I'm very excited to tell you that we have the trial transcripts from the
Oracle v. Google trial about Java and APIs that began on April 16th of this year and ended with a victory for Google. So this is our opportunity to see the whole thing, from soup to nuts, with all the details. Some fabulous lawyering took place at this trial, and some of the worst. It'll be like a class in how to be an effective litigator. Shout out to law schools everywhere.
You can find them all on our Oracle v. Google Timeline page, or more precisely the first half we have so far (it's expensive), by just searching for Transcript of Proceedings from April 16 onward. But let's take a look at each day and see what we notice, and we can go through them one by one, and I'd like to do them all as text. Here's the first day, April 16, 2012 [PDF]. If you can help us do any of the days as text, or in my perfect world as HTML, minus the line numbers, that'd be a wonderful help.
It's not hard, because they are not tiffs, so it's just a matter of copy and paste and then clean it up and email it to me. Can you please lend a hand? Thank you. If you can, just leave a comment that you are working on a particular day, so we don't duplicate effort.
Update: The judge, when telling the parties that everything will be public unless it's a trade secret, references a case, "the Kamakana case in the Ninth Circuit, so here's the ruling [PDF] he is referring to, and he means that it's the standard set in that circuit. The US federal court system is divided into 12 circuits for appeals from the 94 district courts, and whatever is the case that is the standard on a certain subject in your circuit prevails in your circuit until something better comes along in the circuit or until the US Supreme Court says otherwise.
Update 2: This day was jury selection. At one point, the judge reveals that he knows the wife of one of the prospective jurors, who is the curator of the Bancroft Library, the special collections library at the University of California, Berkeley. Special collections means rare books and manuscripts. I went to see what that meant exactly, and it's many things, but one thing that might interest you most is the History of Science and Technology Sources: Northern California is richly endowed with natural resources, material wealth, and a culture that fosters scientific discovery and technological innovation. It is also blessed with distinguished institutions of research and higher education, whose libraries and archives contain extensive collections of primary and secondary resources. First in importance among these are the primary resources - archives and manuscripts - including personal papers, corporate records, oral histories, and pictorial images in a variety of formats including print, holograph, aural and video recordings, and multi-media. These collections, documenting the region's natural history and its citizen's scientific and technological achievements, are invaluable resources to scholars researching historical, social, legal, economic, and policy aspects of California and the West.
The History of Science and Technology Sources provides access to records of cataloged archives and manuscripts in appropriate University collections. It also complements local online and print catalogs which include the Library's book, serial, and other secondary sources.
View this online guide:
http://bancroft.berkeley.edu/
collections/hstc/index.html
Update 3: Now here's a fascinating bit. We don't yet have the transcripts from the Apple v. Samsung trial, although we will when they are made available, but the judge in this trial during voir dire tells the prospective jurors that if they have some special knowledge from a prior patent case, they can't use that in deciding this case but must only go by the evidence presented, which is precisely what the jurors in Apple v. Samsung did not do. What happened is a prospective juror, who was a heavy duty IT guy at Cisco, was involved in a patent infringement case in connection with his work. It was on appeal, but perhaps he'd still have to testify. So here's what the judge told him and the entire group, after the guy tells him he might be somewhat influenced by what he'd seen: PROSPECTIVE JUROR RICHARDSON: Well, I mean, being involved in a patent infringement, you tend to, you know, learn a little bit more. You have a little bit different insight. So I would like to believe I can do that. So, yes.
THE COURT: Well, you just have to forget about what you learned in those other cases and, you know, hold the lawyer, whoever -- here is the way it works. I'll tell everybody.
One side or the other is going to have the burden of
proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide.
Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here.
You understand that part?
PROSPECTIVE JUROR RICHARDSON: I do. We'll have an opportunity to check whether something like that was said in the other trial, but my guess is it would be. Yet the foreman there used his prior knowledge of defending his own patent at the USPTO to convince the entire jury of a point that in turn caused the verdict, which was leaning toward Samsung, to go instead for Apple. Interestingly, this prospective juror had some views on software patents: PROSPECTIVE JUROR RICHARDSON: Not about this case in particular. About software patents in particular, yes. You know, I don't know if the software patent aspect of this --
what it's about, but, you know, my -- I do have software patents and this case I'm involved with is about software patents.
You know, my opinion is that the patent lawyers write those so vaguely that they are hard to argue one way or the other. And so it ends up being a very difficult time for a general jury pool to understand what the legal side of things actually are as far as what the patent truly means.
So, you know, as far as do I have opinions on this case? No. Do I have opinions on, you know, the ability to argue a patent? Yes. I think it's very difficult. Later, the judge and the parties are drilling a bit deeper with Mr. Richardson and another prospective juror who works at HP in software development, and he tells them this: THE COURT: ... So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying?
You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works. Of course, Mr. Richardson didn't make it on the jury, and neither did the HP employee, both of whom had opinions about software patents and neither of whom felt they could put aside all their prior knowledge, but they had it right about software patents, as the verdict in the Apple v. Samsung case so vividly showed us. It's very hard, if not impossible, to find technical software people who don't think software patents are toxic. And it's mighty hard, if not impossible, to find anybody who understands software patents claims who could also sit on a jury, and yet that is exactly who you need.
And for historians, here's who each side removed from the jury:
THE COURT: All right. For the record, the plaintiff strikes No. 3, Mr. Dimaggio. No. 9, Mr. Haithcox. No. 15, Mr. Troy.
And the defendant strikes Ms. Raman, No. 5. Ms. Woo, No. 14. Ms. Balakrishnan, No. 16.
So Oracle got rid of DiMaggio, who said he'd be a good juror because: "I'm a good listener, and I come to a decision pretty easily." But he also says he had two friends who worked at PeopleSoft who ended up laid off when Oracle bought the company. That was the deal that was bitterly fought against by PeopleSoft, whose CEO, I seem to recall, said that being asked to sell to Oracle was like someone telling you they want to buy your dog so they can take it out back and shoot it.
And Oracle got rid of the lawyer, Mr. Haithcox, who said he'd generally gotten a negative impression of Larry Ellison. And they got rid of Mr. Troy, who is married to the curator of the Bancroft collection that knows the judge pretty well.
On Google's side, they lopped off Ms. Raman, who got a bachelor's in medicine in India and works as a special ed para educator, whose husband is a computer engineer, and who said she uses Gmail and Google Search. So why her? Maybe because her husband works for Brocade, a company with a rather famous win in a patent and copyright infringement case, where the jury awarded multi-millions in damages. I don't know that that's why, but I know when I read that she said her husband worked there, I immediately said, Uh oh. And maybe Google did too.
Google also got rid of Ms. Woo, the mathematician working on data mining for Charles Schwab. She mentioned that she had been a juror twice before, and while the criminal case reached a verdict, the civil trial deadlocked. That's, as the judge tells them, why they ask if they've been a juror before and whether they were able to reach a verdict -- they want to know if you are the type to hold out and deadlock a jury.
Finally, Google removed Ms. Balakrishnan, the patent prosecution lawyer. I think that's fairly obvious as to why Google would do that.
Update 4:
After the jury is chosen, the judge provides some instructions to the jury, including this bit about the lawyers and how nothing they say is evidence: And this leads me to the number one point that I must
make, and I will say it very bluntly. Not one word that a lawyer ever says in the courtroom is evidence. If it's a stipulation, that's a little different. I'll come back to that later. But you will hear these lawyers ad infinitum and not one word they ever say is evidence.
The evidence comes from the witness stand and it's under oath and subject to cross examination. So if, for example, a lawyer were to say to a witness, "Isn't it true that the light was red?" And the witness says, "I don't remember." And then you got back in the jury room and you were deliberating and somebody on the jury said, "Hey, I remember somebody out there said the light was red." You've got to be good enough to remember, no, that was just the lawyer talking. That wasn't evidence at all. The witness said he didn't remember. You must, you must keep that straight.
I'm a strong believer in the jury system, but this is the single most important way in which a jury goes wrong occasionally, is by confusing what the lawyers say with what the witnesses say.
Now, in my example if the lawyer had said, "Isn't it true the light was red?" And the witness said, "Yes." Then, of course, that's agreeing with what the lawyer said and that would be evidence that the light was red, of course, in that case. But when the lawyer says, "I don't know," or "No, it wasn't red." I mean, it's what the witness says that counts
under oath and subject to cross examination.
We have excellent lawyers here. They are going to do a great job in this trial. In some ways you're lucky to be able to see a trial where the lawyering will be at the level that it is, but it still doesn't change the fact that not one word they ever say is evidence. Zero. So remember that.
The only exception to that is when it's a stipulation by both sides, and I will make it very clear on those circumstances that you may consider as evidence what the lawyer says.
Okay? So you're going to hear the opening statement in just a moment. And the reason I bring this up is because you might be thinking, Oh, my goodness. Look at this evidence. I promise you, not one word of it is evidence. Even when they put an email up on the screen, is that evidence? Not yet. Not until it gets admitted into evidence. And if they don't get it into evidence, well, that's their problem because they showed it to you and they couldn't get it into evidence. It's -- you can only consider things that get into evidence.
He also explains what burden of proof means -- that if you can't make out whether or not something is so, the side with the burden of proof loses.
After that, Oracle's lawyer, Michael A. Jacobs, gives its opening statement. It's a fairly blunt opening: "This case is about Google's use in Google's business of somebody else's property without permission." And then he makes what I consider one of the biggest blunders of the trial, by opening with an email that could have created a false impression: Now, why are we here? Are we here because this
happened by accident? Was this some kind of misunderstanding?
Were the property boundaries not so clear?
On August 6, 2010 a Google software engineer named
Tim Lindholm sat down at his computer at Google and started to
compose an email. He wrote it to Andy Rubin, who is the head
of Android, the Android mobile software business at Google.
And this is what he wrote:
"What we have actually been asked to do by
Larry and Sergey" --
Larry and Serge are pictured over there on the right.
That would be Larry Page and Sergey Brin, the co-founders of
Google, and the two of the three senior executives running the
company.
"What we have actually been asked to do by
Larry and Sergey is to investigate what
technical alternatives exist to Java for
Android. We have been over a bunch of these
and think they all suck. We conclude that we
the terms we need."
So Mr. Lindholm wrote a message, wrote an email to
his boss about a request from his boss's boss -- his boss's
bosses to investigate alternatives to Java for Android and
concluded that Google needed a license for the Java technology
that was in Android.
So, ladies and gentlemen, this was not any mistake.
This was not inadvertence. This was not the property boundary
being unclear. The decision to use Java intellectual property
in Android was taken at the very highest levels of Google with
a lot of consciousness and awareness about exactly what was
going on.
Speaking of making a conscious decision with full awareness, this was an attempt to make it seem like there was an internal discussion in Google about Android and Java, someone said Google should take a license for Java, and then they just didn't bother but went ahead and developed Android without a license, willfully.
But did you notice the date of the allegedly incriminating email? This was a 2010 email, when Android was not only fully developed but already released to the world. Nobody, I'm sure, at Oracle or any of the lawyers needed to have the date explained. They knew, because it was shortly thereafter the email that Oracle sued Google over Android. So this blunder, as I view it, was not done by mistake. It just *was* a mistake. It was perhaps done thinking the jury wouldn't put two and two together, but the judge had just handed them a timeline. And once the jury thinks you are not being straight with them, you really have lost more than you could possibly win by whatever trick you might think you could pull out of your sleeve. So when Oracle lost in the end, I think it deserved to lose, if only from this one ugly little sleight of hand maneuver. Besides, if you win by false impression, is it winning? I mean, what is the point of a trial if not to get at the truth of a matter? And if there is a stretching of the truth, what in the world are you doing in a courtroom? Why even bother? A duel at 20 paces would be a lot cheaper, and just as likely to pick the winner. Maybe more likely. Happily, the judge had just instructed the jury that nothing out of a lawyer's mouth is evidence.
Here's day one as text, thanks to bugstomper:
********************
Volume 1
Pages 1 - 223
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE WILLIAM H. ALSUP
ORACLE AMERICA, INC.,
Plaintiff,
VS.
GOOGLE, INC.,
Defendant.
_________
No. C 10-3561 WHA
San Francisco, California
April 16, 2012
_________________
TRANSCRIPT OF JURY TRIAL PROCEEDINGS
APPEARANCES:
For Plaintiff:
MORRISON & FOERSTER
[address]
BY: MICHAEL A. JACOBS, ESQUIRE
KENNETH A. KUWAYTI, ESQUIRE
MARC D. PETERS. ESQUIRE
DANIEL P. MUINO, ESQUIRE
BOIES, SCHILLER & FLEXNER
[address]
BY: DAVID BOIES, ESQUIRE
WILLIAM F. NORTON, ESQUIRE
STEVEN C. HOLTZMAN, ESQUIRE
(Appearances continued on next page)
Reported By: Katherine Powell Sullivan, RPR, CRR, CSR #5812
Debra L. Pas, RMR, CRR, CSR #11916
Official Reporters - U.S. District Court
1
APPEARANCES (CONTINUED):
For Plaintiff:
ORACLE AMERICA, INC.
[address]
BY: ANDREW C. TEMKIN, CORPORATE COUNSEL
DORIAN DALEY, GENERAL COUNSEL
SAFRA CATZ, PRESIDENT AND CFO
For Defendant: KEKER & VAN NEST
[address]
BY: ROBERT ADDY VAN NEST, ESQUIRE
DANIEL PURCELL, ESQUIRE
MICHAEL S. KWUN, ESQUIRE
CHRISTA MARTINE ANDERSON, ESQUIRE
KING & SPALDING LLP
[address]
BY: BRUCE W. BABER, ESQUIRE
ALSO PRESENT: CATHY LACAVERA
Corporate Representative Google
_ _ _
2
P R O C E E D I N G S
APRIL 16, 2012 7:29 a.m.
THE CLERK: Civil action C10-3561 WHA, Oracle
America, Inc. versus Google, Inc.
Counsel, can you please state your appearances for
the record?
MR. JACOBS: Good morning, your Honor. Michael
Jacobs, Morrison and Foerster for plaintiff Oracle America.
With me at counsel table in clockwise order Dan Muino
from Morrison and Foerster.
THE COURT: Say that name again, please?
MR. JACOBS: Dan Muino.
THE COURT: How do you spell that last name?
MR. JACOBS: M-U-I-N-O.
THE COURT: M-U --
MR. JACOBS: -- I-N-O.
THE COURT: Got it. Okay.
And?
MR. JACOBS: Fred Norton from Boise Schiller.
THE COURT: Okay.
MR. JACOBS: Andrew Temkin from Oracle.
THE COURT: Okay.
MR. JACOBS: Safra Catz, the president and chief
3
financial officer of Oracle.
THE COURT: Say that last name?
MR. JACOBS: Catz, C-A-T-Z.
THE COURT: C-a-t-z. And?
MR. JACOBS: Ms. Catz will be our corporate
representative, your Honor.
THE COURT: Thank you. Welcome.
MR. JACOBS: And David Boise from Boise Schiller.
THE COURT: Welcome.
MR. JACOBS: And Dorian Daley, general counsel for
Oracle.
THE COURT: Very good. And welcome to all of you.
And?
MR. VAN NEST: Good morning, your Honor. Bob
Van Nest, Keker and Van Nest for Google.
Here with me is Christa Anderson. Dan Purcell.
Bruce Baber at the end of the table. Michael Kwun. Our
corporate representative Cathy Lacavera from Intel.
THE COURT: Lacavera?
MR. VAN NEST: L-A-C-A-V-E-R-A.
THE COURT: All right. Got it. Thank you.
MR. VAN NEST: And Michael Titinsky is here. He's
here to help us select a jury. And that's our crew at the
table.
THE COURT: Okay. Great. Thank you.
4
All right. Welcome. Do you need so many people on
that front row? I just say that because I don't like people
that close to the jury. I need for you to keep your distance
from the jury.
MR. JACOBS: Mr. Weinberg will join us during jury
selection, your Honor. He's our consultant. Otherwise, we can
move people back over.
THE COURT: All right. Welcome to all members of the
public, the press. We're here for jury selection and opening
statements today, possibly the first witness.
I have denied your motions in limine. The order went
out earlier. If you're going to file a motion in limine on
that expedited schedule that you came up with -- which is fine,
I don't mind the schedule -- you may not rely on anything under
seal. The reason is that if you file something under seal, we
don't get it for at least 36 hours. It goes to a special
place. Armed guards carry the material around. We don't get
it in chambers for a long time. So if you're sitting there
thinking that we get it instantly, it's not true. We don't.
So we can only see the public part.
There was one part about a letter from Mr. Ellison
which I have not yet ruled on. That was under seal.
That leads me now to a second thing. This is a
public trial. The press and the public have the right to see
these documents. Now, mechanically I don't know how I'm going
5
to do that unless you put them down there in the press room,
but the idea that you can just file things under seal and that
the public and press won't have access to it is wrong. Please
read the Kamakana case in the Ninth Circuit. This is a public
institution. You have chosen to litigate this in public and
that's what we're going to do. And unless it's the recipe for
Coca Cola, it's going to be out there for public view.
The mere fact that it revealed something about your
finances, that's nothing. Come on. The public can see that
all day long. If it reveals something embarrassing about the
way one of these companies works, too bad. It's going to be
out there for the public to see.
So only if it really meets the Kamakana test in the
Ninth Circuit is anything going to be put under seal, and even
then we're going to refer to it in open court. How else can we
run a trial?
So I'm asking you to put your exhibits, without
redaction, in the press room at the end of each day so that
members of the press can see what's been going on.
Okay. I would like for you to give me your glossary
of the top 40 terms so this can be of assistance to the jury.
I still have not received anything like that from the lawyers.
Does anyone want to address that point?
MR. JACOBS: We have a glossary, your Honor.
THE COURT: That's great. May I see it, please?
6
(Whereupon, document was tendered
to the Court.)
THE COURT: Is this agreed to?
MR. JACOBS: Yes, your Honor.
THE COURT: Okay. What we will do then after the
jury is selected, we will give a copy of this to each member of
the jury and then it can -- they can use it as they wish and
make notes on it and so forth. So that's great. Thank you for
doing that.
All right. A few things about the trial in general.
One of the issues that the judge has got to decide in this case
is whether or not the 37 APIs are copyrightable or not. I
think this is the most interesting problem. I've read all of
those briefs that you've submitted, and I requested a lot of
those briefs myself because I don't know the answer to this
problem yet.
But you must remember, as I've said earlier, it's not
just a legal question. It also depends on the facts, and I'm
going to decide it based on the facts in the record of the
trial. The record of the trial. You must remember that. So
if you think some fact is important on copyrightability, you
must prove it, okay?
Now, that leads to a different issue, which is, I
said this to you once before and said if you thought there was
something that you wanted to make sure was established for
7
purposes of trial, to make your motions.
Now, I believe, Mr. Van Nest, you did make such a
motion and I ruled on that, right?
MR. VAN NEST: That's correct, your Honor.
THE COURT: I denied one and granted two.
MR. VAN NEST: That's right.
THE COURT: One with a caveat.
And then Oracle came back asking for five, I believe.
MR. JACOBS: I think that's right.
THE COURT: And I have not yet ruled on that, and I
will get that out soon.
But the issue that I want to raise with you, and we
have plenty of time -- not plenty of time, but some time -- is
the difference between something coming in as an item of proof
versus being conclusively established. You see the difference?
A judicial admission that's conclusive versus an item of proof.
I don't care which way we go on that as long as if
you both stipulate that these are going to be conclusive, fine.
If you stipulate that it's just going to be an item of proof
and you can -- each side can put in additional proof and we'll
just say to the jury, "For example, at various points in this
case Oracle has admitted that Java is free and open for anyone
to use," or "the Java programming language," or however that
was worded. And then, but you can put in contrary proof if you
want, or modifying proof. I'm okay with that.
8
I'm also okay with saying it's been judicially
established and conclusive.
It won't matter so much for my purposes, but I
don't want this to be a point on appeal that somehow the judge
goofed that part of it up.
So I guess what I'm asking you is before I rule on
the pending motion by Oracle, I would like for you both to
submit a brief -- for the moment I would just say this is going
to be items of evidence, but one of those things, one of the
items in Mr. Van Nest's motion the Court actually did rule as a
matter of law. That was the one about names, and so that's not
really even part of this.
But I want you to tell me whether or not the items
are conclusive or merely items of proof. And if you both were
to agree on it, that would be fine. If you don't agree, then
give me your points and authorities and let me know how you
feel about it.
So try to give me that by 5:00 p.m. today. All
right? Okay? On both -- not only on the ones that I've
already ruled on, but the ones that Oracle has pending. Okay?
MR. VAN NEST: Okay, your Honor.
THE COURT: Is that enough time? If you want more
time, I will give you more time.
MR. VAN NEST: We'll meet-and-confer when we get a
break and go from there. Thank you.
9
THE COURT: All right.
On the terminology of how we -- I want to bring to
your attention, I think we need a clear-cut way to use the term
"specification." Does that mean the user manual or does that
mean the technical way in which it actually works, which may or
may not be in the user manual? And the lawyers have used the
term in multiple ways.
This will be a case where it probably benefits
everyone to be clear-cut in the way we use those terms. That's
the one that calls out, cries out the most for a clear-cut
usage. At this point I urge you to be clear in what you mean
by the word "specification" when we're talking to the jury.
All right. That's all I have on my list. Any issues
for the plaintiff?
MR. JACOBS: Your Honor, I think the most urgent
would be the few objections we each have with respect to each
other's opening statement slides.
THE COURT: All right. I'm all ears. Go ahead.
MR. JACOBS: In our case, your Honor, I'm going to
have to link back to the topic you raised, which is the ruling
on the -- the deemed admitted ruling on the issue of law as it
relates to names.
As your Honor indicated, that is in a somewhat
different category from a fact which we will be -- as to which
we will be briefing the legal status of. It was a ruling by
10
your Honor in summary judgment. It's in the nature of a legal
instruction, I think, to the jury.
THE COURT: Right.
MR. JACOBS: And we've had -- part of our motion to
you on that was that for the jury only to hear that the names
have been ruled uncopyrightable doesn't tell the whole story
and it shows up in the opening slides of Google, because that's
now being featured as kind of a dispositive answer.
So, may I have the Elmo?
THE COURT: Well, okay. Go ahead. I don't
understand the point yet, but...
(Document displayed)
MR. JACOBS: So in slide four, for example, of
Google's opening presentation Google would like to tell the
jury that the names of the various items --
THE COURT: This is easy. We're not going to start
showing the jury my orders. Period. So that one is out.
We're not going to show the jury rulings of law that the judge
has made. No. Okay. Stick to the facts.
Okay. What's the next one?
MR. JACOBS: So this comes up again. Just to make
sure we're complete.
(Document displayed)
THE COURT: No. We're not going to get -- you can
say it. You can say: We're going to show in this case that
11
the Java programming language is open and free for anyone to
use. You can say that, Mr. Van Nest, but you're not going to
quote from my order. No. That's not right.
But I'm not saying you can't make the point. You
just can't say the judge has ruled this already as a matter of
law. In due course I will tell them that.
MR. JACOBS: I think that will enable us to resolve
two-thirds of our concerns with Google's opening.
The other is the -- is that your Honor's order this
morning leaves open the question of the statements by Jonathan
Schwartz and whether they are going to come in.
THE COURT: Remind me what those statements were?
MR. JACOBS: So Jonathan Schwartz said when Android
was launched various statements on a blog posting complimenting
Android and welcoming it to the Java community. And our point
here is really just to renew the objection that absent any
evidence of reliance by Google on these statements, it's
improper, it's irrelevant --
THE COURT: No, no. That's denied. They can use
that. And if it turns out that they can't prove the whole
thing, then too bad for them, but that statement will be
allowed.
MR. JACOBS: That covers our objections.
THE COURT: All right. Thank you.
Mr. Van Nest?
12
MR. VAN NEST: Your Honor, with respect to the -- to
what I'll call the deeming issues, the two deeming issues that
Mr. Jacobs addressed. What I would like to request, I would
like to just take off the reference to your Honor's order. I
understood that once we made our motion and it was granted, I
could say to the jury the language is free and open --
THE COURT: You can say that.
MR. VAN NEST: (Continuing) -- and the names are not
protectable either.
THE COURT: You can say that.
MR. VAN NEST: I can say all that?
THE COURT: Yes.
MR. VAN NEST: Can I present a slide that says that?
Just take the reference to your Honor's order off that?
THE COURT: You can do that so long as you don't have
it in quotes or something.
MR. VAN NEST: Fine.
THE COURT: Just like as an argument point, you can
do that.
MR. VAN NEST: We'll do it. That's what we'll do on
those. Thank you.
So I had four issues on their slides. The first one
in Slide 12. If we could have that up?
(Document displayed)
They want to tell the jury in opening that Oracle
13
paid $7.4 billion to buy Sun.
Now, as your Honor knows from the various Daubert
motions, they have been dying to throw big billion dollar
numbers around. That number has no bearing on any issue in the
case. It's not a payment for Java. It's a payment for the
whole company; hardware, software, employees, everything.
It's just another attempt on Oracle's part to throw
big numbers around. The experts don't rely on it. Not even
Dr. Goldberg relies on it, nor Dr. Leonard, nor Dr. Kearl. And
I think it would be prejudicial to be throwing around a
$7.4 billion number.
THE COURT: Let's hear the response.
MR. JACOBS: Your Honor, Google at the very least has
opened the door to this. Google will be arguing that Java was
degraded by the time of the acquisition; that it wasn't
valuable, and that Android is the new big thing.
Mr. Ellison will testify and made statements at the
time -- this is not a statement being made for the first time
in litigation -- that the most important asset Oracle acquired
in the Sun acquisition was Java and that it was very valuable
and very important to Oracle, worth buying Sun for
$7.4 billion.
THE COURT: Wait, wait. But are you saying that the
only thing, the only asset that the company had was Java?
MR. JACOBS: No. But Mr. Ellison will testify that
14
Java was the most significant software acquisition Oracle had
ever made and that it was the more important aspect driving the
acquisition of Sun.
THE COURT: He's going to testify?
MR. JACOBS: I'm sorry?
THE COURT: He's going to testify on this point?
MR. JACOBS: Yes.
THE COURT: Mr. Van Nest, why wouldn't you relish the
opportunity to cross examine him on this?
MR. VAN NEST: Well --
THE COURT: Why are you complaining about this?
MR. VAN NEST: I'm certainly relishing the
opportunity to cross examine him, your Honor, but why should he
-- and he can certainly testify that Java was important and he
thought it was a great thing, but to throw a $7.4 billion
number in when it has no bearing on any issue, it's certainly
not a payment for Java, and it's not been relied on by any
expert. It's not part of the analysis.
THE COURT: All right. I'm going to allow him to say
that because I believe that you will be able to put it in the
proper context on cross-examination.
Now, I do want to say this to Oracle. I am sensitive
and have ruled against you in the past. The idea that you can
throw big numbers in front of the jury and hope to somehow jack
up the damage award, if there is one, by making this seem like
15
a big case, when maybe it's not really a big case -- I don't
know. It's up to the jury whether it's a big case. But that
is not going to be allowed.
