
Q: Mr. Richardson, please take a look at the image
marked for identification as demonstrative Exhibit Number 16
now on the screen in front of you. Can you, please, tell the
jury what this screen represents?
A: So this red box right here represents the view that
you would see in that tree view which is now obscured behind
this area with this front graphic. This represents some of
the NameSpaces that we intended to make available within the
NameSpaces that we were providing. So you can see here once
again some of the Microsoft NameSpaces, network neighborhood,
recycle bin. This quick lists was tied into the QuickFinder
search and indexing technology went into the access of those
search results. My favorites would be the list of your files
that you have in your browser that you've saved in your
favorite list. And so if you were to click on one of those,
you would go to that view right here of that page, and then
you can follow that links wherever you want to.
So those are some of the -- that's a brief
representation, showing the NameSpaces that we had working
along with the Microsoft NameSpaces for the user in the file
open dialog.
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Q: Is this an exhaustive list of the NameSpaces that
Novell intended to include?
A: No, it's not.
Q: Did there come a time when you became involved with
the NameSpace extensions?
A: There did.
Q: And what were the circumstances of you becoming
involved?
A: So I was working in the shared code group, which
was responsible for the file open dialog. I was not the
primary developer initially that worked on that. A co-worker
took that technology and wrote the initial version of the file
open dialog and reached the point where he was, he felt he was
mostly complete when he started encountering problems with the
performance of the NameSpaces. The time it took to take a
NameSpace and find all the entries that were contained within
that were so slow that it would take several minutes for the
dialog to populate a folder. It was just terribly, terribly
slow.
As that -- it appeared to us based on our
observation of those same NameSpaces within the Explorer that
there was some additional communication that was going on that
allowed them to speed up that process. As we worked with
Microsoft and tried to get the answer to that, it became
obvious that there was something there that was missing that
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we didn't have that we needed to have. And then subsequently
the retraction of the documentation, our determination of what
we had to do to get around those problems led to the
additional resources to work on the file open dialog.
So I was kind of pulled into that effort, along
with a number of other people who were working on our team.
And eventually there were seven of us who all joined that
team.
Q: Can you tell us how Microsoft's decision to retract
the documentation for the NameSpace extensions affected
Novell's Windows 95 products?
A: Yes, I can. So when we reached this point where
the performance was unacceptable and we tried to work with
Microsoft to get a resolution and they didn't provide the
additional documentation, and they finally came back and said,
well, we're not even going to let you use what you've already
got, we're not going to continue this documentation, and we
may change them so they may break so don't count on these, at
that point we took a look at what our options were.
One option was to go back to what we had done with
Windows 3.1 and go back to the file open dialog that we had in
our application for the Windows 3.1. The problem with that
was just as Microsoft had left behind the Microsoft filing
manager to go to the Explorer there was a whole new set of
functionality that was unavailable to us in the old file open
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dialog. We couldn't access the new Microsoft NameSpaces. We
couldn't get to network neighborhood. We couldn't get to My
Computer. So those locations that were crucial to being able
to access files in the Windows 95 environment weren't
available to us in what we already had, so we couldn't do
that.
We went back and looked at the common file dialog
again, and the problem still remained in that we couldn't
extend it to get the functionality that we already had in our
existing Windows product and in our Windows -- or DOS product,
and our NameSpaces weren't showing up. And so we couldn't
extend it with all this new functionality that we created. So
that didn't work out for us.
We also then looked at saying, well, how do we work
around the problem? How do we build up the part of the system
that Microsoft isn't letting us use so we can get the same
functionality and be able to move forward? If we didn't do
that, then I don't believe that we had a product that we could
ship on Windows 95. If you're a word processer and you can't
access your files or if you can't save your files, then you
don't really have a word processer. Yes, we could edit the
documents, but we didn't have a way to get access the place
where the documents were stored or any access enough of the
locations to give us a WordPerfect product. We had to meet at
least the level of where our last product had been and be able
603
to access all the areas that were important to access in the
new operating system.
So we had no choice but to move forward. The
options that we had were to either revert in functionality to
something that was unacceptable or to simply not be able to
access our files in Windows 95.
Q: And what did Novell decide to do?
A: We determined the only option we had was to move
forward and to replace the functionality or build up for
ourselves the functionality that Microsoft was not allowing us
to use.
Q: And how would you go about rebuilding that
functionality?
A: Well, there were several pieces to that. The first
was that we had to guess what that communication was between
the Explorer and the NameSpaces that was allowing them to have
the functionality perform so that it didn't take several
minutes to populate each folder. We had to replace, and I
realize some of these are technical terms, but the interfacing
that you would be using as support accessing the NameSpaces
would refer to things like iMoniker and iShellBrowser. We had
to do our own implementation of those interfaces. We had to
build that whole infrastructure that Microsoft had built up
through our file system and through the Explorer and replace
that ourselves trying to guess as best we could and model as
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best we could off of what they did.
Then the last piece we had to do was go to each of
the NameSpaces that Microsoft had provided. Since we didn't
know how they were talking to themselves we had to put a wrap
around them that allowed us to talk to them and provided
adequate performance so that we could render their NameSpaces
as well as they did themselves.
Q: And how long did this process take?
A: Well, we didn't know how long it was going to take.
We had hoped it would be something that was fairly quickly.
We -- when we very first started looking at this it was kind
of an unknown. So we all started working on it. We pulled in
more and more people. We ended up pulling in seven people.
And with those seven people, it took us about a year.
That year, though, was an extraordinary amount of
work for those of us who worked on the product. All of us
worked between 90 and 100-plus hours a week for almost that
entire year. There were weeks where I remember going to work
on Monday morning. I'd worked all day Monday, stayed all
night. I worked all day Tuesday. I stayed all night. I
worked until about 10 o'clock on Wednesday. I went home for
six hours, came home and started working again. We often got
our 40 hours in by Tuesday. We worked every day of the week.
We worked Monday through Sunday. I'd take time off Sunday to
go to church, and then I went right back to work. I almost
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didn't see my family for that entire year.
Q: In your view, would the time that it took to
rebuild the functionality had been impacted with the addition
of more developers to assist you?
A: No, I don't believe so. We reached a point where
adding more people would have just made a sillier, running
into each other more. We brought in everybody that we thought
was useful to help, you know, separate things out and do
things separately as we could. But extra people would have
probably just slowed us down.
Q: Now, Mr. Richardson, you haven't worked for Novell
for a number of years. Why are you here testifying today?
A: Well, I have a story to tell. This is what
happened to me, and so my intent is to just tell my story and
let it be heard.
Q: Thank you.
Pass the witness.
THE COURT: Mr. Holley?
MR. HOLLEY: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. HOLLEY:
Q: Good morning, Mr. Richardson. We haven't had the
pleasure of meeting. But my name is Steve Holley, and I
represent Microsoft.
Now, you were showed Plaintiff's Exhibit 113, and
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I'd like to put that back up on the screen, if we could. I
didn't hear you say whether you were present at this
presentation where these slides were represented. Were you
there, sir?
A: I don't recall if I saw this presentation at a
conference or if it was distributed another way.
Q: But you saw this at the time back in 1993; is that
your testimony?
A: I recall seeing this presentation. I don't
remember the exact date that I saw it.
Q: Okay. Well, it's true, is it not, Mr. Richardson,
that Microsoft provided an entire series of new controls in
Windows 95 that benefitted software developers like Novell?
A: There were many features in Windows 95 that we were
very excited about.
Q: And you used them, didn't you?
A: We made an attempt to use the best of the operating
system.
Q: Well, and you did, didn't you? You used tool bars
and status bars and sliders and column headings. You used
lots of controls in the new operating system, didn't you?
A: There were a variety of functionalities in the
operating system that we made good use of.
Q: But I'm trying to establish, sir, that not only
were they there and not only were you excited by them, but you
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used them?
A: We used many of them. Some of them were not
adequate to provide the functionality we needed, and we
replaced them. But there were many of them that we did make
use of, yes, sir.
Q: Now, if you had wanted to put a folder in the
Windows Explorer to store all the documents created by
WordPerfect from Quattro Pro, that was easy, wasn't it?
A: It was easy to create a folder in the file system,
that is correct.
Q: And you did that, didn't you?
A: Users did that.
Q: Well, you did it, didn't you?
A: I as a user making use of Windows 95, there were
times when I created folders in Windows 95, that is correct.
Q: Right. But problematically both WordPerfect and
Quattro Pro created a file called My Files that was the
storage location for all the documents; isn't that right?
A: I'm not familiar with the default settings for
those applications.
Q: Can we look at DR-2, please?
Now, you'll agree with me, won't you, sir, that
this is the file open dialog in Corel WordPerfect Office that
was released in March of 1996?
A: It looks like it is, yes.
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Q: Okay.
And I'm sorry, Mrs. Vishio. I apologize. Here's
the whole stack.
MS. VISHIO: Thank you.
MR. HOLLEY: Sorry. That wasn't fair.
Q: BY MR. HOLLEY: So looking at this, this My Files
folder is where WordPerfect and Quattro Pro files went by
default; isn't that right?
A: I'm not familiar with what the preference settings
were for those two applications.
Q: So your testimony is that you don't know how
WordPerfect and Quattro Pro actually worked when they were
released?
A: What I meant to say was that I don't recall knowing
what the preferences were for where files were saved for
WordPerfect and Quattro Pro.
Q: But you do agree with me that it was possible and,
in fact, it did happen that Novell was able to add a My Files
folder to the file system that showed up both in the Windows
common file open dialog and in the Windows Explorer?
A: It's -- it's very possible for an application to
create a folder in a file system in Windows 95.
Q: Now, an e-mail client is a product that displays a
collection of e-mail messages as items; right?
A: I'm sorry. Would you repeat that?
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Q: Sure. An e-mail client is a product that displays
a list of e-mails as items; right? Either in your sent box or
your in box?
A: An e-mail client can do that, yes.
Q: Okay. And a clip art gallery similarly displays a
collection of items, a bunch of pictures that you can stick in
presentations; right?
A: That is correct.
Q: Okay. Now, that's very different from what a word
processor or a spreadsheet does; right? Their principal role
is not displaying the list of files like objects.
A: Let me make sure I understand your question. Your
question is, is the purpose of a word processor to display a
list of items?
Q: Yes.
A: I would not characterize a word processor that way.
Q: Okay. And let's go back to Plaintiff's Exhibit 113
to that page that Ms. Vishio had you looking at earlier, which
is number 4390 on the end.
A: I'm sorry. What was that?
Q: I think it's the one that says Explorer Integration
Details, and it says 90.
A: All right.
Q: Novell has a much nicer color version than I have,
so we'll have to live with this grey one, which is harder to
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read.
But the second line down there says, not for most
applications, exclamation mark; right?
A: Agreed.
Q: Okay. And what it says is, only should be used if
your application displays a pseudo-folder. And then it gives
two examples, electronic mail, document management, et cetera;
right?
A: (Witness indicates by nodding head up and down.)
Q: Do you agree with me that that's what it says,
Mr. Richardson?
A: It does say that, yes.
Q: Okay. And it also says that you shouldn't, it says
"not" all in capital letters, should not edit documents with
an Explorer extension.
A: (Witness indicates by nodding head up and down.)
Yes, it says that.
Q: Okay.
A: Agreed.
Q: Now I'd like to -- I'd like to put up ER-7.
And I'll show this again to you, Mr. Richardson, so
you're not turning around looking at the screen.
Now, Mr. Richardson, this is a chart that I made.
But I think it sort of follows much of what you said this
morning. I guess we'll need to add one more thing across the
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bottom, which is your Internet NameSpace. But what you said
was that Novell wanted to add various products as NameSpaces;
is that right?
A: Well, I wouldn't quite state it that way. We
wanted to add functionality of various products as NameSpace.
Q: Okay. And those were all products that were
different from word processors and spreadsheets; right?
A: They were integrated with the word processor in
many of these cases. Specifically in the case of Soft
Solutions and QuickFinder, these were specifically integrated
into WordPerfect. So when you had a WordPerfect document you
restore it in your document management system and retrieve it
from your document management system. Very closely
integrated.
With QuickFinder technology, once again we wanted
to very tightly integrate this with the word processor so that
whenever you worked in a document it was automatically
indexed. And whenever you were trying to open a document and
retrieve it into WordPerfect, you could make use of a
QuickFinder technology to retrieve that. So they're a very
tight integration.
Q: So tight that if I look at the box for Corel
WordPerfect Office you won't find Soft Solutions in it, will
you?
A: I don't have information related to how that was
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marketed on the box. I don't know that information.
Q: So you can't tell me one way or the other whether
if I install Corel WordPerfect Office I even get Soft
Solutions?
A: I can't tell you whether on the box that they
displayed the name of Soft Solutions.
Q: Okay. Now, as I understand your testimony, it
wasn't just that you wanted Soft Solutions, the clip art
library, the QuickFinder search engine and the WordPerfect
e-mail client to show up inside WordPerfect and Quattro Pro,
but you wanted them to display in the Windows user interface
even when WordPerfect and Quattro Pro were not running; is
that right?
A: That was the way the functionality worked as
Microsoft had designed it, so when you add a NameSpace
extension, it showed up everywhere. Now we saw that as a
benefit and were desirous of that. That was a functionality
that Microsoft provided.
Q: And you thought that would make Windows 95 a better
operating system, didn't you? You thought if you could add a
document management system, a search engine, a clip art
library, an e-mail client and an early web browser, you would
make Windows 95 a better operating system; isn't that right?
A: It was our intent to make the user's experience on
Windows better because they had WordPerfect installed.
613
Q: Well, when you say WordPerfect, you need to be more
precise. You mean WordPerfect technologies; right? Not
WordPerfect, the word processing software?
A: So when the WordPerfect suite was installed we
wanted their experience on Windows to become a better
experience.
Q: And you wanted that to be a better experience even
if it happened to be that the user wasn't using your word
processor or your spreadsheet at the time?
A: That's correct.
Q: Now, you testified, I believe, earlier that the
object-oriented design of Windows 95 was great, I think that
was your word?
A: We really liked some of the concepts, yes.
Q: Now, was the shared code group writing an
object-oriented program in languages?
A: I believe that we started using C++, which is an
object-oriented programming language, around the time that we
did the Windows 95 development, although I don't recall
precisely at what point we started using it.
Q: And there was a general lack of experience on the
shared code team using C++, wasn't there?
A: There was a general lack of experience in the
industry generally with using object-oriented languages
because they were brand-new.
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Q: Who wrote C++?
A: That's a good question. I don't know that I have
complete knowledge of that. My understanding is that a
graduate student initially wrote C++ as a compilation of
post compile for C language programming. So you would write a
C program in C++, and you would run it through this C++
processor and it would convert it into C code.
In fact, I remember in the first conference I went
to with Microsoft where they presented Win95 the Microsoft
developers were struggling with using C++. And they tried to
present these new concepts to us, these logical minded
concepts in C and apologized it was so much complicated to do
it in C than it was in C++ because object-oriented programming
did make it a lot easier. But it was a transition they
explained they were going through even as we were starting to
go through that.
Q: Microsoft's Visual C++ which Microsoft wrote was
one of the leading conversions of C++ in the market in 1994,
wasn't it?
A: I don't remember market share. I remember
Microsoft was a little bit late to the market with C++. When
I first went to Microsoft I worked on their internal compiler
debugger interpreter, which at that time was called C#, and
they named it C# because it was supposed to be twice as good
as C++. At that time Microsoft was not pursuing C++
615
technology, and other compiler vendors were. So I think
Microsoft was probably a little bit late to the game on that,
although Microsoft certainly has excellent C++ compiler now
and developed very good technology for compilation.
Q: Would you agree with me if people were going to
classes to learn how to write C++ that it's very hard for them
to be developing high quality software in C++?
A: The concept of C++, an object-oriented in general
are a little bit complex. But most of the people that I
worked with were able to make that transition relatively
quickly. There's a variety of concepts that you have to
learn. Once you've learned those and start using it, it
becomes progressively easier to use that. And I would say
that most of the developers I worked with probably within a
month or two were fairly comfortable with C++.
Q: Okay. I'd like you to look at what's been marked
as Defendant's Exhibit 108.
Now, Mr. Richardson, you were part of the
PerfectFit group in May of 1995; is that right?
A: Yes, I believe that's correct.
Q: And I'd like to direct your attention to the, it is
the fourth page of this document, which has the number
NOVE 01904058, and tell me when you're there.
A: Sorry. Could you read that number again?
Q: I'm sorry. It is 4058.
616
A: Okay.
Q: Now under the heading, "What was accomplished this
month," and we're in May of 1995, it says:
We all attended an advanced C++ class to
better enable us to code this project.
Isn't it sort of akin to saying to someone, I'm
writing a novel in French, but I'm taking French classes at
the same time, this idea that in May of 1995 people in the
shared code group were taking classes to learn the language
that they were writing in?
A: So there was a desire of WordPerfect for people to
continue education throughout their career. And although I
don't recall this particular coursework, it wasn't uncommon
for people to go to conferences about Windows, conferences
about C++, conferences about other technologies to keep
ourselves -- to keep the saw sharpened, as it were.
Q: Well, let's look down under the heading, "Problems
encountered," which is just below this. And it says:
Our lack of experience in the area of OOAD --
And that stands for object-oriented application
development; correct?
A: I'm not sure what the acronym, the person who wrote
this is referring to. OO is object oriented. But I'm not
familiar necessarily with an OOAD.
Q: Okay. So but:
617
Our lack of experience in the area of OOAD
causes us to underestimate the complexity of the
architectural design.
That was something that was causing problems at
Novell in May of 1995, people in the shared code group were
underestimating the complexity of tasks because of their lack
of experience?
A: My experience was that that was not the case. We
had a very bright group of developers. Many there were newer
developers who had less experience. But as a rule, we had a
very good group of developers who had a lot of experience and
did a very good job designing.
It's not uncommon for tasks to take more time than
you expect them to. Windows 95 had that same issue. It took
considerably longer than it was originally projected to.
Q: In fact, that's routine in the software industry,
isn't it?
A: It's not uncommon for things to take longer than
you think they would.
Q: People are very optimistic about their deadlines.
A: (Witness indicates by nodding head up and down.)
Q: Okay. Now you yourself are a very experienced
Windows programmer; right?
A: I started programming with Windows 2.
Q: And that was back in the mid '80s?
618
A: In the late '80s.
Q: Okay. And you have experience in developing
applications to run on Windows operating systems?
A: I worked at developing Windows applications for
many years. The last time I developed for Windows was in
2007.
Q: And you understand how to read the documentation
for Windows operating systems; that's right, isn't it?
A: I've used Windows documentation for a lot of years.
Q: Okay. And you're familiar with something called
MSDN or Microsoft Developer Network; right?
A: I am.
Q: Can you tell the jury what that is?
A: So the Microsoft Developer Network is a resource
that provides information that helps develop Windows
applications.
Q: Mr. Richardson, I'm sorry. I'm afraid your
microphone is not on because I'm having a difficulty hearing
you.
THE COURT: Can you all hear?
THE WITNESS: I apologize. Do I need to repeat
that answer?
Q: BY MR. HOLLEY: Thank you, sir.
Now, you're also familiar with the series of books
published by the Microsoft Press about how Windows operating
619
systems function; correct?
A: I'm familiar that Microsoft Press does produce a
variety of resources about Windows development.
Q: And third-party publishers also wrote many, many
books about how to write for Windows; isn't that right?
A: That's correct.
Q: And that was true back in the mid 1990s, it's as
true as it is today; isn't that right?
A: So there's a certain amount of lag time that
follows introduction of technology and production of those
books. But, yes, generally speaking after the introduction of
the technology a variety of resources follow to help develop
which code to those environments.
Q: Okay. I'd like to ask you if you're familiar with
one book from the Microsoft Press, and I'll just bring it up
and show it to you so you don't have to stare across the room.
But have you seen this book before, The Programmers Guide For
Windows 95?
A: It does look familiar, but I don't recall having
used this book myself.
Q: Okay. And there's a chapter in this book entitled
Extending the Chicago Shell; right? And feel free to look at
the index if you'd like. But there's a chapter called
Extending the Chicago Shell. I think it's Chapter 12.
My question, Mr. Richardson, is have you seen the
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material that appears in Chapter 12 of The Programmers Guide
for Windows 95 either in this form or in some other iteration?
A: I don't recall this docket or this book being
available at the point that we were writing our first shell
extensions. The information that was provided -- the
document, the documentation that was provided to us I believe
has already been introduced in this court. We had the shell,
object by H, the H file included these. I'm not sure we had a
lot more documentation on that.
Q: Let me ask you to look at what's Defendant's
Exhibit 72. Now, this is an article that appeared on the
Microsoft Developer Network by a guy name Kyle Marsh in May of
1994 entitled "Extending the Chicago Shell." Would you agree
with me that this is basically the same content that appears
in Article 12 of the book that was published a year later?
A: I would have to take the time to read them both and
compare them. I'm not familiar enough with the document to
say that.
Q: All right. Let's take a look at the second page of
what is Defendant's Exhibit 72. There's a section here
entitled, "Shell Extensions." And it says:
Shell extensions enhance the basic
functionality of the shell by providing additional
choices for manipulating file objects or
additional information. There are five shell
621
extensions.
And then it lists, context menu handlers. And if
you turn to Chapter 12, it says, context menu handlers, and it
says exactly the same words after.
And then we look at Defendant's Exhibit 72, it says
drag-drop handlers. If we look back at the book --
MS. VISHIO: Objection, Your Honor. Is there a
question pending?
MR. HOLLEY: I'm in the process of asking the
question.
THE COURT: So the answer is not yet.
MR. HOLLEY: She's rushing me, Your Honor.
Q: BY MR. HOLLEY: So, Mr. Richardson, my question is,
the five shell extensions that are described in Defendant's
Exhibit 72 are also described in Article 12 of Defendant's
Exhibit 559, the book; isn't that right?
A: I haven't reviewed the book. But --
THE COURT: If you want to represent that's so,
that's so.
MR. HOLLEY: Okay.
Q: BY MR. HOLLEY: Well, I'd just like to turn back to
Defendant's Exhibit 72 and point out to you the number that
appears on the bottom of the first page. It says NOV-B. And
that shows that this document was produced from Novell's
files. Have you seen this document before today?
622
A: Let me make sure I'm referring, I've got the right
document.
Q: Okay.
THE COURT: I think it's 72.
MR. HOLLEY: 72.
Q: BY MR. HOLLEY: 72, Mr. Richardson.
A: Okay. I'm lost.
Q: Sorry about that.
Okay. So the question I have for you is, this
document was produced from Novell's files, and we know that
because it has the Novell's production number down at the
bottom. And my question to you is whether you've seen it
before today?
A: I don't recall. Is this the document you're
referring to?
Q: Yeah. I'm blind without my -- yes. No. No. I'm
sorry. It's this one, Mr. Richardson.
A: This document?
Q: 72.
A: I don't recall specifically seeing this document.
Q: Do you recall seeing a documentation in the form of
MSDN articles in May or June of 1994 about how to extend the
Chicago shells?
A: I remember finding documentation, but I don't
recall this specific time frame or the specific documents.
623
Q: Now, in terms of the shell extensions that are
described here, context menu handlers which allow you to add a
context menu when you right check on a file, and things that
allow you to add items, specific icons, those things all
remained documented throughout the development of Windows 95;
correct? They were documented in the M6 beta, the M7 beta,
all the way through; correct?
A: I believe that's correct.
Q: And, in fact, Novell used those shell extension
mechanisms in developing WordPerfect for Windows 95 and
Quattro Pro for Windows 95; isn't that right?
A: That's correct.
Q: Now, I think this is clear from your testimony, but
I just want to be sure that we're all on the same page. When
you learned in October of 1994 that Microsoft was withdrawing
support for the NameSpace extension APIs, that didn't mean
that the code in the operating system that implemented those
APIs went away, did it?
A: My understanding is that the code remained. Just
the documentation was retracted.
Q: And you were allowed to keep the documentation that
you got in June of 1994 in the M6 beta; right? No one came
and took that back from you?
A: That's correct. However, we were warned that those
interfaces might change and might not continue to work. So it
624
might not be wise to depend upon them.
Q: Now, I'm trying to make sure I understand your
testimony. You said on direct examination that rather than
pull the APIs because you'd been told that Microsoft might not
support them in the future, you decided to clone them inside
the shared code; is that right?
A: That's not the way I would characterize that. We
decided that in order to achieve the functionality that had
never been documented, and to guarantee that we would continue
to operate that we would have to create our own infrastructure
that mirrored the infrastructure that Microsoft had created.
Q: Well, it was a clone, wasn't it?
A: Well, we didn't have visibility into how they did
adequately to say. I mean, a clone to me implies that it's
identical. So we did our best to imitate the functionality.
But not knowing how it worked I wouldn't call it a clone.
Q: Can we look at DR-35, please.
Okay. These are the 17 Comm interfaces that you
sought to implement in shared code; right?
A: That looks correct.
Q: Okay. And 16 of these are Windows APIs; right?
A: I'm not sure I understood the difference between
the 16 and the 17.
Q: Okay. Well, you made one up; right? You created
IPF Moniker. IPerfectFit Moniker.
625
A: I see where you're headed.
Q: Okay. But the other 16 are interfaces exposed by
Windows 95.
A: Those are interfaces that are defined by
Windows 95. And I don't recall if we had to create additional
interfaces besides the PF Moniker. My recollection is we did,
but I can't recall the specifics.
Q: Did you talk to a copyright lawyer before setting
up doing this?
A: I don't recall speaking with a copyright lawyer.
Q: Okay. And who's idea was it that Novell would
clone all of these interfaces in Windows 95?
MS. VISHIO: Objection, Your Honor.
Mischaracterizes his prior testimony.
THE COURT: Yeah. I think he said it's not a
clone. So it's sustained. Just rephrase the question.
MR. HOLLEY: Okay.
Q: BY MR. HOLLEY: Whose idea was it that Novell would
re-implement these 16 Windows interfaces in Novell's own
products?
A: So I guess there's a couple answers to that. First
of all, the infrastructure that we created was not merely the
interfaces that were provided, but the infrastructure that
recalled them. So an interface is a collection of calls that
you make. So if someone supports an interface, you know that
626
you can call a certain kind of functionality. You expect a
certain kind of functionality from them. So when you support
an interface, you merely say, you can call me and ask me these
questions, and I know how to answer them.
And so the work was not merely providing
implementations that supported these interfaces, but building
the infrastructure that knew how to tie them altogether, that
knew how to call them.
So the purpose of the interfaces was for people to
provide implementations that made use of them so in providing
these interfaces or implementations of these interfaces, all
we did was go to the registry like everybody else did like the
documentation told us to do, and we said, I support this
interface. And they could call us, and they could say, okay.
I can give you this kind of question because you know how to
answer that.
So we provided a substantiation of these
interfaces. The interfaces had been defined by Microsoft. We
continued to make use of those interface definitions as the
documentation had instructed us to, and then we provided the
infrastructure that knew how to call them.
Q: And that was hugely, hugely complex, wasn't it?
A: It cost us a lot to figure out how to do it and
then to actually implement it.
Q: Right. It was a big, big job to create your own
627
implementation of these 16 Windows APIs, wasn't it?
A: So once again, that was one portion of the task,
was to provide implementations for our objects that supported
each of these. And that wasn't the huge task. The bigger
task was creating that infrastructure behind that, you know,
how to make use of these that knew how to call them and knew
how to ask questions.
In addition to that, we had to go to each of the
Microsoft NameSpaces and provide a wrapper around them because
we didn't know how to ask the questions that were -- in order
to get the performance that we needed there was some kind of
connection there that we had never been given visibility to.
So we had to guess what that was, provide that and then
wrapper around their NameSpaces so that we could talk to them,
as well.
Q: Is it your testimony, Mr. Richardson, that it was
easier to do what you just said, which is write your own
implementation of the code that exposed these interfaces and
the code that called these interfaces, than it was to simply
keep calling the interfaces that Windows exposed that you had
been told about in the M6 beta?
A: So there were three options that we had that we
considered at the point where the documentation was retracted,
and I kind of went over those before. We looked at each of
those options very seriously. We didn't know which one was
628
going to be the right option, and we certainly weren't looking
for a big task. But as we looked at the options, we looked
back at the option only accessing the file system and not
having access to the other NameSpaces. If we couldn't access
the network neighborhood, then no one could get their
documents to or from network. Or if we couldn't go to
My Computer, that was the place that everybody went to start
in Win95.
The lack of those NameSpaces seemed to us to be an
insurmountable problem. We wouldn't have a Windows 95 product
if we didn't have access to those. It wouldn't be functional
enough to be considered a reasonable product in Windows 95.
So that one was off the table. We couldn't do that.
The next option was to -- sorry. I lost my place.
So one option was to go back to what we'd had previously. The
next option was to go with the common dialog. Now, the common
dialog had access to some of these NameSpaces. It had access
to My Computer. It had access to some of these Microsoft
NameSpaces. But we couldn't get all the Microsoft NameSpaces
to show up, and we couldn't get any of our NameSpaces to show
up.
So all this functionality that we'd invested in
that represented the work of dozens of developers for
QuickFinder, for Soft Solutions, for the e-mail client, all of
that work couldn't be used at all. We had to throw it all out
629
if we went with common dialog. In addition, the common dialog
wouldn't even give us the level of functionality we had in our
last release in Windows or that we had on our DOS card. It
was a huge step backwards for us. And we felt it simply
wasn't an option. If we were to go with that option we didn't
really have a product. So we were left with the third option.
Now, when we started, when we made that choice, we
didn't know how big it was going to be. We estimated based on
what we knew that there was a big unknown there, but we hoped
that we would be able to complete that in a relatively quick
period of time. We didn't start immediately with seven
developers knowing it was going to take us a full year. We
decided that was the only option we had left. The others
simply wouldn't work. We were in a rock and a hard place. We
couldn't go forward. We couldn't go back. Our only choice
was to try to replicate this functionality so that we could
have a product that was reasonable under the Win95.
Q: Now, when you said that you couldn't get access to
the Windows NameSpaces, you were aware, were you not, that it
was very simple using a Windows APIs called iShellFolder to
bind to the system NameSpace; right? You knew that?
A: So what I said was that we couldn't get the common
dialog to bind to all the Microsoft NameSpaces or to bind to
any of our NameSpaces. So the Microsoft functionality
provided the common dialog was the one that didn't do this,
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not us.
Q: Okay. Fine. So you couldn't change Windows 95's
common file open dialog, the one that Microsoft wrote --
A: Correct.
Q: -- to do what you wanted it to do. But inside your
own file open dialog it was simple to display the entire
system NameSpace; correct?
A: So the binding of two NameSpaces was not a
difficult part of the problem in creating our own file open
dialog. Okay. That was not the difficult part of the
process. That was not the costly part of the solution we had
to compete with.
Q: So Novell could have made a choice to write a file,
open file for WordPerfect and Quattro Pro that displayed the
entire Windows 95 NameSpace including the briefcase, My
Computer, my network neighborhood, all that stuff would have
shown up in your file open dialog; right?
A: Yes, that's correct. The problem we encountered
was not difficulty in binding them, the problem was in
dissolving the list of items contained within each folder.
Using the APIs that were exposed, the performance was so slow
that it would take up to three or four minutes to render the
content of a full -- of a large folder. So we discovered that
when we used the interfaces which had been published with the
Microsoft NameSpaces it was very slow. When we put our
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NameSpaces in the Explorer and it rendered the content of our
folders, they were very slow. But when we put the Microsoft
NameSpaces in the Microsoft Explorer, they were very fast.
There was some communications happening there. There was some
interaction that we didn't have access to that hadn't been
published, we couldn't get to. The performance was so bad
that it was unusable. You can't wait two or three or four
minutes every time you try to open a file. It was something
unacceptable.
Q: I'd like to have you look at something that
Mr. Harral was shown during his direct examination. It was
H-06, and I think we can put it up on the board. And I'll
give you this copy so you can see it, Mr. Richardson. It's
probably easier not to turn over your shoulder like that.
Now, Mr. Harral testified that this was the file
open dialog for PerfectFit 2.3 that showed up in applications
for Windows 3.1; and that's right, isn't it?
A: That looks correct.
Q: Okay. And so I'm looking here, and I see that
there is something called Quicklist, and that is presenting
some of the spaces in the file system that you thought users
would want to have easy access to; correct?
A: I don't recall this functionality. But that looks
like a reasonable interpretation.
Q: Okay. And it also allowed users to view files
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without opening the application. That's what the view button
is; right?
A: I'm sorry -- yes, that's correct.
Q: Okay. And you could also use the QuickFinder
technology that you talked about earlier?
A: There's a QuickFinder button there.
Q: Right. And all of this once done -- I'm sorry.
One more. You could access the network; right? You could
press the network button, and it would take you out to network
drives or Windows NT server drives; right?
A: (Witness indicates by nodding head up and down.)
Q: I'm sorry. I didn't hear your answer, sir.
A: I'm sorry. What was the question?
Q: The question was you could press the network
button, and you could have access to various network drives.
A: Yes, that's correct.
Q: And all of this was done without NameSpace
extension APIs because they didn't exist yet; right?
A: That's correct.
Q: That's correct. Okay. Now, let's look at DR-3.
Now, this is the Windows 95 common file open
dialog. This was a service that Microsoft had wrote, put in
the operating system and told every application developer in
the world including Novell, you can use this for free; right?
A: That's correct.
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Q: Okay. And what this did was give any application
developer access to all of the Windows system NameSpaces
including My Computer, the desktop, the network neighborhood
and my briefcase; is that right?
A: It provided access to a number of the Microsoft
NameSpaces. My recollection is that it did not provide access
to all of the Microsoft NameSpaces.
Q: But if Novell had chosen to use the Windows 95
common file open dialog, it would have been getting exactly
the same services from the operating system that all of the
thousands of other applications that called this common file
open dialog done; is that right?
A: That's correct. The issue is that this dialog was
not comparable to the functionality that we had to the dialog
you just showed us. It didn't provide as much information
that we had in Windows 3.1 or as we were able to provide in
our DOS product. It also didn't allow us to add our
NameSpaces into this.
Q: Okay. Let's look at DR-6, please.
All right. I made this up having listened to
Mr. Harral, but I think it's consistent with what you said
this morning. Novell had four objectives, and let me -- and
I'm going to give you this so you're not looking over your
shoulder at the screen. Thanks.
So I think you've said that one of the things you
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wanted to do was to display the Windows 95 system NameSpace in
the file open dialog. That was one of your goals; right?
A: Display the system NameSpace in a file open dialog.
I'm not sure what you're referring to with system NameSpace.
Q: You know what the Windows 95 system NameSpace
looked like; right? It was the --
A: There were a number of NameSpaces provided by
Windows. I don't recall one specifically being named the
system NameSpace.
Q: Okay. Let's talk about displaying the tree view
for Windows 95 in your file open dialog. You know what I'm
talking about with that; right?
A: So the tree view doesn't tie directly to a
NameSpace but provides access to a variety of NameSpaces. I'm
just trying to make sure I understand what you're asking me.
Q: Well, there's a desktop NameSpace; right? You're
familiar with that concept, aren't you?
A: Correct. Correct.
Q: And the desktop NameSpace includes all of the
sub-NameSpaces starting with my desktop?
A: So that's what you're calling the system NameSpace.
Q: Yes. That's what I'm calling the system NameSpace.
A: Okay.
Q: So if we can agree that the desktop NameSpace and
the system NameSpace are the same thing, one of Novell's
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objectives was to display the system NameSpace or the desktop
NameSpace in its file open dialog; right?
A: I believe that was one of our objectives, yes.
Q: Okay. And then the second objective was the one
you've been talking about, which was to display both the
system NameSpace plus Novell's extra technologies like
QuickFinder and the clip art library in the file open dialog.
A: That was a desire, as well.
Q: Okay. And then you had two other objectives which
didn't really have to do with your file open dialog but had to
do with Windows, as such. One of those was display those
Novell technologies like QuickFinder in the Windows Explorer
even when I'm not running WordPerfect or Quattro Pro; right?
A: That's correct.
Q: Okay. And your fourth objective was to add
Novell's technologies to the Windows common file open dialog,
the one that shows up in everybody else's applications, and
you wanted to add Novell technologies to that, didn't you?
A: That kind of was a freebie that came along with
having the -- any NameSpace. So when it showed up in our
dialog by adding some functionality to our dialog, it also
became available, at least, and became available in common
file open dialog.
Q: So if I installed PerfectOffice on top of my
Windows 95 machine in the old world, I would have seen
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Novell's QuickFinder, its clip art library, its e-mail client,
its document management system, its web browser when I opened
into its Quicken; right?
A: You would have seen all of our NameSpaces available
in anybody's file open dialog that had access to the
NameSpaces.
Q: What did that have to do with WordPerfect or
Quattro Pro?
A: Well, the same thing that if I added a printer
driver, that that printer driver now became available for
every allocation it desired to print. It was a Microsoft
technology that when you added it it showed up everywhere. We
took advantage of that.
Q: I'm sorry, sir. I didn't mean to cut you off.
A: We wanted to take advantage of that. But I don't
know that -- I'm not sure that it was our desire to interject
ourselves potentially to other applications more than it was
to take advantage of the functionality Microsoft was providing
to the user.
Q: But you would have in your world interjected
yourselves as you said into everybody else's application that
chose to use the Windows common file open dialog; isn't that
right?
A: Yes. In the same way that we would interject our
printer driver for every other application that wanted to
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print when we copied our printer driver to the system.
Q: And when you copied your printer driver to the
system, you were making Windows 95 a better operating system
because you were adding support for more printers; isn't that
right?
A: That's correct.
Q: That's correct. And if you were augmenting
Windows 95 by adding your document management system, your
e-mail client, your clip art library to all of these Windows
system components like the file open dialog, you were making
Windows 95 a better operating system, weren't you, sir?
A: That was our belief.
Q: Now, the people developing WordPerfect, the word
processing application, really didn't care what the shared
code team was doing with NameSpace extensions; isn't that
right?
A: I'm sorry. Could you repeat that?
Q: Sure. The people who were working on WordPerfect,
the word processing application, they really didn't care what
you were doing in the shared code team with your effort to
re-implement these 16 Windows APIs. That didn't matter to
them one wit, did it?
A: I would not characterize it that way. That was not
my experience interacting with the WordPerfect theme that they
didn't care.
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Q: Did you have occasion to read Mr. Harral's
testimony last Thursday before you took the witness stand,
sir?
A: I have not read it.
Q: You have not read it? Did anyone tell you what he
said about this topic?
A: I have not discussed that.
Q: Okay. So I want to show you --
THE COURT: I thought we'd go about another
10 minutes. Is that okay with everyone?
MR. HOLLEY: We're going to go another 10 minutes,
Your Honor?
THE COURT: Yeah. We'll go another 10 minutes.
MR. HOLLEY: Okay. Sorry. I thought you said
we're going to take 10 minutes. Okay.
THE COURT: I just want to make sure that was okay
with everybody.
MR. HOLLEY: Thank you, Your Honor.
Q: BY MR. HOLLEY: I'm just trying to make sure I have
the right page. But I think if you look at Page 287 of the
trial transcript. Let me confirm that before we put it up.
Just bear with me one moment, Your Honor.
270, please. Page 270.
This is kind of backward, but I'm going to let you
read from this.
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Now, here Mr. Harral's testifying, and he says:
The question isn't about WordPerfect's product
at that point. It's about what the users want to
do and can we give them the tools to provide that.
You agree with that; right? That the question in
terms of the shared code word wasn't about WordPerfect, per
se, but instead about giving users in Windows tools like a
document management system and an e-mail plan?
A: So I'm not sure of the context here. Can I take a
minute to --
Q: Sure. By all means. It's not -- if you need to
read around and get yourself familiar with what he was saying,
that's perfectly fine.
(Time lapse.)
THE WITNESS: Okay. I think I understand the
context of what he's saying now.
Q: BY MR. HOLLEY: Okay. And you agree with what he's
saying there, that the question isn't about WordPerfect
product, namely, Quattro Pro and WordPerfect; it's about what
users want to do, and can we give them the tools to provide
that. That's what these new NameSpaces were all about, isn't
it?
A: I think I would have phrased it slightly different.
I think I would have said it's not only about WordPerfect
product at that point, it's about the user's dat A: It's about
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the user being able to access their data and be able to do the
things they want to and extending the user's ability to use
their data to achieve their intentions.
Q: Extend the user's ability to use their data whether
or not they happen to be at that particular moment using
WordPerfect or Quattro Pro; right?
A: Whether or not they're using WordPerfect. So if
they're within WordPerfect and the last time they entered the
document it was in Word Starter they should still be able to
find it.
Q: Right. So QuickFinder would not only look in the
store for WordPerfect and Quattro Pro documents, but once it
had been installed and enhanced Windows 95, it would allow me
to look for documents basically created in any program; isn't
that right?
A: That's correct.