So I'll let you put out the number 7.4 as a
background fact only, but if it starts to looking to me like
you're trying to -- what's the word I'm looking for --
springboard that into a large damage award, I'm going to
intervene myself. There is absolutely no proof that Java was
worth $7.4 million -- or billion dollars. So you be very
careful on how you proceed with that, because I am suspicious
of your motives.
MR. JACOBS: Understood, your Honor. We will give
you know cause for further suspicion.
THE COURT: Thank you.
But I am also confident that Mr. Van Nest will put
that in proper context whenever cross-examination of
Mr. Ellison occurs.
All right. What's your next point?
MR. VAN NEST: Slide 34 contains essentially legal
argument on a key issue. This is a slide --
THE COURT: Can you show it to me, please?
(Document displayed)
MR. VAN NEST: This is the slide they want to show:
"When is a Java license necessary?" That's a legal issue.
It's the second box I'm worried about, because that's
16
the key issue for your Honor to decide and this slide assumes
it's been decided and is essentially telling the jury what the
jury instruction will be before we know it.
"Provides class libraries based on Java API" --
THE COURT: I'm going to allow this one because it's
borderline. I think it's close to the line.
But, you know, I want you to know over there,
Mr. Jacobs, if you go out on a limb and I rule against you on
copyrightability and all you've got left are seven lines of
code, or whatever it was, that's a problem of your own making.
So if you want to go out on the limb with this slide, fine, but
it's a matter -- I'm not going to say they can't do that.
All right. What's next?
MR. VAN NEST: Slide 84 is an exhibit. It's a
document it references Java lawsuits. This document was never
shown to any witness in the case. The author of it was not
working on Android. There is no mention whatsoever in this
entire email about Android and, yet, they are putting it up in
an effort to somehow suggest that the folks working on Android
were aware of Java lawsuits. And so this thing is probably not
going to make it into evidence. It ought to be reserved for
later.
THE COURT: Let's find out. How are you going to get
this one into evidence?
MR. JACOBS: Through the recipients, your Honor,
17
Mr. Lindholm and Mr. Lee will be witnesses at trial.
The background to this is there is a discussion along
the -- in the thread of an acquisition proposal to actually go
out and buy Java from Sun. And in the rest of the email thread
there is a discussion of how that would save Sun litigation
fees and how this will resolve lawsuits that are -- and we will
argue that this shows that contrary to the idea that Google had
been -- was relaxed based on statements by Mr. Schwartz, for
example. We will argue that this shows that Google knew that
Sun was still very concerned about Java and that Sun would be
asserting its rights.
THE COURT: Well, this lawsuit didn't come along
until more than a year later.
MR. JACOBS: That is the logical step, your Honor.
There are no other Java lawsuits pending -- there are no other
Java legal issues for Google. The only legal issues for Google
have to do with Java and Android.
And so when the word "lawsuits" is being referenced
there, we will argue the natural inference is legal issues or
lawsuits to come.
So just to step back. Google will argue that Sun was
quiet about Android and the Java and Android. And, in fact,
there is lots of evidence that that's not true. But that will
be their argument.
And this email thread about the benefits to Google of
18
buying Java shows that they were concerned about their legal
risk in February of 2009 and were not put in a state of quiet.
They were -- they had no reason to think that Sun was backing
away from the assertion of its rights. And especially when it
refers to patents and copyrights relating to Java. That's
exactly what's at issue in this case.
THE COURT: This is before Oracle purchased Sun?
MR. JACOBS: That's correct.
THE COURT: Was there any threat from Sun?
MR. JACOBS: There were a lot of communications from
Sun to Google over the years. Some included threats.
THE COURT: I'm not able to rule on this one now.
I'm not going to let you use this til I -- until I can analyze
it further. This is -- this is potentially too prejudicial to
show to the jury if it doesn't get into evidence.
So I think you can make the general argument in
opening that you're going to be able to prove that Google was
aware of and knew all about the threat of a lawsuit and so
forth, but I don't want you to put this up until it actually
gets into evidence and I can understand better the context of
what the writer was even talking about here.
MR. JACOBS: Your Honor, we have a copy of it, if it
would help to take a look at it.
THE COURT: I will, but -- let me see it.
While we're doing that, what's your next point?
19
MR. VAN NEST: My last point, your Honor, is Slide 8.
They want to show the jury a slide with a bunch of licenses on
it. Now, again, these licenses are not relevant to any issue
in the case. The experts haven't relied on them --
THE COURT: No, no. You can't do that. What are you
talking about? You're going to put something up there about
licenses the jury is never going to hear about in evidence?
MR. JACOBS: No, they will hear, your Honor.
THE COURT: What did you just say to me,
Mr. Van Nest? You said they won't hear about them.
MR. VAN NEST: I said they are not relevant to
anything in the case. They haven't been relied by any of the
experts. We are in a copyright phase now, so there is no
validity challenge to the copyrights. They've got licenses up
here that have nothing to do with smart phones. They are not
relevant to any -- the experts in some cases analyzed the
licenses and they come into play, as your Honor knows, in
evaluating damages. No expert is relying on these.
And I would point out that -- I'm going to get to a
press release in a minute when we talk about jury selection,
but I expect them to argue that everybody else in the industry
took licenses except for Google, and Google is a bad actor.
And they want to put this slide up to show, quote, everybody
else that took licenses.
THE COURT: Just a second. Is this -- why is this
20
relevant to the copyright part?
MR. JACOBS: This is relevant to the copyright, your
Honor, because we will -- Mr. Van Nest is right. We will be
arguing that there is a whole mechanism established to enable
the implementation of compatible versions of Java; that every
other company in the industry is happy with that arrangement
and takes a license from first Sun and now Oracle. Some of
them make independent implementations of Java, which is what
Google purports to have done here. And Google is an outlier.
And Google is at odds with not only Oracle over its use of Java
in Android, but at odds with the industry.
Our mission in this lawsuit is to protect the Java
ecosystem, the Java environment, and not just --
THE COURT: All right. I'm going to let Oracle do
this because, Mr. Van Nest, I know enough about your argument.
You're arguing that Oracle and Sun thought that Android was
great and welcome aboard and no problem.
I think the counter to that is just what Mr. Jacobs
said. So it's only fair to let him make that point. So I'm
going to let him make that point.
But, Mr. Jacobs, you must remember. I'm going to say
to the jury many times in this case: The issue is not Java.
It's not Android. It's very specific parts about Java that are
protected, if at all, by copyrights or patents and very
specific parts of Android that are accused. So if we start
21
getting off onto this is Java versus Android, the judge is
going to intervene and say it's not. So you must be very
careful on that.
MR. VAN NEST: Your Honor, with one final point on
this. In light of what your Honor just said, I mean, the whole
point of this slide is to turn this into Java versus Android.
And given that these licenses have not been relied on by any of
the experts, even to let them get up with witnesses and talk
about all these other folks that are buying products from Sun
and now Oracle, it's apples and oranges. It's prejudicial.
THE COURT: No, no. I'm going to let it -- it's
going to happen in the opening statement. I'm not saying -- it
may be that when we start hearing the evidence, I will feel
differently and enough is enough, but for opening statement
purposes I think this is not that prejudicial.
All right. So can I see that email that you're
referring to?
Meanwhile, my clerk will call down and get the jury
on its way down here.
MR. VAN NEST: Your Honor, could I ask one more --
THE COURT: May I see the email first?
(Document displayed)
MR. JACOBS: You have to scroll down through the
email please. Keep on going.
Okay. So there is a discussion about -- you can see
22
there is a discussion about "Sun in trouble." "Sun is going to
fail sometime soon. Their only chance of survival is spinning
off their assets."
"Google is heavily invested in Java." "Who will own
Java once Sun collapses?"
"Proposals. Google buys the rights to Java from Sun,
the patents and copyrights, et cetera, and what will happen if
they do that?"
Scroll down.
"We'll have Sun open source, not just open JDK."
I'm sorry. "Good for Google." "Are Java lawsuits
going away?"
"Good for Sun. Their litigation costs go away."
THE COURT: What does it mean to say "our Java
lawsuits go away" when there aren't weren't any Java lawsuits?
MR. JACOBS: They were aware there was the threat of
a lawsuit because they were using Java and intellectual
property rights in Android. And they were very conscious of
that and we will establish that consciousness beyond --
THE COURT: I'm not going to let you use this in
opening. This is too specific. Has this even been presented
to a deposition witness?
MR. JACOBS: It was not the subject of deposition
questioning, your Honor.
THE COURT: I just think it needs some context before
23
we throw this out in front of the jury. Maybe you will get it
into evidence in due course and it will be fine, but you don't
have to get your whole case into the opening statement. So
this one I don't want you to use.
MR. JACOBS: Thank you, your Honor.
THE COURT: All right. Now what's your next point,
Mr. Van Nest?
MR. VAN NEST: Your Honor, I just had one more point.
That's it on the slides.
I know your Honor has a standard instruction to
jurors about reading newspapers and whatnot. I was very upset
to learn that on Thursday night in time for Fridays news the
Boise Schiller firm issued a press release essentially
summarizing their opening statement in this case and arguing
about injunctions and all that sort of thing.
Now, I have a copy here if your Honor is interested
in it. And I don't know if it's going to continue, but I
certainly think that we need to take great care with the jurors
to remind them that, you know, blogs and the -- you know, the
internet and so on are out of bounds. We're getting enough
attention as it is.
THE COURT: Of course, I agree with that totally.
You're absolutely right. That's correct.
MR. VAN NEST: Thank you.
THE COURT: And I'm going to try my best to drill
24
that point home.
So I think you, both sides, ought to refrain from
press releases for the duration of the trial.
MR. VAN NEST: Thank you, your Honor.
MR. JACOBS: Your Honor, if I may? We're not sure
what Mr. Van Nest is talking about when he refers to a Boise
Schiller press release. Can I have a copy of that?
MR. VAN NEST: Sure.
(Whereupon document was tendered
to counsel.)
MR. JACOBS: Thank you.
THE COURT: So let's just get the drill down for the
jury selection part.
Dawn, can we see if they are on the way down?
THE CLERK: They are not quite on their way down and,
yes, I have checked. I'm looking at it online.
THE COURT: Okay. So we need 12. We will get 18
passed for cause. The normal jury box just holds 14. Let's
just focus on the first row. Seat No. 1 will be the seat on
the outside here, that's outside the jury box closest to me.
MR. JACOBS: This one right here (indicating)?
THE COURT: Correct. That will be seat No. 1. And
then it will go down to No. 9, that high seat, high chair seat.
And then No. 10 to 18 will be across the top in similar
fashion.
25
MR. JACOBS: So this chair would be 18 (indicating)?
THE COURT: It should be, yes.
All right. And I can't -- Dawn, do we have one
behind seat No. 1? I don't see it.
THE CLERK: It's just pushed behind.
THE COURT: All right. So we will -- that way we
will get 18.
So when we finally get the 18 passed for cause, each
side gets three peremptories. And we will do a blind system
where you just write out the names and numbers on your sheet of
paper, hand it up to me, and then we will excuse those six.
Now, let's say you overlapped on one. Then we would
wind up with one extra juror and the way we deal with that is
we just seat the ones in the lowest 12 seat numbers.
Now, it's the seat number that counts, not the
sequence in which they happen to be brought forward. So, let's
say, near the very end we bring someone from the back of the
room up to seat No. 1. They then have the top priority. They
are seat No. 1 even though they came in late in the game.
So it's the seat numbers that govern the problem of
if you wind up having overlap in who you strike from your jury.
MR. JACOBS: And will your Honor be giving us a few
minutes to caucus on our peremptories?
THE COURT: They will all be sitting here waiting for
you, so I will give you literally a few minutes to do your
26
caucusing and hand up your strikes, but not more than a few
minutes.
It will take some time. This will take probably an
hour and a half to do, maybe even longer. So you should be
thinking about it. I know you will be. You will be thinking
about who you want to strike as you go along. But, yes, even
after that, I will give you that opportunity.
Okay. I will also give you about 15 to 20 minutes
for each side to ask follow-up questions after I ask the basic
questions.
MR. JACOBS: And on that, your Honor, if they -- if
we have the sense that there is something that a juror is
feeling concerned about on privacy --
THE COURT: Sure. We will do that at the sidebar.
Actually, what we will probably do is -- well, I guess with so
many members of the press here, there is no such thing as doing
it in open court and still being private, but we probably will
have to have a sidebar if it's really a matter of embarrassment
to the venire person.
Do we now the number now?
THE CLERK: We have 44.
THE COURT: We have 44. These were prescreened for
availability for the time period. But experience has proven to
me that we'll still get a number of people who have hardship
issues.
27
All right. Our venire is coming in.
(Prospective jurors enter the courtroom at 8:07
a.m.)
THE COURT: Dawn, will you take the roll?
THE CLERK: Marilou Abawag.
PROSPECTIVE JUROR ABAWAG: Abawag.
THE CLERK: Okay. Thank you.
Vandana Balakrishnan.
PROSPECTIVE JUROR BALAKRISHNAN: Here.
Okay. Helen Bellamy. B-e-l-l-a-m-y?
(No response.)
THE COURT: Is there a Helen Bellamy present?
(No response.)
THE COURT: Not present I guess.
THE CLERK: Okay. Chris, can you make a note of
that? I am missing one. Okay. Thank you.
Cathrin Callas?
PROSPECTIVE JUROR CALLAS: Here.
THE CLERK: Okay, thank you.
Jimmy Chau, C-H-A-U?
PROSPECTIVE JUROR CHAU: Here.
THE CLERK: Okay. Thank you. Christina Cheng?
PROSPECTIVE JUROR CHENG: Here.
THE CLERK: Julie Chiu, C-H-I-U?
PROSPECTIVE JUROR CHIU: Here.
28
THE CLERK: Aylin Davis?
PROSPECTIVE JUROR DAVIS: Here.
THE CLERK: Marcelina Delgadillo?
PROSPECTIVE JUROR DELGADILLO: Yes.
THE CLERK: Matthew Derwis?
PROSPECTIVE JUROR DERWIS: Here.
THE CLERK: Scott Dimaggio?
PROSPECTIVE JUROR DIMAGGIO: Here.
THE CLERK: Matthew Erickson?
PROSPECTIVE JUROR ERICKSON: Here.
THE CLERK: Brian Fox?
PROSPECTIVE JUROR FOX: Over here.
THE CLERK: Megan Gallo?
PROSPECTIVE JUROR GALLO: Here.
THE CLERK: Margaret Geddes?
PROSPECTIVE JUROR GEDDES: Here.
THE CLERK: Rose Gengler?
PROSPECTIVE JUROR GENGLER: Here.
THE CLERK: Jacqueline Gonzalez?
(No response.)
THE CLERK: Jacqueline Gonzalez?
(No response.)
THE CLERK: Linbo Guo?
PROSPECTIVE JUROR GUO: Here.
THE CLERK: Kevin Haithcox?
29
PROSPECTIVE JUROR HAITHCOX: Here.
THE CLERK: Elisabeth Hostynek?
PROSPECTIVE JUROR HOSTYNEK: Here.
THE CLERK: H-o-s-t-y -- okay.
Steven Hotvedt?
PROSPECTIVE JUROR HOTVEDT: Here.
THE CLERK: Marilyn Huey?
PROSPECTIVE JUROR HUEY: Present.
THE CLERK: Fanny Kuang?
PROSPECTIVE JUROR KUANG: Here.
THE CLERK: Daniel Liu?
PROSPECTIVE JUROR LIU: Here.
THE CLERK: Rebecca Lorente?
PROSPECTIVE JUROR LORENTE: Over here.
THE CLERK: Susan Mak?
PROSPECTIVE JUROR MAK: Here.
THE CLERK: Theresa Mariano?
PROSPECTIVE JUROR MARIANO: Here.
THE CLERK: Daniel Martella?
PROSPECTIVE JUROR MARTELLA: Here.
THE CLERK: Jennifer Michals?
PROSPECTIVE JUROR MICHALS: Michals, here.
THE CLERK: Lupe Morales?
PROSPECTIVE JUROR MORALES: Here.
THE CLERK: Patricia Pearlman?
30
PROSPECTIVE JUROR PEARLMAN: Here.
THE CLERK: Eric Pollack?
PROSPECTIVE JUROR POLLACK: Here.
THE CLERK: John Rabold?
PROSPECTIVE JUROR RABOLD: Here.
THE CLERK: Rekha Raman?
PROSPECTIVE JUROR RAMAN: Here.
THE CLERK: Gary Richardson?
PROSPECTIVE JUROR RICHARDSON: Here.
THE CLERK: Christina Rimmer?
PROSPECTIVE JUROR RIMMER: Here.
THE CLERK: Ronald Rutherford?
PROSPECTIVE JUROR RUTHERFORD: Here.
THE CLERK: Christophe Scott?
PROSPECTIVE JUROR SCOTT: Here.
THE CLERK: Deirdre Snyder?
PROSPECTIVE JUROR SNYDER: Here.
THE CLERK: Greg Thompson?
PROSPECTIVE JUROR THOMPSON: Yes.
THE CLERK: Timothy Troy?
PROSPECTIVE JUROR TROY: Here.
THE CLERK: Lauren Wallick?
PROSPECTIVE JUROR WALLICK: Here.
THE CLERK: Trina Woo?
PROSPECTIVE JUROR WOO: Here.
31
THE CLERK: And Samrina Zaidi?
PROSPECTIVE JUROR ZAIDI: Here.
THE CLERK: So two out of the 44 are not present.
I'm going to recall them.
THE COURT: Chris, you are signalling me.
MR. WOLPERT: I will go get them, Judge. I think
they may have been in the restroom when we brought the panel
down.
THE COURT: We will sit here and wait until you are
able to do that.
Meanwhile I will just pause long enough to say
welcome to all of you and bear with us while we track down the
two who are missing.
(Brief pause.)
THE CLERK: I'm just going to confirm that the two
people that just came in are, indeed, the two we were
expecting.
Helen Bellamy?
PROSPECTIVE JUROR BELLAMY: Yes.
THE CLERK: And Jacqueline Gonzalez?
PROSPECTIVE JUROR GONZALEZ: Yes.
THE CLERK: Okay. Thank you.
THE COURT: All right. Thank you. Welcome.
Please administer the oath.
THE CLERK: I would like all the prospective jurors
32
to please stand and raise your right hand. I'm going to
administer the oath.
(Jury panel placed under oath.)
THE COURT: All right. Welcome, again.
Thank you for coming out on this pretty day to
possibly serve as a juror in this case. We all appreciate it
very much, and I'll tell you that many times before your
service is done.
We will get things started off correctly by
officially calling the case, and counsel will make their
appearances.
THE CLERK: Calling Civil Action 10-3561 WHA, Oracle
America, In. versus Google, Inc.
Counsel, please state your appearances.
MR. JACOBS: Good morning, Your Honor, ladies and
gentlemen. Michael Jacobs, Morrison & Foerster, for Oracle.
With me at counsel table is David Weinberg, Fred
Norton, Andrew Temkin and Safra Catz from Oracle. David Boise
and Dorian Daley from Oracle.
THE COURT: All right. And?
MR. VAN NEST: Good morning, Your Honor, ladies and
gentlemen. Bob Van Nest from Keker & Van Nest for Google.
With me at counsel table, ladies first, Christa Anderson, Dan
Purcell, Bruce Baber, Michael Kwun, our representative from
Google, Katherine Lacavera, and Michael Titinsky.
33
THE COURT: All right. Thank you.
MR. VAN NEST: Thank you, Your Honor.
THE COURT: Thank you all, and welcome to you, as
well.
We're here today to get the trial started and select
a jury, hear the opening statements, and be off and running in
a case called Oracle versus Google.
This is a case that will take a number of weeks, at
least eight weeks, I expect. Could be ten in that length of
time.
All of you had previously indicated you were able to
serve for that length of time. We sent out that questionnaire
and gave you the opportunity to explain that you were not able
to do so. Those of you who are here are the ones who indicated
you could serve. So we appreciate that in advance.
Let me give you a brief description of what this case
is about. You, at this point, just know Oracle and know
Google. All right. So I'm going to give you a brief
description.
A few years ago Google -- now, Google is on this side
of the room; I'm pointing to the right, my right -- Google came
out with a mobile platform called Android. This is used in
mobile phones, sometimes called smart phones.
In this lawsuit, Oracle America, which is on this
side of the room, accuses Google and the Android system of
34
violating certain copyrights and certain patents, and seeks
money damages.
Google, on this side of the room, denies that any
patents or copyrights have been violated.
This trial will go in three phases: part one, part
two, and part three. We'll have the same jury for all three
parts.
The first part is going to be about the copyrights
and whether or not they were violated. The second part will be
about the patents and whether or not the Android system
violates any patents. And then the third part will be about
damages and willfulness. That is assuming that any liability
is found in parts one or two.
So at the end of part one we'll have a deliberation
and a verdict. End of part two we'll have deliberation and a
verdict. End of part three, deliberation and a verdict. And
all by the same jury. So this one jury is going to hear a lot
of evidence and a lot of testimony, and so forth, over the next
eight to ten weeks.
So that's a very short summary of what the case is
about.
Now, I need to start on a practical question. This
is directed to the potential jurors. Do any of you have the
flu, a bad, bad cold, hacking and coughing, bronchitis,
anything that is going to cause the rest of you to feel like
35
you're going to get sick if you sit next to that person? If
so, raise your hand and I'm going to have you come down here
and tell me what your problem is.
So raise your hand if you're in that category.
Anybody? Amazing.
(Laughter)
THE COURT: So good for you that you are all in such
good health.
Another thing I need to say is, right off the bat,
this is a so-called high profile case. Most of the people on
the other side of the room are from the newspaper business.
If you had gone online this morning and looked, you
would have seen there were dozens of stories about this case
going to trial today. And there have been many dozens more in
the past.
Now, it is my duty to give a direct order to each of
you on the venire. You may not look at any website, blog, any
news item, no TV item, no radio item, no newspaper item about
this case. If I find out you have done that, we will hold an
evidentiary hearing.
Why am I saying this? Well, in a trial the case must
be decided based on the evidence at the trial, not what some
newspaper person is saying.
The person writing the newspaper article may have a
point of view, or they may be citing to things you are never
36
going to hear about in the trial because it's not evidence.
The great thing about a trial is you sit back as the
jury and make these lawyers do all the work and decide the case
based on what is actually presented as evidence here at trial.
So I must emphasize this again, you may not look at
any website, do any Internet research, do any kind of -- even
one minute's worth of looking at anything on the Internet about
this case. You may not listen to a radio story, TV story, or
read any newspaper or magazine article about this case.
And if I find out you have, I'm obligated to have an
evidentiary hearing to find out if it's had any impact on you
and so forth. Not to mention that it would be contempt of
court.
Now, you being good members of the community, I don't
even want to think about such a thing. I don't want to have to
go there. But please don't make me do that. Please honor that
direct order. That's number one.
Number two is, you can't talk to your family or
friends about the case, or each other. Why is that? Because,
same thing, you've got to decide the case based on the record
here.
When the case goes to the jury for deliberations it's
your duty to talk about the case at that point. It's your duty
to do that then. But until then, no, no talking about the
case.
37
The reason I bring this up right off the bat is that
I'm sure first thing you would have done, some of you, would be
to pull out your smart phones and go Google this as soon as you
got out of the hallway. No. We're not going to do that. All
right.
So, I think -- I think the thing to do is rather than
to explain to you in detail how this works, you'll just see how
it works. It's quicker if we just do it that way.
But, in general, I will say this much: We are going
to call forward I think it's 18 of you. Many of you will be
called forward before -- maybe all of you before this is over.
But we've got to get started somehow. And I think you'll see
how it works as we march forward.
Our basic goal is to seat 12. We have 44 of you, so
we only need 12. But the great majority of you will be
questioned before this is over. And our goal is to get the;
fairest possible jury to decide issues that are important
between these two companies. And we'll take a number of weeks
to get there.
So, we'll start right now by calling forward 18 of
you. And the clerk will call those names out now. This is
done at random.
Please, go ahead, Dawn.
THE CLERK: Okay, Judge.
Aylin Davis, D-a-v-i-s.
38
THE COURT: Okay. Please come forward.
Ms. Davis, may I ask you to sit in the very first
chair that happens to be outside -- happens to be outside the
jury box because -- yeah. Temporary. It's a temporary chair
until we get the jury actually selected. Welcome. Thank you.
Next.
THE CLERK: Jacqueline Gonzales, G-o-n-z-a-l-e-s.
THE COURT: All right. Ms. Gonzalez, welcome.
How are you today?
PROSPECTIVE JUROR MS. GONZALEZ: Fine. Thank you.
THE COURT: Wonderful. Have that next seat, please,
right to next to Ms. Davis.
THE CLERK: Scott Dimaggio D-i-m-a-g-g-i-o.
THE COURT: All right. Welcome. Please, have that
third seat.
THE CLERK: Ronald Rutherford, R-u-t-h-e-r-f-o-r-d.
Rekha Raman, R-a-m-a-n.
THE COURT: All right. Are we saying that right,
Raman?
PROSPECTIVE JUROR MS. RAMAN: It's actually Raman.
THE COURT: Raman?
PROSPECTIVE JUROR MS. RAMAN: Uh-huh.
THE COURT: Welcome. Please, have that next seat.
THE CLERK: Daniel Liu, L-i-u.
THE COURT: Okay. Welcome. Mr. Liu, please have
39
that next seat.
THE CLERK: Christina Cheng, C-h-e-n-g.
Julie Chiu or Chiu, C-h-i-u.
PROSPECTIVE JUROR MS. CHIU: Chiu.
THE COURT: Welcome.
THE CLERK: Kevin Haithcox, H-a-i-t-h-c-o-x.
THE COURT: Now, you see that high chair? That's it.
That's a temporary chair. The final jury will all be inside
the jury box. We need to get 18 of you there, so we set this
up temporarily.
All right. Now we go to the second row.
THE CLERK: Steven Hotvedt, H-o-t-v-e-d-t.
THE COURT: All right. Let me get you to sit in the
chair on that row closest to me, right behind Ms. Davis.
Thank you.
THE CLERK: Greg Thompson, T-h-o-m-p-s-o-n.
Katherine Callas, C-a-l-l-a-s.
THE COURT: Are we saying that right, Callas?
Please have that third seat. Thank you.
THE CLERK: Gary Richardson, R-i-c-h-a-r-d-s-o-n.
Trina Woo, W-o-o.
Timothy Troy, T-r-o-y.
Daniel Martella, M-a-r-t-e-l-l-a.
Samrina Zaidi, Z-a-i-d-i.
And Megan Gallo, G-a-l-l-o.
40
THE COURT: All right. Welcome to you 18.
Again, for those of you in the rear, please pay close
attention because many of you will be called forward in due
course, and it will be easier if I can just say, Did you hear
all those questions, and, if so, would you have raised your
hand to any of them, so we don't have to repeat all the
questions. So, I know you'll pay close attention.
All right. Welcome to the 18 of you. So, again, I
ask, do any of you have the flu and so forth? I will excuse
you if you do. I don't want anyone to be contagious on the
jury. Okay. Great.
Now, do any of you have -- let me explain what the
drill is going to be, and then my question will be, Do you have
a hardship? I'm going to give you a second opportunity to
raise any hardship issue because it's a long trial and I want
to make sure that you're okay with serving in a long trial.
Here's the way we will go: Five days a week from
here until probably mid-June is when we think it will be over.
But it could go to the end of June. Five days a week, 7:45 in
the morning for the jury until 1:00 o'clock each day. At
1:00 o'clock, you get to go home or back to work as the case
may be.
So 7:45 to 1:00 we'll have a couple, maybe three
depending on the way the evidence comes in, facilities breaks
so that you can use the restroom and so forth.
41
And in the mornings, early in the mornings -- back
here behind this wall is the jury room. That will be your home
away from home. I will get you coffee and doughnuts and
oranges and bananas, things to eat before we get started.
Sometimes the jurors get here as early as 6:00 a.m. It's
amazing. We will have stuff here for you.
But 7:45 will be the deadline to be here. And then
we'll start with the evidence by 8 o'clock each day, and
sometimes sooner.
I meet with the lawyers at 7:30, and from 7:30 to
8:00 at the latest we try to sort out and streamline what's
going to happen that day.
But the jurors get here by 7:45. And you can't be
late. You've got to be on time because every member of the
jury must hear the evidence for themselves. You can't read
somebody else's notes.
You know, if you're absent we just sit here and wait
for you to come. We don't -- we don't -- you know, you don't
go back and read somebody's notes. You have to be here to see
and hear every single moment of the trial for yourself. All 12
of you.
So, it's important to be on time. It's important and
so forth. And so, for example, if you've got some prepaid
vacation in two weeks that would cause you to miss a day, you
would not be allowed to go on your vacation unless you --
42
unless I know about it now.
I mean, this is the time to bring up any legitimate
excuse for hardship. Financial hardship or any other kind of
hardship I need to know about it now.
So, on the front row, do any of you have a hardship
issue you wish to raise? If so, raise your hand. Okay.
Ms. Cheng?
PROSPECTIVE JUROR MS. CHENG: Yes.
THE COURT: Let's give the microphone to you.
PROSPECTIVE JUROR MS. CHENG: I still have my eye
problem that it's not recover yet. And sometime it's really
burning and I need rest my eyes and put some eye drops.
THE COURT: I don't remember what the problem is with
your eye.
PROSPECTIVE JUROR MS. CHENG: Oh, because my -- it's
dry eyes. And because I wore my contact lens too long and then
when I try to take it off I scratch my -- the eye skin, my
nail. And then I see things blurry.
THE COURT: Have you gone to the doctor --
PROSPECTIVE JUROR MS. CHENG: (Nods head.)
THE COURT: -- about this?
PROSPECTIVE JUROR MS. CHENG: Yeah.
And when I fill out my paper I did send in all the
information, my doctor slip, everything. And the clerk call
me. She said she can't excuse me because I might work.
43
THE COURT: How many fingers am I holding up?
PROSPECTIVE JUROR MS. CHENG: Three.
THE COURT: Okay. Are your eyes hurting right now?
PROSPECTIVE JUROR MS. CHENG: It kind of burn a
little.
THE COURT: A little? Well, is it going to interfere
with your ability to see and follow the evidence in the case?
PROSPECTIVE JUROR MS. CHENG: Uhm, sometime it just
dry, I need to put eye drops in. Can I just do it in here?
THE COURT: Of course.
PROSPECTIVE JUROR MS. CHENG: Oh.
THE COURT: Would that solve the problem?
PROSPECTIVE JUROR MS. CHENG: Okay.
THE COURT: I mean, I'm asking you, would it solve
the problem for you to put eye drops in if it becomes an issue?
PROSPECTIVE JUROR MS. CHENG: Yeah. And I need to
close my eyes to rest.
THE COURT: How long would that be?
PROSPECTIVE JUROR MS. CHENG: For a few minutes.
THE COURT: How often would you need to do this, you
think?
PROSPECTIVE JUROR MS. CHENG: It depends. Whenever I
feel dry.
THE COURT: Would it be more than every hour and a
half?
44
PROSPECTIVE JUROR MS. CHENG: No. Maybe two or
something.
THE COURT: Two what?
PROSPECTIVE JUROR MS. CHENG: Two hours.
THE COURT: We'll have a break -- we'll have a break
about every hour and a half or hour and 45 minutes. You could
then do it in the jury room. Would that work?
PROSPECTIVE JUROR MS. CHENG: Yeah.
THE COURT: All right. I'm going to ask you then to
stay on the jury for the time being. At least I think we can
manage that problem. Okay.
PROSPECTIVE JUROR MS. CHENG: Okay.
THE COURT: Any other hardship issue?
PROSPECTIVE JUROR MS. CHENG: No.
THE COURT: Anyone else on the front row got a
hardship issue?
I assume you all checked with your employer to make
sure you'll get paid for jury service. Because if you're
selected and it turns out you don't get paid, I can't let you
off at that point. So I need -- you need to have checked
already. That's what we said in our statement we sent out some
time ago.
Second row, any hardship issues? If so, raise your
hand.
Now, so this means, good, 18 of you are ready to go.
45
No hardship. But you've got to be here on time.
I've been amazed in this job, jurors come from all
over the district and they get here on time. They serve their
country in such an amazing way for almost no pay a day to do
this. And it's very rewarding for me to see the good citizens
of this district step forward in the way that they do to help
their country decide cases.
All right. So, again, I ask one last time, if you're
selected to serve it will be -- you'll be liable to be here
five days a week all the way through possibly to the end of
June. This is only April. So we're talking April, May and
June. So I take it that all of you are okay with that
schedule. Right? Good.
Okay. So now, I'm going to ask this question. Do
any of you know any of the people sitting at the tables here?
PROSPECTIVE JUROR MS. DAVIS: (Raises hand.)
THE COURT: Okay. Ms. Davis. We need to let you
have the microphone.
Who's got the microphone? Ms. Cheng, please pass it
down to Ms. Davis.
PROSPECTIVE JUROR MS. DAVIS: Hi. I actually work
for Oracle. And I actually used to intern for Dorian in the
legal department.
(Laughter)
THE COURT: It's a small world.
46
(Laughter)
THE COURT: You're excused.
(Laughter)
THE COURT: Please hand the microphone to
Ms. Gonzalez. And we'll call -- any objection?
(Laughter)
THE COURT: Hearing none, Ms. Davis, you're free to
go. Please go back to the jury assembly room and tell them
what happened. We're going to replace Ms. Davis.
Have a great day.
(Laughter)
THE CLERK: Jimmy Chau, C-h-a-u.
THE COURT: Mr. Chau, are we saying that right?
PROSPECTIVE JUROR MR. CHAU: Yes.
THE COURT: Are you how today?
PROSPECTIVE JUROR MR. CHAU: Fine. Thank you.
THE COURT: Do you have any hardship issue?
PROSPECTIVE JUROR MR. CHAU: No, I don't.
THE COURT: Do you know any of the people in the
room?
PROSPECTIVE JUROR MR. CHAU: No, I don't.
THE COURT: You don't.
Again, I ask all of you, do any of you know anyone in
the room at the counsel table?
All right. Let me ask a broader question. Do you
47
know anybody here anywhere -- do you see anyone in the whole
room, including other potential jurors, that you might know?
If so, raise your hand.
Okay. Ms. Cheng, did you raise your hand?
PROSPECTIVE JUROR MS. CHENG: Yeah.
THE COURT: Let's give the microphone back to you.
Who would you happen to know?
PROSPECTIVE JUROR MS. CHENG: I know right there
(indicating).
(Hand raised.)
THE COURT: Say that name again.
PROSPECTIVE JUROR MS. HUEY: Marilyn Huey.
THE COURT: How do you spell your last name?
PROSPECTIVE JUROR MS. HUEY: H-u-e-y.
THE COURT: How do you two know each other?
PROSPECTIVE JUROR MS. CHENG: We work together in the
same company.
THE COURT: The same floor? How close are friends
are you?
PROSPECTIVE JUROR MS. CHENG: We in a different
division.
THE COURT: All right. Are you close friends?
PROSPECTIVE JUROR MS. CHENG: Kind of.
(Laughter)
THE COURT: All right. That's enough on that one.
48
All right. Anyone else? It doesn't disqualify you
from working on the jury. But I would have to give you some
special instructions if you both wind up on the jury.
Okay. Let's see. So does anyone else know anyone
else in the room, anywhere in the room? I guess not. All
right.
I'm going to ask the lawyers to do some of this for
me. Let's start, introduce your law firms and the names of any
other individuals who might show up from time to time.
Mr. Jacobs, we'll start with you.
MR. JACOBS: I'm with Morrison & Foerster. You met
briefly some -- Mr. Muino, I believe was in the room before.
Mr. Muino is part of our team. Mr. Marc Peters is part of our
team.
Those, I think, would be the people that might be
appearing at the trial, Your Honor.
THE COURT: Let me pause here. Have any of you ever
heard of any of those people, including that law firm? If so,
raise your hands.
Someone down at the end. That's Mr. Haithcox. We
need to give you the microphone.
PROSPECTIVE JUROR MR. HAITHCOX: Just the way you
phrased the question, if we had heard of the law firm. I
raised my hand.
THE COURT: Yes.
49
PROSPECTIVE JUROR MR. HAITHCOX: I heard of the law
firm.
THE COURT: What do you do for a living?
PROSPECTIVE JUROR MR. HAITHCOX: I'm a lawyer.
THE COURT: What law firm are you with?
PROSPECTIVE JUROR MR. HAITHCOX: In-house for CNA
Insurance.
THE COURT: Have you ever done any business with any
of the law firms here in the courtroom?
PROSPECTIVE JUROR MR. HAITHCOX: Are there three of
them or two, in the courtroom?
THE COURT: Well, let's hold the microphone and I'm
going to ask the other counsel at the table to identify
their -- Mr. Boise, would you do the honors?
MR. BOISE: Yes, Your Honor. Thank you.
My name is David Boise. I'm with a law firm called
Boies, Schiller & Flexner. With me is Mr. Fred Norton from my
firm. And I think you would also probably see Mr. Steve
Holtzman, who is from our firm.
I think these would be the people that would be
taking an active part, Your Honor.
THE COURT: All right. Mr. Van Nest, would you
reintroduce your side and also both law firms.
MR. VAN NEST: I will, Your Honor.
So good morning, everyone. Bob Van Nest from
50
Keker & Van Nest in San Francisco. My partners Christa
Anderson, Dan Purcell, Michael Kwun.
You may also be seeing our lead paralegal, Gary
Padilla from our firm, who will be here every day, as well.
We're also working with a second law firm,
King & Spalding. And Bruce Baber is a lawyer at
King & Spalding.
THE COURT: Okay. Great.
MR. VAN NEST: Thank you.
THE COURT: Back to you, Mr. Haithcox. How about any
and all of those law firm names?
PROSPECTIVE JUROR MR. HAITHCOX: I'm not absolutely
positive, but I think that we had some cases with Morrison &
Foerster on the other side when I was at my prior firm.
THE COURT: Okay. And your prior firm, what firm was
that?
PROSPECTIVE JUROR MR. HAITHCOX: That was Hancock
Rothert & Bunshoft at the time.
THE COURT: That's fine. Is that going to in any way
cause you to be biased one way or the other?
PROSPECTIVE JUROR MR. HAITHCOX: Probably not.
THE COURT: What do you mean "probably"?
PROSPECTIVE JUROR MR. HAITHCOX: I don't think so.
THE COURT: You know yourself better than we do.
PROSPECTIVE JUROR MR. HAITHCOX: I know their
51
reputation.
THE COURT: Can you put that aside and decide this
case fairly and squarely without regard to the law firm?
PROSPECTIVE JUROR MR. HAITHCOX: Yes.
THE COURT: That's all that is required.
Have you heard of any of these lawyers individually,
even if you don't know their law firms?
PROSPECTIVE JUROR MR. HAITHCOX: Yes.
THE COURT: Who have you heard of?
PROSPECTIVE JUROR MR. HAITHCOX: Just heard of
Mr. Boise.
THE COURT: All right. So I assume you heard good
things about Mr. Boise, like all of us would have.
PROSPECTIVE JUROR MR. HAITHCOX: That's correct.
THE COURT: As well as of the other lawyers.
But will you be able to put aside what you've heard
about Mr. Boise and decide this case without any bias one way
or the other?
PROSPECTIVE JUROR MR. HAITHCOX: Yes.
THE COURT: Thank you.
So, anyone else? Have any of the other 18 -- any of
you happen to be lawyers? If so, raise your hand. Okay.
Sometimes I've had three lawyers up there.
Okay. Any of you heard of any of the lawyers or law
firms, other than Mr. Haithcox?
52
All right. Great. So now what we're going to do is
I'm going to ask the lawyers to read off the names of the
witnesses. There are a lot of witnesses. So I'm going to
ask -- maybe -- who would like to do the honors?
Mr. Jacobs, would you on the plaintiff's side read,
and then I'm going to ask Mr. Van Nest if any of them have been
left off that would be witnesses you plan to call.
All right. The reason I'm asking is we need to know
if you know any of these witnesses. For example, if your
next-door neighbor showed up as a witness you might be inclined
to take what you know about that person into account in
evaluating their credibility, and that wouldn't necessarily be
a fair thing to do.
So, Mr. Jacobs.
MR. JACOBS: Thomas Kurian. Mark Reinhold. Edward
Screven. Josh Bloch. Bob Lee. Leo Cizek. Larry Ellison.
Dan Morrill. Brian Swetland. Patrick Brady.
Maybe I should stop with that first group, Your
Honor.
THE COURT: Let's stop with the first group.
Any of those names, do you know them personally? If
so, raise your hand.
All right. No one knows them personally.
Have you heard of any of those individuals?
(Show of hands.)
53
THE COURT: All right. Raise your hand high enough
that I can see.
All right. Now, did all of you who raised your hands
are you talking about Mr. Ellison.
(Affirmative responses from jurors.)
THE COURT: Anyone else you have heard of? Does
anyone think that the fact that they've heard of Mr. Ellison
would be a factor one way or the other that would cause them to
be biased in this case? If so, raise your hand.
All right. No one is raising their hands.
Okay. Continue on, please.
MR. JACOBS: Dan Bornstein. Safra Catz. Larry Page.
Tim Lindholm. John Mitchell. Alan Purdy. Vineet Gupta.
James Gosling. Andy McFadden. Andy Rubin.
THE COURT: Any of those names? If you've heard of
them, raise your hand.
Okay, Mr. Haithcox. Again, I ask, would it in any
way bias you one way or the other?
PROSPECTIVE JUROR MR. HAITHCOX: No.
THE COURT: Thank you.
Go ahead.
MR. JACOBS: Owen Astrachan. Jonathan Schwartz.
Scott McNealy. Noel Poore. Peter Kessler. Bob Vandette.
Dennis Allison. David August. Robert Dewar. Terence Parr.
THE COURT: Any of you personally know any of those
54
names?
Okay. In the top it's Mr. Martella?
PROSPECTIVE JUROR MR. MARTELLA: Yes.
THE COURT: Do you personally know of those?
PROSPECTIVE JUROR MR. MARTELLA: Jonathan Schwartz,
but I'm not sure it would be the same Jonathan Schwartz I know.
THE COURT: Which is the one you know?
PROSPECTIVE JUROR MR. MARTELLA: He's an educator in
Santa Rosa.
MR. JACOBS: Different person.
THE COURT: Different person.
Have any of you heard of any of those names? Okay.
All right. Raise your hands and keep them up so we can all
make a note of it.
Now, for the two of you, the fact that you heard of
those, would it be something that would cause you to be biased
either positively or negatively? If so, raise your hands.
No one is raising their hands. Okay. Go ahead.
Next.
MR. JACOBS: David Gries. Ben Goldberg. Kathleen
Knopoff. Nachi Periakaruppan. Param Singh. Eric Schmidt.
Ian Cockburn. Steven Shugan. Jim Kearl. Tim Bray.
THE COURT: Any of those names?
Again, Mr. Haithcox, do you personally know any of
them?
55
PROSPECTIVE JUROR MR. HAITHCOX: I'm not sure. I've
heard of Kathleen Knopoff off. Is that Katie Knopoff, who is a
lawyer.
MR. JACOBS: I don't believe so, but we'll
double-check.
THE COURT: Who's calling that witness? Somebody
ought to know.
MR. VAN NEST: It's an Oracle witness, Your Honor.
THE COURT: Mr. Jacobs, who is that person?
MR. JACOBS: We'll get the details and make sure
she's not a lawyer. I believe that's correct.
THE COURT: Give us more information, Mr. Haithcox,
about the person you know.
PROSPECTIVE JUROR MR. HAITHCOX: She was a lawyer who
worked at Hancock Rothert & Bunshoft back in the day. I've
seen her a few times since, but not recently.
THE COURT: What would her age be?
PROSPECTIVE JUROR MR. HAITHCOX: Probably 45, 47.
THE COURT: Right now?
PROSPECTIVE JUROR MR. HAITHCOX: Yeah.
MR. JACOBS: Different person.
THE COURT: We are pretty sure it's different person.
Okay.
All right. Do any of you -- have you heard of any of
these people? If so, raise your hands.
56
Okay. No one raised their hand. Go ahead.
MR. JACOBS: John Rizzo. Alan Cox. Greg Leonard.
Jeet Kaul. Guy Steele. Hiroshi Lockheimer. Susan Wojcicki.
THE COURT: Anyone know any of those names? I mean
personally know any of those people. No hands go up.
Have you heard of any of those people? No hands go
up.
Next.
MR. JACOBS: Rafael Camargo. May have mentioned Andy
Rubin before. Andy Rubin. Eric Schmidt. Patrick Brady. Rich
Miner. Vineet Gupta. Aditya Agarwal.
That would be it, Your Honor.
THE COURT: Okay. Do you know personally any of
those names? If so, raise your hand. How about heard of? No
hands go up.
Okay. Thank you, Mr. Jacobs.
Mr. Van Nest, do you have any add-ons?
MR. VAN NEST: Your Honor, just four.
THE COURT: Okay.
MR. VAN NEST: Christopher Plummer. Mark Reinhold.
John Rose. Or Hickman Wong.
THE COURT: Christopher Plummer?
MR. VAN NEST: Not the actor. Sorry about that.
(Laughter)
MR. VAN NEST: He won't be here. We'll get close
57
but --
THE COURT: All right. So anybody know any of those
individuals? Any of you heard of those individuals? Okay. No
hands go up.
Now, the list that Mr. Jacobs read off has witnesses
on both sides. So it's not like there's only four witnesses
over there and 42 witnesses over here.
(Laughter)
THE COURT: Okay. All right. Great. How about any
of the court personnel? Do any of you know anybody who works
in the U.S. District Court here in this building? Myself or
Dawn Toland or anyone else? If so, raise your hand. Okay. We
have Ms. -- looks like Ms. Woo, right?
PROSPECTIVE JUROR MS. WOO: Yes.
THE COURT: We'll need to give you the microphone,
Ms. Woo.
PROSPECTIVE JUROR MS. WOO: My neighbor is Susan
Soong. She is currently in Washington D.C., though, on a
year's assignment.
THE COURT: Do you know where she works?
PROSPECTIVE JUROR MS. WOO: In this building. Susan
Soong, S-o-o-n-g.
THE COURT: Does she work in this building or for the
U.S. District Court?
PROSPECTIVE JUROR MS. WOO: She works for the U.S.
58
District Court.
THE COURT: Dawn, do you know that person?
THE CLERK: I don't.
THE COURT: Let's assume she works for the court.
You can't let that have any bearing on your decision in the
case. Do you understand that?
PROSPECTIVE JUROR MS. WOO: I understand.
THE COURT: Are you okay with that?
PROSPECTIVE JUROR MS. WOO: I am.
THE COURT: Okay. Thank you.
Anyone else? No one else raises their hand.
Okay. Here's what we're going to do now. We're
going to learn something about you. And we need to pass the
microphone down to Mr. Chau.
Mr. Chau, can you see that poster board way over
there?
PROSPECTIVE JUROR MR. CHAU: Yes.
THE COURT: What you need to do is go down that list
of 12 items and give us the information. Speak into the
microphone clearly.
PROSPECTIVE JUROR MR. CHAU: Yes. My name is Jimmy
Chau. San Francisco resident. Graduate from high school only.
I work for MTA, MUNI. I don't belong to any club.
Hobby, I go to gym a lot. Single. No kid. I haven't served
anything. I'm not military. And I'm not number 12, not any
59
witnesses in a court.
THE COURT: How about party in court? Have you ever
been a party to a litigation?
PROSPECTIVE JUROR MR. CHAU: I have a case like
couple months ago. I work for the City, and people are suing
the City. I was involved.
THE COURT: Are you a party in the case?
PROSPECTIVE JUROR MR. CHAU: Yeah.
THE COURT: What do you do for the city?
PROSPECTIVE JUROR MR. CHAU: I'm a driver. And I get
into accident, and they sue the city. I'm the driver.
THE COURT: So were you named as a defendant?
PROSPECTIVE JUROR MR. CHAU: No.
THE COURT: Okay. And has your case come to court
yet?
PROSPECTIVE JUROR MR. CHAU: Yeah. It finish, the
court case is finish.
THE COURT: All right. How did it come out?
PROSPECTIVE JUROR MR. CHAU: We won.
THE COURT: All right. Okay. Thank you.
Now, Ms. Gonzalez, your turn.
PROSPECTIVE JUROR MS. GONZALEZ: Good morning,
everyone.
My name is Jacqueline Gonzales. I live in Oakland.
I graduated from high school and attended Heald College. I'm
60
graduated from there with an applied science degree in medical
office administration.
I work for the Oakland Unified School District as a
bilingual clerk in Hoover Elementary in West Oakland.
I don't belong to any organization. My hobbies are
just spend time with my family.
I'm married. My husband, his name is Raoul Garcia.
I have two children. One, my boy Jonathan, is seven. And my
little one is two, Caleb.
I have never served in the jury system before, and
I'm never in the military or the law enforcement or party or
witnesses in court.
THE COURT: What does your husband do?
PROSPECTIVE JUROR MS. GONZALEZ: He is a handyman.
THE COURT: All right. Thank you.
Now we go to Mr. Dimaggio.
PROSPECTIVE JUROR MR. DIMAGGIO: My name is Scott
Dimaggio. I live in Walnut Creek. I have a high school
diploma. My job right now, I work for Lawrence Berkeley Lab.
THE COURT: What do you do for them?
PROSPECTIVE JUROR MR. DIMAGGIO: What's that?
THE COURT: What do you do for Lawrence Berkeley?
PROSPECTIVE JUROR MR. DIMAGGIO: I am a tech,
technician.
THE COURT: Do you work with computers?
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PROSPECTIVE JUROR MR. DIMAGGIO: I do.
THE COURT: What do you do on the computers?
PROSPECTIVE JUROR MR. DIMAGGIO: We do a lot of CAD
work, a lot of drawing and machining parts and manufacturing
stuff for the scientists.
THE COURT: Good. Continue on.
PROSPECTIVE JUROR MR. DIMAGGIO: I don't belong to
any organizations. Hobbies are camping, fishing, motocross.
I am married. My wife is an appraiser. I have no
children.
I have had no prior jury service. No military or law
enforcement. I was subpoenaed to court once for a woman who
was hit by a car, but they pled guilty and we never -- it never
went anywhere.
THE COURT: What was your role in that case?
PROSPECTIVE JUROR MR. DIMAGGIO: I witnessed it.
THE COURT: Okay. Is that it?
PROSPECTIVE JUROR MR. DIMAGGIO: Yeah.
THE COURT: Thank you.
Now we go to Mr. Rutherford.
PROSPECTIVE JUROR MR. RUTHERFOD: My name is Ron
Rutherford. I live in Oakland. I have an undergraduate in
accounting/international business from Penn State. Masters at
LaSalle University in Philadelphia.
My current employer is Abbott Diabetes Care. I work
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in their finance department.
No organizations or clubs. Hobby, pretty much
PlayStation 3 after I get out of work is the only thing I can
do.
(Laughter)
PROSPECTIVE JUROR MR. RUTHERFOD: Marital status,
married. My spouse works as a lawyer at a -- does like ERISA,
401(k), executive comp stuff.
THE COURT: What firm is she with?
PROSPECTIVE JUROR MR. RUTHERFOD: He, yes.
THE COURT: Who?
PROSPECTIVE JUROR MR. RUTHERFOD: He, yes.
THE COURT: He, I mean. Yes, he. What law firm?
PROSPECTIVE JUROR MR. RUTHERFOD: Truckerhauss.
THE COURT: Say that again.
PROSPECTIVE JUROR MR. RUTHERFOD: Truckerhauss. It's
in San Francisco.
THE COURT: How do you spell that?
PROSPECTIVE JUROR MR. RUTHERFOD:
T-r-u-c-k-e-r-h-a-u-u-s-s.
THE COURT: Is that it? Okay. Very good. Please,
continue.
PROSPECTIVE JUROR MR. RUTHERFOD: No kids. No jury
service. Never in the military and never a party in court.
THE COURT: Right. Thank you.
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Now we go to Ms. Raman.
PROSPECTIVE JUROR MS. RAMAN: My name is Rekha Raman.
THE COURT: Closer to the microphone.
PROSPECTIVE JUROR RAMAN: My name is Rekha Raman. I
live in Fremont. I got a bachelor's in medicine from India.
And my most recent job is I'm a special ed para educator at the
Fremont Unified School District.
And I don't belong to any, you know, organizations,
clubs, or unions, as far as I can remember. Hobbies, I'm a
creative writer. I like to read and listen to music.
And I'm married. My husband is a computer engineer.
And I have two children, age -- my son 12, and my daughter is
21. My daughter, she's in -- she's a student at UC Davis. My
son is in junior high.
Prior jury service, I've served not exactly. I
appeared at a panel of jurors many, many years ago for the
Alameda County, but I didn't serve as a juror.
I've not been in the military or law enforcement.
And ever a party or a witness in court, no.
THE COURT: May I ask you a question about your
husband. What company does he work for?
PROSPECTIVE JUROR MS. RAMAN: Brocade, Incorporated.
THE COURT: What more can you tell us about his
computer work?
PROSPECTIVE JUROR MS. RAMAN: He's a hardware
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engineer.
THE COURT: Okay.
PROSPECTIVE JUROR MS. RAMAN: Yeah.
THE COURT: I think that helps. Let me ask all 18 of
you for a moment, I should have asked this earlier.
Do any of you have a spouse or partner who works for
either of these two companies? If so, raise your hand.
Okay. No one is raising their hands.
How about a child or close relative, like a mom, a
dad, or child who works for one of these two companies? If so,
raise your hand.
Any of you have a close relative or spouse or partner
who worked for Sun?
What was the official name, Sun Microsystems?
MR. JACOBS: Yes.
THE COURT: Sun Microsystems? You're going to hear a
lot about that company in this case.