Q: Okay. Let's go back to DR-6, the objectives again.
Can I see the next screen?
Now, I think we've talked about all of these
things. But let's see how Novell could have achieved its
objectives.
Objective number one is displaying the desktop
NameSpace or system NameSpace in a file open dialog.
And if that's all you wanted to do, you could have
used the Windows common file open dialog, that's one option;
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right? We're limiting ourselves to just displaying the system
NameSpace in a file open dialog. You could use the one in
Windows; right?
A: So some clarifying questions I would make. These
are four objectives, and I agree that Novell had these
objectives, although I don't necessarily believe this is an
exhaustive list of those objectives. And I think we've
already talked about the question of what the Windows 95
common file open dialog offered us and the drawbacks that it
had for us. We were unable to achieve the desired results we
had for two major reasons with the common file open dialog; it
would not meet our needs because we couldn't provide the same
level of functionality that we had in 3.1, and we could not
provide the same functionality we had in DOS, and we could not
have our NameSpaces appear in the common file open dialog.
This is not an option for us. It didn't work for us.
Q: Okay. All software development is about a series
of tradeoffs; isn't that right? You look at the benefits of a
choice and down side of that choice, and you have to decide
what to do; right?
A: And the consequences of producing an inferior
product to our previous release or to provide a product that's
guaranteed to be inferior to every other product in Win95 was
not an option for us.
Q: Well, I heard you say that, sir. And I'd like, if
642
you would, just bear with me and answer my questions as we go
through this, and you'll have an opportunity to say what you
would like to say.
But focusing on the first objective, which is to
display the system or desktop NameSpace in a file open dialog,
you could have, you could have made the choice to use the
Windows common file open dialog just like thousands of other
people did; is that right?
MS. VISHIO: Objection, Your Honor. Asked and
answered.
THE COURT: I don't think so. We'll see. We'll
see what we have.
THE WITNESS: So I believe I have answered this
question more than once. The file open dialog does display
the system NameSpace. It does not display all of the
Microsoft NameSpaces, and it does not display additional
NameSpaces. So the statement that it does display the system
or the desktop NameSpace is correct.
Q: BY MR. HOLLEY: That same is correct, okay. And I
think we also agreed earlier that by calling iShellFolder and
binding to the desktop NameSpace, you could have inside the
PerfectOffice file open dialog also shown the desktop
NameSpace; right?
A: So I believe I've already addressed this, as well.
The binding to the NameSpaces was not the problem. The
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problem was the performance that arose from doing that. We
couldn't enumerate the items within the NameSpace sufficiently
fast to make it usable. So this wasn't an option for us.
Q: Did it occur to you that that was just the way the
system worked, that it was slow when anybody other than
another component of the operating system sought to enumerate
one of the system NameSpaces?
A: So we certainly considered that possibility. So
Explorer didn't have that problem. The common file open
dialog didn't have that problem. And as we reviewed the Word
beta, it did not have that problem. So it appeared that those
who had access to evidently some information that we didn't or
access that we didn't have were able to do this more quickly.
Q: You're quite aware, are you not, sir, that no
version of Microsoft Word ever extended the system NameSpace,
are you not?
A: I'm not testifying to what they did. I'm
testifying to the experience that we saw as we made use of it.
Q: Okay. Now, let's look at option -- or objective,
excuse me, number 2, which is you keep telling me you wanted
to do two things; you wanted to both display the desktop
NameSpace and add some Novell spaces. And you could have done
that; right? You could have had one window of your file open
dialog that showed the system NameSpace, and then could you
have had the window right next to do just like you did in the
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Windows 3.1 PerfectOffice 2.3 file open dialog, display places
you thought users might want to go or things you thought users
might want to do like use QuickFinder; that's right, isn't it?
A: I would not characterize it that way, either. We
really didn't take time to discuss the differences between the
access to the technology in the 3.1 file open dialog. For
example, the QuickFinder, the level of integration there was
that you could launch the QuickFinder. That's it. The level
of integration provided by NameSpace is that I could
automatically index and have them show up right there in the
dialog. I could right click on an item, and one of the
options would be to find with QuickFinder.
So the level of integration making the experience
easier and more effective for the user is a completely
different thought. I wouldn't say it is equivalent, no.
Q: Okay. Not necessarily exactly the same, but you
certainly could have made QuickFinder technology available to
the users in the file open dialog had you chosen to do so even
if you were exposing the system NameSpace in a window right
next door.
A: I don't believe we could have provided an adequate
experience for the user without the technology the way we did
it.
Q: That's your opinion, sir, about what would be
adequate for users; right?
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A: It's my opinion that a product that didn't have
that level of integration would not be able to be competitive
in the Win95 environment.
Q: And you decided it was worth one year of time, one
year to provide that marginal improvement in what you thought
would be a better user experience; is that your testimony?
A: We were between -- in my opinion we were between a
rock and a hard place. We couldn't move forward; we couldn't
move back. The options we had in front of us of making use of
the common file open dialog or reverting back to our
Windows 3.1 functionality were unacceptable in the Win95
environment, that our only option was to move forward.
Q: You're aware, are you not, sir, that Mr. Skillen of
Corel ordered the shared code team to use the Windows common
file open dialog after Corel completed the acquisition of
WordPerfect. You're aware of that, aren't you?
A: I don't recall that happening.
MS. VISHIO: Objection; foundation.
THE COURT: Overruled. The question is does he
know.
I'm sorry. Did you know? I didn't hear your
answer.
THE WITNESS: I cannot recall that happening.
Q: BY MR. HOLLEY: You were never part of any
discussion where Mr. Harral or anyone else told you that
646
senior management had directed the shared code team to stop
this exercise of re-implementing 16 Windows APIs and instead
to use the common file open dialog that was available in the
operating system for free?
A: So I think I heard more than one question in there.
The implementation of each of these APIs would have been done
regardless of whether we're using the file open dialog or not.
The implementation of NameSpaces was done to extend our
functionality wherever NameSpaces were used. So I think
that's a separate question in whether or not we did an open
file dialog.
Q: Okay.
A: So we were going to implement those interfaces
regardless of whether we used a common file open dialog or
not.
Q: Okay. That's an interesting clarification. So you
intended to re-implement these 16 Comm interfaces so that you
could create your own pluggable architecture so that
GroupWise, for example, another Novell product, could plug
itself into your own NameSpace extension mechanism that you
were writing; is that correct?
A: So I think once again there's a mischaracterization
of what the interfaces are. When you provide a NameSpace, you
support these interfaces. So you provide a piece of code that
can be called into to ask these set of questions. So
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providing those was an ability to extend the system. We were
going to provide those functionalities whether we get our own
common dialog or whether we used the Microsoft common dialog.
So that the suggestion that providing those was only because
we were providing our own dialog and was somehow extra work
because of that decision I would say is probably not an
accurate characterization of what we did. The NameSpaces that
we provided were provided because that's the way you did
functionality in Win95 regardless of whether we provided our
own NameSpace or not. The decision to do our own NameSpace
was based on the problems that we encountered with making the
user experience acceptable for our user base. We had to have
acceptable performance, and we had to provide at least the
same level of functionality that we had in our previous
release. That was our motivation.
Q: Sorry, Mr. Richardson. Mr. Richardson, can you
tell the jury, give the jury one example, one, of any product
from any company that in the period 1994 to 1996 added
NameSpaces to the Windows Explorer of the Windows common file
open dialog? One.
A: So I was not the person in the team who dealt with
other corporations. There was a -- I believe it was a
CompuServe forum that was used for people who were working on
NameSpaces. My understanding from talking with my co-workers
who were involved with that was that it was a very active
648
group. But I did not work with them directly. I don't have
any direct knowledge of which other companies provided
NameSpaces.
Q: Well, the answer to my question is that you cannot
tell the jury the name of one product in the period between
1994 and 1996 that did what you said was imperative for Novell
to do, which is to add NameSpaces to the Windows common file
open dialog and to the Windows Explorer. You can't tell us
one, can you, sir?
A: I'm not familiar with any company specifically that
provided NameSpace.
THE COURT: Okay. Let's take a short recess. I'm
ready whenever anybody else is.
(Recess.)
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STATE OF UTAH
ss.
COUNTY OF SALT LAKE
I, KELLY BROWN HICKEN, do hereby certify that I am
a certified court reporter for the State of Utah;
That as such reporter, I attended the hearing of
the foregoing matter on October 25, 2011, and thereat reported
in Stenotype all of the testimony and proceedings had, and
caused said notes to be transcribed into typewriting; and the
foregoing pages number from 567 through 649 constitute a full,
true and correct report of the same.
That I am not of kin to any of the parties and have
no interest in the outcome of the matter;
And hereby set my hand and seal, this ___ day of ____ 2007.
_______________
KELLY BROWN HICKEN, CSR, RPR, RMR
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THE CLERK: Are we ready?
THE COURT: Absolutely.
(Jury brought into the courtroom.)
THE COURT: Go ahead.
Q: BY MR. HOLLEY: Mr. Richardson, I'd like to
return very briefly to one topic that we talked about
before the break. To your knowledge, no component of
Microsoft Office, be that Word or Excel or PowerPoint or
Access or Outlook used the NameSpace extension API's to
add custom containers to Windows explorer, right?
A: I have no knowledge of whether they did or
not.
Q: You're certainly not here to testify that they
did, are you, sir?
A: I have no knowledge of whether they did or
not.
Q: Okay. Let's go back to DR-6, the objectives
chart. And let's look at number 3, which is the
Displaying Novell Technologies Such as QuickFinder in the
Windows explorer. Now, this is something that really was
neither here nor there for WordPerfect and Quattro Pro
themselves, right?
A: Well, I'm not sure that I'm qualified to speak
to the -- the design decisions and directional decisions
for those applications, but my understanding is that, in
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every environment that WordPerfect was installed,
starting with DOS, that it was their desire to provide a
good experience for the user that helped the user whether
they were doing word processing or not. In fact, with
WordPerfect for DOS, it was one of the reasons that
WordPerfect was the dominant word processor on the
operating system.
So I think it was a very strong desire to have
a positive influence on the environment in which they
were installed.
Q: But, just to be clear, there was no obstacle
whatsoever to adding an icon on the Windows 95 desktop
that a user could click on, and it would launch
WordPerfect, and you could have one for Quattro Pro, too,
as well, right?
A: To my knowledge, it was not a difficult task to
add an icon to the desktop.
Q: And, if you clicked on the icon, that icon,
through shell extension mechanisms, was associated with
an executable file, and that file would launch when you
clicked on the icon, correct?
A: I'm not sure that was even -- involved shell
extension technology. A link on the desktop is a fairly
simple thing to do.
Q: Okay. So we're agreed that it was simple to
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add an icon for WordPerfect and Quattro Pro to the
Windows 95 desktop, right?
A: Right.
Q: And it was also equally simple to add
WordPerfect and Quattro Pro in the start menu of Windows
95?
A: That was not a difficult task.
Q: That was not difficult. Okay. Now, you talked
a little bit this morning about living in applications
and living in Windows explorer. Have you ever had any
occasion to look at any market research conducted, since
the middle of 1994, to see what percentage of users,
instead of clicking on an icon on the desktop or hitting
start and using the start menu to launch an application,
instead, went start, Windows explorer, went into the
Windows explorer tree view and then used that to launch
an application?
A: I was not involved with determining user intent
or to finding what the best experience was for users. I
was a software developer not a user experience
designer.
Q: You use Windows 95, or you did, right, sir?
A: I have used Windows 95.
Q: Right. And do you use Windows 7 now?
A: No, I do not.
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Q: You do not. Okay. Well, when you did use
Windows 95, was it your common practice to not use the
icon on the desktop or use the start menu but, instead,
go into Windows explorer into the tree view and use that
to launch applications?
A: I frequently used the right mouse and executed
applications from an object.
Q: Right. So, what you would do is drag a Corel
WordPerfect document to your desktop, and, thanks to the
shell extension mechanisms, that document, letter to mom,
dated August 5, if you clicked on that document, you
could run it right off the desktop, correct?
A: So I think maybe you misunderstood, or I didn't
make clear my answer.
Q: Okay.
A: I usually navigate to the file and then right
click on the file and run the application from there.
That's my general practice.
Q: Okay. Fair enough. Okay. So you could go to
My Files and go into any of the documents listed in My
Files and click on those, and, thanks to the
object-oriented nature of Windows 95, each of those files
was linked to an application; isn't that right?
A: So, a file can be linked to an application.
Yes, that's true.
653
Q: Okay.
A: I'm not sure what the question was.
Q: No. I'm just trying to explore the ways you
used Windows 95. So, when you launched applications in
Windows 95, you would go into the file system, find the
document that you wanted to use, and then run it from
that icon, correct?
A: That was my practice, and that's still
generally my practice.
Q: That is still your practice. It was even
easier to do that, wasn't it, sir? You could drag that
letter, whatever document you were particularly
interested in, you could drag it from the file system and
leave it on the desktop, and if it was some report you
were working on for your boss, you could leave it on the
desktop, and when you clicked on that document, the
application would launch, right?
A: That is possible to do that, yes.
Q: Now, let's turn to objective number 4, which is
Displaying Novell Technologies Such as Quick Finder in
the Windows 95 Common File Open Dialog. Now, because
WordPerfect and Quattro Pro were not going to use the
Windows common file open dialog for all the reasons you
have told us several times this morning, this didn't
matter, right? It didn't matter to WordPerfect and
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Quattro Pro, as such, that Novell technologies like Soft
Solutions, the email client, the clip art library showed
up in the common file open dialog that other applications
used?
A: So, I don't recall ever having that
conversation with developers in WordPerfect or Quattro
Pro, with regard to their desires about the file open
dialog. However, the functionality, the file
functionality that was provided by WordPerfect, both
Windows 3.1 and in DOS, was extremely important, and that
was a common theme.
Q: Okay. I -- with the thanks to my colleagues on
the other side, I'm wondering if we can show what
Ms. Vishio showed you this morning, which is
Demonstrative Exhibit 16.
Could we show that, please.
Now, as I understood your testimony, this was a
mockup -- you're not suggesting that this was ever in a
shipping product -- but this is a mockup of what you
would have liked to have done with the NameSpace
extensions in a file open dialog. Did I understand your
testimony correctly?
A: Yes. I believe that's correct.
Q: Okay. And if you -- if Novell's view of the
world had come to be, this extended NameSpace would have
655
shown up not only in the file open dialog for Novell's
own applications, it also would have shown up in the
Windows explorer tree view, and it would have shown up in
the Windows common file open dialog that other
applications used; is that right?
A: That's correct.
Q: Okay. Did you give any thought, sir, as to
what would happen to a user if seven different
applications added four new NameSpaces, so that every
time you tried to find a file, there were 28 NameSpaces
that had nothing to do with the application that you were
running, but they were all there for you to look at? Did
you think about that?
A: I don't recall that ever being part of our
discussion.
Q: Well, that would be terrible for users,
wouldn't it? It would be very confusing. If I opened
Quicken, which is a, you know, check balancing program,
and suddenly I see 28 NameSpaces in this very, very long
file dialog, I have no idea what they are doing there;
isn't that right?
A: That would be conjecture on what a user might
experience there. I don't know that I could predict what
a user's reaction would be.
Q: So you can't tell me, one way or the other,
656
whether seeing 28 random NameSpaces inside Intuit's
Quicken, would or would not be confusing to novice
users?
A: I'm not sure what's meant by random NameSpaces,
but I couldn't predict what the behavior would be, what
the reaction might be.
Q: But you do agree with me that, if everyone had
used the NameSpace extension mechanism the way Novell
intended to use it, the Windows common file open dialog,
the basic file open dialog that Microsoft made available
to all applications, could have been completely trashed
up with all sorts of NameSpaces provided by all sorts of
people. Isn't that right?
A: My experience was that our NameSpaces did not
show up in the file open dialog, so that would not have
happened.
Q: But, sir, that wasn't my question,
Mr. Richardson. My question was, if you had been able to
do what you wanted to do, as you've testified this
morning, if you had been able do that, and all other
ISV's had been able to do that, the Windows common file
open dialog could potentially have hundreds of
NameSpaces. Isn't that right?
A: The fact that it didn't allow it, maybe
precluded us from even considering that possibility.
657
However, not all of our NameSpaces show up in every
container. So, a variety of our NameSpaces would not
have shown up here. There were some that we wanted to
put here, but simply the introduction of additional
NameSpace doesn't mean it would have shown up on My
Computer. Not all NameSpaces show up under My
Computer.
Q: Well, I appreciate that, sir, but the way that
the mechanism worked, you could have added whatever
NameSpaces you wanted, right? You could have added a
thesaurus NameSpace, a spell checker NameSpace. You
could have added all of those NameSpaces to the Windows
explorer and to the Windows common file open dialog;
isn't that right?
A: Well, no, we couldn't have added them to the
file open dialog because our NameSpaces wouldn't show up
there at all, and I don't recall any intent to ever add a
speller or thesaurus to the explorer.
Q: All right. I appreciate that you want to tell
me things, but I want you to answer my questions. I
asked you that, if you had been able to do what you say
this morning that you wanted to do, okay? You're with me
so far? You could have added NameSpaces for an infinite
number of Novell technologies to the Windows common file
open dialog; isn't that right?
658
A: I don't recall every having the intention to
add any significant number, certainly not an infinite
number of NameSpaces to either the explorer or the file
open dialog.
Q: All right. You can't answer the question that
I asked you, sir?
A: I believe that I answered the question. Maybe
I didn't understand it.
Q: Okay. Sorry. Then that's probably my fault.
But let me ask you one more time. If Novell had been
able to do what you said this morning that Novell wanted
to do, which is to add NameSpaces, both to the Windows
explorer and to the Windows common file open dialog,
there was no limit imposed by the system, by Windows 95,
on how many NameSpaces you could have added; isn't that
right?
A: It was never our intent to add a large number
of NameSpaces. The operating system, to my knowledge,
does not have any constraints that would preclude us or
anyone else from adding any number of NameSpaces to any
of the containers that allowed you to add NameSpaces
within them.
Q: Thank you, Mr. Richardson. I'd like you to
look, if you would, sir, at what's been marked as
Defendant's Exhibit 8. Mr. Richardson, this document --
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you can ignore the November 5, 2008 date. That is an
unfortunate relic of automatic dating programs which date
documents the date they are printed, but, so, please
ignore that, that's -- this was produced by Novell that
way, and it's not anybody's fault. But, have you seen,
before, this WordPerfect Windows 95 shell integration
feature documentation document?
A: I don't recall seeing this while I was working
at Novell.
Q: All right. On page 2, there's a reference to a
series of meetings that were held on August 31, September
23 -- these are all 1994 -- August 31, '94, September 23,
'94, and September 30, '94. Do you see that sir?
A: You're on the second page?
Q: Yes, sir.
A: Yes, I. --
Q: There are three meetings referred to.
A: I see that.
Q: Okay. And each of these meetings Adam Harral
is listed as being present. Do you see that, sir?
A: Yes.
Q: Did Mr. Harral discuss with you, because you
were working with him on the shared code team, what
transpired at this Windows 95 shell integration, these
meetings that were being held in the fall of 1994?
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A: I don't recall this particular meeting.
Q: I'm sorry, sir. I didn't hear your answer.
A: I don't recall this particular meeting.
Q: You don't recall. And do you recall being told
anything by Mr. Harral about what transpired at any of
these three meetings?
A: I don't recall talking with Adam about --
specifically about these meetings.
Q: Okay. I'd like you to take a look, if you
would, sir, to the page -- and I'm looking at these
control numbers down at the bottom. It's 41719. The
internal page is 6. Maybe we should look at the previous
page, 5, first. Now, this, as I understand it, is a list
of various shell extensibility features that might have
been included in Windows -- excuse me -- in WordPerfect
for Windows 95, but were not. Is that your
understanding, sir?
A: I haven't read this document. I'm not familiar
with what's being discussed here.
Q: Okay. Well, I appreciate that you haven't read
it, sir, but I just -- were you aware that there were
certain shell extensibility features that WordPerfect for
Windows 95 might have had but were not included in the
product because the operating system, as designed, did
not support that kind of extensibility?
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A: Well, I believe I already testified earlier
that we had wanted to make extensions for the common file
open dialog but we decided not to. I'm not sure what the
question is.
Q: Well, I heard that testimony, and I appreciate
that. I was wondering whether you were aware of the fact
that there were other kinds of extensibility features --
that's a terrible phrase -- extensibility features that
WordPerfect for Windows 95 might have taken advantage of
but didn't because those extensibility features were not
supported by Windows 95 as Microsoft designed the
product?
A: So, let me see if I understand the question.
You're asking if I was aware that there were features
that weren't supported in Win 95 that Perfectfit decided
not to make use of?
Q: No. A different question, different question,
I'm asking you whether you were aware of the fact that
the people developing WordPerfect, the word processing
application, thought about various ways that they might
extend the shell of Windows 95 but decided not to because
they discovered that the way that Microsoft had written
the operating system, those sorts of extensions weren't
possible?
A: I was not part of that conversation.
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Q: You were not part of that conversation. Okay.
Directing your attention to page 6, Item K at the bottom.
Can you highlight that, please?
Okay. This, as I understand it, is referring
to what we've been talking about this morning, both
Ms. Vishio and I have been talking to you about this
morning, which is registering custom folders, which
function as object containers with the same behavior as a
folder. That is a custom NameSpace, right, that's just a
different formulation --
A: Correct.
Q: Of words?
A: Correct.
Q: Okay. It says this type of shell extension is
referred to as a NameSpace browser. And you're familiar
with that terminology, are you not, sir?
A: I am familiar with that terminology.
Q: And it says, to the user: "It appears that the
shell understands an application hierarchy that is not
part of the file system. Custom folders are designed
such that a hierarchical relationship" -- excuse me "--
such that hierarchical relationships and contents can be
displayed in the appropriate panes of the file browser
window."
So this is what Novell, according to your
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testimony, wanted to do, wanted to add the soft solutions
document management program, the email client, the clip
art library, to the explorer tree so that it looked like
file folders, basically, in the --
THE COURT REPORTER: In the what?
MR. HOLLEY: In the directory. I'm sorry. I
need to speak more clearly.
THE WITNESS: I'm sorry. That was a long
question. Could you repeat it for me?
Q: BY MR. HOLLEY: Yes, it was. And it didn't
help that I trailed off at the end. Your testimony today
is that Novell wanted to do what this is describing,
which is add soft solutions and email client and the clip
art library as custom containers with the same behavior
as a folder; is that right?
A: Yes. That's correct.
Q: Okay. And then, in bold down here in this
document it says: "We will not take advantage of this
feature since Microsoft has discontinued support of the
required API's since this document was originally
written."
And I invite you to take as much time as you
want to look through this document, but my question to
you, sir, is, is there any indication in this document
that the inability to do this is a problem for
664
WordPerfect?
A: I haven't read the document, and I wasn't part
of this meeting. I wasn't part of the production of this
document, so I don't know that I could comment on the
intent of the people who wrote this.
Q: Well, let's take a look at Mr. Harral's
testimony at page 327 of the trial transcript. Do you
still have that up there, Mr. Richardson?
A: Yes, I do, thank you.
Q: It's in different pieces, so I'm not sure if
327 is in that piece.
A: No. I don't have that.
Q: Okay. Just because you're probably inundated,
can I take that back and get you the right one? Okay.
There you go. I got you the right page, I think. Now,
I'm particularly interested in the question and the
answer, but, you know, read around as much as you want.
This isn't some kind of a gotch-ya game, but starting to
page 10 the question was asked: So the shell integration
being talked about in this document with respect to
WordPerfect, the word processor, and Mr. Harral says
uh-huh, and we go down further.
Did that have anything to do with the NameSpace
extension API's?
And he answered: "I don't know anything that
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WordPerfect," the word -- excuse me -- "WordPerfect word
processor needed to do for a NameSpace extension."
You have no basis to disagree with that
testimony, do you, sir?
A: I'm sorry. Can I read that again?
Q: Sure. Sure.
A: I'm sorry. And the question was?
Q: The question is, you agree with Mr. Harral,
right? You don't know of anything that WordPerfect, as a
word processor, needed to do vis-a-vis NameSpaces?
A: I'm sorry. The question isn't clear. The
question he is responding to is what? What was the
question that he was responding to?
Q: Well, you know, I guess you will have to go up
one page to see the very first part of this dialog.
A: So, I wouldn't have stated it quite the same
way he did, where he responds, starting on line 15, on
page 327: "I don't know anything that WordPerfect
processor needed to do for NameSpace extensions. They
did have shell extensions, but I don't recall a NameSpace
extension that they needed to do."
I believe that what he's saying is that there
wasn't a NameSpace that the WordPerfect development group
was responsible for providing. That's how I would
interpret his response, that the shared code group was
666
providing all the NameSpace extensions that were required
by the WordPerfect application, but the WordPerfect
developers, themselves, were not responsible for
providing a NameSpace.
Q: Okay. So, when Mr. Creighton, back in
Defendants Exhibit 8 writes, in Item K: "We will not
take advantage of this feature since Microsoft has
discontinued support of the required API, since this
document was originally written," he meant we wouldn't
write something?
A: I don't know what Mr. Creighton meant.
Q: Okay. Now, did I understand you correctly this
morning, Mr. Richardson, to say that, between the receipt
of the M6 documentation in June of 1994, for the
NameSpace extension API's, and October of 1994, when
Microsoft informed Novell that it no longer was
committing to support those API's in the future, that you
had already written code that called upon the API's?
A: That's my understanding.
Q: Did you write that code, sir?
A: I did not.
Q: Who did?
A: Steve Giles was the primary developer on the
file open dialog functionality, and Adam Harral was the
technical lead for that group.
667
Q: Did you ever see, with your own eyes, any such
code?
A: I did see demos.
Q: Okay. You saw demos. Did you see any concept
design specifications or any other design documents for
that code?
A: I may have, but I don't recall.
Q: When were you first told by Novell's legal
department that you had an obligation to save documents
relevant to this case?
A: I don't recall.
Q: Was it 2004?
A: I don't recall.
Q: Well, you gave a deposition in another case
involving Microsoft in December of 2001; isn't that
right?
A: I was deposed previously about Microsoft,
correct.
Q: In 2001, correct?
A: I believe that was the correct date.
Q: And you were defended at that deposition by
Mr. Lundberg, who is sitting in this courtroom, right?
A: That's correct.
Q: And you testified at that deposition about all
the topics that you've talked about today; is that not
668
right?
A: I believe we covered many of the same topics.
Q: Did Mr. Lundberg tell you, in connection with
that deposition, that you should gather together and save
the documents that you had that related to the NameSpace
extension API's and the requirement of the logo licensing
program that you testified about this morning?
MS VISHIO: Objection, Your Honor.
Attorney/client privilege.
THE COURT: Why don't you ask if anybody.
MR. HOLLEY: Fair enough, Your Honor.
Q: BY MR. HOLLEY: In connection with that
deposition back in 2001, where you testified about the
topics that you've testified about today, did anyone at
Novell tell you that you should gather together and save
the documents that you had that relate to NameSpace
extension API's and the compatibility requirement of the
logo licensing program?
THE COURT: And you have a continuing objection
to this whole line.
MS. VISHIO: Thank you, Your Honor.
THE COURT: Go ahead.
THE WITNESS: As I recall, I no longer had any
documentation on my machine related to either of those
issues, and the documentation that was available was
669
either available on network drives or the email system,
and so I wouldn't have had anything to gather. I don't
recall specifically being told to gather documents, but I
didn't have anything left on my computer that -- to be
gathered. I no longer had a copy of the source at that
point. I no longer had even the same computer that had
been used to develop Win 95.
Q: Had someone told you, back in 1994, to save
those things, you would have done it, wouldn't you,
sir?
A: I'm sure if I had been asked to preserve some
document, I would have made an attempt to do so.
Q: And you threw those documents away in the
ordinary course of business because no one told you not
to; isn't that right, sir?
A: I don't recall specifically throwing away any
documentation. Most of the documentation was maintained
on the network or in document management systems or in
the email archives.
Q: Do you know whether the email archives that
existed in the document management systems that existed
in October of 1994 were still around in 2007, when Novell
responded to Microsoft's document requests in this
case?
A: I don't have any knowledge of that.
670
Q: There was a policy in the shared code group,
sir, wasn't there, that you were supposed to store both
design specifications and source code on particular
network drives in the Novell computer system; isn't that
right?
A: That's correct.
Q: That is correct. And, to your knowledge, if a
concept design specification existed for this code that
you testified today was written between June of 1994 and
October of 1994, it should have been on the Novell
computer system; isn't that right, sir?
A: I don't have any experience with how they
maintain the documentation. I just don't have any
knowledge in that areA:
Q: I thought you just told me, sir, that there was
a policy in place at Novell that design specifications
and code were supposed to be stored on the Novell
computer system. That's right, isn't it, sir?
A: So, what I believe the question was, was,
was there a policy within my group. And, yes, there was
a policy, a practice within my group to maintain our
documentation in a common location in the -- on a network
drive. I don't know what Novell's policy -- I don't
recall what Novell's policy for retaining documents
at that time was.
671
Q: Well, if someone had told anyone in the shared
code group, in October of 1994, don't throw away the
things that are in the shared code group's server shares,
they would not have been thrown away, would they, sir?
A: I would not have thrown them away.
Q: Now, you testified that after you learned that
Microsoft was not committing to support the NameSpace
extension API's in the future, you came to the conclusion
that you couldn't rely on those. Did I understand your
testimony correctly, sir?
A: My recollection is that we couldn't depend upon
them being there. That was the communication that we
received, based on my conversations with my co-workers,
that they were told that they couldn't count on them
continuing to work.
Q: Well, you're familiar with debugging tools, are
you -- I'm sorry. Ms. Vishio stood up.
MS. VISHIO: I apologize. I don't mean to
interrupt, but I just wanted to make sure that the record
reflected our continuing objection to that prior line of
questioning.
THE COURT: Sure. Absolutely.
MS. VISHIO: Yes. Thank you, Your Honor.
THE COURT: I'm sorry. I thought I said
that.
672
Q: BY MR. HOLLEY: I'm sorry, Mr. Richardson,
that -- Ms. Vishio needs to make a record, and she wasn't
trying to interrupt us.
You are aware, are you not, sir, that there are
things called debugging tools and other reverse
engineering tools that application developers can use to
find interfaces in an operating system even if Microsoft
has never documented them, right?
A: Debugging tools can be used for a variety of
purposes, among them for reverse engineering.
Q: Okay. In fact, you are aware, are you not,
sir, that entire books were published about how to call
undocumented interfaces in Windows 95, for example,
right?
A: That may be the case.
Q: All right. Well, have you ever seen this book?
It's a very thick book, entitled Unauthorized Windows 95,
by a man named Andrew Schulman. Have you ever seen that
book, sir?
A: I have seen that book.
Q: Okay. You have seen that book before. And the
entire book is about interfaces in Windows that
Mr. Schulman discovered using reverse engineering tools
and then he explains to software developers how to call
them; isn't that right?
673
A: I believe that's a correct characterization of
this book.
THE COURT: Ms. Vishio, there's only one copy
of the book. I just told Ms. Vishio if she wanted to
look at it, she could.
MR. HOLLEY: Yeah, Your Honor, I'm sorry.
Amazon only has limited numbers of ancient books, but
that's the book.
THE COURT: Some may say that's one too many.
MR. JOHNSON: I've got a copy, Your Honor. I
should have brought it.
MR. HOLLEY: All right. Well, it's no
secret.
Q: BY MR. HOLLEY: Now, how is, Mr. Richardson,
that it's possible for Mr. Schulman to write an entire
book about interfaces as to which Microsoft has never
provided any documentation, but you testified that Novell
couldn't call API's that had already been documented in
the M6 Beta of Windows 95?
A: So, I don't have any knowledge of how Andrew
Schulman did his work, the time period he did it, nor the
period of time it took him to accomplish that work, nor
do I know what level of cooperation he had with Microsoft
to achieve that. My -- I'm sorry. What was the rest of
the question?
674
Q: The question is, if Mr. Schulman can find all
these interfaces inside Windows 95 that Microsoft has
never published and write a book in which he explains how
to call them, how is it that you, at Novell, could not
call interfaces that Microsoft had documented?
A: So, I believe I've covered this. I'll try to
cover it again. Perhaps it was unclear. The API's that
were called were -- were understood, and we provided
those to common NameSpace. It was documentation that was
not provided that caused us a problem, and then building
up the infrastructure that made use of the calls to those
API's that was the complexity. That was what took the
time. Simply calling these API's was simple. We had the
documentation. We knew how to call them. It was the
documentation that wasn't exposed plus building up that
whole system that made use of those API's, that was the
complexity for us at the time, and, in addition, putting
the wrappers around the pieces that Microsoft had
provided because we didn't know how it was that the
system was talking to them.
Q: Mr. Richardson, I'm going to give you analogy
and see whether you agree with it. Your testimony is
equivalent to saying: I didn't know how to open the door
to the house, so I decided to rebuild the entire house.
Isn't that what you're saying?
675
A: I wouldn't characterize it that way.
Q: But that's exactly what you did?
A: I could provide my own analogy if you'd like.
Q: No. Actually, you don't get to ask the
questions. It may not seem fair. I do, but what you did
is, because you didn't feel that you could call the
API's, you decided to reimplement them, meaning to write
all of the code underneath those API's yourself. That's
what you did, didn't you?
A: No. Once again, we didn't reimplement the
API's. Everybody who provided a NameSpace provided the
API's. So the implementation of the API was constant.
That was done prior to us having the documentation
retracted. The difficulty was creating up, once again,
the infrastructure that made use of those API's.
Q: All right. So, your testimony is that, before
October of 1994, Novell had already written the
implementation of the 16 or 17 interfaces that we had
looked at earlier. That's your testimony?
A: I'm sorry, could you repeat that?
Q: Sure.
Can we put that up again, the list of the
interfaces? I forget the DR number. Bear with me one
moment, Mr. Richardson. So it's DR-5.
So, it's your -- I'm not trying to put words in
676
your mouth, I'm just trying to understand what you're
telling me. You're telling me that, before October of
1994, when Novell learned that Microsoft was not
committing to support the NameSpace extensions in the
future, Novell had already written the code to implement
all of these Comm interfaces?
A: So, my testimony is that Steve Giles, in
working with the documentation for Microsoft, had written
our own file open dialog that made use of the interfaces
provided by Microsoft necessary to interact with the
NameSpace extensions.
I was not yet involved with the file open
dialog at that point. I wasn't directly working on that
code. It was in my group. We shared a technical lead,
but I wasn't working on that work directly, so some of
these API's are not used by NameSpaces directly. Some of
them are used to provide functionality; for example, the
IContext menu, that wouldn't necessarily be directly
used, wouldn't be implemented by the file open dialog.
It would be implemented by someone who wanted to extend
that particular API.
So, I'm not sure I can answer your question.
It groups things together probably that I wouldn't group
together.
Q: It's my fault, I'm sure. I thought -- I
677
understood you to say earlier that Steve Giles, between
June and October, wrote a Perfectfit file open dialog
that called the NameSpace extension API's in Windows 95,
and you weren't happy with the performance of that file
open dialog. Did I understand that much of your
testimony?
A: Steve Giles created the file open dialog. At
the point where he was nearing completion of that, and as
we were trying to optimize and work through the final
issues, we discovered performance issues that were
unacceptable.
Q: Okay. And then you went to a different option,
which was to reimplement these interfaces yourself,
right? Instead of calling them in Windows, you were
going to implement them yourself in code that the shared
code team wrote?
A: I also wouldn't call that an accurate
characterization. The implementation -- the browser
calls these interfaces. It provides some of these
interfaces, but most of these interfaces are provided by
other pieces of code that are the ones that actually
provide the functionality. The file open dialog is
providing the environment in which they are called, and
so, we didn't implement most of these interfaces.
We made use of them in the file open dialog --
678
Q: Okay. I think --
A: -- so we didn't decide to reimplement these
interfaces, no. That wouldn't be accurate.
Q: Okay. I think you and I are having a
terminological problem, and that's my fault, I'm sure.
When -- you're using the word "implement" to say call the
interfaces?
A: No, sir. I am using the word "implement" to
mean I provide this interface, and someone can call it.
Q: Okay. So there are one of two choices, right?
Either these interfaces, which are in Windows 95 are
being called in the operating system, or somebody wrote
code at Novell so that, when somebody else called the
interface, the same functionality that the operating
system was going to supply to the calling program was
supplied. You agree with that right?
A: I believe that's technically inaccurate. Every
NameSpace or -- there's other objects that provide some
of these extensions as well, but every piece of code that
wants to provide functionality provides these interfaces
and then they are called by a NameSpace browser. The
explorer is a NameSpace browser, the common file open
dialog is a NameSpace browser, our open dialog is a
NameSpace browser. So we made use of, we called the
API's as implemented by the NameSpaces. Some of those
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NameSpaces were provided by Microsoft.
We did not rewrite those NameSpaces. We did
put wrappers around them because we needed to get access
to them in a way that we didn't know how to talk to them.
We did implement our own NameSpaces as well, and in those
cases, we did implement these interfaces for those
objects, but not for the rest of the system.
Q: I'd like to show you what's been marked as
Defendant's Exhibit 106. Mr. Richardson, this document
is entitled Concept Design Specification, Perfectfit 95,
File System File Open, and it's dated March 31, 1995.
Have you seen this document before?
A: I don't recall having seen this document.
Q: Well, didn't you work -- weren't you one of the
seven people writing the Perfectfit 95 file system file
open in March of 1995?
A: I was. I just don't recall this document.
Q: Okay. Now, directing your attention to the
page that has the control number, 6188 at the bottom,
it's about, I don't know, halfway through this document.
It's entitled API Specifications.
Can you explain to the jury what this is
referring to when it says: "The Perfectfit NameSpace
browser component user will need to know about the
following Comm interfaces, although C++ wrappers will be
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written for those that want to be insulated from Comm."
A: And the question is?
Q: Can you explain what that means?
A: It appears, IMoniker is the interface provided
by Microsoft that allows you to interact with a file
object. So, I believe that this is saying that the
Perfectfit NameSpace browser has to understand how to
talk to file objects in Microsoft -- in Win 95.
Q: Well, how did you understand IMonikerInterface
meant or what IPersistStream meant or IStream or
IShellFolder? How did you understand what all of these
Windows 95 interfaces meant and how they worked, if you
never got the documentation from Microsoft that you
needed?
A: So --
Q: How did you know that?
A: So, these interfaces were among the interfaces
presented at that first developer conference. These
interfaces, the code may have been extracted from the
shell obj.h file, the header file which defines
interfaces. It looks to me like this interface was
simply extracted from that header file.
Q: I thought that was just machine documentation
that no human being could make any sense of, that shell
obj document?
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A: Well, some people don't consider developers
human beings.
Q: But you and I can read this, right?
A: It is very technical.
Q: Okay. It's very technical, but the shell obj
document, which we are going to look at that minute,
isn't just machine documentation is it? It's a bunch of
commentary and code written in a computer language that
anyone with sophistication understands; isn't that
right?
A: So, my understanding of shell obj.h is that
it's a machine-generated file, which means that there's a
mechanical process that goes through and produces the
file based on some input.
Q: But a man named Satoshi Nakajima, in Redmond,
Washington wrote a document called shell obj space
060994, didn't he?
A: I have no knowledge on that.
Q: You don't know one way or the other, do you?
A: I don't.
MR. HOLLEY: Could we look at what's
Defendant's Exhibit 142, please.
Q: BY MR. HOLLEY: Now, you'll agree with me that
this document, which says it's copyright Microsoft
Corporation 1991 to 1994, is the documentation that
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Novell got with the M6 Beta of Windows 95 in June of
1994, correct?
A: This looks like a copy of -- a correct copy of
shell obj.h, and I don't think I could testify as to when
this was produced or to whom it was delivered, when.
Q: When did you first see it, sir?
A: I believe I probably saw parts of this
information at the initial conference in 1993. It was
probably available with some of the Betas. I didn't have
primary responsibility for this, so Steve Giles would
have been introduced specifically to the contents of this
file before I was. I probably started working directly
with this file after the documentation was retracted.
Q: All right. You used the word "probably" an
awful lot in that answer, so I would like to probe what
it is you remember. You don't remember getting this
document, dated June 6 -- or excuse me -- June 9, 1994,
at some conference in 1993, do you?
A: I remember having this file and looking through
this file. I don't recall the specifics of how it came
into my possession.
Q: Right. You don't have any memory about when
you first got it, do you, sir?
A: I don't know.
Q: Okay. So, every line in this document that
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begins with two slashes, that is in English, is it not?
If you look through this entire document, every line that
begins slash, slash is a comment, and it's in English,
readable by any of us in this room; isn't that right?
A: That may be an over generalization, but they
are comments meant to help clarify the code.
Q: They are documentation of the code, are they
not, sir?