Do any of you have any children, spouse, partner,
close relative who worked for Sun Microsystems? If so, raise
your hand.
All right. Any of you -- now, last question on that.
Very close friend, any of you have a very close friend who
works for any of those companies?
Okay. Mr. Dimaggio, let's hand the microphone back
to you. Tell us that circumstance.
65
PROSPECTIVE JUROR MR. DIMAGGIO: I have close friends
of our family who worked for PeopleSoft. And her and her
husband were both laid off from them.
THE COURT: PeopleSoft?
PROSPECTIVE JUROR MR. DIMAGGIO: Yeah. When Oracle
took them over.
THE COURT: When that was?
PROSPECTIVE JUROR MR. DIMAGGIO: Probably, what, six
years ago?
THE COURT: Okay. Well, but they never actually
worked for Oracle, did they? Or did they? They worked for
them and then were laid off?
PROSPECTIVE JUROR MR. DIMAGGIO: One of them was,
yes.
THE COURT: Okay. All right. So do you hold that
against Oracle for some reason?
PROSPECTIVE JUROR MR. DIMAGGIO: No.
THE COURT: Will that be a factor in any of your
decisions in this case?
PROSPECTIVE JUROR MR. DIMAGGIO: No.
THE COURT: Okay. Thank you.
All right. Anyone else?
Down there. Mr. Haithcox, let's go to you
temporarily. I need to -- out of turn. I need to ask you
about -- no, no, all the way to the end.
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PROSPECTIVE JUROR MR. HAITHCOX: My son's friend
has -- their father works for Oracle.
THE COURT: Son's friend's father.
PROSPECTIVE JUROR MR. HAITHCOX: And we hang out with
them from time to time.
THE COURT: Okay. Do you know what his job is there
and what his name is?
PROSPECTIVE JUROR MR. HAITHCOX: Mo. He goes by
Moto.
THE COURT: Moto?
PROSPECTIVE JUROR MR. HAITHCOX: Yeah, that's it. I
had a relative also who worked for Oracle, but doesn't
currently. You phrased currently works for them.
THE COURT: Would that in any way affect your ability
to be fair and impartial?
PROSPECTIVE JUROR MR. HAITHCOX: She quit because she
was dissatisfied. I don't think it would affect it.
THE COURT: Will it affect your ability to be fair
and impartial?
PROSPECTIVE JUROR MR. HAITHCOX: No.
THE COURT: Okay. Somebody else up there?
Yes, Ms. Zaidi?
PROSPECTIVE JUROR MS. ZAIDI: Yes.
THE COURT: Go ahead.
PROSPECTIVE JUROR MS. ZAIDI: I have a close personal
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friend who works for Oracle in the Pleasanton office.
THE COURT: What do they do? What's their job?
PROSPECTIVE JUROR MS. ZAIDI: I don't know his exact
title, but he is an engineer of some kind.
THE COURT: How long has he been there?
PROSPECTIVE JUROR MS. ZAIDI: I would say -- he's
moved around a bit. Probably two years.
THE COURT: Okay. So this is a close personal
friend?
PROSPECTIVE JUROR MS. ZAIDI: Yeah. We have social
interaction, so I would see him on and off.
THE COURT: All right. So if you were on the jury
you wouldn't be able to talk to him about this case. You know
that.
PROSPECTIVE JUROR MS. ZAIDI: I understand that.
THE COURT: Now, would that relationship in any way
affect your ability to be fair and impartial?
PROSPECTIVE JUROR MS. ZAIDI: Well, I have to be
honest. I'm not sure because in these gatherings the husbands
talk about work and whatnot. And my husband is also an
engineer. He works for Cisco. And so I don't know if I would
be able to, you know-- if I overhear something I don't know if
that's going to affect my perspective on things.
THE COURT: Well, but before any of that ever
happens, are you biased already? Do you think you are biased
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one way or the other even before you've heard any evidence?
PROSPECTIVE JUROR MS. ZAIDI: I can't say. I don't
know.
THE COURT: Well, no, I'm asking. On account of your
friend working at Oracle, are you biased either for Oracle or
against Oracle just on account of that relationship, without
ever having heard the first item of evidence?
PROSPECTIVE JUROR MS. ZAIDI: Well, I have to be
honest.
THE COURT: Yes, of course.
PROSPECTIVE JUROR MS. ZAIDI: Maybe I would have a
bias towards Oracle just because I know him.
THE COURT: I'm going to excuse you unless there is
an objection.
Any objection?
MR. VAN NEST: No, Your Honor.
MR. JACOBS: No, Your Honor.
THE COURT: Ms. Zaidi, I'm going to let you go.
PROSPECTIVE JUROR MS. ZAIDI: I'm sorry, Your Honor.
I'm just being honest.
THE COURT: No, that's what you're supposed to be.
Thank you.
Go back to the jury assembly room. Tell them what
happened. And thank you for bringing it up. Thank you.
All right. Please give the microphone --
69
PROSPECTIVE JUROR MS. ZAIDI: Thank you, everyone.
Sorry.
THE COURT: -- to ms. Gallo.
Let's replace Ms. Zaidi.
THE CLERK: Jennifer Michals, M-i-c-h-a-l-s.
THE COURT: Welcome. How are you today, Ms. Michals?
PROSPECTIVE JUROR MS. MICHALS: I'm good.
THE COURT: Can you -- do you have any hardship
issue?
PROSPECTIVE JUROR MS. MICHALS: No.
THE COURT: Okay. Let me give you the microphone.
Did you know any of those names that we called out, or have you
heard of any of those names?
PROSPECTIVE JUROR MS. MICHALS: Other than hearing on
the news, but no.
THE COURT: All right. And can you put all of that
out of your mind and decide this case fairly on the merits?
PROSPECTIVE JUROR MS. MICHALS: Yes, I can.
THE COURT: Good. Do you have any relatives or close
friends that work in any of these companies?
PROSPECTIVE JUROR MS. MICHALS: I do not.
THE COURT: All right. Would you have raised your
hand to any of the other questions I asked?
PROSPECTIVE JUROR MS. MICHALS: No.
THE COURT: Great. Thank you.
70
I'm going to ask you to hand the microphone now back.
I think we got all the way up to Mr. Liu.
Mr. Liu, can you see the poster board?
PROSPECTIVE JUROR MR. LIU: Yes, sir.
THE COURT: Please go ahead and give us the
information.
PROSPECTIVE JUROR MR. LIU: Yes. My name is Daniel
Liu, L-i-u. I live in San Francisco. I have 11 years of
education. And I'm working for San Francisco Unified School
District as a plumber. And I belong to San Francisco Plumbers
Union Local 38.
And I like fishing. And once a while I play the slot
machines. And I am married. And my wife is not working at
all.
And I have two boys. One is 41. The other one is
39. The oldest son is working for San Francisco Superior Court
as a file clerk. The second boy's off work now.
And I did serve as a juror in Superior Court about 15
months ago. Civil case. And we reached a verdict. And I was
in the U.S. Navy since '68 to '70. And never been any witness
in court.
THE COURT: Thank you. Have you been a party to any
lawsuit?
PROSPECTIVE JUROR MR. LIU: That's negative.
THE COURT: Okay. Thank you. Ms. Cheng, your turn.
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PROSPECTIVE JUROR MS. CHENG: My name is Christina
Cheng. I live in San Lorenzo. I have an AA degree. I work at
U.S. Environmental Protection Agency, as a secretary.
I don't belong to any organization. I like to spend
time with my family and shopping. I am married. My husband is
mechanic. I have three daughters. They are 20, 15, and 12.
They are in school.
No, I didn't serve before. I'm not in military.
And, no, I'm not a witness in court.
THE COURT: Thank you.
Next, Ms. Chiu.
PROSPECTIVE JUROR MS. CHIU: My name is Julie Chiu.
I live in South San Francisco. I have a bachelor's in
architecture from U.C. Berkeley.
My current job is a store designer for Gap, Inc.
I do not belong to any organizations, clubs, or
unions. My hobbies are running and graphic design.
I am single. I have no children. I have no prior
jury service. And I've never been in the military or law
enforcement. And I've never been a party or a witness in
court.
THE COURT: Thank you.
All right. Mr. Haithcox.
PROSPECTIVE JUROR MR. HAITHCOX: My name is Kevin
Haithcox. I live in San Mateo.
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THE COURT: A little more into the microphone.
PROSPECTIVE JUROR MR. HAITHCOX: San Mateo. I have a
J.D. I am an attorney right now with CNA Insurance Company.
No organizations, clubs, or unions.
Hobbies, reading, movies, restaurants.
Marital status, married. My wife is a professor of
chemistry. She also teaches math and is the department head.
THE COURT: Where does she teach?
PROSPECTIVE JUROR MR. HAITHCOX: Notre Dame de Namur
in Belmont.
I have a son, who's 9. No prior jury service. Never
in the military or law enforcement, and never a party or a
witness.
THE COURT: Okay. Good.
If you can't see it, we'll move it around. Can you
see that well enough over there Ms. Gallo?
PROSPECTIVE JUROR MS. GALLO: Yes, I can see it.
THE COURT: I'll move it if you need to have it moved
closer. Go ahead, Ms. Gallo.
PROSPECTIVE JUROR MS. GALLO: I'm Megan Gallo. I
live in Pleasant Hill. I have a bachelor's in psychology from
Berkeley, and a master's in child development from Davis.
And I currently work at -- I'm a manager at
Nordstrom. No clubs. Hobbies, like reading, hiking shopping.
I'm married. My husband is a tennis professional. I
73
have no kids, but one on the way in middle of August.
I have no prior jury service. No military. And have
never been a party or a witness in court.
THE COURT: Congratulations, by the way.
Do you anticipate that if you -- you could be here
every single day, all the way through the end of June?
PROSPECTIVE JUROR MS. GALLO: Yeah. You said --
yeah.
THE COURT: Great. That's good.
(Laughter)
THE COURT: Now we go to Ms. Michals.
PROSPECTIVE JUROR MS. MICHALS: Hi. I'm Jenny
Michals, and I live in Oakland, California. I have a B.A. in
painting -- well, in painting and print making from San
Francisco State. An M.F.A. And I have an M.S.N., also.
THE COURT: What is an M.S.N.?
PROSPECTIVE JUROR MS. MICHALS: Master of science in
nursing.
Currently, I'm a pediatric nurse at Lucille Packard
Children's Hospital. I belong to the nurse union there, CRONA.
Hobbies are painting and drawing, hiking, reading.
I'm single. No kids.
I've never been on a jury. Never been in the
military. And never a party or witness to a court.
THE COURT: Thank you. Mr. Martella, please.
74
PROSPECTIVE JUROR MR. MARTELLA: My name is Dan
Martella. I live in Windsor. I have a master's of divinity
degree.
I am the pastor of the Healdsburg and the Cloverdale
Seventh Day Adventist churches. Two congregations.
I am a member of the Healdsburg Ministries
Ministerial Associations.
Hobbies, gardening, reading, photography.
Marital status, married. My spouse is a secretary
and home arts teacher for a parochial high school.
My daughter is 29. She is a communications director.
My son is 27. He is an educator on the East Coast.
No prior jury service. Never been in the military or
law enforcement.
Number 12, I have been a party. When I was probably
in junior high, my brother and I and my father loaned a man
some money. And he defaulted on the loan, and we took him to
court. I don't remember the verdict. That was so long ago.
THE COURT: Great. Thank you.
Now we go to Mr. Troy.
PROSPECTIVE JUROR TROY: MY name is Tim Troy. I live
in Albany, across the bay. I have a graduate degrees in
education, library science, and cultural anthropology.
I am currently employed by the San Francisco Public
Library. I'm a member of the American Library Association and
75
city union.
I sail. That's my major hobby. I'm married. My
wife is curator of the Bancroft Collection at UC Berkeley.
I have two sons. One a senior at UC Davis, and the
other is a senior at Albany High School.
I served on juries in Alameda County. One case,
civil case, dismissed. And previously in New York City on
several criminal trials.
I was never in the military or law enforcement. And
I was never a witness in a court.
THE COURT: Your spouse at Bancroft, is her last name
also Troy?
PROSPECTIVE JUROR TROY: No. Her last name is
Salazar.
THE COURT: Theresa Salazar?
PROSPECTIVE JUROR TROY: That's right, yes.
THE COURT: Well, I must disclose, I know her pretty
well.
(Laughter)
THE COURT: I don't think it should make any
difference, but it might come out when you mention to her what
you were doing.
PROSPECTIVE JUROR TROY: I won't mention.
(Laughter)
PROSPECTIVE JUROR TROY: I guess I would not mention
76
that, in fact.
THE COURT: All right. Let's assume that it did come
out.
PROSPECTIVE JUROR TROY: Yes.
THE COURT: Would that have any bearing? You would
have to be fair and square in this case, and decide it and
follow my instructions and all of that regardless of what she
thought of me, which I hope is good.
(Laughter)
THE COURT: You know, it can't be a factor in the
case, is what I'm saying. Do you understand that?
PROSPECTIVE JUROR TROY: That's for certain, yes. It
won't be a factor in the case.
THE COURT: Very good. Thank you.
Now let's go to Ms. Woo.
PROSPECTIVE JUROR MS. WOO: My name is Trina Woo.
I'm from Albany, California.
THE COURT: Little more in the mic phone.
PROSPECTIVE JUROR MS. WOO: My name is Trina Wood. I
live in Albany, California. I have a bachelor of science in
mathematics. My current position is a data miner/financial
analyst at Charles Schwab.
No organizations. Hobbies are decidedly low tech.
Cooking and baking and sewing, and that sort of nonsense.
Marital status is single. My partner is a finish
77
carpenter. No children.
Prior jury service, County of Alameda. There was a
criminal case. We came to a decision. There was also a civil
case, and that was deadlocked. No military experience. And
never a party in a court.
THE COURT: Thank you.
Now let's go to Mr. Richardson.
PROSPECTIVE JUROR MR. RICHARDSON: Gary Richardson.
I currently live in Pleasanton. I have a bachelor of science
in computer science. I'm the director of --
THE COURT: Dawn, would you please go give Mr. Liu
one of these cough drops.
PROSPECTIVE JUROR MR. LIU: I have one.
THE COURT: You have one? Would you like another
one?
PROSPECTIVE JUROR MR. LIU: In my pocket.
THE COURT: Okay. All right. I interrupted
Mr. Richardson. Please, continue.
PROSPECTIVE JUROR MR. RICHARDSON: My current job is
I'm director of engineering at Cisco Systems.
No current organization or club memberships. Lots of
hobbies before kids. Not so much afterwards.
Married. My wife does voice-over work, audio book
narration. Two boys, 18, College freshman, and a 13-year-old.
No prior jury service. No military. And I am
78
currently a party in a litigation case.
THE COURT: Can you tell us what that is.
PROSPECTIVE JUROR MR. RICHARDSON: There is a patent
infringement case between another company and one of our
customers, and I am one of the lead technical advisors, I guess
you would call it, for that service provider.
THE COURT: Are you one of the inventors on the
patent?
PROSPECTIVE JUROR MR. RICHARDSON: No. The patent
was on -- we're on the defendant's side.
THE COURT: So are you a named party, or are you just
heavily involved in the case?
PROSPECTIVE JUROR MR. RICHARDSON: You know, I don't
know, at this point. You know, I signed the disclosures. I'm
under discovery rules and things. Right now it's in an appeal
process. We've done work to work around the patent. The
lawyers said I'll probably end up on the witness stand for that
case, if that gets challenged.
THE COURT: All right. Okay. Who is the other side
in that case?
PROSPECTIVE JUROR RICHARDSON: The other side is
Active Video Networks and the defendant is Verizon.
THE COURT: And you're -- I thought you said you work
for Cisco.
PROSPECTIVE JUROR RICHARDSON: Yes. So Verizon
79
uses a Cisco video-on-demand product for their customers and we
provide that video-on-demand product and that's what was being
challenged.
THE COURT: Now, have you ever heard of Java?
PROSPECTIVE JUROR RICHARDSON: Yes.
THE COURT: Have you ever heard of Android?
PROSPECTIVE JUROR RICHARDSON: Yes.
THE COURT: Have you ever heard of this lawsuit that
we're talking about here?
PROSPECTIVE JUROR RICHARDSON: Umm, slightly, yeah.
Not a whole lot. I haven't paid much attention.
THE COURT: All right. Can you put that, what you've
heard about it out of your mind and decide this case on the
evidence here at trial?
PROSPECTIVE JUROR RICHARDSON: I would hope so.
THE COURT: What does "hope so" mean?
PROSPECTIVE JUROR RICHARDSON: Well, I mean, being
involved in a patent infringement, you tend to, you know, learn
a little bit more. You have a little bit different insight.
So I would like to believe I can do that. So, yes.
THE COURT: Well, you just have to forget about what
you learned in those other cases and, you know, hold the
lawyer, whoever -- here is the way it works. I'll tell
everybody.
One side or the other is going to have the burden of
80
proof on -- one side has the burden of proof on some issues,
the other side has the burden of proof on other issues. When
you go into the jury room to deliberate after you've tried your
hardest to understand the evidence, if they haven't educated
you on it or if they haven't persuaded you, the party with the
burden of proof loses. It's that simple. You don't have to --
you have to make a good faith effort to understand it, but if
the party with the burden of proof has failed to do that, the
party with the burden of proof loses. That's the standard.
You have to -- you, the jury, decide.
Now, what you cannot do is bring to bear something
that you've learned in some other case, some other patent case,
about how some piece of equipment works or something like that.
You can't do that. It has to be based on the record here.
You understand that part?
PROSPECTIVE JUROR RICHARDSON: I do.
THE COURT: All right. Can you do that? Will you do
that?
PROSPECTIVE JUROR RICHARDSON: Yes.
THE COURT: All right. Do you have any opinions
formed -- don't tell me what they are if you have, but do you
have any opinions about this case coming in?
PROSPECTIVE JUROR RICHARDSON: Not about this case in
particular. About software patents in particular, yes. You
know, I don't know if the software patent aspect of this --
81
what it's about, but, you know, my -- I do have software
patents and this case I'm involved with is about software
patents.
You know, my opinion is that the patent lawyers write
those so vaguely that they are hard to argue one way or the
other. And so it ends up being a very difficult time for a
general jury pool to understand what the legal side of things
actually are as far as what the patent truly means.
So, you know, as far as do I have opinions on this
case? No. Do I have opinions on, you know, the ability to
argue a patent? Yes. I think it's very difficult.
THE COURT: Have you ever heard of James Gosling?
PROSPECTIVE JUROR RICHARDSON: I don't -- I don't
know. I don't think so.
THE COURT: All right. Well, I'm going to leave it
there and let the -- the lawyers may come back and ask you some
more questions.
I need to say to the rest of you. You've heard some
opinions here by this particular juror. That's not evidence in
the case. And the fact that he has some opinions about
software patents, well, good for him. This is still America
and you can have all the opinions you want.
But you've got to decide this case based on the
evidence here in the courtroom, and you can form your own
opinions after all the evidence is in. That's what your duty
82
would be. But you should not be taking what one juror said as
evidence in the case.
All right. But nonetheless, thank you,
Mr. Richardson.
Now we go to Ms. Callas.
PROSPECTIVE JUROR CALLAS: Callas, Cathrin Callas.
I'm from San Carlos.
I have a B.S. in EES from U.C. Berkeley. My current
job is engineering program manager at Hewlett Packard.
I belong to lots of organizations, all gardening
related.
My hobbies are gardening and writing smart phone
apps.
THE COURT: Are you serious? Wait. Are you serious?
PROSPECTIVE JUROR CALLAS: I'm serious.
THE COURT: You write smart phone apps?
PROSPECTIVE JUROR CALLAS: For fun.
THE COURT: Have you ever heard of Java or Android?
PROSPECTIVE JUROR CALLAS: Yes.
THE COURT: Give us an example of smart phone apps
you have written.
PROSPECTIVE JUROR CALLAS: I've actually written for
Web OS. There's a gardening app that creates a gardening
journal and a weather app that tells me when it's going to
freeze or get too hot.
83
THE COURT: Have you ever heard of this lawsuit
before?
PROSPECTIVE JUROR CALLAS: Yes.
THE COURT: You have. Without telling me what your
opinions are, do you have an opinion about this lawsuit
already?
PROSPECTIVE JUROR CALLAS: Not about the lawsuit, no.
THE COURT: Well, continue on. Maybe we'll come back
to that. Continue on.
PROSPECTIVE JUROR CALLAS: Okay. Let's see.
Married. My husband works for a member of Congress. He's a
senior consultant for Jackie Speier.
I have a son who is 20. He's a student at U.C.
Santa Cruz in computer science.
I served on a jury, I think, more than 10 years ago;
criminal jury, criminal trial. We reached a verdict.
I have never been in the military or law enforcement
or never been a party or witness in court.
THE COURT: Thank you.
Next we go to Mr. Thompson.
PROSPECTIVE JUROR THOMPSON: Hi, I'm Greg Thompson.
I live in Fremont.
I have a B.A. in business administration from the
University of Washington.
I work for United Motor Manufacturing. My job is,
84
I'm a retirement plan specialist.
I belong to two organizations: The Sierra Club and
pacific Crest Trail Association. My hobbies are hiking and
cycling.
I'm married. My wife is a flight attendant. I have
one child. She's 26, I think. She just graduated from
college, but she's unemployed.
And I have not served on a jury before. I have not
been in the military or law enforcement. I have -- I have been
called two times as a witness in court to do with my
employment, and one time I was a party in small claims court.
I represented my homeowner's association.
THE COURT: Have you, yourself, done the Pacific
Crest Trail?
PROSPECTIVE JUROR THOMPSON: I have. I hiked the
entire trail in 2005.
THE COURT: From Canada to Mexico?
PROSPECTIVE JUROR THOMPSON: Yes. In fact, that's
the direction I hiked.
THE COURT: Good for you. That's a wonderful
accomplishment. Thank you.
Now we go to Mr. Hotvedt.
PROSPECTIVE JUROR HOTVEDT: Hotvedt, that's right.
THE COURT: Please go ahead.
PROSPECTIVE JUROR HOTVEDT: My name is Steven Hotvedt
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and I live in Alameda, California.
I have an Associate of Fine Arts degree.
My last job was HJW, Hammon, Jensen, Wallen. They
are mapmakers and I was an aerial photographer for that
company.
I'm not a member of any organizations, clubs or
unions. I used to be to the Northern California Newspaper
Guild, but I'm no longer there.
Hobbies, no. I have a lot of interests, but I don't
have any one that I would call a hobby.
Marital status, divorced. My spouse was a deputy
probation officer for the Alameda County. I have one son.
He's 36 years old. He's working at a laundry.
I have had prior jury service. First time was at
Superior Court in Bridgeport, Connecticut, County of Fairfield.
And about -- called up about 10 times to Superior Court jury
duty in Oakland. And I had a murder case and we acquitted. I
also was called up when I was living in Albany for Municipal
jury duty. The case was thrown out of court that I was on.
Let's see. I was in the Marine Corps for six years
and I had done law enforcement type work there; doing accident
investigation, autopsies, that sort of work.
I have been sued, but I won that.
THE COURT: What was it about?
PROSPECTIVE JUROR HOTVEDT: It was a --
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THE COURT: What kind of case?
PROSPECTIVE JUROR HOTVEDT: It was an auto accident
and they were trying to get more money from my insurance
company, and they didn't get it.
THE COURT: All right.
PROSPECTIVE JUROR HOTVEDT: And I have been a witness
in court. It was a court martial, actually, as a photographer;
expert witness.
THE COURT: Okay.
PROSPECTIVE JUROR HOTVEDT: And that's it.
THE COURT: I didn't catch what you do now. What is
your occupation.
PROSPECTIVE JUROR HOTVEDT: I'm retired. I was a
photographer.
THE COURT: You were a what?
PROSPECTIVE JUROR HOTVEDT: Photographer.
THE COURT: Photographer, all right. Very good.
All right. Now, we're going to take a break in a few
minutes, but not yet. Can you go about five more minutes? Ten
more minutes?
You need a break?
(Prospective Juror Martella nodding affirmatively.)
THE COURT: You do. Okay. Well, then, we'll take
our break now.
I've got to tell you, though, some guidelines here.
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You remember what I said. No talking about the case. No
Googling the case. I guess I shouldn't use that phrase in this
trial, but you know what I mean.
(Laughter.)
THE COURT: No internet research about the case of
any type. No talking with anyone, none of that.
And we'll pick it up right there when we come back in
about 15 minutes. Let's make it 20 minutes because there are
so many of you.
And this also applies to those of you in the back of
the room as well. I need to ask all of you to step outside so
that I can have a few words with the lawyers. So all of the
venire -- that means the prospective jurors -- need to be
outside while I have this talk.
So we'll take our facilities break at this time.
(Prospective jurors exit courtroom at 9:34 a.m.)
THE COURT: Be seated.
So any issues for the Court?
MR. JACOBS: There are two jurors who jump out as
having potentially problematic views that I would rather not
have to develop in front of the rest of the venire.
One is Mr. Richardson, with his views on patents and
the software arena. And the other is Ms. Callous, who works as
a program manager for HP.
There is a separate lawsuit right now between HP and
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Oracle. It's quite a bitter dispute. It's actually on a track
to go to trial pretty soon as well.
And so both of those, I would think -- ultimately I
probably could develop a record for cause, but I would rather
not have to get the rest of the jury, the rest of the panel to
hear all that.
THE COURT: Mr. Van Nest? What do you say?
MR. VAN NEST: I don't have any problem talking to
these folks outside the presence of the rest of the venire,
your Honor. And I don't see anyone else that we would need to
do that with.
MR. JACOBS: Your Honor, if I could -- sorry.
MR. VAN NEST: I was just going to say, if
Ms. Callous is involved in the litigation, then we should
explore that. But, again, I don't have any problem doing
that --
THE COURT: Is that the case in front of Judge
Hamilton? What case is that?
MR. JACOBS: No. That's a different case, your
Honor. That would be SAP.
THE COURT: All right. Do you have any problematic
areas, Mr. Van Nest?
MR. VAN NEST: That would require discussion outside
the presence of the rest of the group? I don't think so, your
Honor.
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THE COURT: All right.
MR. JACOBS: The other one, your Honor, would be a
slightly lower level of concern, but still concerning is
Mr. Dimaggio. He referred to the layoff by Oracle upon the
acquisition of PeopleSoft, and I had the impression that he
felt pretty strongly about his close friends who were laid off
in the wake of that acquisition.
THE COURT: I'm sorry. Who was that?
MR. JACOBS: Juror No. 3, your Honor.
THE COURT: Mr. Dimaggio?
MR. JACOBS: Correct.
THE COURT: Well, you can develop that on voir dire.
I didn't get the impression that -- you know, just about
everyone -- that seems very minor. You can develop that on
voir dire.
MR. VAN NEST: Your Honor, the only other juror that
we might consider, Ms. Michals just mentioned when she sat down
that she heard about the case on the news. We obviously don't
want to know what the news was she heard. She might merit some
discussion outside the presence of the rest of the group. It
may have been a casual radio mention of it, but it might have
been more in depth. I wouldn't think we would want to be
asking about that in front of everyone else. I think she is
the only juror that mentioned hearing it on the news.
THE COURT: Well, possibly you're right. In due
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course I will see what I can do to have us have the opportunity
to quiz these people outside the presence of the others, but,
you know, you don't have any absolute right for that to occur.
I just instruct them to disregard it. And we're not going to
get bogged down in a bunch of out of the presence of the rest
of the people to do this, but I'm going to consider it and see
how the rest of the voir dire goes.
All right. I have in mind the three cases that you
brought up and I will see what I can do to accommodate your
concerns. We're going to take a 15-minute break at this time.
And I will pick it up where we left off when we come back.
MR. JACOBS: Thank you, your Honor.
(Whereupon there was a recess in the proceedings
from 9:40 a.m. until 9:56 a.m.)
THE COURT: Chris, do we have all of the venire back?
CSO OFFICER: I lost count. We have 43 left in here.
THE COURT: Should be 43.
THE CLERK: Forty-two.
THE COURT: Forty-two. I'm sorry.
CSO OFFICER: I have 42.
THE COURT: Thank you. If you could close that door,
I'd appreciate it.
Okay. Let's continue on. And, you know, I have to
ask you these questions in order to pry enough into your
background to figure out if you will be fair and impartial to
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both sides. It's very important to get the most fair and
impartial jury we can.
It doesn't mean you can't have opinions or have some
familiarity with somebody in the room or some party in the
room, but the important question is whether or not anything
you're bringing to bear can be ignored by you and you'll be
able to do your job as a fair and impartial juror by ignoring
anything else that you might have heard or so forth.
Let me ask a different question. Do any of you read
computer magazines? If so, raise your hand.
Okay. One, two hands go up.
Whose got the microphone over there? Let's go to Ms.
Callas.
PROSPECTIVE JUROR CALLAS: Callas, yeah.
THE COURT: What magazines do you like?
PROSPECTIVE JUROR CALLAS: Magazines, not physical
magazines, but I read a lot of computer articles on the web.
InfoWorld, PC magazine, you know.
THE COURT: And what sort of topics do you like to
read about?
PROSPECTIVE JUROR CALLAS: Umm, anything related to
my business. You know, mobile phones, software development; a
lot of different things.
THE COURT: Remind me who your employer is.
PROSPECTIVE JUROR CALLAS: Hewlett Packard.
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THE COURT: What do you do for them?
PROSPECTIVE JUROR CALLAS: I'm an engineering program
manager. I work in R&D.
THE COURT: And you write apps there?
PROSPECTIVE JUROR CALLAS: No. I do that for fun. I
do some software development and quality program management for
work.
THE COURT: So you, at work, do software development?
PROSPECTIVE JUROR CALLAS: Right.
THE COURT: What does that mean?
PROSPECTIVE JUROR CALLAS: I develop internal tools
to help with managing quality in our business.
THE COURT: All right. Is there some item of
software out there in the marketplace that you had something to
do with?
PROSPECTIVE JUROR CALLAS: Well, indirectly I'm
involved with HPX, which is HP's Unix operating system.
THE COURT: Good. You've answered my question.
Mr. Richardson, what magazines or online things do
you read?
PROSPECTIVE JUROR RICHARDSON: Basically the same
ones, like InfoWorld. I typically get forwarded a number of
articles pertaining to my industry, which is video-on-demand.
So anything that, you know, is related to that I tend to get
forwarded from either coworkers or other people within the --
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within my organization.
THE COURT: All right. Now, and remind me who do you
work for again?
PROSPECTIVE JUROR RICHARDSON: Cisco.
THE COURT: Cisco. So this is really going to be
directed at both of you, but, you know, you come to the party,
so to speak, with some prior training that bears upon the
subject matter we're going to be hearing a lot about here.
That's okay. That's not disqualifying, but you -- it's okay to
use your common sense when you render a verdict, but you cannot
add to the record in court something that you know about the
way software programming works that the witnesses didn't
actually testify to. You see what I'm saying?
You've got to decide the record -- the case based on
the record made here as opposed to adding into it what else you
may have known about the way programming and software works.
Now, you might -- the answer to that might be, fine,
I can do that. The answer to that may be, no, it would be too
hard for me to do that.
Tell me in your case, Mr. Richardson, what's the
answer to that?
PROSPECTIVE JUROR RICHARDSON: Doing this for 24
years, it would be pretty difficult to ignore my experience.
THE COURT: How about you, Ms. Callas?
PROSPECTIVE JUROR CALLAS: I'm in the same boat. I
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have been involved in patents and I think I would have a hard
time not bringing my own thoughts into it.
THE COURT: I'm going to excuse both of you unless
there is an objection. Any objection?
MR. JACOBS: No objection.
MR. VAN NEST: No objection, your Honor.
THE COURT: All right. I think it would be too hard
for you to sit in this case and sort out what you knew already
against what is proven or not proven here, and it would not be
fair to the parties to have that extra burden even though you
two actually know something about the subject. It's in a way
too bad, but it's for the best. So you two are excused to go
back to the jury assembly room. Thank you.
I'm going to excuse Mr. Richardson first and then Ms.
Callas next and we will replace them in that order.
(Prospective Juror Richardson and Prospective
Juror Callas exit the courtroom.)
THE COURT: Who will take Mr. Richardson's seat?
THE CLERK: Elizabeth Hostynek, H-O-S-T-Y-N-E-K.
THE COURT: All right. Please come up and take
Mr. Richardson's seat.
And who will replace Ms. Callas?
THE CLERK: Patricia Pearlman, P-E-A-R-L-M-A-N.
THE COURT: All right. So, Ms. Pearlman, you take
the seat over there by Mr. Thompson, who has done the Pacific
95
Crest Trail. You can't get in over there, is that it?
PROSPECTIVE JUROR HOSTYNEK: I don't see any way to
get in.
THE COURT: You take the fourth seat -- no, no, no,
no. Ms. Pearlman is closest to me. Thank you.
All right. Welcome. Any hardship issue you wish to
raise?
PROSPECTIVE JUROR HOSTYNEK: No.
PROSPECTIVE JUROR PEARLMAN: No.
THE COURT: Good.
And you heard me in my little talk about you've got
to be here at 7:45. You'll stay til 1:00. Now, when you start
to deliberate, usually the juries want to go longer than 1:00
o'clock. They want to go til 4:00, sometimes 7:00 p.m. Most
of the times during this trial you will be out at 1:00 o'clock.
The vast majority of the day you will be out at 1:00 o'clock,
but you've got to be here the whole time.
You understand that part?
PROSPECTIVE JUROR HOSTYNEK: Yes.
PROSPECTIVE JUROR PEARLMAN: Yes.
THE COURT: Would you have raised your hand to any of
those questions that I asked?
PROSPECTIVE JUROR HOSTYNEK: No.
PROSPECTIVE JUROR PEARLMAN: No.
THE COURT: Never heard of any of these people?
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PROSPECTIVE JUROR HOSTYNEK: No.
PROSPECTIVE JUROR PEARLMAN: No.
THE COURT: How about the companies? Ever heard of
any of these companies?
PROSPECTIVE JUROR HOSTYNEK: Yes.
PROSPECTIVE JUROR PEARLMAN: Sure.
THE COURT: Give me the microphone. Who has got the
mic?
Ms. Pearlman, you first. Tell me this: Anything you
know about these companies, would that influence -- would it
make you biased one way or the other?
PROSPECTIVE JUROR PEARLMAN: No, it wouldn't.
THE COURT: How about you, Ms. Hostynek?
PROSPECTIVE JUROR HOSTYNEK: No, it wouldn't.
THE COURT: Okay. So, great.
Let's start with Ms. Hostynek. Ms. Hostynek, can you
see that chart up there?
PROSPECTIVE JUROR HOSTYNEK: Yes.
THE COURT: Please give us the information.
PROSPECTIVE JUROR HOSTYNEK: My name is Elizabeth
Hostynek. I live in Lafayette, Contra Costa County.
I have a B.A. in psychology English from Skidmore
College.
My most recent job other than teaching, I'm retired,
has been taking people to kidney dialysis and taking care of
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children after school.
Don't belong to any organizations, clubs or unions
that I can think of at the moment.
Hobbies: Reading, writing, foreign movies, music.
I'm married, 45 years. My husband is a doctor of
chemistry. He works at U.C.S.F. in the dermatology department.
I have two children, two boys; two men, 44 and 43.
One is a cinematographer. He makes movies, snowboarding
movies. And the other is an artist, a musician, performer, a
poet.
Prior jury service. Yes, I have served on a jury in
Contra Costa County. That was in Martinez. It was a criminal
case and the verdict was guilty.
THE COURT: You don't have to tell us the verdict.
PROSPECTIVE JUROR HOSTYNEK: Pardon me?
THE COURT: We want to know if you were able to reach
a verdict.
PROSPECTIVE JUROR HOSTYNEK: Oh, yes.
THE COURT: Who is hacking and coughing? Somebody is
hacking and coughing.
Would you please hand a cough drop to that table and
remind counsel that we don't like hacking and coughing.
(Laughter.)
THE COURT: It's just like a static crash during the
radio. If you're listening to a radio and a static crash
98
comes, you can't hear half the sentence. Thank you.
Now, go back over the part that I missed.
PROSPECTIVE JUROR HOSTYNEK: Which? Children or
prior jury service?
THE COURT: I was telling you, you don't have to tell
us if it was guilty or not, but we do want to know if you were
able to reach a verdict.
PROSPECTIVE JUROR HOSTYNEK: Yes.
THE COURT: There is a reason for that, just so
everyone will know. Because if you didn't reach a verdict,
that tells the lawyers maybe this person is going to be a
hold-out artist and not reach a verdict. I think that's the
reason we ask that question.
But we don't need to know whether it was guilty or
not guilty. We want to know if you were ever on a jury where
they were able to reach a verdict.
PROSPECTIVE JUROR HOSTYNEK: Yes.
THE COURT: And in your case good for you, you
reached a verdict.
PROSPECTIVE JUROR HOSTYNEK: We reached a verdict.
Yes, we did.
THE COURT: Go ahead.
PROSPECTIVE JUROR HOSTYNEK: I have never been in the
military or law enforcement.
And a party or witness in court. Well, a friend
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asked me to be a witness in her case against someone who was
living in her house and would not leave.
THE COURT: All right. Great. Thank you.
Ms. Pearlman, your turn.
PROSPECTIVE JUROR PEARLMAN: My name is Patricia
Pearlman. I live in Cotati. I graduated high school.
I am a letter carrier for the United States Postal
Service. I belong to the National Association of Letter
Carriers.
I like camping and gardening.
I am married. My husband is a letter carrier also
for the postal service.
I have twin girls, 18 years old. One attends Santa
Rosa J.C. and the other attends U.C. Irvine.
I have never served on a jury. I have never been in
the military or law enforcement.
I did -- I was in a car accident and I did sue the
driver, but it was settled in a mediation. And that's it.
THE COURT: Are you -- you're a letter carrier in
Cotati?
PROSPECTIVE JUROR PEARLMAN: Rohnert Park. Rohnert
Park, Cotati.
THE COURT: Okay. Excellent.
Now, for both of you: Did you hear all those
questions that I previously asked?
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PROSPECTIVE JUROR PEARLMAN: Yes.
PROSPECTIVE JUROR HOSTYNEK: Yes.
THE COURT: Would you have raised your hand to any of
them?
PROSPECTIVE JUROR PEARLMAN: No, no.
PROSPECTIVE JUROR HOSTYNEK: No.
THE COURT: You are both indicating no. Great. Just
hold onto the microphone then.
Let me ask this more general question to all 18 of
you. You know, I know you've heard of Oracle and I know you've
heard of Google. There is no way we would not have heard of
those big companies. And that's fine.
You know, like when we had the Barry Bonds case here
in this courthouse, everybody in America had heard of the
parties in that case, of course. So it's okay if you've heard
of them, but I need to know if there is something particularly
good or particularly bad that you have heard about one company
or the other. And then my follow-up question to you is going
to be whether or not that would cause you to be biased one way
or the other against one of these two companies.
Let me give you some examples. Let's say you that
had a neighbor who for some reason had an employment situation
with one of these companies and had a terrible time. Or let's
say that one of these companies had done something particularly
good, given like a bonus certificate that you felt just like
101
was a gift that you didn't deserve, but you really appreciated
it and it was a nice thing for them to have done. Maybe you're
a school teacher and they gave something to your school.
Something particularly good or particularly bad. And
I don't want to know yet what it was, but I would like for you
to raise your hand if there is -- I'm not talking about the
kind of routine things. I'm talking about particularly good or
particularly bad. If so, raise your hand?
Okay. Our lawyer down there, Mr. Haithcox. Okay,
let's go down to you.
Now, you're a lawyer, right?
PROSPECTIVE JUROR HAITHCOX: Correct.
THE COURT: You tell me: Is this something you
should tell us in open court or is this something that you want
to tell us more privately?
PROSPECTIVE JUROR HAITHCOX: It can be in open court.
THE COURT: All right. Go ahead. Tell us what it
is.
PROSPECTIVE JUROR HAITHCOX: It's just that one of
the companies, my relative was -- their department was
reorganized and she was very unhappy with the company and quit.
THE COURT: Okay. One of your employees?
PROSPECTIVE JUROR HAITHCOX: No, relatives.
THE COURT: How close a relative?
PROSPECTIVE JUROR HAITHCOX: It's one of our closer
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relatives. I can't trace out exactly how she's related. We
call her a cousin, but she is not exactly a cousin.
THE COURT: Without telling us which company it was,
the question I have for you is: Will that influence your
ability to be fair and impartial here?
PROSPECTIVE JUROR HAITHCOX: No, I don't think it
will.
THE COURT: Okay. Thank you.
Anyone else?
(No response.)
THE COURT: All right. No one else is raising their
hand. All right. Great.
Let's see. Do any of you have a cell phone or smart
phone or tablet that uses the Android system? If so, raise
your hand.
Just one of you. Okay. That's Ms. Michals. Let's
pass it back to you.
Ms. Michals, I hate to be so nosy, but I have to ask
this. Tell me what kind of phone it is.
PROSPECTIVE JUROR MICHALS: It's HGC, Incredible
Droid. Droid Incredible. How long have you had that?
PROSPECTIVE JUROR MICHALS: I have had it since last
September because I was upset with my iPhone.
(Laughter.)
THE COURT: Well, fortunately Apple is not a party --
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PROSPECTIVE JUROR MICHALS: Just letting you know.
THE COURT: (Continuing) -- in this case. So good
for you.
All right. So have you been happy with it so far?
PROSPECTIVE JUROR MICHALS. Yeah. It's too many
buttons to push, but it's good. It's okay.
THE COURT: Now, in this trial we're going to hear a
lot about the Android system, which you use. Right?
PROSPECTIVE JUROR MICHALS: Uh-huh.
THE COURT: So you can't rely upon what you already
know. You have to ignore that and base your decision on the
evidence presented here. You understand that part?
PROSPECTIVE JUROR MICHALS: Got it.
THE COURT: Now, are you able to do that?
PROSPECTIVE JUROR MICHALS: Yes.
THE COURT: Okay. Do you have any strong -- not just
strong. Do you have any bias whatsoever in favor of or against
Android or Google in this case?
PROSPECTIVE JUROR MICHALS: No, I don't.
THE COURT: All right. So if you were to rule
against -- if you thought the evidence really did favor Oracle,
you would be willing to rule for Oracle here even though that
would hurt Google, the company that came up with Android?
PROSPECTIVE JUROR MICHALS: Of course, yes.
THE COURT: Okay. Great.
104
Anyone else have an Android type phone?
(No response.)
THE COURT: Here is another thing. During the long
course of this trial if you were to go get one, I would have to
hold an evidentiary hearing I think.
(Laughter.)
THE COURT: So you -- really, I'm serious. I would
have to ask you the same kind of questions I just asked Ms.
Michals. So you would need to keep that in -- anyone on the
verge of going and buying one or considering it?
Reverend Martella.
PROSPECTIVE JUROR MARTELLA: I don't currently have
an Android, but I did until a couple of weeks ago.
THE COURT: Okay. What happened?
PROSPECTIVE JUROR MARTELLA: I didn't want to spend
that much money any more.
THE COURT: Okay.
PROSPECTIVE JUROR MARTELLA: So I got a dumb phone.
THE COURT: You got a dumb phone?
PROSPECTIVE JUROR MARTELLA: Yeah.
THE COURT: Ha-ha, okay. So, good for you. So you
no longer have a smart phone.
PROSPECTIVE JUROR MARTELLA: No.
THE COURT: But did you have a bad experience with
that phone, or was it just the expense?
105
PROSPECTIVE JUROR MARTELLA: Not particularly.
Mostly the expense.
THE COURT: All right. Now, same question. If
you're on the jury, you've got to forget how that phone worked.
You've got to base your decision on what comes out here at
trial and forget what you knew personally. You understand that
part?
PROSPECTIVE JUROR MARTELLA: I understand.
THE COURT: And can you do that and will you do that?
PROSPECTIVE JUROR MARTELLA: Yes.
THE COURT: Okay. Good.
All right. Anyone else?
(No response.)
THE COURT: Anyone in the recent past had an Android
phone?
(No response.)
THE COURT: All right. No one else has. Okay.
Let's go to the next question. Okay. Raise your
hand if you have any specialized training in the following
areas, and that first one is computer software or hardware
development or design? If you have specialized training or
experience in that area, please raise your hand?
Okay. One hand is going up, and that would be
Ms. Woo. And Ms. Michals.
Okay. Ms. Woo, just in a sentence tell us what it
106
is.
PROSPECTIVE JUROR WOO: I work against data bases,
produce software that does reporting. And so the various
databases, Teradata, Oracle, SQL Server.
THE COURT: So do you write the software?
PROSPECTIVE JUROR WOO: Yes.
THE COURT: You write the software. Who do you work
for again?
PROSPECTIVE JUROR WOO: Charles Schwab.
THE COURT: And what computer language do you use?
PROSPECTIVE JUROR WOO: Using SQL and Linux, and
that's about it right now.
THE COURT: Okay.
PROSPECTIVE JUROR WOO: Oh, various form of Oracle,
PLSQL, and Teradata's -- Teradata's version.
THE COURT: All right. So, again I have to ask you:
You know some things about software that the ordinary person
would not know, right?
PROSPECTIVE JUROR WOO: Right.
THE COURT: And can even program in a programming
language, right?
PROSPECTIVE JUROR WOO: Yes.
THE COURT: Most people can't do that.
PROSPECTIVE JUROR WOO: They could.
THE COURT: But you have to put that to one side and
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if the parties prove it up in court, great. If they don't
prove it up in court, then you've got to hold it against them.
You can't supplement the record with what you personally know.
Do you understand that?
PROSPECTIVE JUROR WOO: I do understand.
THE COURT: All right. Will you keep straight what
it is you know versus what's been proven and rule just on
what's been proven?
PROSPECTIVE JUROR WOO: Yes.
THE COURT: Okay. Let's go back to Ms. Michals.
You said that you have some computer
software/hardware development or design experience. What is
that?
PROSPECTIVE JUROR MICHALS: It's in the design realm.
I worked in the film industry in a broadcast graphics house as
a line producer. I didn't -- I wasn't designing. And I've
work in the web world. Miscellaneous web administration jobs.
Nothing major.
THE COURT: Same question: Can you put that to one
side? Forget about it and decide this case on the actual
evidence here?
PROSPECTIVE JUROR MICHALS: Yes, I can.
THE COURT: Thank you.
Anyone else?
(No response.)
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THE COURT: Okay. Next subject matter is mobile
computing technology, including smart phones and tablets.
I will repeat that. Mobile computing technology
including smart phones and tablets. Any specialized knowledge
or training there? If so, raise your hand.
(No response.)
THE COURT: No hands go up.
Next one is patent and copyright law. Just say,
patents and copyrights. Anybody got any specialized training
or experience in patents or copyrights? If so, raise your
hand.
(No response.)
THE COURT: No hands go up. Okay.
Any of you have any specialized training or knowledge
in Java or Android? If so, raise your hand.
(No response.)
THE COURT: No hands go up.
Finance. Finance. No. 4, Mr. Rutherford, right?
Mr. Rutherford, I think you told us your job, but let's go back
to you.
Is there something to add to your experience in
finance other than what you've already told us?
PROSPECTIVE JUROR RUTHERFORD: No.
THE COURT: Okay. Good. I don't think we need to
ask you to repeat it then.
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How about electrical engineering? Any of you have
specialized training in electrical engineering?
(No response.)
THE COURT: Okay. Nobody does. Good.
I'm just going to do a question that strikes me. You
know, we have two types of people -- maybe there are three or
four types, but one type, the geeky types who are really into
all this modern technology, and then you have people who are
not so into it and might just as soon wish we were back in
1989, or you may be in the middle. I'm not interested if
you're in the middle part.
But if you think you're way out there on either end
of that spectrum, I want you to raise your hand. Let's first
start with the geeky end. How many of you think they are in
the geeky end?
(No response.)
THE COURT: Nobody is raising their hand.
How about the other end? The not so -- the opposite?
Okay. Ms. Pearlman, you would put yourself at the
state of the art 1989?
PROSPECTIVE JUROR PEARLMAN: Yeah. I don't really do
anything with computers or anything. If I want to know
anything, I ask my husband or kids.
THE COURT: All right. Do you have a computer at
home?
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PROSPECTIVE JUROR PEARLMAN: We have a computer.
THE COURT: Do you have a cell phone?
PROSPECTIVE JUROR PEARLMAN: I have a cell phone, but
it's just basic.
THE COURT: It's the basic phone.
PROSPECTIVE JUROR PEARLMAN: Call and talk to people
or whatever. No texting. No anything.
THE COURT: All right. Let's do it a different way.
How many of you just have your plain basic cell phone without
internet access? How many of you have that?
Ms. Pearlman, I assume that's what you have, right?
PROSPECTIVE JUROR PEARLMAN: Correct.
THE COURT: And how many of you are in that category?
Okay. Keep your hands up. The lawyers will want to
know this.
How many of you have a smart phone that has got
internet capability? All right. We've got several hands that
go up there. Okay, that's good.
And then we'll assume the rest of you are somewhere
else. Okay.
All right. Now, we go to some more questions. Have
any of you ever heard the phrase "open source software." Raise
your hand high if you have ever heard that? "Open source
software."
Okay. Now, who has the microphone? Let go to
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Mr. Dimaggio.
Mr. Dimaggio, just in a sentence what do you think
that means?
PROSPECTIVE JUROR DIMAGGIO: I believe that it means
that anyone can write to it and make a program for it.
THE COURT: Okay. Have you ever done that yourself?
PROSPECTIVE JUROR DIMAGGIO: No, I have not.
THE COURT: Do you have a close friend or relative
that does that?
PROSPECTIVE JUROR DIMAGGIO: No, I don't.
THE COURT: Okay. Do you have strong opinions on
that subject?
PROSPECTIVE JUROR DIMAGGIO: I do not.
THE COURT: Okay. Now, in this case we're going to
hear that phrase and we're going to find out what the
evidence -- from the evidence what that phrase means.
Are you willing to go with the evidence in the case
and put aside what you've heard somewhere else about what that
means?
PROSPECTIVE JUROR DIMAGGIO: Yes.
THE COURT: Okay.
All right. Let's go to Ms. Woo. Ms. Woo, same
questions. What do you think "open source software" means.
PROSPECTIVE JUROR WOO: It's a group code that's
available openly to other individuals to contribute or to
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utilize for their own purposes.
THE COURT: All right. And in this case we're going
to hear some of the more technical terms about what that means.
You'll be required to set aside what you think of and go based
on the evidence in the case.
The lawyers and the witnesses will explain more
technically what "open source software" means, and will you be
able to decide the case based on the record and put aside what
you have previously heard?
PROSPECTIVE JUROR WOO: Yes.
THE COURT: All right. Likewise, Mr. Troy. Did you
raise your hand?
PROSPECTIVE JUROR TROY: No.
THE COURT: All right, Ms. Michals. You raised your
hand. Same question to you.
PROSPECTIVE JUROR MICHALS: Software that everyone
can work on, use bytes.
THE COURT: And would you be willing to put aside
what you heard about the way that process works?
PROSPECTIVE JUROR MICHALS: Yes.
THE COURT: All right. Very good. Thank you.
And who else raised their hand? Mr. Haithcox.
PROSPECTIVE JUROR HAITHCOX: Yeah. I just have a
layman's understanding, the same as they mentioned. And, yeah,
I can put it aside.
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THE COURT: Great.
Anyone else that I missed on that?
(No response.)
THE COURT: Okay. No one else.
Any of you ever applied for a patent? If so, raise
your hand.
THE COURT: Okay. Let's go down to Mr. Dimaggio.
What was your patent on?
First let me ask: Is it still pending?
PROSPECTIVE JUROR DIMAGGIO: No, it's -- no, it's
not.
THE COURT: All right. What was it about?
PROSPECTIVE JUROR DIMAGGIO: It was through the
laboratory and so it was a laser beam dump and it never got
patented.
THE COURT: Did the Patent Office turn it down?
PROSPECTIVE JUROR DIMAGGIO: I believe the lab turned
it down and that leaves me eligible to pursue it and I didn't.
THE COURT: Okay. So the lab you worked for did not
apply for a patent, so it never got as far as the Patent
Office?
PROSPECTIVE JUROR DIMAGGIO: Correct.
THE COURT: All right. Good.
And now you're going to hear -- well, never mind.
I'll just leave it at that.
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Anyone else ever apply for a patent?
(No response.)
THE COURT: Or come close to applying for a patent?
(No response.)
THE COURT: How about a copyright? Anyone?
(No response.)
THE COURT: Okay. Nobody.
Any of you ever worked for a company where you had
some special role in connection with their intellectual
property? And if -- you'll know what I mean by intellectual
property if the answer to that is yes.
Any of you ever worked for a company that -- where
you had something to do with their intellectual property? If
so, raise your hand.
Ms. Michals, your turn. Please give her the
microphone.
PROSPECTIVE JUROR MICHALS: I worked for a start-up
in L.A. that had some thing. Had to do with securing purchases
and stuff, but it went under.
THE COURT: Okay. You'll hear about some -- about
patents and so forth in this case and you need to base your
decision on what I tell you the law is, as well as what the
evidence here is, but forget about what you learned at some
other job.
PROSPECTIVE JUROR MICHALS: Okay.
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THE COURT: Understand that?
PROSPECTIVE JUROR MICHALS: Uh-huh.
THE COURT: Yes, Ms. Woo?
PROSPECTIVE JUROR WOO: Every employment contract I
sign has a clause about intellectual property. So the software
I write is intellectual property for the various companies.
THE COURT: Okay. All right. Thank you.
We have a -- I want to tell you what the jury does.
This is very fundamental, and I want you to be thinking to
yourself: Can I do this?
And let me preface it with a word or two. Sometimes
the jury, good members of the public like you who haven't been
in the courtroom before think, My goodness. The judge will
figure all this out, and you really don't have a good clue as
to what the jury does.