A: They are comments that provide additional
information about the code.
Q: All right. Well, let's look at page 2 at
IContextMenu just as an example.
Could we blow up the bottom part of that, that
ends under the dash marks. So, this -- all of this is
commentary because it all begins slash, slash, and,
therefore, it's all a comment field. It's not machine
language. It's English. And what it does is it explains
what this API called IContextMenu does, and it tells you
how to invoke it, and it tells you what to expect when
you do invoke it; isn't that right, sir?
A: Let me read the documentation for a moment,
please.
Q: Sure. Sure.
THE COURT: You're idea of English is different
from mine.
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MR. HOLLEY: I guess the beauty is in the eye
of the beholder, Your Honor.
THE WITNESS: Okay. I'm sorry. What was the
question, again?
Q: My question is, this is documentation of what
the interface called IContextMenu does, right?
A: This covers that functionality, that's correct.
Q: And if we looked through this document, we'd
see similar documentation, and I invite you to -- we
don't all want to sit here while you do it -- but there
is documentation for each one of the shell extension
API's in this document in these similar sorts of comment
fields. That's correct, isn't it, sir?
A: The documentation here provides much
information but doesn't necessarily provide all
information necessary to be able to invoke it or to make
use of it.
Q: Well --
A: It describes how it's invoked, but it doesn't
necessarily -- this particular example, the documentation
appears fairly complete, but that isn't necessarily the
case for each of the items, interfaces described here.
They cover some of the information that you need to
implement it, not necessarily all the information you
would need to invoke it.
685
Q: Well, would you agree with me that Microsoft
has created a gold standard for documentation where, not
only does it tell people what interfaces do and how to
call them and what to expect, but Microsoft, in --
through the Microsoft developer network, gives people
sample code that calls interfaces, and it provides long
written explanations for how to do that, but all of that
fancy documentation is not necessary for very
sophisticated software developers who are experts at
Windows programming. Isn't that right?
A: Well, there's a number of assertions there. I
think Microsoft does do a good job of documentation.
There are certainly others who do an equally good job
with documentation. The amount of documentation related
to the number -- or the expertise of the developer, I'm
not sure I would necessarily agree with that
categorization.
An expert developer may not need to ask much
example code, but he certainly still needs an explanation
of all of the syntax and semantics of every API.
Q: Okay. But that's in this document, is it not?
The syntax and the semantics of every one of these API's
is in this document, and somebody who is an expert
Windows programmer can do it because Steve Giles did.
Isn't that right?
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Steve -- you have already testified that Steve
Giles of Novell, in the shared code team, took this
documentation and wrote a file open dialog. That's your
testimony; isn't it, sir?
MS VISHIO: Objection. Compound.
THE WITNESS: So, which question would you like
me to answer first?
THE COURT: And I'll sustain the objection.
Break it down.
MR. HOLLEY: All right. I got carried away.
Q: BY MR. HOLLEY: We know that you can use this
documentation to write a file open browser that calls the
Windows 95 shell extension API's because Steve Giles,
according to you, did it between June and October of
1994.
A: So, Steve made use not only of this
documentation but also extensive support. From my
recollection of conversations with him, he indicated that
he needed significant support from premier support and
through the CompuServe forum in order to complete the
work that he did.
Q: Which he apparently got, right, because he did
it?
A: That's correct.
Q: Okay.
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A: To the point that he finished it, he got the
support he needed.
Q: Great. Okay. Now let's talk again about
Quickfinder. Now, you said that Quickfinder was part of
the WordPerfect word processing application? Did I
misunderstand you when you said that?
A: So, Quickfinder was developed outside of the
development group that did WordPerfect, but the
integration of Quickfinder into WordPerfect was very
tight.
Q: Well, in fact, Quickfinder was developed by
people who didn't even work for Novell, right? It was
licensed in from somebody else?
The original Quickfinder technology, I believe,
it was licensed several years prior to -- that it
happened in Windows. I'm not an expert on that
technology or how it was licensed.
Q: Okay. Now, it wasn't necessary, in order to
make Quickfinder prominently available to users of
Windows 95, to make it a shell NameSpace extension in
Windows explorer, was it?
A: I'm sorry. Could you repeat that question.
Q: Sure. In order to prominently display Novell's
Quickfinder technology in the Windows 95 user interface,
it wasn't necessary to make it a NameSpace extension in
688
the Windows explorer, right?
A: I don't believe -- I want to make sure I
understood the question. Your question was that, in
order to make the functionality prominent to the user?
Q: Yeah.
A: So, I would say that the intention of the
Quickfinder integration was not to make the functionality
prominent to the user but, rather, to ease the user's
experience and provide a better experience for him. So,
I'm not sure that prominence was necessarily a role.
Q: Okay.
Let's look at DR-9 if we could, please.
Now, we made this slide last night, but when we
installed Corel WordPerfect Office that was released in
June of 1994, one of the options that we had was to
install Quickfinder.
THE COURT: What -- I'm sorry.
MR. HOLLEY: I'm sorry. '96. It would have
been nice if it was '94. The --
MR. JOHNSON: We wouldn't be here, Your Honor.
MR. HOLLEY: Well, we couldn't have been here
because Windows 95 wasn't out in '94.
Q: BY MR. HOLLEY: But, anyway, last night we
installed Corel WordPerfect Office, and it came out in
1996, and one of the options that was available was
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putting the Quickfinder application right on the desktop.
You're aware that that was possible, are you not, sir?
A: I didn't recall that.
Q: Okay. But you don't have any doubt that this
is possible based on what you see here on the screen?
A: No.
Q: Okay.
And can we look at DR-10, please.
And this is another way that Novell could have
made Quickfinder technology available. In fact, Novell
did make Quickfinder technology available to users on
Windows 95, which was by adding the Quickfinder
application to the start menu when you hit the start
button. That was a possibility, was it not, sir?
A: It certainly is possible to add Quickfinder as
an application to the start menu, yes.
Q: Okay. Now, Novell didn't have purely
user-friendly interests in heart in making Quickfinder
technology prominently available in Windows 95; isn't
that right? Wasn't there a competitive motivation for
doing that?
A: I don't know that I'm qualified to testify to
the -- the desires of the designers of the product with
regard to competitiveness. I'm a software developer, and
my interaction with Quickfinder was to make the user
690
experience better. The interaction that I had with those
that set the direction of the product with regard to
Quickfinder was ease of use and functionality provided to
the user.
Q: Would you feel differently about what you were
doing if you knew that the people, who did run the
Quickfinder product, thought that it -- making it visible
in Windows like this was a way to deflate Microsoft's
future operating system plans?
A: I'm not sure. The question is -- you're asking
me to speculate on what my feelings might have been if
some information had been available to me 17 years ago?
Q: Yes.
A: That I didn't have then?
Q: Right. Well, you've been testifying today,
without any apparent problem, about things that happened
17 years ago, right?
A: I'm just asking if that's what you're asking.
Q: Yes, sir. That is exactly what I am asking
you.
A: So, I have to think about that because I'm not
sure how I would have felt. I can say that I liked the
technology, and I liked the integration of the
technology. I thought it was really fast. It was very
effective at finding things, and I think it would have
691
been a good augmentation to the functionality provided to
Windows users at large.
Q: It would have augmented the functionality in
the operating system, and you thought that would be good
for users?
A: I think that would have been good for users.
Q: Okay. You're aware that Microsoft, at this
time, was developing a new object-oriented operating
system called Cairo. The project name was Cairo. Are
you aware of that?
A: I remember hearing about Cairo.
Q: Okay. And one of the things that the Cairo
shell, this new object-oriented Cairo shell was going to
do, is make it very easy to find any kind of object
anywhere in the system; isn't that right?
A: I don't recall the details of the functionality
related to search on Cairo.
Q: You do recall, though, that search was a
critical part of the Cairo operating system as it was
being designed in 1994?
A: I don't recall that, no.
Q: You don't recall? Okay.
Let's look at DX-73.
This is a document entitled Quickfinder 32 bit,
a Chicago Explorer Extension. And it's dated September 6
692
of 1994. And up at the top, in the concept section, this
reflects what you've been telling us today, which was
adding Quickfinder to the Chicago explorer menu to extend
explorer's capabilities gives Chicago users full text
indexing and retrieval, right?
A: It looks like that's what it says.
Q: Okay. And just so we're all clear, what this
is saying is, Novell could have added a product to
Windows outside of WordPerfect and Quattro Pro, which
would have given users of the operating system something
they wouldn't otherwise have, which is text and indexing
and retrieval; is that right?
A: I don't know if there was ever an intent to
ship Quickfinder outside the context of WordPerfect and
Quattro Pro.
Q: But you told me this morning, sir, that once
Quickfinder was installed, by whatever mechanism; for
example, by installing PerfectOffice, that it would be in
the system, and it would have placed itself in Windows
explorer. In your world, it would have placed itself in
Windows explorer and in the Windows common file open
dialog, and it would be available even if I never ran
WordPerfect once, right?
A: Once again, it didn't show up in the file open
dialog.
693
Q: It didn't because of the way you designed the
product, but in your vision --
A: I don't believe that is an accurate
characterization.
Q: Excuse me, sir. I need to finish my question
and then you can answer. If you had been allowed to do
what you wanted to do, what you testified this morning on
direct that was critical for you to do, Quickfinder,
among other Novell technologies, would have shown up,
after the installation of PerfectOffice, in the Windows
explorer and in the Windows common file open dialog, even
if I never once ran WordPerfect or Quattro Pro on my
machine. Isn't that right?
A: No, sir. The Quickfinder would not have
appeared in the common file open dialog.
Q: That was not your plan?
A: The reality was that, when we added extensions,
they didn't show up in the file open dialog, the common
file open dialog. Whether that was an intent or not of
ours, is irrelevant. It didn't work.
Q: Well, I appreciate your view of what's relevant
and what's not, sir, but I really do need you to answer
the questions that I ask you. And the question that I
asked you was, do you -- was it your intention? That is
my question. Was it your intention, in 1994, to have a
694
system where, if I installed PerfectOffice, I would get
Quickfinder in the Windows explorer and the Windows
common file open dialog even if I never once ran
WordPerfect or Quattro Pro?
A: I can't agree with that for two reasons. It
was not our intent to put our NameSpaces into the common
file open dialog because it didn't work. We stuck them
in, and they didn't show up. So, to suggest that it was
our intent to do something that we knew wouldn't happen,
I don't think that's accurate. The other issue -- I'm
sorry. Could you repeat the question, please?
Q: Well, let me ask you a different one. When
Steve Giles started writing the code that you testified
about just now, in order to call the NameSpace
extensions, what he was trying to do, the reason that
Steve Giles wrote that code, was so that Novell
technologies, like Quickfinder, the email client, the
Soft Solutions document management system would show up
in the Windows explorer and the Windows common file open
dialog, correct?
A: So, your question is, was the intent of
producing the file open dialog or the NameSpaces -- I'm
not sure what your question was there -- to augment the
functionality of the explorer and the common file open
dialog?
695
Q: Yes, sir.
A: No. I would not agree with that. Once again,
it was not our intent to extend the common file open
dialog because it wasn't extensible. We had --
Q: Let's focus --
MR. JOHNSON: Let him finish.
MR. HOLLEY: I thought he had.
THE WITNESS: So, it wasn't our intent to
extend the common file open dialog because we were
unsuccessful in doing that. We realized that early on,
and that wasn't a goal of ours. That wasn't an intent.
Q: Well, let's be clear about chronology, if we
could. I'm asking you about the intent at a very
specific period of time, and I ask you to bear with me on
this. In June of 1994, when Novell got DX-142, which was
the documentation that Microsoft provided in the M6 Beta,
and Mr. Giles, according to your testimony, began writing
a Perfectfit file open dialog for Windows 95, his
intention, the company's intention, at that time, was to
create a system where Novell could add its own NameSpaces
both to the Windows explorer and to the Windows common
file open dialog?
A: So, the decision to create our own file open
dialog followed the evaluation of the common dialog where
it was determined that NameSpaces couldn't be added to
696
it. That was one of the reasons we determined to write
our own file open dialog.
Q: I'm going to ask you a yes-or-no question, and
I really need you to answer it, sir. In June of 1994,
when Mr. Giles began writing the file open dialog for
Perfectfit, is it correct that the intention,
at that time, was to add Novell technologies, like
Quickfinder, to the Windows explorer and the Windows
common file open dialog? Yes or no?
A: My understanding -- since I wasn't the one
working on it, my understanding, through conversations
with Steve and Adam, was that the intent of the file open
dialog, the primary intent of the file open dialog was to
provide file open services for the WordPerfect
applications. It was not -- the primary purpose was not
to extend the explorer or the common file open dialog.
Q: Did I ask you about the primary purpose? Can
you answer the question, sir, that I asked you?
MS VISHIO: Your Honor, he's trying his best to
answer the question.
MR. HOLLEY: He is not, Your Honor.
THE COURT: I think you can say yes or no and
then you can explain it.
THE WITNESS: Given the number of constraints
placed upon the statement, I would have to argue, no, I
697
don't believe that was the intent.
Q: BY MR. HOLLEY: Even though you weren't the
person responsible for making that decision at the time?
A: I was not the person responsible. I was not
the person who had the intent.
Q: Okay. All right. Let's go back to DX-73. Now
we're talking about Cairo, and we're talking about
Novell's desire to add searching and indexing
functionality to Windows 95. Now, in this document,
under Impact -- we've talked about the concept. The
concept is to add Quickfinder to the Chicago Explorer
menu to extend explorer's capabilities, giving Chicago
users full text indexing and retrieval.
And then, under Business Opportunity, it says:
"Microsoft has said that text indexing and retrieval will
be part of its future operating system called Cairo,
which, at best estimates, is one and a half to two years
away from shipping."
Were you aware of that at the time, sir, that
Microsoft was developing Cairo, but it was one and a half
to two years away from shipping?
A: I was aware that there were plans for Cairo. I
don't recall estimates on how long it would take to be
shipped.
Q: Okay. And then, under Impact, it says:
698
"WordPerfect, the Novell applications group" --
So that's not just referring to WordPerfect,
the word processor, that's referring to the whole
applications group, right?
A: It sounds like it.
Q: Okay: "WordPerfect, the Novell applications
group, can provide under Chicago what Microsoft says they
will only do under their future product called Cairo.
Adding this functionality now will popularize Chicago and
build a customer base with certain expectations, thus
delaying the acceptance of Cairo because users will
already have text retrieval and indexing which is faster
than they can get under Cairo."
So, what Novell was doing was trying to make
Windows Chicago, Windows 95, a better operating system by
giving users searching and indexing functionality that
would improve Windows 95, but Novell hoped would delay
and impede acceptance of Microsoft's next operating
system. Isn't that what this says?
A: Well, it looks like this was written by someone
named Rodney Smith.
Q: Uh-huh.
A: It appears this may have been his opinion.
Q: Okay.
THE COURT: And I'm just curious. In Illinois,
699
don't they pronounce Cairo, Key-ro? I just wondered
whether people mispronounce this all the time?
MR. HOLLEY: In Illinois, there is a small town
that one of my senior partners grew up in called Cairo.
THE COURT: I assumed there was a connection
with Chicago, Capone and Kay-ro. I was wondering if
people had been mispronouncing Cairo all the time.
MR. HOLLEY: No, Your Honor. It was all called
the road to Cairo, so it was Chicago, Nashville, Memphis,
Cairo. So those were the code names. But don't ask
me -- some Egyptologist thought it was very entertaining.
THE COURT: Yesterday, I saw thunder and storm
yesterday, but I don't remember seeing lightening on the
Novell side.
MR. HOLLEY: I think people who make up these
things --
Q: BY MR. HOLLEY: Just to be clear, this is
another Novell document, right? It says Novell
confidential down at the bottom. And it's got an NOV-B
number on it. You're not suggesting that this is
anything but a Novell record, are you, sir?
A: I have no knowledge of where this document came
from.
Q: Okay.
A: I'm not suggesting it did or didn't come from
700
Novell.
Q: Do you think that Microsoft had an obligation
to help Novell do something that would impede acceptance
of some new Microsoft product still under development?
A: I believe that Microsoft had an obligation, as
they worked with us and provided technology to us, to
work with us in good faith, as we worked with them in
good faith.
Q: But -- I appreciate that.
A: And I believe adding functionality to their
existing operating system is acting in good faith.
Q: You thought you were doing them a favor. You
were going to make Windows 95 better and thereby help
Microsoft, whether they liked it or not, right?
A: We thought it was making the experience better
for users.
Q: Okay. But can you answer my question, which
is, do you think that Microsoft had an obligation --
THE COURT: Isn't that really argument?
MR. HOLLEY: Pardon, Your Honor?
THE COURT: Isn't that really argument, as
opposed to what his opinion is?
MR. HOLLEY: Okay, Your Honor. I'll move on if
that's the Court's view.
THE COURT: I can see this opening up a lot
701
that I don't want opened up.
MR. HOLLEY: Okay. Well, all right. We'll
move on.
Q: BY MR. HOLLEY: Did you have, Mr. Richardson,
any responsibility for communicating directly with
Microsoft about getting documentation for Windows
operating systems?
Not directly. Prior to Windows 95, our premier
support had been very accommodating to allow various
people to call on a single account. My recollection is,
with Win 95, they tightened that down, and most of the
communication went to one or two individuals in our
company who were the contacts for premier support. So it
wasn't normally my responsibility to communicate with
them. Sometimes I would be in the room while the phone
was on speaker phone, and I might have spoken up
occasionally, but it wasn't my -- I wasn't the primary
contact with Microsoft.
Q: Okay. And the two people you referred to are
Lynn Monson and Adam Harral; is that correct?
A: I believe those are the two.
Q: Okay. Were you aware, sir, in 1994, there was
a group at Microsoft separate from premier support called
the developer relations group?
A: I don't recall.
702
Q: Okay. And I take it, then, that you never had
any contact with a man named Brad Struss, who was the
person in the developer relations group responsible for
dealing with WordPerfect and Novell?
A: I don't recall working with him directly.
Q: Now, in October of 1994, when Novell learned
that Microsoft was refusing to commit to support the
NameSpace extension API's in the future, did you make any
effort to communicate to anyone at Microsoft?
A: Did I, personally, make an effort?
Q: Yes, you, sir.
A: No, I did not.
Q: Did you make any effort to communicate to
senior management at Novell, including Mr. Frankenberg,
Mr. Rietveld, Mr. Brereton or Mr. Moon about the
NameSpace extension API issue in October of 1994?
A: No, sir.
Q: Now, I want to make sure I understand your
testimony. You told the jury that, after Novell made the
determination that it had to follow what you called
option 3, I believe, which was to write your own
NameSpace browser, you, personally, and other people on
the shared code team worked hundred-hour weeks for a
year; is that right?
A: We worked extended over-time for a year.
703
Q: Okay. And is that the only thing that you were
doing at the time?
A: I had responsibilities that I hadn't -- that
hadn't gone to anybody else for code that I had already
completed, to work on bugs or to work on in collaboration
with other teams.
Q: Okay. But you weren't working on any other
major projects at the time?
A: My primary responsibility was working on the
file open dialog.
Q: I'd like to show you a document entitled
Perfectfit Analysis and Design Document Help Subsystem
Version 3. And it has -- it's dated internally April 11,
1995. Now, Mr. Richardson, directing your attention --
THE COURT: For the record, do you want to mark
this as your next exhibit?
MS VISHIO: Your Honor, I must confess, I don't
know where we ended up.
THE COURT: Okay. Why don't you say next
number, and it will be the next number.
MR. HOLLEY: The next number, Your Honor.
THE COURT: And right now it's for
identification to let the other side know.
MR. HOLLEY: We're going to call this
Defendant's Exhibit 627 for identification.
704
MS. VISHIO: Your Honor, can we not publish it
to the jury, yet, then?
THE COURT: Yeah. Don't put it up --
MR. HOLLEY: Fair enough.
THE COURT: -- until defense counsel have had a
chance to look at it.
MR. HOLLEY: Fair enough.
Q: BY MR. HOLLEY: Mr. Richardson, if you would,
sir, can you turn to page 3 of this document, entitled
Revision History. Sorry, I can see it, and you can't.
Okay. This shows, does it not, sir, that you wrote this
document in three iterations, starting on March 8 of
1995, revising it on March 16 of 1995 and revising it
again on April 11, 1995; is that right, sir?
A: That's correct.
MR. HOLLEY: Your Honor, I'd move for the
admission of Defendant's Exhibit 627.
MS VISHIO: We have no objection, Your Honor.
THE COURT: Thank you. You can put it back up.