Before I go any further. Raise your hand if any of
you -- for those of you who this is the very first time ever
you have been in a courthouse, raise your hand?
Okay. One. All right.
Well, here is what happens. Under our Constitution
the jury decides the case. The judge's job is to manage the
trial and keep it running on an even keel and smoothly, but the
jury is the one that actually decides the case.
The judge will tell you what the law is. That's my
job. I have to tell you what the law is, and that's not always
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easy, but I will on tell you what it is. But that's only half
of the formula.
The other half is to apply the law to the facts of
the case. And let's say, to take a simpler case, that the
issue is whether the light was red or green in a traffic
accident case. Let's say that was the main issue. The judge
doesn't decide that. You, the jury, would be listening to the
evidence and evaluating the witnesses and their credibility and
lining up all the evidence on one side and the evidence on the
other side, how credible the sources are, and then make your
own judgment as to whether or not the party with the burden of
proof has carried the burden of proof. If the answer is yes,
then that party wins. If the answer is no, that party loses on
that issue.
So to do that job you must listen carefully, pay
close attention, take a lot of notes usually. It's up to you
if you want to take notes, but most jurors do. When you get
into the jury room and deliberate, you look at some of the
documents, or all of the documents depending on whether you
need to look at them again, try to discuss the testimony with
each other and then you decide. Has the party with the burden
of proof carried its burden of proof?
And you look -- I will tell you what the party with
the burden of proof has to prove, the elements, in the jury
instructions. It's kind of like a checklist. So in order for
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the X party to prevail on that issue, they have got to prove A,
B and C. And then you decide: Have they proven A? Have they
proven B? Have they proven C?
It's kind of a clinical exercise in that respect.
You base it only on what's in the trial record, not upon
anything else.
So you can see how important it is that you
understand going in that you are the decision maker on a case
of importance between these large companies. And you would
have to pay close attention and do your very best, then follow
the law and so forth and not be biased. So I -- we want to
start off with as fair a jury as we can get, and that's our
goal here today.
So I want to ask you to raise your hand if there is
something you think we ought to know that might draw into
question your ability to be fair and impartial in this case?
Something that you might say, Well, you know -- I'll give you
some examples.
Let's say that you had been sued once and you thought
it was very unfair that you had been sued and you had to spend
some money to defend the case. You won the case and you
thought it was very unfair that you had he ever been sued in
the first place and that you are prejudiced against anybody who
would bring a lawsuit because you had such a bad experience
yourself. You know, you might be able to put that to one side.
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Fine. Good for you. But it still would be fair to tell us
about it up front.
So is there anything like that that you want to, you
know, tell us about? This is the time to do it, not later.
Raise your hand.
Okay. Who all raised their hand? Reverend Martella
and Ms. Michals. Anybody else?
(No response.)
THE COURT: Go ahead Reverend Martella.
PROSPECTIVE JUROR MARTELLA: My question is this.
For the last 10-plus years I have been struggling through sleep
issues, both apnea and insomnia issues. And I think I'm
beginning to come out of that, but I don't know if I have the
capacity to intellectually process vast amounts of intellectual
information and form sound judgments there. Just a question I
have on my part.
I can do day-to-day functioning. I don't know about
processing vast amounts of intellectual information.
THE COURT: Do you think it's going to be any harder
for you than it would be for the average person?
PROSPECTIVE JUROR MARTELLA: I'm not qualified to
say. I don't know.
THE COURT: Well, do you go to sleep --
PROSPECTIVE JUROR MARTELLA: You asked us to raise
potential questions here. I'm laying that out.
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THE COURT: I know it sounds like I'm arguing with
you, doesn't it? But you're right to raise it. Good for you.
I want you to raise it, but now I need to probe it to find out:
Are you going to go to sleep on us?
PROSPECTIVE JUROR MARTELLA: Not likely, but how
alert I will be might be another issue.
THE COURT: I think you will be fine. I don't think
that's going to be a problem.
Ms. Michals, your turn.
PROSPECTIVE JUROR MICHALS: I'm single, but I've just
started dating a Deputy Attorney General of the State of
California, a lawyer.
THE COURT: Started dating what?
PROSPECTIVE JUROR MICHALS: A Deputy Attorney
General. She works in administrative law.
THE COURT: Uh-huh.
PROSPECTIVE JUROR MICHALS: That's it.
THE COURT: Well, why would that be a problem?
PROSPECTIVE JUROR MICHALS: I don't know. Just, you
know, I know a lawyer.
(Laughter.)
THE COURT: Well, Deputy Attorney General, she works
in administrative law doing what kind of cases?
PROSPECTIVE JUROR MICHALS: Education, teacher
credentialing, prosecuting, trying to he take teacher licenses
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away.
THE COURT: I think you will be fine. I don't think
that's an issue, but you're right to raise it. That's the kind
of thing we want to know about. Okay.
So anyone else?
(No response.)
THE COURT: How about this. You're going to hear
some famous names here. I will give you two: Larry Ellison
and Larry Page. They both have the first name Larry. Larry
Ellison and Larry Page. Kind of like in the Barry Bonds case,
everyone would have heard of him. It doesn't mean your
disqualified because you've heard of them. But if you have a
strong opinion one way or the other, we need to know about it.
Does anyone have a strong opinion, either very
positive or very negative, about either of these two gentlemen?
If so, raise your hand?
(No response.)
THE COURT: Okay. No one's hand goes up.
Does anyone have an opinion at all about either of
these two that -- wait, let me finish. An opinion at all about
either of these two which you think you could not put aside in
your deliberations? If so, raise your hand?
(No response.)
THE COURT: Okay. No one has raised their hand on
that one. Okay.
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Okay. Now, I don't -- it's just an ordinary opinion
right Mr. Haithcox, or is there something special about it?
PROSPECTIVE JUROR HAITHCOX: Just an ordinary
opinion.
THE COURT: You can put it to one side, right?
PROSPECTIVE JUROR HAITHCOX: Yes.
THE COURT: Great, okay.
So, we're getting close to the end of my questions.
I'm going to let the lawyers ask some questions and then I'm
going to come back and I want to give you a heads-up on the
question or two that I'm going to have for you, time
permitting.
I may ask you to tell us a book or movie that you
have seen or read in the last three or four months and that you
really like, if any. That's one thing.
Another question I may ask you is: Why would you be
a good juror? We have already heard Reverend Martella tell us
he may be such a good juror because possibly he won't follow
all of the evidence, which I don't think -- I think you're
going to be great. I think you will follow all of the
evidence. But even if you don't follow all of the evidence --
it's impossible to follow every single piece of the evidence in
a big case like this, but, you know, the main thing is you'll
do your very best to do it.
But if there is something that you -- like, you think
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you would be a good juror because you're good at being fair to
both sides, or you're a good juror because you wait until the
very end to decide and you're not judgmental, or you're a good
juror because you'll take a lot of notes and try to keep it
straight and really understand it. Or you'll be a bad juror
because, you know, you think it's a waste of resources to see
two big companies fighting with each other. You know, whatever
your opinion is on that subject, if time permits, I'm going to
ask you and I'm giving you this heads-up so you will be able to
tell us what the answer is.
But at this time, I'm going to let the lawyers have a
short, brief opportunity to ask follow-up questions.
Mr. Jacobs?
MR. JACOBS: Thank you, your Honor.
Mr. Haithcox, could I ask you about your ordinary
opinion?
PROSPECTIVE JUROR HAITHCOX: You want me to name
names or just talk about?
I have heard about Mr. Ellison. I have heard some
things in the media about him and from what I've seen about the
way he runs his life, I have gotten sort a negative impression.
MR. JACOBS: And do you have an impression about
Google?
PROSPECTIVE JUROR HAITHCOX: Generally, yes.
MR. JACOBS: What's that impression?
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PROSPECTIVE JUROR HAITHCOX: Different. A little
better.
MR. JACOBS: Okay. Thank you.
How many you actually post to a blog of any kind?
THE COURT: Raise your hand higher.
Okay, Ms. Chiu and who else? That's it -- no, no,
Ms. Raman.
MR. JACOBS: Ms. Chiu, what kind of blog do you post
to?
PROSPECTIVE JUROR CHIU: Just a design blog, so I
actually have a side kind of business doing graphic design for
wedding invitations and whatnot. So I just post recent trends,
things that we're doing, things like that.
MR. JACOBS: Is it your own blog?
PROSPECTIVE JUROR CHIU: Yes.
MR. JACOBS: What is it called?
PROSPECTIVE JUROR CHIU: Subtle Glances. It's a
company name.
MR. JACOBS: Thank you.
Can you pass the mic down?
THE COURT: Can I interrupt for one second?
If you have a blog going, you can't talk about this
case. You can't say, "Okay, today I'm the juror and this is
what happened in court today."
PROSPECTIVE JUROR CHIU: Yes, I understand.
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THE COURT: You could not do that.
All right. Good. All right.
Now we go to Ms. Raman.
PROSPECTIVE JUROR RAMAN: I used to have a blog on
Word Press. So just writing quotes and stuff like that.
MR. JACOBS: Quotes?
PROSPECTIVE JUROR RAMAN: Yeah, quotes.
MR. JACOBS: Things that appealed to you that you
wanted to present to others?
PROSPECTIVE JUROR RAMAN: Just to -- not a public
profile. Just some of my friends on the email list.
MR. JACOBS: And you used -- Word Press was the
vehicle for your blogging?
PROSPECTIVE JUROR RAMAN: Yes.
MR. JACOBS: Have you heard much in the news about
Oracle or Google in the last three months?
PROSPECTIVE JUROR RAMAN: No, no. Nothing at all.
MR. JACOBS: How about --
PROSPECTIVE JUROR RAMAN: This has nothing to do with
software or computers. It's just quotes.
MR. JACOBS: Separately, have you heard much about
Oracle or Google in the news?
PROSPECTIVE JUROR RAMAN: Umm, not recently, but I'm
aware of Oracle and Google. Yeah. I mean, I do Google search
and stuff like that, yeah.
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MR. JACOBS: Do you use any other Google services?
PROSPECTIVE JUROR RAMAN: Umm, like email. Yeah.
MR. JACOBS: You have a Gmail account?
PROSPECTIVE JUROR RAMAN: Yes.
MR. JACOBS: Anybody on the jury use Google Docs?
THE COURT: Raise your hand high, please.
MR. JACOBS: Tell us about your use of Google Docs,
Ms. Chiu.
PROSPECTIVE JUROR CHIU: It's just a general usage of
it. So I use it for regular spreadsheets. Like, if I'm
planning on trip with friends, we share information there.
Generally I just use it over Word, Microsoft. It's just
because it's all in one place.
MR. JACOBS: I saw your hand go up when the question
came about reading computer magazines.
PROSPECTIVE JUROR CHIU: Yeah. I actually
misunderstood the question. I initially understood it as
electronic magazines, but, you know, electronic-based magazines
versus computer, about computer electronics.
MR. JACOBS: And do you read computer magazines?
PROSPECTIVE JUROR CHIU: No, I don't. No.
MR. JACOBS: Any of you have strong favorable
opinions about Oracle or Google products as opposed to the
companies? Anybody think that Oracle databases, you've heard
about them in your work and you've heard they are great?
126
(No response.)
MR. JACOBS: How about have you heard anything
negative about Oracle products?
(No response.)
MR. JACOBS: Ms. Woo, you actually use an Oracle data
base. Any strong opinions about its capabilities?
PROSPECTIVE JUROR WOO: It's not on.
THE COURT: Please use that. It's not on.
Yeah, now it's on.
PROSPECTIVE JUROR WOO: Is that on?
THE COURT: Wait, wait. A little closer then. It's
my fault. I'm goofing it up. This is -- for 13 years this
microphone has been a problem.
(Laughter.)
THE CLERK: The switch got turned off.
PROSPECTIVE JUROR WOO: I'm fond of databases in
general.
MR. JACOBS: You're fond of data bases. Oracle is a
data base and you're fond of the Oracle data base.
PROSPECTIVE JUROR CHIU: Yes, yes.
MR. JACOBS: Why are you fond of it?
PROSPECTIVE JUROR CHIU: It was sort of the leading
edge for awhile in terms of allowing various programming
facilities. I think some of the other software vendors have
now caught up.
127
MR. JACOBS: How about Java? Do you know anything
about Java?
PROSPECTIVE JUROR CHIU: No. I do not know about
Java.
MR. JACOBS: Judge Alsup asked you this, but I want
to ask you again just to be sure.
Any of you know anything about Java, Java programming
language? Java environment?
(No response.)
THE COURT: Take those one at a time. The Java
programming language, any of you know that? Ms. Michals?
PROSPECTIVE JUROR MICHALS: You mean, know the
language itself or heard of it?
THE COURT: Heard of it.
PROSPECTIVE JUROR MICHALS: Yes.
THE COURT: How much have you heard of it?
PROSPECTIVE JUROR MICHALS: Umm, just the way it
works that it's -- that it's -- you're able to program a
little -- I have a layman's understanding of it.
THE COURT: Go head, Mr. Jacobs.
MR. JACOBS: And how did you develop that
understanding?
PROSPECTIVE JUROR MICHALS. Living in the Bay Area
for this time, you know, since 1984.
MR. JACOBS: Have you ever sat down with one of the
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programming manuals?
PROSPECTIVE JUROR MICHALS: No. No, no, no, no. I
have friends that, you know...
MR. JACOBS: Who told you about their job parameters?
PROSPECTIVE JUROR MICHALS: Yes.
MR. JACOBS: Mr. Dimaggio, I need to ask you a little
bit more about your friends that you mentioned. I have the
impression it left an impression on you that they were laid off
during the PeopleSoft acquisition.
PROSPECTIVE JUROR MR. DIMAGGIO: Yes, they were.
MR. JACOBS: And how did that leave you feeling?
PROSPECTIVE JUROR MR. DIMAGGIO: I mean, I guess I
thought it was unfair, but in the end they both got laid off.
MR. JACOBS: They both got?
PROSPECTIVE JUROR MR. DIMAGGIO: Laid off.
MR. JACOBS: And what happened to their employment
afterwards?
PROSPECTIVE JUROR MR. DIMAGGIO: Well, they both have
jobs now. I don't know who they work for.
MR. JACOBS: Oracle and Google are in the news
periodically. I asked you a little bit about this before.
What have you heard about Oracle in the news aside,
Mr. Haithcox, from what you've heard, what you referred to
before?
When you hear Oracle, do you think of any news
129
articles that have popped up recently? America's Cup?
THE COURT: This is directed to who?
MR. JACOBS: To anyone.
THE COURT: All right.
MR. JACOBS: How about Oracle's involvement,
Mr. Ellison's involvement in the America's Cup race, have you
heard about that? And what impression do you have of that
Ms. Chiu?
PROSPECTIVE JUROR MS. CHIU: No specific. It was
just watching the news and --
THE COURT: The microphone.
PROSPECTIVE JUROR MS. CHIU: Probably a basic
impression. He's trying to get it here. He supports it.
That's really it. I don't have an impression either way.
MR. JACOBS: And how about Google in the news?
Google's a big company here. It's often in the newspaper.
What have you heard about Google in the news? Anyone?
Mr. Haithcox?
PROSPECTIVE JUROR MR. HAITHCOX: Something today
before I came in here and knew this was about Google, about a
different lawsuit or them paying a fine, I think.
MR. JACOBS: How many others have heard about that?
Ms. Chiu, you heard about that story?
PROSPECTIVE JUROR MS. CHIU: Yes.
MR. JACOBS: Who else heard about America's Cup and
130
Oracle's involvement in it?
Ms. Michals, what have you heard?
PROSPECTIVE JUROR MS. MICHALS: Just that he sails.
MR. JACOBS: What?
PROSPECTIVE JUROR MS. MICHALS: That he brought it
here and worked really hard at that. I kind of lost track.
MR. JACOBS: Who else?
Mr.-- Rev. Martella, other than your concern about
your recovery from the sleep issue that you mentioned, is there
anything else on your mind about this case that's worrying you
about your ability to serve?
PROSPECTIVE JUROR MR. MARTELLA: Yes.
MR. JACOBS: What is that?
PROSPECTIVE JUROR MR. MARTELLA: Two things. I have
an 85-year-old mother-in-law who lives with us that I'm
responsible for her day-care. That's the concern.
The other, is I don't know how I keep two churches
going being gone that long. But, you know, my letter of appeal
on that did not register.
THE COURT: Wait, wait, wait a minute. Why didn't
you raise that earlier? I said if you had any hardship bring
it up.
PROSPECTIVE JUROR MR. MARTELLA: I wrote the letter
and I was told that doesn't seem to matter in this case; come
here today. And so I didn't think -- but he raised the
131
question and I answered.
THE COURT: Mr. Jacobs did a good thing to bring that
up. Continue on. We may come back to that point. Or you can
continue with that point.
PROSPECTIVE JUROR MR. MARTELLA: Those are areas of
concern for me. I'm happy to serve. I think I can do a few
days. I don't know about this kind of duration and maintain
the quality of life that's needed in my situation.
MR. JACOBS: And you're driving from?
PROSPECTIVE JUROR MR. MARTELLA: Windsor.
MR. JACOBS: How long does that take to get here?
PROSPECTIVE JUROR MR. MARTELLA: To drive, park, get
up here, an hour and a half each way.
MR. JACOBS: No further questions.
THE COURT: Mr. Van Nest.
MR. VAN NEST: Thank you, Your Honor. Good morning,
everyone.
Ms. Woo, you mentioned Oracle database -- I'm sorry.
Do you have anything to do with purchasing or maintaining the
Oracle products that you use at work?
PROSPECTIVE JUROR WOO: No, not any longer. I did in
a previous capacity, where I negotiated contracts.
MR. VAN NEST: So you were negotiating with the
Oracle reps?
PROSPECTIVE JUROR WOO: Yes.
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MR. VAN NEST: That was on an every six-month basis,
or every nine months?
PROSPECTIVE JUROR WOO: Actually think we were on a
two-year renewal basis.
MR. VAN NEST: Do you maintain any acquaintance OR
relationship with the reps, the Oracle reps that you work with?
PROSPECTIVE JUROR WOO: No.
MR. VAN NEST: Do you get entertained at Oracle
events or anything like that, as a user or a customer?
PROSPECTIVE JUROR WOO: No, no.
MR. VAN NEST: And how long ago was that that you
were actually responsible for --
PROSPECTIVE JUROR WOO: That was probably about ten
years ago.
MR. VAN NEST: Quite a long time ago.
PROSPECTIVE JUROR WOO: Quite a while, yes.
MR. VAN NEST: Does anybody else on the panel use
Oracle database products in their line of work?
Anybody have any business relationship with Oracle at
all, either way?
Okay. Mr. Troy, did you mention that you were a
sailor?
PROSPECTIVE JUROR TROY: Yes.
MR. VAN NEST: Are you an America's Cup aficionado,
or just aware of it?
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PROSPECTIVE JUROR TROY: Well, I'm from Rhode Island
where the America's Cup began. I have not been following it
that closely in recent years. The high-technology of the sails
kind of turns me off.
MR. VAN NEST: All right. But it -- you're not
someone that's following it closely.
PROSPECTIVE JUROR TROY: No, not at all. I'm not
following it at -- I will, but I'm not following it vis-a-vis
any of the issues here.
MR. VAN NEST: Okay. Fair enough. Thank you.
Is it Mr. Hotvedt, you mentioned that you had done
aerial photography and had been involved in some fine arts and
so on. Do you actually hold any copyrights yourself?
PROSPECTIVE JUROR MR. HOTVEDT: No, I don't.
MR. VAN NEST: Have you applied for any copyrights?
PROSPECTIVE JUROR MR. HOTVEDT: No, I haven't.
MR. VAN NEST: As an artist or photographer, are
copyrights something that have any special importance for you
one way or the other?
PROSPECTIVE JUROR MR. HOTVEDT: No, no.
MR. VAN NEST: And have you ever been involved in a
dispute over copyrights before, in the past?
PROSPECTIVE JUROR MR. HOTVEDT: I haven't.
MR. VAN NEST: Okay. Let me just ask a general
question of the panel because we've got some graphic designers
134
and architects, and so on.
Does anyone hold any copyrights of their own?
Ms. Chiu, I think you've done architectural work and
doing store design now.
PROSPECTIVE JUROR MS. CHIU: Yes.
MR. VAN NEST: Do you have any involvement in
copyrights at the Gap?
PROSPECTIVE JUROR MS. CHIU: Not at all.
MR. VAN NEST: How about your design work, has any of
that ever been copyrighted?
PROSPECTIVE JUROR MS. CHIU: No.
MR. VAN NEST: Does copyright come up much at work?
PROSPECTIVE JUROR MS. CHIU: No.
MR. VAN NEST: Okay. Thank you.
Ms. Raman, you mentioned creative writing. Is that
an avocation or vocation? Are you doing that for work, or is
that just a hobby?
PROSPECTIVE JUROR MS. RAMAN: It's a hobby. But I've
written a book, published by Publish America. It's a
collection of poems. And I've advertised that on -- you know,
through Amazon. So -- but, you know.
MR. VAN NEST: Wonderful. So it's a book of poetry?
PROSPECTIVE JUROR MS. RAMAN: Yes.
MR. VAN NEST: And you have a copyright on that?
PROSPECTIVE JUROR MS. RAMAN: Yes, yes.
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MR. VAN NEST: So have you -- have you been
involved -- do you have other copy written works?
PROSPECTIVE JUROR MS. RAMAN: No. This collection of
poetry, it's been -- I applied to the Library of Congress, and
they had the copyright through them.
MR. VAN NEST: Congratulations.
Now, this case obviously involves copyrights. Both
Google and Oracle are companies that have a lot of copyrights,
obviously. But in this case Oracle is the one asserting their
copyright.
And so let me ask you and then I'll ask a general
question of the panel, but just for you Ms. Raman, would the
fact that Oracle holds a copyright, just that fact standing
alone, and is asserting it here in court, would that fact cause
you to lean one way or the other before hearing any evidence or
hearing any more information about the case?
PROSPECTIVE JUROR MS. RAMAN: I really don't know.
MR. VAN NEST: In other words, we're interested in
making sure that the parties are on a level playing field when
we start off, before any evidence.
Would the fact that Oracle holds the copyrights that
we're talking about in this case give them an advantage, you
think, even before you heard what the evidence was?
PROSPECTIVE JUROR MS. RAMAN: No, I wouldn't, you
know, pass my judgment on that before listening to the
136
evidence.
MR. VAN NEST: And let me ask a general question of
the panel, just that same question. Would anybody -- would
anybody on the panel give an advantage kind of out of the gate
to the person holding the copyrights -- in this case, that's
going to be Oracle -- without having heard any evidence or any
more information? If you think you would, please give me a
hand up.
Let me ask another, similar question, not about
copyrights, but would anybody give an advantage to the
plaintiff just because we're here about to start trial, and
whatever claim they have has advanced this far, would that
cause anybody on the panel to think, well, there must be
something wrong if the case has gone this far and we're about
to start a trial?
Anybody -- would anybody have that conclusion or
assumption just based on our being here? Okay. Good. Fair.
Good enough.
Mr. Haithcox, we've gotten a lot of attention from
you this morning. I understand you're working for a company
now, insurance company.
PROSPECTIVE JUROR MR. HAITHCOX: That's correct.
MR. VAN NEST: When you were back in private practice
like those of us over here are now, can you just give me a
quick sketch of what the nature of your practice was.
137
PROSPECTIVE JUROR MR. HAITHCOX: Insurance coverage
for mass torts and environmental pollution.
MR. VAN NEST: So coverage issues, generally, for the
insured or the insurer? Or was it both?
PROSPECTIVE JUROR MR. HAITHCOX: I represented the
insurer.
MR. VAN NEST: The insurer in claims by insureds to
get coverage?
PROSPECTIVE JUROR MR. HAITHCOX: Correct.
MR. VAN NEST: What about now, you're now at --
PROSPECTIVE JUROR MR. HAITHCOX: Right now we run the
gamut of insurance coverage issues.
You mentioned patent a lot, and I haven't done any of
that in our office, but I've done some trademark coverage work.
MR. VAN NEST: What's the nature of that?
PROSPECTIVE JUROR MR. HAITHCOX: It's a question of
whether there's insurance coverage for lawsuits between two
companies who are fighting about trademarks.
MR. VAN NEST: Thank you.
PROSPECTIVE JUROR MR. HAITHCOX: Uh-huh.
MR. VAN NEST: Ms. Michals, you mentioned early on, I
think, when you just sat down, that you had heard something on
the news about our case.
Did I get that wrong?
PROSPECTIVE JUROR MS. MICHALS: I didn't say that.
138
MR. VAN NEST: Okay.
PROSPECTIVE JUROR MS. MICHALS: But I have heard of
it.
MR. VAN NEST: But you have, anyway. Okay.
PROSPECTIVE JUROR MS. MICHALS: But I don't follow
it. I can't read online very well.
MR. VAN NEST: You can't.
PROSPECTIVE JUROR MS. MICHALS: I haven't followed
it.
MR. VAN NEST: In other words, whatever you heard was
more of a passing reference rather than -- you're not following
it on the blogs or anywhere else?
PROSPECTIVE JUROR MS. MICHALS: Right.
MR. VAN NEST: Whatever you heard was minimal?
PROSPECTIVE JUROR MS. MICHALS: Right.
MR. VAN NEST: Do you remember hearing enough to even
recall -- don't tell us what it is, but to recall what it was
or what the slant of it was, or anything like that?
PROSPECTIVE JUROR MS. MICHALS: (Shakes head.)
THE COURT: You need to speak into the mic.
PROSPECTIVE JUROR MS. MICHALS: No, I have not heard.
MR. VAN NEST: Thank you.
Just give me a moment, Your Honor.
Oh, obviously both companies are very big, both
Oracle and Google. No big secret there.
139
Has anybody had a bad experience with a big company
that you think might color your thinking in a case where both
parties are big companies?
Anybody had a run-in with either a big corporation or
a large business that left a bad taste in your mouth and you're
still upset about it?
Has anybody on the panel suffered a really severe
economic loss in the last 18 months? By that I mean either
losing a job or losing a home or in a situation where you're
worried financially about being here for as long as Judge Alsup
thought we might be? Everybody's okay?
Thank you. I don't have any further questions, Your
Honor.
THE COURT: May I see Mr. Jacobs and Mr. Van Nest at
the sidebar.
(The following proceedings were held at sidebar.)
THE COURT: I just want to ask if you two would agree
to stipulate to Rev. Martella being excused. I think it's a
close call, but he has enough hardship that I would be willing
to let him go. But if one of you want to leave him on, that's
fine, too.
MR. JACOBS: I think he brings a lot of problems to
his service, and so I would agree to -- we would agree to let
him go.
MR. VAN NEST: Yes, let him go.
140
THE COURT: All right.
Now, on all the others, unless something more comes
up, I don't see any basis to knock anybody off. But if you
disagree, we can argue about it, I guess, at some point.
Do you agree with me?
MR. JACOBS: I don't have any for cause challenges at
this time, Your Honor.
MR. VAN NEST: I don't think so, Your Honor.
THE COURT: Okay. Thank you.
(Sidebar concluded.)
THE COURT: Rev. Martella, we're going to excuse you
on account of hardship. And I wanted to be clear that just
because we denied it beforehand, sometimes a judge has to rule
on it. I think in your case there was enough of a hardship for
you to serve this length of time that we're going to excuse
you. All right.
PROSPECTIVE JUROR MR. MARTELLA: Thank you.
THE COURT: Please go back to the jury assembly room
and tell them what happened.
PROSPECTIVE JUROR MR. MARTELLA: Thank you.
THE COURT: Let's call a replacement.
THE CLERK: Vandana Balakrishnan,
B-a-l-a-k-r-i-s-h-n-a-n.
THE COURT: Welcome.
PROSPECTIVE JUROR MS. BALAKRISHNAN: Hi.
141
THE COURT: How are you today?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Good.
THE COURT: Great. Do you have the microphone?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Okay. Got it.
Yes.
THE COURT: First, any hardship issue?
PROSPECTIVE JUROR MS. BALAKRISHNAN: No hardships.
THE COURT: Okay. All right. Did you hear all the
questions I asked?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Would you have raised your hand to any of
those questions?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes. I'm an
attorney and I do work in patents.
THE COURT: Do what?
PROSPECTIVE JUROR MS. BALAKRISHNAN: I do work in
patents.
THE COURT: Well, first of all, let's -- can you see
the chart okay?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Let's get your basic biographical
information, and then I'll come back to that. Go ahead.
PROSPECTIVE JUROR MS. BALAKRISHNAN: My name is
Vandana Balakrishnan. I live in Redwood City. I have a
bachelor's of science in biomedical engineering, and a J.D.
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I've been practicing as an attorney for two years
now.
THE COURT: Who do you work for?
PROSPECTIVE JUROR MS. BALAKRISHNAN: I work for a
small boutique IP firm, Rajrongbing (phonetic) PC in Mountain
View.
THE COURT: What city is that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Mountain View.
THE COURT: Thank you.
PROSPECTIVE JUROR MS. BALAKRISHNAN: So that's my
most recent job/employer. I am a board member at the Salvation
Bar Association. That's for organizational clubs.
Hobbies, I like pottery and painting, and
artistically inclined.
I am not married. No prior jury service. I
authored -- I'm currently representing a client in the Santa
Clara Superior Court. And I think that's it.
THE COURT: Are you in -- are you representing -- you
do litigation, I take it, right?
PROSPECTIVE JUROR MS. BALAKRISHNAN: I do mostly
prosecution, but I have one litigation case.
THE COURT: All right. Have you ever been involved
in any litigation involving patents?
PROSPECTIVE JUROR MS. BALAKRISHNAN: No.
THE COURT: Copyrights?
143
PROSPECTIVE JUROR MS. BALAKRISHNAN: No.
THE COURT: Okay. But you are -- you do prosecutions
before the PTO?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: How long have you been doing that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Two years.
THE COURT: Okay. Have you succeeded in getting any
patents out of the PTO?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes, just one.
THE COURT: What subject matter was that on?
PROSPECTIVE JUROR MS. BALAKRISHNAN: It was actually
not software, but data mining.
THE COURT: All right. Now, the obvious question in
your case is whether or not you will decide the case here based
on the record that we make here in the courtroom, and not
supplement it with what you know from your own experience
working with the PTO and being an attorney, and so forth.
You'd have to decide the case based on the record
here and the instructions of law I give you.
PROSPECTIVE JUROR MS. BALAKRISHNAN: I understand.
THE COURT: Would you do that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: You will forget about the way in which
you prosecute cases before the PTO, right?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
144
THE COURT: Okay. All right. So you heard all these
other questions. Do you have any -- surely, you've heard of
these two companies, right?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: And you've heard of Android and Java, and
all of that, correct?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Now, do you have -- can you put to one
side anything and everything you've ever heard about all of
that and, again, decide the case on the record here in court?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Have you raised your hand to anything
else?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Not that I
recollect, no.
THE COURT: All right. Do you -- is there anything
about you and your history that maybe in your practice that you
think we ought to know about that might be even a cause for
concern, even if you don't think it's a cause for concern?
PROSPECTIVE JUROR MS. BALAKRISHNAN: No.
THE COURT: All right. Okay. So you would be a fair
and impartial juror and follow the law in this case?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Okay. Now, what if you -- what if one
day the judge in Santa Clara says you've got to come down there
145
when you're supposed to be here in court? What would you do
then?
PROSPECTIVE JUROR MS. BALAKRISHNAN: So I have --
well, I mean, I'm working with another attorney, as well. I
work at a law firm. So there's two attorneys on the case. So
I would have to ask the other person to step into my place. We
are about to begin discovery on the case.
THE COURT: Have you ever heard of the law firms
involved in this case?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Did you ever apply for a job to any of
them?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Did you get turned down?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Are you going to hold that against them?
PROSPECTIVE JUROR MS. BALAKRISHNAN: No.
THE COURT: All right. And are you -- have you heard
of any of the individual lawyers in this case?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Uhm, no, I have
not.
THE COURT: All right. So, okay. Let me ask the
lawyers if you have any follow-up questions for -- I want to
make sure I can say your name correctly. Don't tell me yet.
Balakrishnan.
146
PROSPECTIVE JUROR MS. BALAKRISHNAN: Balakrishnan.
THE COURT: Any questions for Ms. Balakrishnan?
MR. JACOBS: Would you tell us more about what you
know about Java.
PROSPECTIVE JUROR MS. BALAKRISHNAN: I'm not that
familiar with the software things. My training is in bio life
sciences. I know, you know, it's developed by Sun
Microsystems. I don't know that much more about it, to be
quite honest.
MR. JACOBS: How about Android?
PROSPECTIVE JUROR MS. BALAKRISHNAN: I don't know
that much about it either.
MR. JACOBS: Are you doing any patent prosecution in
software-related inventions?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Not currently.
Not currently.
MR. JACOBS: What's the nature of the lawsuit that
you're actually representing somebody in?
PROSPECTIVE JUROR MS. BALAKRISHNAN: It's actually a
real estate case. It's unrelated to IP.
MR. JACOBS: A property dispute?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Property
dispute, yes.
MR. JACOBS: You represent the plaintiff?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Plaintiff.
147
MR. JACOBS: It's in Santa Clara Superior Court?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yeah, on First
Street, yeah.
MR. JACOBS: I have to ask you this, did you apply to
Morrison & Foerster for a job?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
MR. JACOBS: Okay. No further questions, Your Honor.
THE COURT: All right. Mr. Van Nest.
MR. VAN NEST: How come you didn't apply to our
office?
(Laughter)
THE COURT: Maybe she did.
MR. VAN NEST: Good morning, Ms. Balakrishnan.
I take it -- is most of your time now spent on patent
prosecution?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Most of my time,
yeah.
MR. VAN NEST: And that's essentially -- what areas?
You've got a biomedical degree. So what areas are you
prosecuting patents in?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Right now,
medical devices. Some mechanical devices. I have done some
work with Internet technologies in general, but I'm not -- I'm
not comfortable doing software because that's not my training
at all.
148
MR. VAN NEST: When you say Internet technologies,
can you expand on that little bit.
PROSPECTIVE JUROR MS. BALAKRISHNAN: Like it would be
like maybe the competitor of Groupon. It's like a business
methods patent, I suppose. And you tie it to a very strong
system. They are very hard to get otherwise.
Yeah, along those lines. And some data mining. Some
database. But I had to do that with the help of a technical
specialist.
MR. VAN NEST: Okay. Are you also -- are you
certified to practice in the PTO?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
MR. VAN NEST: So you passed all the --
PROSPECTIVE JUROR MS. BALAKRISHNAN: The Patent Bar,
yeah.
MR. VAN NEST: The Patent Bar and studied
infringement, validity, prior art, and all that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Right.
MR. VAN NEST: Judge Alsup asked you this question,
but I want to probe a little more.
You obviously have a lot of specialized knowledge
about how the patent system works. Do you feel as though you
could really exclude all that knowledge in terms of interacting
with your other jurors in applying the law as Judge Alsup gives
it to you to the facts here?
149
PROSPECTIVE JUROR MS. BALAKRISHNAN: I think I would
be maybe more interested in the case because I have a
background. But I feel confident that I can be impartial.
MR. VAN NEST: Thank you.
THE COURT: So, again, Ms. Balakrishnan, do you
actually know any of these lawyers? Did I ask you that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: You did. I
don't believe that I do.
THE COURT: All right. Okay. So, now, can you --
just ask you the general question I've asked everyone else. I
think I have. If you're selected to serve, will you be fair
and impartial to both sides, listen carefully to all of the
evidence, ignore all of the specialized training that you have
from the past, and decide this case in accordance with the law
as I give you the law?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes.
THE COURT: Is the same true for the rest of you?
Everyone nod your head yes or no.
(Jurors respond affirmatively.)
THE COURT: Are you nodding Ms. Raman? Is that a
yes?
PROSPECTIVE JUROR MS. RAMAN: Yes.
THE COURT: Anyone want to say no? All right. No
one says no.
Okay. Well, let's -- we'll just start with you,
150
then, a good book or movie lately? Talk to the mic.
PROSPECTIVE JUROR MS. BALAKRISHNAN: I saw The
Descendants. That I liked a lot.
THE COURT: Would you be a good juror or a bad juror,
and if so why?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Oh, I think I
would be a good juror. I think I have the ability to sort of
be patient and listen through the entirety of whatever evidence
is presented. And maybe try to be -- you know, listen to both
sides and then deliberate.
THE COURT: All right.
Now I want to ask a general question to you as well
as everyone. I have already ordered you all not to do any
research on the Internet, and so forth. Not to listen to news
stories about this case. Not to talk with anyone about this
case.
The most you could do is tell your loved ones you're
on a big patent and copyright case that involves these two
companies, period, and no more.
You could not go on the Internet and do -- see what
they're saying on the blogs.
I promise you there are a lot of blogs about this
very case. There are a lot of news stories about this very
case. You must make a conscious effort to ignore them and not
look at them.
151
So, let me ask you, I want to get your personal word
on this. I'll start with you, Ms. Balakrishnan. Will you
promise me you will not -- you will follow my order to stay
away from all of that?
PROSPECTIVE JUROR MS. BALAKRISHNAN: Yes, I promise.
THE COURT: All right. Let's go to Ms. Michals.
Ms. Michals same question to you, would you follow that order?
PROSPECTIVE JUROR MS. MICHALS: Yes, I will.
THE COURT: Okay. What movie or book?
PROSPECTIVE JUROR MS. MICHALS: I got caught up in
The Hunger Games trilogy.
THE COURT: Here's the reason I ask this. Has
nothing to do with whether -- it's just a little tidbit that
the lawyers will get an insight into you, and they get to
exercise these challenges momentarily. And this helps them a
little bit to know kind of more about your personality. That's
all.
Okay. Now, would you be a -- same reason I'm asking
this next question, would you be a good juror, a bad juror;
and, if so, why?
PROSPECTIVE JUROR MS. MICHALS: I think I would be a
good juror because I'm a pediatric nurse. So I deal with kids
and families and wants of doctors and medical teams and
specialists. So I have a lot of juggling to do, and hearing
everybody and executing the best care for the patient.
152
THE COURT: Thank you. Ms. Gallo, would you follow
my order not to do any research on this case?
PROSPECTIVE JUROR MS. GALLO: Yes.
THE COURT: All right. Movie, book?
PROSPECTIVE JUROR MS. GALLO: Well, last movie I
watched was The Hunger Games. And reading --
THE COURT: Would you be a good juror?
PROSPECTIVE JUROR MS. GALLO: Yes, I think I would be
a good juror because I'm a very analytical person, and I don't
have any existing opinions about these companies other than
they're both good companies.
THE COURT: All right. Thank you.
Mr. Haithcox, would you follow my order?
PROSPECTIVE JUROR MR. HAITHCOX: Yes.
THE COURT: All right. And book or movie?
PROSPECTIVE JUROR MR. HAITHCOX: Karl Marlantes,
Matterhorn. Movie Social Network.
THE COURT: Would you be a good juror?
PROSPECTIVE JUROR MR. HAITHCOX: Probably a little of
each. I think I would do a good job of listening and analyzing
the problem. I might get distracted by critiquing the lawyers
or something.
THE COURT: Might get distracted by what?
PROSPECTIVE JUROR MR. HAITHCOX: By the lawyers'
performance. I might be interested in that.
153
THE COURT: You might get wrapped up into the
forensics of it as opposed to the substance of it?
PROSPECTIVE JUROR MR. HAITHCOX: Could be.
THE COURT: That's a good answer. Thank you.
Let's go to Ms. Chiu.
PROSPECTIVE JUROR MS. CHIU: Recent book, I also got
caught up in The Hunger Games trilogy. I just finished that.
I think I would be a good juror because I tend to mediate with
my friends and families when they have conflicts. So they
often see me as someone to go to to work those issues out.
THE COURT: And would you follow my orders?
PROSPECTIVE JUROR MS. CHIU: Yes, I would.
THE COURT: Now, your answer -- it's a good answer.
I don't want to criticize your answer. But I need for you to
understand that a trial is not a mediation.
PROSPECTIVE JUROR MS. CHIU: Yes, I understand that.
THE COURT: A trial is one -- the party with the
burden of proof either proves it or they don't prove it. That
is the question.
PROSPECTIVE JUROR MS. CHIU: Yes.
THE COURT: Not mediation.
PROSPECTIVE JUROR MS. CHIU: Yes.
THE COURT: Thank you.
Now we go to Ms. -- Ms. Cheng.
PROSPECTIVE JUROR MS. CHENG: I don't have time for
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reading or seeing a movie.
THE COURT: That's a good answer. That's fine.
Okay. And would you follow my order?
PROSPECTIVE JUROR MS. CHENG: Yes.
THE COURT: And would you be a good juror or a bad
juror?
PROSPECTIVE JUROR MS. CHENG: I would be a good one.
THE COURT: Why is that?
PROSPECTIVE JUROR MS. CHENG: I'm a good listener. I
have patience.
THE COURT: All right. Excellent. Thank you.
Let's -- now we go to Mr. Liu.
PROSPECTIVE JUROR MR. LIU: I don't watch any movies
at all, and just once in a while watch TV news, and that's all.
THE COURT: What do you like to watch on TV?
PROSPECTIVE JUROR MR. LIU: Chinese channel.
THE COURT: All right. And do you like fiction -- do
you like stories or the news?
PROSPECTIVE JUROR MR. LIU: Just the news and stories
mixed.
THE COURT: All right. Would you be a good juror?
PROSPECTIVE JUROR MR. LIU: Well, I may be just okay.
I cannot say good, yeah.
THE COURT: All right. And will you follow my
instruction to not do any research about this case?
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PROSPECTIVE JUROR MR. LIU: Definitely yes, I would.
THE COURT: Thank you.
Ms. Raman, would you follow that same instruction?
PROSPECTIVE JUROR MS. RAMAN: Yes.
THE COURT: Okay. Excellent. And what movie or book
have you read lately?
PROSPECTIVE JUROR MS. RAMAN: Recently, I just saw
Mirror Mirror by Julia Roberts. She was acting in it. And
then I kind of really liked it because it was kind of like a
spoof on Snow White and all that. I also watch Judge Judy. I
think she's pretty hilarious.
(Laughter)
PROSPECTIVE JUROR MS. RAMAN: I like the way she's
sparky, and judgment so cool. I like that.
THE COURT: You know there's no way I could compete.
(Laughter)
PROSPECTIVE JUROR MS. RAMAN: Yeah.
And recently I read a book by Scott Peck. It's
called The Road Less Traveled. Very nice. Very insightful and
very helpful, and all that.
THE COURT: Okay. And would you be a good juror?
PROSPECTIVE JUROR MS. RAMAN: Yeah.
THE COURT: Why is that?
PROSPECTIVE JUROR MS. RAMAN: Because I'm a
patient -- patient and a good listener.
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THE COURT: Okay. Thank you.
Mr. Rutherford, go ahead.
PROSPECTIVE JUROR MR. RUTHERFORD: The last movie I
saw, yesterday, was Pirates of the Caribbean at World's End.
Never seen it before, so I'm behind.
(Laughter)
THE COURT: Did you like it?
PROSPECTIVE JUROR RUTHERFORD: I did. Johnny Depp is
a good actor. You can tell he enjoys the role.
THE COURT: And would you be a good juror?
PROSPECTIVE JUROR MR. RUTHERFORD: I think I would be
a good juror.
THE COURT: Why IS that?
PROSPECTIVE JUROR MR. RUTHERFORD: I think I'm a good
listener. At work I do a lot of cross-functional stuff, and
half of this is learning what's going on and then be trying to
get work done as far as my financial role. So being able to
listen and hear what's going on and make a decision based on
that.
THE COURT: Do you know my direct order to everybody,
no research about the case; you understand that?
PROSPECTIVE JUROR RUTHERFORD: Yes, sir.
THE COURT: No listening to news and so forth about
this case.
PROSPECTIVE JUROR RUTHERFORD: Won't do a thing.
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THE COURT: All right. Thank you.
Let's go now to Mr. Dimaggio. Let's start with that
question, would you follow that direct order?
PROSPECTIVE JUROR MR. DIMAGGIO: I would.
THE COURT: All right. And would you be a good
juror?
PROSPECTIVE JUROR MR. DIMAGGIO: I believe so.
THE COURT: Why is that?
PROSPECTIVE JUROR MR. DIMAGGIO: Uhm, I'm a good
listener, and I come to a decision pretty easily.
THE COURT: Do you come to a decision too quickly?
PROSPECTIVE JUROR MR. DIMAGGIO: I don't think so.
THE COURT: Okay. Fine. And movie or book?
PROSPECTIVE JUROR MR. DIMAGGIO: I just saw The
Hunger Games.
THE COURT: Good or bad?
PROSPECTIVE JUROR MR. DIMAGGIO: It was good.
THE COURT: Thank you.
Let's go to Ms. Gonzalez, please.
PROSPECTIVE JUROR MS. GONZALEZ: Well, the last movie
I saw was Mirror Mirror with my girls from church. And it was
really good. I think I would be an okay juror. I'm a good
listener, but I'm not very patient so I don't know how that
would affect my ability to serve. But I believe so.
THE COURT: Will you follow my order not to do any
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research or listen to the news, and just insulate yourself from
all coverage about this case?
PROSPECTIVE JUROR MS. GONZALEZ: Yes, sir.
THE COURT: Thank you. Mr. Chau.
PROSPECTIVE JUROR MS. CHAU: Yes, I will follow your
order not to listen to any. I think I'm a good juror.
Hopefully I will fully understand all your questions. You
know, my English is limited.
So my latest movie, I haven't watched movie lately.
I don't spend much time watching movie or reading books. I
don't read books.
THE COURT: Well, is English your first language?
PROSPECTIVE JUROR MS. CHAU: It will be my fourth. I
speak Cantonese, Mandarin, English and Vietnamese. Little bit
of Vietnamese.
THE COURT: How long have you spoken English?
PROSPECTIVE JUROR MS. CHAU: 20, 30 years.
THE COURT: Do you use that in your work?
PROSPECTIVE JUROR MS. CHAU: Yes.
THE COURT: And have you understood what has happened
here today?
PROSPECTIVE JUROR MS. CHAU: Yes.
THE COURT: All right. Have you had difficulty
understanding any part of today's proceeding?
PROSPECTIVE JUROR MS. CHAU: No.
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THE COURT: Okay. Thank you. Please pass the
microphone back to Mr. Hotvedt.
Mr. Hotvedt, same question, would you follow the
Court's order?
PROSPECTIVE JUROR MR. HOTVEDT: Absolutely.
THE COURT: All right. And would you be good or bad
as a juror?
PROSPECTIVE JUROR MR. HOTVEDT: I think very good.
THE COURT: Why is that?
PROSPECTIVE JUROR MR. HOTVEDT: I think the case
sounds very interesting, and it's something that I would pay
attention to.
THE COURT: All right. Something that you would pay
attention to?
PROSPECTIVE JUROR MR. HOTVEDT: Right. Exactly.
THE COURT: And movie or book?
PROSPECTIVE JUROR MR. HOTVEDT: Movie The
Descendents. Very good.
THE COURT: Thank you.
Next to Mr. Thompson.
PROSPECTIVE JUROR MR. THOMPSON: I recently read a
nonfiction book the Selfish Gene. And, yes, I feel I would be
a good juror. I am patient. I am able to weigh both sides.
I've served on a board of directors before, and considered
issues. I feel I would be impartial.
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THE COURT: Would you follow the Court's order about
not doing any research, and immunizing yourself from all news
coverage?
PROSPECTIVE JUROR MR. THOMPSON: Yes, I would.
THE COURT: Ms. Pearlman, please.
PROSPECTIVE JUROR PEARLMAN: Movie I watched recently
was This Means War, with Reese Witherspoon.
I think I would be a good juror. I've never served
on a jury, but I would listen to all the evidence and make my
decision at the end.
But I'm not into all the technology. So I don't know
if that hinders me in making decisions or not.
THE COURT: Will you follow the Court's order?
PROSPECTIVE JUROR PEARLMAN: Yes, I would.
THE COURT: Thank you.
Now we go to Ms. Hostynek. Why would you be a good
juror?
PROSPECTIVE JUROR MS. HOSTYNEK: I would certainly
try. I -- I can keep an open mind until I hear enough evidence
to make me decide one way or the other.
THE COURT: Okay. Book or movie?
PROSPECTIVE JUROR MS. HOSTYNEK: We've seen a couple
lately, very good ones. A Separation, an Iranian film. And
Footnote, an Israeli film.
THE COURT: Would you follow the Court's order?
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PROSPECTIVE JUROR MS. HOSTYNEK: Yes.
THE COURT: Next, Ms. Woo, would you follow the
Court's order?
PROSPECTIVE JUROR WOO: Yes, I would.
THE COURT: Book or movie?
PROSPECTIVE JUROR WOO: I recently saw Page 1, which
is about The New York Times and how they are trying to cope
with the Internet, which was rather interesting.
THE COURT: Okay. And would you be a good juror or a
bad juror?
PROSPECTIVE JUROR WOO: I believe I would be a good
one. My business involves listening really hard, prioritizing
across different factions, and also being analytical.
THE COURT: Thank you.
Finally, to Mr. Troy. Good juror or bad juror?
PROSPECTIVE JUROR TROY: Good juror.
THE COURT: Why is that?
PROSPECTIVE JUROR TROY: I've been a librarian, and I
bring objectivity to this whole process.
THE COURT: And book, movie?
PROSPECTIVE JUROR TROY: Collection of Jack London's
work, and a movie that probably most of you haven't heard of,
which is Salmon Fishing on the Yemen.
THE COURT: Okay. Would you follow --
PROSPECTIVE JUROR TROY: A British film.
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THE COURT: Will you follow the Court's order?
PROSPECTIVE JUROR TROY: Yes, I will.
THE COURT: Good. Now, I want to give you all one
last chance.
Let me summarize a few things. What's about to
happen here, I believe, is that we're going to have the lawyers
winnow you down from 18 to 12. So most of you are going to
wind up serving on the jury. Isn't that right?
So two-thirds of you will be sitting there in a few
minutes and take an oath to decide this case. And a few of you
will be excused.
So let's say you were to be selected. In two or
three days if you came to me and said, oh, I should have told
you this, I'm so sorry, I didn't think I would get selected, I
cannot tell you what problems that creates. If it's a
hardship, that's too bad. You should have raised it now.
This is the time to raise any hardship issue. If
it's a something like, oh, I just realized that Mr. Ellison is
my next-door, neighbor --
(Laughter)
THE COURT: -- or something like that, then you
should have told us now.
So if there's anything that you want to tell us that
would go to your qualifications to be fair and impartial, or to
you having a hardship or something like that, because you've
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got to be here every day until -- maybe until the end of June,
except for Memorial Day. I think we take that day off.
Now is the time I'm going to let you raise your hand,
and we'll start all over again with you. Don't be bashful
about raising your hand.
Okay. Ms. Raman, let's give you the microphone,
please.
PROSPECTIVE JUROR MS. RAMAN: Could we make notes?
THE COURT: What?
PROSPECTIVE JUROR MS. RAMAN: Could we make notes
during the trial?
THE COURT: Yes. I'll give you notepads, and you
will be allowed to make all the notes you want, yes.
Anything else?
Counsel, do we pass for cause?
MR. JACOBS: Yes, Your Honor.
MR. VAN NEST: Yes, Your Honor, we do.
THE COURT: All right. So what is about now to
happen, that means that all 18 of you -- the lawyers agree you
are all qualified to serve as jurors in this case. So that's a
milestone.
Now, the lawyers will hand up to me the three names
each that they would like to excuse. I'll give you a few
moments to consult.
And you all must appreciate that the lawyers need to
164
take -- this is an important decision, so don't hold it against
them just because they are huddling and making a decision.
This is an important decision they need to talk over
with their clients, among themselves. But it's best if we --
well, let me -- how much time do you need?
MR. JACOBS: Could we have ten minutes, Your Honor?
THE COURT: Ten minutes. Here's what we're going to
do. It's time for a break anyway. So what we're going to do
is take a 15-minute break. But this time wait to come in until
I let you come in. And then resume your normal seats.
And that way the lawyers -- unless the lawyers
want -- you're entitled to have the venire here if you wanted
them here while you select the jury. I'll do it whichever way
you want.
MR. JACOBS: We don't need that, Your Honor. Thank
you.
MR. VAN NEST: That's right, Your Honor. They can be
released.
THE COURT: You all can take a break. The lawyers
don't need to inconvenience you while we're making this
decision. We'll see you back here. And remember the
admonition.
(Prospective jurors exit courtroom at 11:32 a.m.)
THE COURT: Everyone be seated.
Are all the prospective members of the venire outside
165
the room? Okay. Do the lawyers need me for anything?
MR. VAN NEST: No, Your Honor.
MR. JACOBS: No, Your Honor.
THE COURT: All right. Then I'll give you, say, ten
minutes or so to make your decisions, all right.
MR. JACOBS: Thank you.
(Whereupon there was a recess in the proceedings
from 11:33 a.m. until 11:44 a.m.)
(Proceedings held in open court, outside
the presence and hearing of the jury panel.)
THE COURT: Thank you. Be seated. Back to work.
Both sides ready?
MR. JACOBS: Yes, your Honor.
THE COURT: Before I see what you've done, I want to
make sure you all understand, we're operating on the same wave
length.
How this works, I'll look at your two lists. If
you have three different people on your lists, six all
together, there's no problem. If you overlap then, let's say
you overlap, five are excused. Then we have one extra that we
don't need and the one who will then be excused will be the
one furthest up on the far right -- that would be Ms. Gallo --
would be the one most likely to be excused because she's
No. 18. Do you understand that?
So then let me have your sheets of paper.
166
(Whereupon, documents were tendered
to the Court.)
THE COURT: All right. For the record, the plaintiff
strikes No. 3, Mr. Dimaggio. No. 9, Mr. Haithcox. No. 15,
Mr. Troy.