(Defendant's Exhibit 627 received in evidence.)
Q: BY MR. HOLLEY: Okay. So -- and, again, you
know, we have another one of these strange dates on the
front, which we should ignore, because that's the date
that this document was printed, not the date it was
written. But, Mr. Richardson, this is something -- a big
705
project that you were doing in the spring of 1995; is
that correct?
A: I was involved with this project. My role, as
I recall, was to take the work that had been done by the
user experience people and formulate the requirements,
which were then granted to another team which was
actually doing the work.
Q: Okay. But you are the author of this analysis
and design document, sir?
A: I produced the document.
Q: Okay.
A: I did not produce the analysis.
Q: All right. And in your -- in the answer that
you just gave me, you said that you took information from
a usability test group. Did I understand you, sir?
A: The usability -- or the user experience
group.
Q: Okay. Now, I'm sure you'll tell me if I'm
wrong, but I thought you told me earlier today, when we
were talking about potential user confusion, if we added,
you know, 20 or 30 NameSpaces to the Windows explorer,
that you really didn't know anything about usability
testing or user experience. Did I misunderstand you
there, sir?
A: So, I was not a member of the user experience
706
team, but I took their requirements and translated them
into development requirements, which were then passed
along to another team. I don't claim to be a usability
expert.
Q: Fair enough. Fair enough. Now, are you aware
that, in the summer of 1995, in July of 1995, that there
was an increasing level of frustration, at the senior
management levels in Novell, that the file open dialog
that the shared code team was writing was taking an
awfully long time to get finished?
A: There was certainly pressure to complete tasks.
My manager was Tom Creighton. I think he probably did a
pretty good job of insulating us, who were actually
trying to get the work done, from pressures coming from
other sources.
Q: Well, part of the problem in the summer of 1995
is that nobody knew what they were supposed to be
writing; isn't that fair?
A: I'm not sure what you mean by that.
Q: The people writing the software code for the
Perfectfit file open dialog for Windows 95 weren't quite
sure what they were supposed to be writing. Isn't that
fair?
A: I wouldn't characterize it that way. When we
realized we were going to have to do this bigger effort
707
to try to get things done, I think it's fair to say we
didn't how big it was. We didn't know everything that
was going to have to be gone. We had a general idea of
what needed to be done, and we certainly didn't know the
details, and we didn't know how much resources it was
going to take, how long it was going to take, but we knew
where it started, and so we started. And as we worked,
we learned more and -- until we finished the product.
Q: Okay. Well, let's look at Defendant's Exhibit
114. Now, this is a document entitled Perfectfit 95 Open
File Dialog. And that is, in fact, the very thing we
have been talking about just now, right? This is the
open file dialog that people were working on in the
summer of 1995?
A: I haven't read this document. I don't know if
I've seen this before, but we were working on the open
file dialog in that time period, yes.
Q: Okay. And there is, under the history section
of this document, which appears about in the second
paragraph there, there is a series of dates. Who was
Jack Young?
A: Jack Young was one of our usability experts.
Q: Okay. So let's read them from the bottom up.
We won't look at every single one of them. But it says:
"Jack Young called a meeting describing a proposal
708
for the dialog. Gary Gibb, Steve Giles, Bruce Tiejen "--
I'm probably mispronouncing that terribly -- "attended.".
Now, Gary Gibb had what job, sir, at this time.
A: If I recall correctly, Gary was responsible for
the production of WordPerfect at this time period,
although that may not be accurate.
Q: Okay. And Steve Giles, you've told us before,
was a member of the shared code team?
A: That's correct.
Q: Correct? And he was still working with you at
this point on the file open dialog that you were working
on, too?
A: That's correct.
Q: Okay. And Bruce Tiejen was --
A: Tiejen.
Q: Okay.
A: Tiejen.
Q: Tiejen. Okay. Sorry. I wouldn't have guessed
that from the spelling, but, okay. And what was his job?
A: Bruce Tiejen was the developer on the
Quickfinder who was mostly responsible for the NameSpace
integration.
THE COURT: You might spell Tiejen for the
court reporter, if you might. Is it T-i-e-j-i-e-n?
MR. HOLLEY: I think there's a "T" missing in
709
this typing, Your Honor. I thought it was T-i-e-t-j-e-n,
but I'm probably the worst person to ask, but I've seen
other documents where it's spelled that way.
Q: BY MR. HOLLEY: So, Mr. Richardson, as I
understand it, there was a meeting on June 2 of 1995, in
which the meeting participants seemed interested in and
the group proceeded to evaluate and treat the design, and
there was a proposal made by Bruce Tiejen -- and I'm
probably going to continue to mispronounce this -- about
a tab dialog.
I mean, this all sounds to me -- and, I mean,
correct me if I'm wrong, but it sounds to me like people
are still talking about the design of the file open
dialog, and we're now two months before the release of
Windows 95; is that right?
A: I did not attend this meeting. I don't know
specifically what was discussed, but it was a constant
process while I was working at WordPerfect, to evaluate
where you were along the way, to make sure that you're
headed in the right direction. It was not at all
uncommon for usability to review what we were doing, as
we reached the end of a project, to ensure that we hadn't
introduced usability concerns.
So, it doesn't surprise me that there's a
usability evaluation at this point in the project.
710
Q: But let's look at what happened ten days later.
Let's go up and highlight June 12 of 1995. It says:
"Trying to understand the functionality of the dialog.
In talking to Steve Giles, Jack and Bruce different
answers. Some brainstorm attempts and general lack of
overall functional design occurs."
Doesn't that suggest to you, sir, that in
July -- excuse me, in June of 1995, two months before the
release of Windows 95, there was a lack of overall
functional design for the file open dialog that people
were working on?
A: I'm not familiar with the meeting. I don't
know what they discussed, and I don't know who produced
this document or why they had this evaluation. I just
don't have any direct knowledge about it.
Q: Okay. But, just to be clear, down at the
bottom in italics this document says Novell Confidential,
and it has an NOV-B sticker. You're not suggesting that
this isn't from Novell's files?
A: I'm just suggesting, I wasn't privy to this
discussion. My experience in working with the dialog at
this point was we had made significant progress, and
there was a lot of good functionality that had shown up.
THE COURT REORTER: I'm sorry. I can't hear
you very well.
711
THE WITNESS: So, my experience in working with
the dialog at this point was that there was a significant
amount of functionality, and it was looking very good.
That's my recollection.
Q: BY MR. HOLLEY: All right. Well, appreciate
that. Let's look at the first paragraph of this
document, which says -- I think it probably means "the,"
but it says: "This main purpose of this document is to
provide a functional description of the open dialogue for
Storm."
Now, Storm is the code name for PerfectOffice,
right?
A: I don't recall the code names for things.
Q: Okay. All right. Well, you don't have any
doubt that we're talking about the same open file -- file
open dialog that you and I --
A: It appears that's what they are talking
about.
Q: Okay. And it says: "This document lists
function and behavior and, most important, a consensus of
open dialog functionality. This document was necessary
to alleviate differences of opinion of how this dialog
would be implemented. Coding will occur from the
information provided by this document."
Now, how is it possible, Mr. Richardson, that
712
you have testified that coding was basically done, as I
understood your testimony, when this document says coding
will occur from the information provided by this
document?
A: So, my knowledge is that coding had occurred,
that there was a significant amount of progress made. It
doesn't seem to me to say that coding would begin and
hadn't ever been performed. You know, I think they were
simply saying that their expectation was that the result
of this conversation would be that something might
actually be coded, it would actually affect the code,
although that is entirely speculative. I was not at this
meeting, and I don't know who wrote this or why they
wrote what they wrote.
Q: Okay. Let's look at page 10 of this document.
It has the control number 11401, if that's any easier.
But the internal document number is 10. Are you with me,
sir?
A: I'm on page 10. Yes. Thank you.
Q: And the part I'm interested in appears under --
I assume that MISC is an abbreviation for miscellaneous.
Do you use that kind of abbreviation?
A: That seems reasonable.
Q: Okay. And then under 3, it says: "Common Open
Dialog. We'll support common open dialog functionality
713
within our open wrapper. The installation default
would be the PF open dialog." And that's a reference to
the Perfectfit open dialog, is it not, sir? Didn't you
refer to the dialog that you were writing as the PF open
dialog?
THE COURT: A yes or no to that question. Is
PF dialog the Perfectfit open dialog?
THE WITNESS: Yes. I'm sorry. I didn't
understand that was the question.
Q: BY MR. HOLLEY: I'm sorry, sir. I thought you
heard me. I guess I'm having a hard time being heard
today.
So, as I understand this, what it's saying is
that, in July of 1995, there is a plan at Novell to give
users, at the time that PerfectOffice is installed, a
choice of using two file open dialogs. One is the
Windows common file open dialog, referred to here as the
common open dialog, and the other one is the one that was
being written at Novell at the time, the PF open dialog;
is that right?
A: It appears that that's what this is saying.
Once again, I am not familiar with this meeting. I don't
recall this issue.
Q: All right. And let's look at page 15 of this
document. That's a picture, is it not, of the Windows 95
714
common open dialog?
A: All right.
Q: You don't know?
A: It may be. I don't know that I could
definitively state that, but, okay.
Q: Okay. But you don't have any doubt that that's
the picture that the author of this document decided to
include at the back?
A: Okay.
Q: Okay. Now, you were shown, during direct
examination --
I'd like to look at -- if you guys wouldn't
mind putting up Demonstrative Exhibit 10.
Now, you didn't mean to testify, did you, sir,
that is the file open dialog that appears in Corel
PerfectOffice as released, right, when you gave all that
testimony this morning?
A: I don't know if this is an actual screen shot
or if this is a prototype mockup. This appears to me to
be very similar to the Perfectfit open dialog in Windows
95.
Q: Well, it's interesting that you refer to it as
a prototype mockup because that's exactly what it is,
isn't it?
A: I don't know where the graphic was generated.
715
Q: Well, when you gave the testimony today, that
this was the file open dialog that Corel used, didn't you
think it was important to figure out whether that was
true or not?
MS VISHIO: Objection. This mischaracterizes
his prior testimony.
THE COURT: Sustained.
Q: BY MR. HOLLEY: You don't know one way or the
other, do you, sir, whether this is something other than
a paper prototype of something that Novell thought about
doing?
A: This looks very much like the file open dialog.
It underwent many mutations. This could very well have
been a screen shot from an actual invocation of the file
open dialog, or it could be a mockup. I couldn't
definitively state it's one or the other.
Q: Well, let's look at DR-1, please, which is the
Perfectfit file open dialog. Your testimony is that
those two things are the same.
And can we flip back to Demonstrative Exhibit
10?
A: They look very similar to me.
Q: Okay. Do you see, in the real Perfectfit file
open dialog -- and I'm happy to show this to you so we
don't have to flip back and forth. Do you see a
716
find-file tab or a file-content tab or a find-by-form
tab?
A: I do not see those.
Q: Okay.
THE COURT: Is this a good time to break for
lunch?
MR. HOLLEY: Yes, Your Honor.
THE COURT: Okay. About 20 minutes. See
everybody then.
(Lunch break.)
717
THE COURT: Welcome, and welcome to the students
from Copper Hills High School today.
It might not be interesting to jump in the middle.
It's a big antitrust case. Novell vs. Microsoft.
(Jury present)
THE COURT: We have students from Copper Hills
High School sitting in the back.
BY MR. HOLLEY:
Q: Mr. Richardson, this morning on direct you testified
that one of the namespaces that you yourself worked on was
adding support for each HTTP and FTP; is that correct?
A: That's correct.
Q: And I didn't hear you say when you did that. Can you
tell the jury when you started working on that?
A: I believe that was after Corel purchased WordPerfect
products.
Q: So that was certainly not in the time period that
Novell owned WordPerfect and Quattro Pro, correct?
A: I don't recall the exact time period that we were given
the license or access to the namespace code. It was shortly
after we got that code, but I don't recall the exact time.
Q: But you are sure, are you not, sir, you did that after
Corel purchased WordPerfect and Quattro Pro?
A: I don't recall the exact timing. It was shortly after
receipt of the access to the code that we started working on
718
that.
Q: Are you retracting the answer that you gave me two
minutes ago?
A: I am saying I don't recall precisely the time line.
Q: I'm asking you a different question, which is are you
sure that it was after Corel purchased WordPerfect and
Quattro Pro?
A: I am not completely sure. I recall starting on it
shortly after I got access to the code. I don't recall
specifically whether that was before or after Corel
purchased WordPerfect.
Q: So I don't mean to belabor this, but when you gave me
the answer a couple of minutes ago that it was after Corel
purchased WordPerfect and Quattro Pro, you misspoke?
A: I'm trying my best to recollect the time period. It's
a little bit fuzzy for me.
Q: You are quite sure that it was not during 1994; are you
not, sir?
A: My recollection is that we had the agreement with
Netscape and shortly after that we started on that work.
I'm sorry. Go ahead.
Q: No, I'm sorry. I didn't mean to interrupt you, sir.
I appreciate your testimony that it was shortly after
the source code license was signed, but you can't give me
any further information about when that event occurred?
719
A: I don't recall the exact timing.
Q: Now you were shown a document written by a developer at
Microsoft called Satoshi Nakajima entitled Web-like Shell
Architecture. Can you tell me, sir, when you first saw that
document? And I'm happy to show it to you again if you
don't have it up there. It's Defendant's Exhibit -- it's
hard to read -- 337, I think. It's this one.
I'm sorry. I should look at the top. It's 344,
Mr. Richardson. Do you have that one? It's in your
notebook. Yes. Okay.
So we're looking at this Microsoft document entitled
Web-like Shell Architecture, Internet Integration --
Internet Explorer Integration, in-place Navigation and
Page-View. When did you first see this document?
A: I saw this document during a trial prep for this trial.
Q: So the first time you saw this document was when
Novell's lawyers showed it to you?
A: Correct.
Q: Do you know when the integration that's described in
this document first occurred at Microsoft?
A: I have no knowledge of that.
Q: So if I told you that the first time this occurred was
with Internet Explorer 3 in OEM Service Release 2 of Windows
95 in the spring of 1996, you couldn't agree or disagree
with me on that?
720
A: I have no knowledge of that.
Q: You testified this morning, sir, about the requirements
of the Windows 95 logo licensing program; is that right?
A: Correct.
Q: Now Novell had no use for a logo for Windows 95 because
Novell never sold applications for Windows 95; isn't that
right?
A: I am not sure I understand that question.
Q: Well, the products weren't released during the time
that Novell owned them; isn't that right? The first Windows
95 applications weren't released until after Corel bought
WordPerfect and Quattro Pro.
A: My recollection was that when we -- when I worked on
the certification issues of shared code from Windows 95 to
Windows NT, it was our intent to ship on Windows 95. That
was during the time that Novell -- that I was with Novell.
Q: My question was a little bit different. My question
was whether Novell as a corporation had any use for a logo
when Novell as a corporation didn't own the products that
the logo was going on at the time they were released?
A: So the products were being developed under Windows 95
at the point that Novell owned the application, which was
the period of time when I was working on the issue. I don't
know that I can address what Novell's corporate motivations
were.
721
Q: Isn't it just a matter of common logic, Mr. Richardson,
that a logo is something that goes on a box for a product,
and if you don't market the product, you don't need the
logo; isn't that right?
A: My involvement with the logo certification was in
satisfying the requirements at the point that I still worked
for Novell.
Q: Your testimony, sir, is you cannot answer the question
whether the ability to put a logo on a box in the stores
mattered or didn't matter to Novell because Novell never
released the products that the logo was supposed to go on?
MS. VISHIO: Objection, Your Honor, argumentative.
THE COURT: It's close, but overruled.
You can answer.
THE WITNESS: So my understanding was that the
intent of satisfying the requirements for the logo was
expected to take some period of time, and they were
preparing for that with the expectation that they would
achieve that. While I was working for Novell, I was asked
to perform that. That would indicate to me that the people
telling me to do that evaluation were interested in
achieving that certification. So it appeared to me that at
least my management cared about that while I was working for
Novell.
722
BY MR. HOLLEY:
Q: All right. Now you were not responsible for
communicating with Microsoft about the requirements of the
logo licensing program, were you, sir?
A: I was not responsible for communicating with Microsoft.
Q: Were you aware that there were communications between
Novell and Microsoft about the requirements of the logo
licensing program?
A: Based on my communications with those working on my
team and my management, I understood there was a dialogue.
Q: Who's Mark Calkins? A better question, what was
Mr. Mark Calkins' position at Novell in 1994?
A: Mark Calkins was an executive. I don't recall his
position.
Q: I would like to show you what's been marked as
Defendant's Exhibit 22. This is an e-mail from a Brad C at
Microsoft. Do you know who Brad C is, sir?
A: I do not know who Brad C is.
Q: Brad Chase in the Windows 95 team, you never heard that
name before?
A: I don't recall knowing Brad Chase.
Q: And Glen M, is that the e-mail alias at Novell for Glen
Mella, M-e-l-l-a?
A: I believe that's correct.
Q: And Bruce B is the e-mail alias for Bruce Brereton, is
723
that correct, at Novell?
A: I believe that's correct.
Q: And Mr. Brereton was in charge of all of PerfectOffice;
is that right?
A: I believe that's correct.
Q: Have you ever seen Defendant's Exhibit 22 before?
A: I don't recall having seen this previously.
Q: The first paragraph it says, dear Mark. It's written
to Mr. Calkins. It says, dear Mark, thanks for your note
and for voicing your concerns to us regarding the Windows 95
logo program. I am sorry I did not get back to you sooner,
but as you can imagine things are very busy.
Now this is April of 1995, so we are three months
before the release of Windows 95, correct?
A: Okay.
Q: Four months. I can't count. It's that late in the
day. So four months before the release of Windows 95,
correct?
A: All right.
Q: Now were you aware of -- and take as much time as you
need to look at this. Were you aware that Microsoft,
starting on the bottom of page 1 of this document and
carrying on to page 3, went line by line through Novell's
specific issues about the compatibility requirement for
degrading gracefully on Windows NT?
724
A: I'm sorry. Could you repeat that?
Q: Sure. Did you know before looking at this document in
the courtroom today that Microsoft had provided detailed
responses to the issues that Novell had raised about the
difficulty that Novell said it was having in meeting the
compatibility requirement for the logo licensing program?
A: I was not party to this communication, this
conversation.
Q: Directing your attention, sir, to the third page of
this document. Strangely, it's numbered 13 at the bottom,
but it's the third page, looking at the paragraph that
starts at this point in time --
MR. HOLLEY: And let's just highlight everything
down to the signature there so it blows up and everyone can
see it more easily.
THE WITNESS: I'm sorry. What page are you on?
BY MR. HOLLEY:
Q: It's numbered 13 at the bottom, but it's the third page
of the document. Don't ask me why, but that's the way it
is.
Are you with me, sir?
A: Yes. Thank you.
Q: Here Mr. Chase writes to Mr. Calkins at Novell, at this
point in time, we do not believe the issues you raise
constitute significant enough architectural issues between
725
the Windows NT and Windows 95 to warrant an exception being
granted. I would be glad to have a conference call between
our teams should you have any additional questions. Brad
Struss will be glad to set this up if you wish.
Did you know that Microsoft had told Novell in April of
1995 that if Novell had any additional questions on the
issue of compatibility, that Mr. Struss would be happy to
set up a meeting between the two companies?
A: I was not party to this conversation. I did not know
any of this information.
Q: Do you know whether Novell ever took Microsoft up on
that offer and had the meeting that Mr. Chase suggested he
would be happy to have?
A: I do not know.
Q: Okay. Now you testified, I believe, that you worked
for two months trying to get a single WordPerfect executable
to run both on Windows 95 and Windows NT. Did I understand
that correctly?
A: No. No. I worked on getting the shared code to work
correctly on Windows NT.
Q: I apologize. So what you were working on was getting
the shared code block of code to run -- the same block of
code to run both on Windows 95 and Windows NT?
A: That's correct.
Q: You testified this morning that that was impossible?
726
A: The obstacles were so large that we abandoned that
effort.
Q: Can you explain to me, sir, why this product, which is
called Corel WordPerfect Suite 7, which is the released
product, says on the front for Windows 95, Windows NT 3.51,
and Windows NT 4.0? I'm happy to show it to you, sir.
A: So can I explain why they put that sticker on the box?
No, I don't have an explanation of that.
Q: Well, somebody figured it out, didn't they?
A: I can testify to my experience when I tried to port the
code and it presented obstacles I could not overcome.
Q: You didn't mean to suggest to the jury that it was
impossible, did you, sir, because somebody did it?
MS. VISHIO: Objection.
THE COURT: Actually two inferences can be drawn.
Either the certification was wrong or somebody figured it
out. But I assume you can represent everybody says that. I
assume there is no question about that. I'm just talking
about a matter of logic.
MR. HOLLEY: Your Honor, the box says that the
product runs on the two operating systems.
THE COURT: Fine.
BY MR. HOLLEY:
Q: So your testimony was that you couldn't do it, but you
have no explanation for why the box says it was done?
727
A: I don't know why that appears on the box.
Q: Novell wasn't in the habit of putting stickers on boxes
that were false, right?
THE COURT: I'm sure that's true. I was just
speaking as a matter of logic. I think we all agree.
MR. HOLLEY: Thank you, Your Honor.
BY MR. HOLLEY:
Q: Now I would like to mark what has been marked as -- I
would like to show you what's been marked as Defendant's
Exhibit 155. Were you aware that in January of 1995, the
most senior executives at Novell, which would be Mr.
Frankenberg, the CEO of Novell, Mr. Rietveld, the president
of the WordPerfect division of Novell, Mr. Moon, the senior
vice president for engineering, and Mr. Brereton, who was in
charge of PerfectOffice, were all you talking about the
Windows 95 logo licensing program?
A: I did not communicate with them on this issue.
Q: Now you were aware, were you not, sir, that Novell had
its own logo licensing program called Yes It Runs On
NetWare? Were you aware of that?
A: I recall hearing the term, but I don't recall ever
doing any work directly related to that.
Q: Let's look at the last paragraph on the first page of
this document. It says, in discussions about a high profile
approach, Greg and David noted the similarities in this logo
728
program with Novell's YES certification and logo program.
Novell's program similarly requires dual compatibility. An
ISV's NetWare compatible program must also be compatible
with UnixWare, Lanalyzer, and other technologies.
Just so the jury is clear, NetWare is one Novell
product that is a server operating system, right?
A: It's a file, print operating system.
Q: File and print operating system. And UnixWare is a
variant of Unix from AT&T that Novell bought, correct?
A: I believe that's correct.
Q: So in order to get the Yes It Runs On NetWare
certification, an ISV had to both show that its product ran
on NetWare and ran on a version of Unix; is that right?
A: It appears that's what this document says.
Q: It goes on to say, it appears that if we are to
challenge Microsoft on this program, they could throw it
back in our faces. Do you see that?
A: I'm sorry. Where are you now?
Q: In the middle of that paragraph it says, it appears
that if we are to challenge Microsoft on this program, they
could throw it back in our faces.
A: Is that a question?
Q: I'm just asking you -- I just want to make sure that
you and I are on the same page. Do you see that?
A: I see that.
729
Q: It says, we are already experiencing substantial push
back from our ISVs. And that, again, just so we're all
clear, that refers to independent software vendors, right?
A: That's correct.
Q: It says, there is a good argument to be made that if we
push this with Microsoft, our ISVs will have increased
standing to challenge the YES program. Do you see that?
A: I see that.
Q: So senior management at Novell was worried that if they
got mad at Microsoft about the requirement that a product
both had to run on Windows 95 and Windows NT, it would come
back to bite Novell because Novell required for its logo
program that the product had to run on both NetWare and
UnixWare, and Lanalyzer and other technologies, right?
A: It appears that's what this document says.
Q: Let's turn to the second page of this document. It
says, our conclusion -- I'm looking at the first paragraph.
Sorry, sir. Our conclusion today was to recommend you send
the letter to Brad. This is an e-mail to Mark Calkins. You
send the letter to Brad and see how he responds. If
Microsoft either modifies the program generally, or cuts
Novell its own deal, then we have what we want, use of the
logo without the NT compatibility requirement. If the
response is no, then we proceed without the logo and decide
how to position our decision.
730
You had no idea before today that the president of the
WordPerfect group and the CEO of Novell were having a
discussion in January of 1995 about how to position the
compatibility requirement for Windows 95; isn't that right?
A: I was unaware of this conversation.
Q: Then down a little lower it says, consequently, we are
choosing not to participate in the logo program. At this
point, our inclination is to take a lower profile approach.
Were you aware that Novell's senior management had made
the choice not to participate in the Windows 95 logo
licensing program?
A: I was not.
MR. HOLLEY: I have no further questions, Your
Honor.
THE COURT: Ms. Vishio.
REDIRECT EXAMINATION
BY MS. VISHIO:
Q: Hi, Mr. Richardson.
Did Novell intend to release a suite of applications on
Windows 95?
A: That was my understanding.
Q: During the time that Novell owned those products, was
it your understanding that it was Novell's intent to obtain
the logo?
A: That was my understanding.
731
Q: Mr. Richardson, do you know whether any of Microsoft's
own products, for example, Internet Explorer, received an
exemption from the logo certification requirements?
A: I do not know.
Q: Now Mr. Holley on his cross-examination of you did not
allow you at one point to give your analogy. But would you
be able to give your analogy now of the re-creation of the
functionality and put that into your own words?
A: Yes, I could. So in my understanding, the more
appropriate analogy would be perhaps if you were building
let's say an automobile and you were making use of an engine
from another person. If all of a sudden you couldn't make
use of that engine anymore, it couldn't talk to your
transmission -- it wouldn't work with your transmission so
your car wouldn't move anymore, so we had to build a wrapper
around that engine that knew how to talk to your
transmission, as it were, so the car could go again.
So we were moving along, we reached a roadblock we
couldn't get around, and we had to build a mechanism that
allowed us to have everything move forward again.
Q: Now also on cross-examination Mr. Holley had asked you
a number of questions about the reasons Novell chose not to
use the common file open dialog. Do you remember that?
A: I'm sorry. Could you repeat that?
Q: Yes. On cross-examination you were asked a number of
732
questions about the reasons Novell chose not to use the
common file open dialog. Do you remember that?
A: Yes.
Q: You mentioned some performance problems and the fact
that certain namespaces did not show up in the common file
open dialog?
A: That's correct.
Q: Did the shared code team share these concerns with
Microsoft?
A: So I didn't talk to Microsoft directly, but my
understanding from working with Steve and Adam was that
those concerns were communicated with Microsoft.
Q: Did you participate in any calls with Adam and Steve on
these issues?
A: I believe that those conversations occurred before I
started working on the file open dialog. I was brought in
to work on the file open dialog as a result of those
conversations.
Q: When you started working on the namespace extensions,
did you participate in any conference calls following that
time period regarding issues concerning the namespace
extensions?
A: I don't recall any specific conversations at that
point.
Q: Do you recall having conversations regardless of
733
whether you recall the specific contents of those
conversations?
A: There were conversations that we had on an ongoing
basis with Microsoft about a variety of issues, so we would
frequently ask them questions. I would guess on an average
that we called and talked to the Microsoft Premier Support
people once a week and for maybe an hour or two. And so it
was fairly frequent. I just don't recall specific instances
of talking with them about this technology.
Q: Was it your understanding that Microsoft promoted
namespace extension functionality to software vendors for
the purpose of extending the explorer?
A: My recollection was that that was part of the sales
pitch is this is a wonderful new system, this is going to
change the world, and we want everybody to be a part of it.
That is the general feeling that I remember from the
communications that I had with Microsoft at the conferences.
Q: Did the partial documentation that you received in the
1994 beta that we looked at, would that have allowed you to
have extended the explorer?
A: So we could add namespaces to the explorer, yes, with
that documentation.
Q: Now you testified earlier that Novell wanted its
namespaces to appear in both the explorer and in the file
open dialogs, whatever applications happened to be running
734
at that time. Why would Novell want this functionality?
A: Well, we wanted to have a product that was not only
best of breed, the best product that you could have for
doing word processing, but we also wanted to, by virtue of
having our application installed on your computer, have a
better experience for everything you did on your computer.
Q: I would like to redirect your attention to Plaintiff's
Exhibit 114 that you saw on cross-examination. This is a
document that Mr. Holley had shown you on cross.
I apologize. I did mean Defendant's Exhibit 114.
If you would, please turn to page 10.
A: I don't know where I have it, where that is.
Q: It's Defendant's Exhibit 114. I would like to direct
you to the section that you looked at previously under the
miscellaneous section, number three there.
Did the custom file open dialog Novell was working on
support all of the functionality that was available in the
common file open dialog but also additional functionality as
well?
A: Yes, that's correct.
Q: Mr. Richardson, what does it mean to have documentation
for an API redacted?
A: Well, the information is no longer published, and there
is a presumption that the API may not continue in the same
behavior.
735
Q: What could have happened if you relied on those APIs
whose documentation was redacted?
A: Well, a variety of consequences could have resulted
from that, from crashing WordPerfect, or whatever
applications was making use of us, to simply using the
functionality.
Q: Mr. Richardson, I'm handing you what has been
identified as Plaintiff's Exhibit 225. Plaintiff's Exhibit
225 is a Microsoft document, an e-mail, you will see at the
top, from Brad Struss to -- from Brad Struss to Doug
Henrich. Then there's an e-mail going back from Brad Struss
to Brad Chase and some other individuals. It's the second
e-mail that I would like you to focus on.
Have you ever seen this e-mail before?
A: I have not.
Q: If you look at the third e-mail on this page from Scott
Henson to a number of other individuals, dated October 12th,
1994, this e-mail continues onto the second page of that
document. On the second page of the document there are a
number of headings marked off, the cool stuff that they can
still do, and then do you see the section marked the
conversation?
A: I'm sorry. Where?
Q: On that page there are two headings. One is called the
conversation.
736
A: Yes, I see that.
Q: If you look what really is the second full paragraph
under that section, it says, quote, there is a set of APIs
which allows you to extend the explorer visually in a manner
that makes an application look as though it were a
system-level hierarchical component, i.e. like the control
panel, fonts folder, printers folder, et cetera. We have
taken a hard look at these APIs and because it makes it very
difficult for us to support our long-term objectives with
the Windows shell, we have decided to return these
interfaces back to their system-only status. This means
that if you are using these APIs, you should stop.
Now this conversation is directed to tell the ISVs, as
you can see from the paragraph right above that.
Mr. Richardson, is this consistent with your
understanding of what Microsoft told Novell after the
namespace extensions were retracted, the documentation for
the namespace extensions were retracted?
A: Yes, it is consistent.
Q: Mr. Richardson, I would like to redirect your attention
to Defendant's Exhibit 108. This was a document that was
also shown to you on Mr. Holley's cross-examination. But I
just want to ask a couple of questions about this document.
The first is the title, which is called PerfectFit Extended
Services Group. Were you a member of the PerfectFit
737
Extended Services Group?
A: I don't recall that name for a group. I probably would
have been part of any group labeled PerfectFit group, but I
don't recall the name PerfectFit Extended Services Group.
Q: Now you testified earlier that Microsoft retracted the
documentation for the namespace extensions. Isn't it true
that that retraction would have affected all software
vendors, not just WordPerfect?
A: That's correct.
Q: You also mentioned that you were familiar with the
CompuServe forum; is that right?
A: I was aware of it, but I didn't participate on it.
Q: Do you recall -- is it based on your understanding from
your conversations with those that were checking the
CompuServe forum that there were other companies interested
in using the namespace extensions?
MR. HOLLEY: Your Honor, I'm sorry to object, but
that calls for pure hearsay. He said he wasn't part of the
forum. She's asking whether he heard somebody say
something.
THE COURT: Rephrase the question.
BY MS. VISHIO:
Q: Based on your understanding of conversations with
others in the shared code group who were on the CompuServe
forum, is it your understanding that other companies were
738
interested in the namespace extension functionality?
A: It was my understanding based on my conversation --
THE COURT: That calls for hearsay and is leading,
but that's all right. Go ahead.
MS. VISHIO: I'm sorry. I couldn't hear your
answer.
THE COURT: Go ahead.
THE WITNESS: It was my understanding in my
conversations with Steve Giles and Adam Harral and with
Bruce Tijen, who is a member of the forum, told me they were
members of the forum, there was considerable activity on
that forum with a variety of different companies
participating.
BY MS. VISHIO:
Q: Mr. Richardson, I would like to redirect your attention
to Defendant's Exhibit 72. This was also shown to you on
your cross-examination. Again, this article is entitled
Extending the Chicago Shell by Kyle Marsh, and it's dated
May 10th, 1994. Do you see that?
A: I do.
Q: I would like to turn your attention to the second page
of this document under the heading shell extensions. Are
the shell extensions listed here also namespace extensions?
A: No, not -- well, sometimes it can be difficult because
the two are cross related. And I am not sure it's always
739
easy to specifically say this is one or this is the other.
The shell extensions were provided after as you have an icon
for a file on your desktop in the folder, those are things
that you can do with that file from there. They all relate
to the file. So you can take -- you can click on that icon
and you can drag it someplace, you can drop it, you can do a
right mouse click and get menu options that relate to that
file. So all of these are related to doing that
functionality.
So namespace extensions, that's what we're talking
about namespaces are the things that a namespace would
implement in order to show up as a folder. So they are kind
of disjoint -- they are separate groups of functionality.
Although they are all related, all the same thing of how you
would interact with your files, these sets of
functionalities relate to what you can do with a file and
the others relate to creating this folder that has things in
it that aren't really files.
Q: Now is it your testimony that this article provided the
necessary documentation for Novell to be able to use the
namespace extension functionality?
A: Mostly. So we were able to make use of the extensions
that had been documented. And understand, most of this work
was done by Steve and Adam before I joined this effort.
They had done a lot of this work before I got there. But
740
the problems that we ran into were -- there appeared to be
some extra communication that was going on that allowed us
to have the appropriate performance. We had to build in
that mechanism ourselves. So it was undocumented things
that were never documented that were the obstacles that we
ran into. If we wanted to run our own namespace browser
like the common open dialog or like the explorer, there was
extra information that wasn't part of these exposed APIs
that we needed to have access to.
Q: Mr. Richardson, I would like to direct your attention
to the last page of this document under the summary section.
The summary reads, the shell extensions described in this
article allow applications to facilitate the task of
navigating within a system or network. In some cases,
however, applications may want to extend the shell further
with the namespace browser. Namespace browsers allow
applications to expose the hierarchical structure of objects
through the Chicago shell. A good example of a namespace
browser is a file that displays the hierarchy of the user's
mail folder. In my next article, I will be discussing
namespace browsers in detail. Stay tuned.
Mr. Richardson, was that article that Mr. Marsh
references in the summary ever provided to you before the
release of Windows 95?
A: I remember a document or document contents similar to
741
this. I don't recall the specific document. But I recall
documentation similar to this or contents similar to this
that seemed to promote or invite the integration of
namespace browser -- namespace extensions. And also the
second sentence -- or the third sentence here says,
namespace browser allow applications, we felt we had a green
light to create our own namespace browser as well as
creating namespace extensions. So not only would we create
namespace extensions, it would show up in other namespace
browsers like explorer and other file open dialogs, but also
to create our own namespace browser.
Q: Do you recall whether you received the article that's
referenced here before the release of Windows 95?
A: I don't recall.
Q: Do you recall when you received the full documentation
for the namespace extensions?
A: I don't recall.
Q: Mr. Richardson, I have handed what you has been marked
as Plaintiff's Exhibit 355. This is an article from the
MSDN from July 1996 entitled Extending the Windows Explorer
with Namespace Extensions. If you could take a moment to
review this article.
Mr. Richardson, have you seen this document before?
A: This does seem very familiar to me. I believe I have
seen it before.
742
Q: What is this document?
A: This appears to be an extensive how to on how to create
namespaces.
Q: Again, what is the date of this document?
A: July 1996.
Q: As you reviewed this document, does this refresh your
recollection that the full documentation for the namespace
extension functionality was not available until after
Windows 95?
A: That does seem like the case.
Q: Once the namespace extension documentation was
republished, could any software vendor have used this
functionality to create namespaces?
A: Yes.
Q: Were there any limits imposed on software developers in
terms of the number of namespaces that they were allowed to
create?
A: Not that I'm aware of.
Q: Now Mr. Holley asked a question about a supposed order
at Corel to not use the custom file open dialog, instead to
use the common file open dialog. Did Corel, in fact,
release its product using the common file open dialog or a
custom file open dialog?
A: My recollection is they were using the PerfectFit
custom file open dialog.
743
Q: Mr. Richardson, we saw a document earlier that
referenced a Mr. Sid Cragun. Do you recall whether
Mr. Cragun was a member of the shared code team?
A: He was not.
Q: Would WordPerfect be able to run without shared code?
A: No.
Q: Why is that?
A: Shared code provided a variety of pieces of
functionality that were required for the application to
actually do anything. So all the access to documents to
open a file, to save a file, to print a document, the menus,
the keyboards, the tool bars, all of that functionality was
provided by PerfectFit. The dialogs, most of the controls
on the dialogs were provided by PerfectFit. So without
PerfectFit, the application simply wouldn't have run.
Q: Mr. Richardson, I have handed you what has been marked
as Plaintiff's Exhibit 268, which is the Novell software
license agreement with Netscape. If you would please turn
to page 11 of this document where there is a signature block
at the bottom of the page.
A: Yes, I see that.
Q: What date appears under the signature block?
A: February 2nd, 1995.
Q: Now you testified that you began working on integrating
Netscape's navigator into the explorer after you received
744
the code from Netscape. Would you have received the code in
conjunction with this agreement?
A: I believe so, yes.
Q: Does this refresh your recollection of when you were
working on integrating Netscape navigator into the explorer?
A: It would have been early in 1995.
Q: In February of 1995, you were still at Novell; is that
correct?
A: I believe that's correct.
MS. VISHIO: No further questions, Your Honor.
THE COURT: Thank you.
Mr. Holley, do you have anything further?
MR. HOLLEY: Yes, Your Honor.
RECROSS-EXAMINATION
BY MR. HOLLEY:
Q: Now you have just testified, I believe, sir, that your
recollection has been refreshed and you now remember that
you were working on integrating Netscape navigator into the
PerfectFit file open dialog in early 1995. Is that your
testimony, sir?
A: That's correct.
Q: Where is the design specification for that integration?
A: I don't have any idea where the documentation would be.
Q: Is there code that was written that integrated Netscape
navigator into the PerfectFit file open dialog?
745
A: I wrote that code that did that, yes.
Q: You wrote that code?
A: I did.
Q: Where did you keep it?
A: That code would have been placed in the source
management system.
Q: Did you have occasion in this lawsuit, sir, to review
any of the court papers that Novell filed for technical
accuracies?
A: I don't believe I have been presented with any
documents like that.
Q: I would like to show you what has been marked as
Defendant's Exhibit 139. Now this document is entitled
Novell's Objections and Responses to Microsoft's Second Set
of Requests for Production. It was --
MS. VISHIO: Objection to this. Excuse me.
THE COURT: Just take it off the screen for the
jury and you can ask questions. Right now it's just for
identification.
BY MR. HOLLEY:
Q: This document is one that Novell sent to Microsoft on
March 2nd, 2009 in this lawsuit, sir. Do you have any
reason to doubt the accuracies of the statements contained
in this document?
A: I am not familiar with this document. I have no reason
746
to believe or disbelieve anything in this document.
Q: All right. Well, turn to page 6, request number three.
Microsoft asked Novell in request number three to provide
all specifications, documentation, source code and object
code -- and I will just stop there to make sure that the
jury understands the distinction.
The source code is the code that a programmer writes,
correct, in some programming language like C or C plus plus?
A: That's correct.
Q: Object code is the series of ones and zeros that a
computer understands?
A: That's correct.
Q: So Microsoft asked Novell to provide all
specifications, documentation, source code and object code
for any software program developed by Novell that relied on
or invoked any of the following APIs exposed by any version
of the PC operating system referred to as Chicago or Windows
95, and then it lists IShellBrowser. That's one of the
namespace extension APIs, right?
A: Correct.
Q: It lists IShellFolder, that's a second API. It lists
IShellView, that's a third namespace extension API, right?
It lists IPersistFolder, that's number four. And it lists
ICommDlgBrowser, which means I common dialog browser, right?
Those are the five namespace extension APIs that Mr. Gates
747
decided in October of 1994 that he would not support, right?
A: That's correct.
Q: So Microsoft asked the question of Novell, please
provide us with all the code that you wrote that calls any
of those APIs. Let's look at what the answer is. Novell --
the answer that Novell gave was that there was no such code.
In addition, Microsoft's decision to make IShellBrowser,
IShellView --
THE COURT: Is there some kind of objection?
MS. VISHIO: Objection, Your Honor.
THE COURT: Approach the bench.
(Bench conference held)
THE COURT: I am going to allow the answer to the
question. Just so you all know, the parties agreed that --
you know, it will say what it will say and you draw whatever
inference you want. It's understood there is no source code
that was ever provided by one side to the other. That's not
really the point of this. But no source was provided. That
would cause all kinds of problems. The source code is
pretty confidential stuff.
So I'm going to allow Mr. Holley to ask this
question. Just for completeness, if later Ms. Vishio wants
to read the whole response, she can do that. That's really
not what Mr. Holley wants to get to right now.
MR. HOLLEY: Thank you, Your Honor.
748
BY MR. HOLLEY:
Q: So, Mr. Richardson, I read to you the question, which
was provide all specifications, documentation, source code
and object code for any software program developed by Novell
that relied on or invoked any of the following APIs, and I
will save time and I won't read them, but they are the five
namespace extension APIs.
I would like to turn, sir, if you would, to page 7 of
this document midway down the page, the sentence that begins
in addition. It says, in addition, Microsoft's decision to
make IShellBrowser, IShellView --
A: I'm sorry. I'm not following. Where are you?
Q: I'm sorry. It's not up on the screen. But, Mr.
Richardson, I'm right here on page 7 in this last sentence.
A: Thank you.
MR. HOLLEY: Your Honor, I think rather than
having my dramatic reading, can the jury see what I'm
reading?
THE COURT: Yes, you can do that. Then Ms.
Vishio, I'm going to give her the chance to read the whole
thing if she wants to.
BY MR. HOLLEY:
Q: Turning to page 7, the last sentence there that begins
in addition, in addition, Microsoft's decision to make
IShellBrowser, IShellView, IPersistFolder, and
749
ICommDlgBrowser private, in quotation marks, and
IShellFolder a, quote, read only public interface, close
quote, effectively prevented Novell from using the namespace
extension mechanism and/or implementing the mechanism in a
customized fashion. Therefore, as a practical matter, no
software that Novell developed could rely upon or invoke
those APIs.
How can that answer be squared with your testimony that
you wrote such software?
A: So I can testify to what I did and what my experience
was. So we developed a number of namespaces. I personally
developed FTP and the HTTP namespace. Neither one of those
ever shipped. Those are not included in the shipping
product. The threat of changing those interfaces so they
were no longer invoked or the syntax or semantics changed
was part of the reason that we had to build up that
infrastructure in an attempt to insulate ourselves from
those changes.
Q: Mr. Richardson, if someone had showed to you request
number three on page 6 back in 1994 and said please save
everything that you have that responds to this request,
there were things you would have saved, right?
MS. VISHIO: Objection, Your Honor.
THE COURT: Overruled.
Go ahead. You may answer.
750
THE WITNESS: So we had systems in place to
preserve our documentation. We had source management
systems. We had document management systems. We had
network locations with backup facilities for that data. I
was not responsible, I did not have a role in maintaining
those systems. I don't know what happened to the source. I
don't know what happened to the documentation. I know that
I did not throw away anything. And the document -- the code
that I wrote was checked into our source management system.
The documentation I wrote was either sent to the document
management system or to the network location. What happened
to it after that, I don't know.
THE COURT: Ms. Vishio can read the whole thing
now or, defendants, it's up to you.
MR. HOLLEY: Your Honor, I would like to briefly
address the exhibit.
THE COURT: Go ahead. She can do it either time.
BY MR. HOLLEY:
Q: I would like to turn your attention to a document that
Ms. Vishio showed you, which was Plaintiff's Exhibit 225.
MR. HOLLEY: Can we see that up on the screen,
please?
BY MR. HOLLEY:
Q: Now this is a Microsoft document that you had never
seen before, right?
751
A: I have not seen this document before.
Q: I would like -- Ms. Vishio showed you the second
e-mail. I would like to show you -- sorry, the third
e-mail. I would like to show you the second one. Now what
it says here is per Paulma. Do you know that Paul Maritz
was the senior vice president in charge of all operating
systems of Microsoft in October of 1994?
A: I know he was an executive at Microsoft. I couldn't
tell you what position he held.
Q: I will represent to you and the evidence in the case
will show that in October of 1994, Paulma was the e-mail
alias of Paul Maritz, who was the senior vice president in
charge of Windows NT and Windows 95. What this e-mail says
is, per Paul Maritz, we're now in the process of proactively
notifying ISVs about the namespace API changes, will not
document them and they will go away/change. So far, Stac,
Lotus, WordPerfect, Oracle, SCC appear to be okay with this.
Do you have any reason to believe that the people at
Microsoft thought anything other than what this e-mail says,
which is as of October 12th, nine days after Mr. Gates made
his decision, Microsoft understood that WordPerfect appears
to be okay with this?
A: I have no knowledge of their interaction with
WordPerfect or why they thought that WordPerfect or any
other application was okay with this.
752
Q: Fine. Let's turn to page 2, sir. Now there is a
heading here which Ms. Vishio mentioned but she didn't show
you called The Cool Stuff They Can Still Do. It says, in
addition -- I am up at the heading before we get to the
points. It says, in addition, we want to emphasize the
really hot and cool things you can still do with Windows 95
shell extensions. Then it lists a variety of shell
extensions that remain documented, remain fully supported by
Microsoft. Is that not right, sir?
A: That looks to be correct.
Q: Now let's go a little further down that page to the
paragraph that begins, this decision not only affects people
outside of Microsoft.
MR. HOLLEY: Can we highlight that?
BY MR. HOLLEY:
Q: What it says here, sir, is this decision not only
affects people outside of Microsoft, like Novell, but inside
the company as well. All applications within Microsoft
which were originally implementing these interfaces have
been required to stop.
You have no reason to believe that anything other than
this happened, right? Anybody inside Microsoft who had been
using those five APIs was told to stop?
MS. VISHIO: Objection, Your Honor. He doesn't
know this document. He can't speak for what Microsoft --
753
THE COURT: You were the one who asked him about
the document in the first place. So it's overruled.
THE WITNESS: I have no knowledge of what code
Microsoft wrote, what they put in their applications. The
one thing I can say that surprised us was that when we added
namespace extensions, they showed up in Word file open
dialog, but they did not show up in the common dialog. I
don't know how that worked.
BY MR. HOLLEY:
Q: Sir, that's a very interesting observation, but the
answer to my question is that you have no information to
impart to the jury that is inconsistent with this statement,
which is that when the namespace extension APIs were
de-documented, if you want to call it that, all of the
people inside Microsoft writing applications, like Word or
Excel, PowerPoint, Access, Outlook, they were all told to
stop. You have no information inconsistent with that, do
you, sir?
A: So, yes, I think so. I agree I have no knowledge of
what Microsoft applications did and which APIs they used. I
was not privy to that. I was not there. I don't know what
they used.
THE COURT: Let him finish.
THE WITNESS: However, our observation was that
namespace extensions showed up in their file open dialog
754
where they did not show up in the common file open dialog,
which led us to believe that there was something that they
were doing that was beyond the common file open dialog.
What they did or how they did it, I have no idea.
BY MR. HOLLEY:
Q: Let's turn, sir, to the section of this document
entitled Q and A up at the top. It looks like another
actually two pages in, Q and A.
MR. HOLLEY: I would like to highlight the second
question and answer. Why has Microsoft decided not to
publish.
BY MR. HOLLEY:
Q: So in this Q and A, the question was asked, why has
Microsoft decided not to publish the namespace extension
interfaces. Answer: There are a number of reasons. Reason
number one: Compatibility. We have determined that it will
be very difficult to support these APIs for applications as
we move forward.
THE COURT: What document is this?
MR. HOLLEY: It's the same document, Your Honor.
Ms. Vishio opened the door to this examination by showing
this witness this document.
MS. VISHIO: It's beyond the scope of the
redirect, Your Honor.
THE COURT: I don't think so, no. Overruled.
755
It's the same document.
BY MR. HOLLEY:
Q: There are three reasons provided here. The first one
says compatibility. We have determined that it will be very
difficult to support these APIs for application as we move
forward with our operating systems. We did not want to
encourage ISVs to support interfaces that will go away in
the future.
You have no information, do you, Mr. Richardson, to
undermine the notion that Microsoft believed in October of
1994 that the namespace extension APIs posed compatibility
problems for their future operating system design, right?
A: I am unaware of any compatibility problems that could
arise, and unless I'm mistaken, the APIs did not go away in
the future. In fact, they are still there.
Q: But you don't know what changes were made in the syntax
of the APIs that might have changed that question, do you,
sir?
A: The code that we wrote to the original specification,
to my knowledge, has never been broken. The syntax and
semantics remains the same, as far as I can tell from a
client perspective.
Q: System robustness. The namespace extensions were
design to be part of the system. As such, they run in the
explorer's process space. Badly written namespace extension
756
could cause the reliability of Windows 95 to be less than it
should be.
You agree with that, don't you, sir, that if someone,
not you, but someone who didn't know what they were doing,
wrote a namespace extension that was badly behaved, they
could have crashed the entire Windows 95 shell, circa
October 1994, because at that time namespace extensions were
running in the same process as Windows explorer and the rest
of the shell, right?
A: That is correct. In addition to that, the APIs they
left suffered the same consequence. If someone were to take
one of the context by context menu or the other extensions
that were left available and wrote them badly and crashed
them, you would have had exactly the same consequence.
There were a variety of places in Windows where this same
level of extensibility was provided. A very good example
where if someone wrote one badly and introduced it into the
system, it could have crashed.
Q: You would agree with me, would you not, sir, that
adding an item to a context menu is much less dangerous than
writing a randomly large block of code as a data handler to
plug into a namespace extension?
A: No. I would disagree with that. The danger is that
when Windows calls the APIs, if the call crashes, it crashes
Windows. So regardless of what it is you are doing behind
757
it, if you wrote that code badly, it will cause the
operating system to crash. From Windows' perspective, the
danger is the same.
Q: Now it also says, ship schedule. We have determined
the amount of development and testing time it would take to
support these APIs through the entire development cycle adds
a tremendous amount of overhead to our very rigid deadlines.
You have no reason to believe that Microsoft did not in
good faith believe in October of 1994 that continuing to
support the namespace extension APIs threatened the ship
schedule of Windows 95, do you, sir?
A: I have no knowledge -- direct knowledge of what their
scheduling was and what they anticipated the task would
take. My experience was in working with the namespace
extensions and with the namespace browsers, namely the
explorer and the common file open dialog is that they worked
very well. When we were working with them, we experienced
no instability and to us they appeared complete.
Q: Excuse me, sir, didn't you just tell us all a couple of
hours ago that you had terrible performance problems with
these APIs, that it took two or three minutes for a
namespace to enumerate the contents of the namespace?
A: That problem occurred within our namespace browser, not
within explorer namespace browser, but with the common open
file dialog.
758
Q: All right. Let's turn to the next page of Plaintiff's
Exhibit 225. Up at the top it says, question, Microsoft has
encouraged ISVs to use shell extensibility, can I still do
that? Answer: Yes, there are still lots of exciting things
ISVs can do with the shell. For example, you may customize
the behavior your application files under the shell by
adding extra menu items, context menu extension, adding
property sheet pages, property sheet extensions, and/or
providing per instance icons, icon extension. For more
details, see Kyle Marsh's MSDN article.
That's DX-74, the Kyle Marsh MSDN article. You saw
that early, right?
Do we have to look at that again?
THE COURT: He says that's what it is.
THE WITNESS: I have A: copy of that.
BY MR. HOLLEY:
Q: Then the second to the last question and the answer
says, what if I decide to use some of the undocumented APIs,
i.e. I am a developer that has received some of the
preliminary documents on the topic. What will the penalty
be? Will you change the interfaces that had been defined?
Answer: We will not arbitrarily change these interfaces,
but because of how tightly these interfaces are tied to the
internals of the shell, we cannot guarantee ISVs that try to
call into them will work in future releases of Windows 95.
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There will be no support for ISVs that use this. It will be
completely at their own risk.
You are aware, are you not, sir, that many, many ISVs
in this period of time called undocumented APIs knowing of
the risks but making a choice that the benefits to them
exceeded the risks? That happened all the time, didn't it?
A: I would suppose that occurred. There were times when
we had to make tradeoff evaluations and determine what was
most important.
Q: Then the last question and answer, sir, it says, can I
still roll-my-own common dialogs and enumerate the
namespace. This document is talking about what I call the
system namespace, and you and I agreed we could call it the
system namespace or the desktop namespace, right?
A: I'm sorry. Could you repeat the question?
Q: Sure. The question is can I still roll my own common
dialogs and enumerate the namespace. Your understanding is
mine, which is that this document is referring to the
desktop namespace or the system namespace. You can still
enumerate that, right?
A: I don't see anything here that refers to the system
namespace. In fact, to me this would seem to contradict the
answer just prior to this that said don't do this.
Q: So you don't understand what it means?
A: I am saying when I read this, it looks like a
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contradiction to me.
Q: And the answer says, yes, the IShellFolder interface
will still be published to allow ISVs to enumerate the
namespace. Do you see that answer?
A: I see that's the answer they put here.
Q: Right. You know how to do that, right? It's a very
simple command. You tell IShellFolder to bind itself to the
desktop namespace inside your file open dialog and it shows
you the system namespace, right?
A: No, that's not correct. The IShellFolder interface
does not enumerate the items within the folder.
Q: You can bind to it using IShellFolder, and then you can
use --
A: You have to bind to the other interfaces which were
retracted.
Q: But you knew how do you that, too, didn't you, sir?
A: I'm sorry. I'm not sure -- the question that I heard
was is it adequate merely to bind to the IShellFolder to be
able to create your own dialog and enumerate the contents
and browse a namespace. The answer to that would be no, it
is not adequate simply to bind to the IShellFolder
interface. You also need the additional interfaces which
have been retracted and were told not to call.
Q: Is that right? Let me read you something and see
whether you agree with it. You can bind to the desktop
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folder, retrieve the folders IShellFolder interface by using
the SH get desktop folder member function? So far so good,
right?
A: Yes.
THE COURT: I assume this is from Mr. What's his
name book?
MR. HOLLEY: It's from the Programmers Guide to
Windows 95, Your Honor. 182.
BY MR. HOLLEY:
Q: You can enumerate folders by using the IShellFolder
ENUM objects member function. So you bind to the folder,
now you can enumerate the things in the folder. You can
bind to a subfolder of any given folder by using the
IShellFolder bind to object member function. We're still
there, right? You would still agree with that?
A: Uh-huh. (Affirmative)
Q: Using these three functions, an application can
navigate throughout the shell's entire namespace, right?
A: So the purpose of the other -- the other interfaces is
to allow you to get the information about those icons or
those objects necessary to be able to interact with them.
So the interfaces to obtain the icon -- or to obtain other
information is derived through the rest of those interfaces.
So without the rest of those interfaces, you are limited in
what functionality you can accomplish.
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Q: But you can use the interfaces that I thought you and I
agreed always were documented, like icon text menu, the icon
handlers, the data handlers, the drop handlers, the property
sheet handlers, those were all documented. And once you had
bound to a folder, you could use those documented interfaces
to do whatever you wanted to an object, couldn't you?
A: So there are two sets of interfaces that are kind of
grouped together. The group that were retracted and the
group that were left. So I could provide an object and
register it with Windows that would provide icon text menu
and icon text, all those other capabilities that was not a
namespace browser. It was unrelated completely to namespace
browser.
For example, if I wanted to add the ability to access
QuickFinder technology from the right mouse click on an
item, I didn't have to provide a namespace, right. So those
technologies were there as a separate group of
functionalities from the ones that were retracted. So there
is a big difference between when you are talking about those
that weren't part of a namespace and those that were part of
a namespace.
So this question is talking about becoming a namespace
browser and browsing the namespaces. In order to access
those objects completely, I needed to use those APIs that
were retracted.
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Q: I don't want to belabor this point, and maybe everyone
else in the room thinks I have, but you answered a question
that Ms. Vishio asked you by saying that the context
handler, the icon handler, the drag-drop handler were all, I
thought you said, interconnected with the namespace
extension APIs. And in that sense, what I'm asking you is
couldn't you have used the APIs which are described in this
book and which remain documented throughout the development
of Windows 95 to put the system namespace in a file open
dialog and do all the things to the objects inside that
namespace that you could have done to some object sitting
out on the desktop?
A: So if the question is was there a redundancy between
the ability of the interfaces that remained versus the
interfaces that were removed, and my answer to that would be
no, there was not redundancy. Yes, they are related in that
they all deal with objects in the file system within the
namespace hierarchy, but their purposes are different.
That's why they are different interfaces. You could not
achieve everything through those retracted interfaces that
you could through the ones that remained.
Q: I notice that you adopted this formulation retracted
and redacted. I just want to be clear and then I promise
this will be my last line of inquiry. But nothing was
retracted, right? I mean the APIs stayed in the operating
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system and the documentation that Novell got in June of
1994, no one showed up from Seattle and said give that back,
right? You kept it all.
A: So we kept the copies of shell OPG that we currently
received, that is correct.
MR. HOLLEY: I have no further questions, Your
Honor.
THE COURT: Ms. Vishio, I will give you the
choice. You can either read all of two or you can deem it
admitted into evidence so if it's used. It's really up to
you. So if somebody uses it in closing argument, you can
respond by reading from it. Really, it's up to you. I
don't care.
MS. VISHIO: Your Honor, I think what we would
like to do, if it's appropriate with you, is to just hold on
to this and read it in later if it becomes necessary.
THE COURT: Sure. That's fine. I think that's
good. It's twenty to, and I know we promised you all you
could leave around 1:30. So have a nice afternoon. See you
at eight o'clock in the morning.
(Jury excused)
THE COURT: There are two issues that I'm aware of
that are still on my plate. The timing still hasn't been
resolved. The other is Novell wants to introduce -- to
overruled Microsoft's objections to statements made to the
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DOJ. As of this morning, I didn't see a written response
from Microsoft. I didn't know if you intended to file one?
Tell me.
MS. VISHIO: Excuse me, Your Honor. May we excuse
Mr. Richardson?
THE COURT: Of course. I'm sorry, Mr. Richardson.
Of course.
MR. HOLLEY: Your Honor, we do intend to respond
to that.
THE COURT: You have had plenty to do. It was a
question, not a criticism. I assume your answer is going to
be in the opening statement they talked about disclosures to
Microsoft, not disclosures to the DOJ.
MR. HOLLEY: Among other things, Your Honor. But
I think we can commit to have something to the Court
tomorrow. I apologize we haven't done that.
THE COURT: No need for an apology. It is not an
implicit criticism. It was just a question.
Mr. Johnson, anything?
MR. JOHNSON: No, Your Honor. That will be fine.
Glad to hear their response. They didn't specify it was
just Microsoft. They said we never complained, period.
THE COURT: I understand.
MR. TULCHIN: Just a housekeeping matter, Your
Honor, if I could. The other day Novell's lawyer handed in
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A: list of documents to which they said Microsoft would not
object to. With the Court's permission, we would like to
hand in the list of Microsoft exhibits to which Novell has
not objected.
THE COURT: Go ahead.
MR. TULCHIN: And there may be other exhibits,
Your Honor, that will come in.
THE COURT: If something comes in, please let me
know. This is not for expedition. But I gather you all
know what's going to come in.
MR. JOHNSON: Your Honor, we'll, of course, look
over that list and make sure there are no problems with it.
Just to make sure with respect to the list that we
submitted some months ago to you, we've heard no objection
from Microsoft with respect to any of those exhibits. So I
presume that they are admitted without objection.
MR. PARIS: They all look fine.
MR. JOHNSON: Thank you, Your Honor, very much.
THE COURT: Nothing else to worry about tomorrow.
What is tomorrow going to be?
MR. JOHNSON: Tomorrow we're going to have
Mr. Gary Gibb as our witness, Your Honor. And I actually
thought we would perhaps get more than just a witness in
today. I was hoping maybe we would do more than that
tomorrow, but we will see.
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THE COURT: That is my next question. I assume
we're a little behind schedule.
MR. JOHNSON: You know a little bit, Your Honor,
but not terribly.
THE COURT: Thank you.
MR. TULCHIN: Your Honor, we haven't heard if
there will be a live witness on Thursday. In view of the
48-hour rule, since we're less than 48 hours, I assume it's
a videotape.
MR. JOHNSON: We don't currently anticipate a live
witness. Of course, if there were going to be one, I would
have told you.
THE COURT: Forty-eight hours aside, if you can
think of one in the next two hours, tell him.
MR. JOHNSON: Thank you, Your Honor.
MR. TULCHIN: Thank you, Your Honor.
(Whereupon, the trial was continued to Wednesday,
October 26, 2011 at 8:00 a.m.)
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