And the defendant strikes Ms. Raman, No. 5. Ms. Woo,
No. 14. Ms. Balakrishnan, No. 16.
So, no overlap. Did I read that correctly, counsel?
MR. JACOBS: Yes, your Honor.
THE COURT: So the remaining ones will be the jury.
All right. So let the jury in at this time.
(Prospective Jurors enter courtroom at 11:48 a.m.)
THE COURT: All right. Welcome back, everyone.
Please be seated.
So, ladies and gentlemen, we have reached another
milestone and the lawyers have made their choices. So I'm
going to read off six names and if your name is called, that
means you're not going to serve on the jury.
Mr. Dimaggio, you may go back to the jury assembly
room and tell them what happened, but you're excused.
Ms. Raman, you're excused as well.
Mr. Haithcox, you're excused.
Ms. Woo, you're excused.
Mr. Troy, likewise excused.
And Ms. Balakrishnan, you're excused.
167
We thank you you all for your willingness to serve.
Now, interestingly that leaves six and six. So would
you all scoot down. Move down one row so that we -- just one
seat. Right there. Just make room for Mr. Hotvedt and
Mr. Chau to scoot in. And then the others of you move down and
close ranks, please.
(Jurors complied.)
Okay. Congratulations. You will be the jury to
decide this case. At this time please stand and raise your
right hand and take the oath.
(Jury placed under oath.)
THE COURT: Thank you. Please be seated.
So just like I take an oath and the president takes
an oath, you have now taken an oath to decide this case. Your
country, this great nation, has delegated to you the decision
in this case. And it's important that you remember the
importance of your duty here and that you abide by all of the
admonitions that I have given you and will continue to give
you.
Now, our first order of business will be for you to
follow Dawn Toland, who is our Deputy Clerk, into your new home
away from home for just a few minutes. She will give you your
credential. Just like I have a credential, you're going to
have a credential that says you're a juror in this case. She
will give you notepads, pencils, and give you some basic
168
guidance on things like, you know, filling out the forms with
the jury administrator.
So, and then we'll come back here in just a few
moments and start the trial.
So, Dawn, would you please escort the 12 members of
the jury back into the jury room?
THE CLERK: All right. Please all rise.
(Jury exits the courtroom at 11:51 a.m.)
THE COURT: All right. Please be seated.
Now, to the rest of you in the venire, that is the
prospective jurors, you can see now that you're not needed any
longer, and at this time you're either free to stay here and
just be a spectator, an observer, like an ordinary citizen,
which is perfectly okay, or you may just walk right back to the
jury assembly room, tell them that you were not needed and that
the jury has been selected.
But at this time you're excused. Thank you.
(Jury panel exits the courtroom at 11:53 a.m.)
THE COURT: All right. Now everyone who wants to go
is gone and anyone who used to be a juror is free to stay here
if they want because they are no longer going to be serving.
Now, to my CSO, the Court Security Officer. If we
have other members of the public who would like to come in, we
now have more seats available and you can be my guest if there
is anybody out there who would like to come in.
169
(Brief pause.)
THE COURT: Now, counsel, I cannot give up the time.
Even if it means splitting the opening statement, we'll do
that.
So what will happen is when the jury comes back, I'm
going to give them some preliminary instructions and then if
there is at least 30 minutes, we'll take advantage of it and
we'll start on your opening statement and then finish it
tomorrow on the plaintiff's side. But I just cannot afford
to -- the luxury of waiting until tomorrow to start the
openings.
So you may as well go ahead and get your materials
organized and we'll get as far as we can today. All right?
Okay. We'll take a short break.
(Whereupon there was a recess in the proceedings
from 11:54 a.m. until 12:01 p.m.)
THE COURT: Please remain seated and let's go back to
work.
I will give -- when the jury comes in, I'll give them
the preliminary instructions, at least some preliminary
instructions. It won't take more than two or three minutes.
(Brief pause.)
MR. VAN NEST: Your Honor, just a quick question. It
seems likely that we're going to get through some or all of the
Oracle opening, but not the Google opening. Could I ask the
170
Court to just emphasize to the jurors the importance of keeping
an open mind in light of the fact that they won't have heard
anything from me today before they go home?
THE COURT: Yes. But then tomorrow you get the
advantage that they will have forgotten what they heard.
(Laughter.)
MR. VAN NEST: Let's hope. Let's hope.
THE COURT: Sorry we have nothing to talk about until
they are ready to go. They are almost ready.
Who is going to give the opening?
MR. JACOBS: I will, your Honor.
THE COURT: All right. Do we have -- just so I'll
know, do the two sides have teammates out there somewhere in
the audience? In other words, part of your team is out there?
MR. JACOBS: Oh, yes.
THE COURT: Yes? Okay.
How about you?
MR. VAN NEST: Yes, your Honor.
THE COURT: Both sides have -- it's a pretty packed
courtroom.
If you would like to move the lectern closer to the
jury box, I'm okay with that. It's up to you. You're the
advocate. You decide where you want to have the lectern and
you may vary from the lectern.
The court reporters will shoot you if they can
171
because they don't like that, but I like to let the lawyers be
advocates. And you can walk all around the courtroom, but you
run the risk the court reporter will interrupt you and say, "I
can't hear you." So if you do vary from the lectern, that's up
to you, but you must keep your voice loud and clear.
And these court reporters are the best in America.
They will likely be able to hear you.
MR. VAN NEST: Your Honor, I just want to confirm
while we're here that the fact witnesses have been excluded,
just to be sure I understand. The corporate representatives
can remain, but I want to be sure there aren't any fact
witnesses in the courtroom for the openings.
THE COURT: Okay. We will exclude fact witnesses
from the opening statements. So if any fact witnesses are
here, they should step outside during the opening statements.
Here is another item that Dawn asked me about. We
notice that on their list, the rolling 10 witnesses, that
Mr. Ellison would be testifying in the first 10. Now, we have
a practical problem that if he's going to be testifying, that
we may have, once again, a full courtroom and I have to then
specially enlist a Court Security Officer to regulate getting
in and out.
I'm assuming that on days when -- most days we're not
going to be having a full courtroom, but on the day that he's
likely to be here, probably we will have a full courtroom. So
172
you need to let us know in advance far enough that we can make
sure we have a court security officer that day.
MR. JACOBS: We have advised the other side, your
Honor, that he would be our first live witness. Depending on
the schedule, we may start with something other than live
testimony and we have so advised the other side.
THE COURT: What do you mean? You're going to start
out the trial with videotaped depositions?
MR. JACOBS: Yes, your Honor.
THE COURT: All right. There was an issue that we
discussed early today that you were going to give me a brief on
today. What was that? And maybe -- you said you would discuss
it. What was that?
MR. JACOBS: I think it's the -- less a brief, your
Honor, than perhaps just an indication to you of our view on
whether the deemed admitted admissions are legally conclusive
or admitted --
THE COURT: So the ones that you have requested and
the ones that I have already ruled on. Can we just say that
they are conclusive? Is that good enough?
MR. JACOBS: I think you have given us to this
afternoon, until 5:00 o'clock to talk to the other side and
alert you.
THE COURT: Okay.
(Brief pause.)
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THE COURT: Ready?
THE CLERK: Yes.
THE COURT: Everyone is ready here.
THE CLERK: Okay.
MR. JACOBS: Would you like to know, your Honor, if
I'm going to be close to finishing, even if it goes a little
over 1:00 o'clock?
THE COURT: Well, if you could finish in 10 minutes
over, I would ask the jury if they can stay til -- they didn't
rely upon the 1:00 o'clock thing. But if you were -- if it's
going to be more than that, I would just say put it over til
tomorrow.
MR. JACOBS: Thank you, your Honor.
(Brief pause.)
(Jury enters courtroom at 12:10 p.m.)
THE COURT: All right. Welcome back. Please be
seated.
PRELIMINARY JURY INSTRUCTIONS
THE COURT: Today is the first day of a long journey
together. You probably don't even know each other's names over
there yet, but in due course, soon, you will know each other
very well and you'll know who all the lawyers are, and that's
the way it always seems to work. But I know it's all new to
you right now.
And I need to be careful not to give you too much
174
information, so I will -- I want to give you a few key points
and as the trial goes along, I will give you some more.
So I've already explained to you basically what a
trial is. You decide at the end, based on the record here, the
evidence here and under the instructions of law that I will
give you at the end. I may give you some explanatory
instructions along the way that help you put it into a
framework. I don't need to do that now and I actually think it
would not do any good to give it to you now, but in a few days
maybe I will help you with that.
So that's your basic duty, to be very mindful of what
the facts are and what are in contention, what are the things
in contention. And I think it's best to be very brief on this
part. I will reiterate it later.
I'm about to recede from the picture and the lawyers
will take over. And you will be hearing a lot from them and
not so much from me, unlike so far. In fact, there's sort of a
triangle that goes on between that lectern where the lawyer
will be standing, the witness who will be in the witness box,
and you. It's one of the magic triangle where -- three corners
and that's where the evidence gets laid out. And my job is to
sit back and help regulate the process, but, really, it's you
who are the ones over there that are absorbing the evidence and
hearing what the witnesses say.
And this leads me to the number one point that I must
175
make, and I will say it very bluntly. Not one word that a
lawyer ever says in the courtroom is evidence. If it's a
stipulation, that's a little different. I'll come back to that
later. But you will hear these lawyers ad infinitum and not
one word they ever say is evidence.
The evidence comes from the witness stand and it's
under oath and subject to cross examination. So if, for
example, a lawyer were to say to a witness, "Isn't it true that
the light was red?" And the witness says, "I don't remember."
And then you got back in the jury room and you were
deliberating and somebody on the jury said, "Hey, I remember
somebody out there said the light was red." You've got to be
good enough to remember, no, that was just the lawyer talking.
That wasn't evidence at all. The witness said he didn't
remember. You must, you must keep that straight.
I'm a strong believer in the jury system, but this is
the single most important way in which a jury goes wrong
occasionally, is by confusing what the lawyers say with what
the witnesses say.
Now, in my example if the lawyer had said, "Isn't it
true the light was red?" And the witness said, "Yes." Then,
of course, that's agreeing with what the lawyer said and that
would be evidence that the light was red, of course, in that
case. But when the lawyer says, "I don't know," or "No, it
wasn't red." I mean, it's what the witness says that counts
176
under oath and subject to cross examination.
We have excellent lawyers here. They are going to do
a great job in this trial. In some ways you're lucky to be
able to see a trial where the lawyering will be at the level
that it is, but it still doesn't change the fact that not one
word they ever say is evidence. Zero. So remember that.
The only exception to that is when it's a stipulation
by both sides, and I will make it very clear on those
circumstances that you may consider as evidence what the lawyer
says.
Okay? So you're going to hear the opening statement
in just a moment. And the reason I bring this up is because
you might be thinking, Oh, my goodness. Look at this evidence.
I promise you, not one word of it is evidence. Even when they
put an email up on the screen, is that evidence? Not yet. Not
until it gets admitted into evidence. And if they don't get it
into evidence, well, that's their problem because they showed
it to you and they couldn't get it into evidence. It's -- you
can only consider things that get into evidence.
Now, the other thing that I want you to remember
about a trial is that one side is going to have the burden of
proof on an issue. Both sides have the burden of proof on
certain issues. So it works both ways. But if a party has the
burden of proof and you get to the end of the case and it's too
complicated and they haven't made it clear enough for you and
177
you just -- as hard as you try, you just cannot figure out what
in the world is going on, that party loses.
The burden of proof is on one party or the other and
you must not -- they lose if you cannot affirmatively say they
have met their burden of proof. So because of that, it's
important that you pay close attention. You try your best.
We're going to be dealing with some complicated
things here. You try your very best, but at the end of the day
if they haven't carried the burden of proof, too bad for them.
They lose. That's our system. Both sides will have the burden
of proof on certain issues. I will explain what those issues
are later on.
I've already told you that during the trial you
should not let anyone talk to you and you shouldn't talk to
anyone about the case or do any research or listen to news
reports or whatever. You can see, there are a lot of newspaper
people out there and reporters, and good for them. They will
be following this case carefully and reporting on it, but you
should not read any of their reports. You can read them after
the case is over. That's fine, but not during the trial
itself.
It's completely up to you whether you want to take
notes. I recommend it because I think it will help you keep
things straight, but it's up to you. Some people like to take
a lot of notes, others few notes. Completely up to you. You
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don't have to take a single note. It's up to you as to whether
to take notes.
Now, many of you sitting there will be seeing this
excellent court reporter and thinking, "Oh, in the jury room
when we deliberate, we will have a transcript of everything
that was said." No. There won't be any transcript in the jury
room. This is for appeal purposes. You never get a jury -- a
transcript in the jury room. I've had jurors think -- go all
the way to the end of the trial thinking they are going to get
a transcript. No, you will not. So if you want to remember
something, you better make a note of it. That's why we give
you the notepad, okay? Good.
So I'm going to give you more thoughts about trials
as we go along, but those are the main points.
Now, we're going to turn to the opening statements.
Remember, nothing that the lawyers say in the opening
statements is evidence. Nonetheless, these are very important
opportunities. Very important opportunities for the lawyers to
give you their heads-up, a road map of where they think the
case is going. And as I say, they are excellent lawyers. You
will get a lot out of these opening statements. But, remember,
that's what they are, is opening statements.
Now, this is -- we're starting phase one, which is
the so-called copyright phase of this case. Then there will be
a phase two. We'll have another set of opening statements
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then. Then there will be phase three and so forth. So we are
breaking it up into parts so that it will be easier, really,
for you and for me to digest and absorb all of this
information. And so we're going to do it by chapters rather
than do it all in one fell swoop.
So there we go. We are so pleased to have you as our
jury. We know that you're going to do a great job trying your
best to do the best job humanly possible in this important
case.
So at this time on behalf of Oracle America, Michael
Jacobs will give the opening statement. The floor is yours.
And when we get to 1:00 o'clock -- let me ask the jury before
you get started, Mr. Jacobs. You know, the 1:00 o'clock thing
you only learned about today. Could you all stay, say, an
hour? Could you stay an hour before I release you today?
Would that work for you or are you counting on 1:00 o'clock
already? Is anyone over there who could not stay the entire
time?
(No response.)
THE COURT: Okay. I'm going to ask you to stay, and
Mr. Jacobs is going to try to finish his opening statement this
morning even though that's going to push us a bit past 1:00
o'clock.
Mr. Jacobs the floor is yourself.
MR. JACOBS: Thank you, your Honor.
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OPENING STATEMENT
MR. JACOBS: Good afternoon, ladies and gentlemen.
I know I speak for both companies, probably for the last time,
when I thank you in advance for your service on this jury. As
Judge Alsup has told you, this is an important case with
important issues and you'll be deciding big questions between
Oracle and Google.
Before I begin, I would like to make sure you know
who's sitting at our table from Oracle, because it is a
reflection of the importance of the case. At my far end is
Safra Catz. Ms. Catz is the president and chief financial
officer of Oracle Corporation. Right next to me is Dorian
Daley. Ms. Daley is the general counsel of Oracle. And down
at the end is Andrew Temkin, who is an attorney in the Oracle
Legal Department. They will be with us throughout this trial.
This case is about Google's use in Google's business
of somebody else's property without permission. Google's
business, you've heard a little bit about. It's the Android
software that runs on mobile phones and tablets. The somebody
else was first Sun Microsystems and then after Oracle bought
Sun, Oracle.
The property is not the kind of property we may be
used to. It's not land or personal property. It's
intellectual property. Intellectual property which fuels our
dynamic regional economy and is the backstop for the research
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and development and innovation that great companies engage in.
And the permission -- because it's intellectual
property, the permission would be called a license. So whereas
if we rent an apartment, we sign a lease. If we use somebody
else's intellectual property, if we use their software, if we
use their technology, it's typically called a license. So this
case is about Google's use in Google's Android business of
first Sun's and then Oracle's intellectual property without a
license.
The intellectual property relates to Java, and you've
heard a little bit about Java. Java is also a subset of
software technologies. You'll be hearing over the course of
this trial a lot about Android and a lot about Java and you
will know all of its constituent parts.
So this case is about Google's use in Google's
Android business of Oracle's Java-related intellectual property
without a license.
Now, why are we here? Are we here because this
happened by accident? Was this some kind of misunderstanding?
Were the property boundaries not so clear?
On August 6, 2010 a Google software engineer named
Tim Lindholm sat down at his computer at Google and started to
compose an email. He wrote it to Andy Rubin, who is the head
of Android, the Android mobile software business at Google.
And this is what he wrote:
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"What we have actually been asked to do by
Larry and Sergey" --
Larry and Serge are pictured over there on the right.
That would be Larry Page and Sergey Brin, the co-founders of
Google, and the two of the three senior executives running the
company.
"What we have actually been asked to do by
Larry and Sergey is to investigate what
technical alternatives exist to Java for
Android. We have been over a bunch of these
and think they all suck. We conclude that we
need to negotiate a license for Java under
the terms we need."
So Mr. Lindholm wrote a message, wrote an email to
his boss about a request from his boss's boss -- his boss's
bosses to investigate alternatives to Java for Android and
concluded that Google needed a license for the Java technology
that was in Android.
So, ladies and gentlemen, this was not any mistake.
This was not inadvertence. This was not the property boundary
being unclear. The decision to use Java intellectual property
in Android was taken at the very highest levels of Google with
a lot of consciousness and awareness about exactly what was
going on.
So let's understand a little bit more about why this
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decision was made and what Google got out of this decision to
use this property of someone else in Google's Android business.
First, what is Java? Well, this is the familiar --
to those in the computer industry, the familiar Java coffee cup
symbol for Java. You will be seeing it a lot through this
trial as we represent to you aspects of the Java software
platform.
And that's also an expression you're going to hear a
lot about, the Java software platform or the Java software
programming development environment. And for present purposes
I want to break down what Java is into three components. It's
a programming language. So if you are at your desktop as a
coder, as somebody who is writing programs, you can actually
write programs in this Java programming language. So if you're
writing a game or you're writing a spreadsheet or word
processing program, you might write that in the Java
programming language.
Java is also a set of what are called Application
Program Interfaces, or APIs, and their associated class
libraries. This component is actually going to be the focus of
our first phase of the case, these APIs and class libraries.
And then there is a very important aspect of the Java
software development environment, the Java platform, called the
Java virtual machine. And by the end of my hour today, or at
least by the end of phase one of this trial, you will well know
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what the Java virtual machine is as well.
Now, by the time Google was looking at technologies
for Android, Java had achieved enormous success in the
marketplace. It was very widely adopted. Millions of
programmers were writing programs using Java programming
language and Java Application Program Interfaces. And it
ran -- and it runs today on all sorts of devices. It runs on
what we call the feature phones that many of us have. So
you'll be hearing about smart phones and feature phones. One
of our former venire, member of the venire, you will recall he
decided not to go with his Android phone, but went backwards,
if you will, to use only what we would call a feature phone.
And Java is very widely deployed, if you will, on these kinds
of devices and so it's a very successful software development
environment, a very successful platform.
You may have seen the coffee cup on your desktop
computer because Java is also installed on many of our home and
work personal computers. And this is a screen that comes up
when it's time for you to update the Java technology that
actually sits on our own personal computers and desktops.
The world's leading companies license Java for their
products. And it's in all kinds of products; not just phones,
but in DVD players, in telephone units that work in the office,
even in things like refrigerators. It is a very successful
software development environment and it is licensed by these
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companies. So keep that term in mind. These companies have
the right kind of permission to use Java in their products.
There's something else that's very interesting about
Java and it's called the Java community process. And what
happened with Java when it was launched, the idea was, let's
make sure that it gets very widely used and widely deployed by
giving many people a stake and an opportunity to voice their
views about how Java should evolve. So this Java community
process was established to set a set of kind of governance
bodies, ground rules by which the industry would organize
around the use of this new technology.
(Document displayed)
And what you see in the lower half of the screen are
some of the members of the Java community process. And if you
know much about the businesses here, you will know these are
companies that are head-to-head, knock-to-knock competitors.
They are arch rivals in the marketplace. But they have come
together around Java to make it successful and to make it, as
we'll explain, standard for everybody and to further it and
move it forward.
And this community relies on the components of Java
that I have described for you. So all these companies have an
investment in their own programmers who know the Java
programming language. They have an investment in the programs
that were written using the Java programming language.
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And the same is true for Java APIs, the Application
Program Interfaces, and the Java virtual machine. And, again,
you will know much more about that as this case proceeds.
Where did Java come from? Well, it was invented at
Sun in the early to mid-1990's. Sun, of course, was a Silicon
Valley driving start-up for many -- for most of its years. It
was founded in 1982. Java was first licensed in 1995, 1996.
And in the course of developing Java, Sun obtained key
intellectual property in Java. And Sun had this vision of this
community process and this kind of ecosystem, if you will, in
which lots of people would be invested in and participate in
the development and promotion and moving forward of Java.
And so Sun created not only the technologies, but
invested in the developers, gave training programs, made Java
as successful as it was and then created this process for other
companies to participate in.
Oracle bought Sun in 2010. Now, Oracle we're
familiar with from at least driving down Highway 101 South,
those buildings on the left. It was founded in 1977. It was
founded by -- co-founded by Larry Ellison, who will be
testifying in this trial, and he has been with the company ever
since as its leader. It is a leading data base company.
So one of its core businesses is providing the big
machines that run corporate data centers, but it is now
responsible for Java as well. It's part of the Sun
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acquisition. It obtained the key intellectual property around
Java. So it now has the responsibility to move Java forward
and also to run the Java community process and make sure that
that is an effective governance organization.
Java was a major reason that Oracle acquired Sun.
And you'll hear a lot about this from the Oracle executives.
Oracle was a major user of Java before the acquisition. Many
of the Oracle key programs were written using Java.
And Oracle had a huge stake in Java moving forward
and not falling into the wrong hands, and so Oracle paid a lot
of money for Sun.
And you'll hear that a major reason for that
acquisition was the importance of Java to Oracle and to the --
and to the Java community, of which Oracle was a part.
Where does Google get into the picture?
Need to bring you back to 2005. So it's before the
iPhone and the clever smart phones that we have. But they're
on the horizon.
And Google, by 2005, is the dominant search engine on
our desktop. We now all talk about Googling. And that
probably started in the mid 2000s. That's when we stopped
Yahooing and started Googling, because Google became such a
dominant search engine provider.
Of course, what is Google's business? Well, Google's
business, in terms of making money, is selling advertising.
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Advertising.
And if you look at the desktop screen, you can see
the advertising on the right hand of the screen in what's
called the northwest corner, the top left, underneath the
yellow. That is advertising that people pay for. So the
advertisements will show up on the screen when we run our
searches.
And Google was the dominant provider of search on the
desktop, and was making lots and lots of money from searching
on the desktop. But, they had a worry. They had a concern.
They had a fear.
We're all using our desktops for search, so they can
make money off of advertising on our desktops. But what we if
we all moved to mobile phones? What if we used the then
emerging smart phones to do our searching? What if we search
Google on our desktop but use some other search on our mobile
devices?
And Google saw both a huge opportunity and a threat
in the smart phones. And they decided they needed to do
something about this.
So they bought a company called Android, Inc. --
hence, the name Android -- for the software. And the idea of
the acquisition, the reason they bought Android, Inc. was so
that they would have an answer to this emerging threat and
opportunity.
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And they had some tough requirements because it's
already 2005, and these smart phones are starting to emerge
already from Blackberry or other companies in which we can
search, say, using Microsoft search or somebody else's search
engine.
So, they had some stiff requirements for Android. It
had to get on a lot of phones, and it had to do so very
quickly. It had to get to market in just a couple of years
because the market was going to move away from Google.
And the key requirement for getting to market quickly
was to attract lots of developers who would write apps for
Android. If we didn't have apps for Android, Google realized,
then the Android software platform on mobile phones would not
be so successful.
So how did they meet those requirements? The answer
was aspects of Java, components of Java, because Java was
already widely deployed. It had millions of software
developers already. It had met these requirements.
And so Google decided that Android would incorporate
components of Java. But, there was a problem. Sun had
intellectual property in Java. It owned copyrights and it
owned patents.
Well, you can't just step on somebody's IP because
you have a good business reason for it. Google had a good
business reason for wanting to get into -- onto mobile phones
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with Android, but that doesn't mean they could just infringe
Sun's intellectual property, its copyrights and patents.
So as they planned their Android strategy -- this is
a document, now, from July 26, 2005.
Dan, if I could ask you to turn around the timeline.
The Google managers and engineers responsible for
this strategy said, We must take a license from Sun for Java.
And, in fact, we're going to enlist the support of
Mr. Lindholm -- who you'll recall from the e-mail that I showed
you at the very beginning of this presentation -- to negotiate
the first license with Sun.
So in 2005 on the timeline, when Google has made the
Android acquisition and is planning its Android strategy, the
documents from this period will show, like this document does,
that Google realized that they had to take a license from Sun
in order to get permission to use that property.
Now, what if Sun wasn't willing to give the license
on the terms that Google wanted? What if Sun had its own needs
with respect to Java, and Java intellectual property that were
inconsistent with Google's business plans?
On October 11, 2005, Andy Rubin -- recall, he's the
head of Android, Inc. He becomes the head of Android at
Google. And he writes to Larry Page, co-founder of Google. He
says, "If Sun doesn't want to work with us, we have two
options. We could abandon what we are doing already and go
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with Microsoft technology" -- a different programming
environment. C is a different programming language from Java.
We could go with C. -- "or we could do Java anyway and defend
our decision, perhaps making enemies along the way."
In 2007 it had become clearer to Google executives
that what Sun was willing to give Google and what Google needed
were two different things.
Google wanted rights to Java that would have been
inconsistent, as you'll see, with the basic Java community
process, the basic Java model.
And so Rubin writes now to the third leading
executive at Google. We've seen Mr. Page's name. We've seen
Mr. Brin's name. Now we are going to see Eric Schmidt's name.
Three men who ran and run Google. And this is Eric Schmidt in
2007.
Mr. Rubin says, I don't see how we can work together
and not have it revert to arguments of control. I'm done with
Sun. Tail between my legs. We were right. They won't be
happy when we release our stuff, but now we have a huge
alignment with industry and they are just beginning.
And, of course, "release our stuff" is the Android
software. So Mr. Rubin was keenly aware, as was Mr. Schmidt,
that when Android came out Sun would not be happy.
And then, of course, by 2010 Mr. Lindholm writes this
message in which he says, "I've looked at what our choices are
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today. The alternatives are terrible. We don't have any
choice. We have to negotiate a license for Java under the
terms we need."
Now, looking at the timeline, ladies and gentlemen,
we're here. We're in August 2010. One week after this e-mail,
Oracle, seeing itself as having no choice but to defend its
intellectual property, filed this lawsuit.
So one week before this lawsuit was filed,
Mr. Lindholm, Mr. Rubin, Mr. Page and Mr. Brin were talking
about alternatives to Java and Android, and the need for a Java
license.
And so the reason we're here is that even as of
today, Google does not have permission to use somebody else's
property in its Android business. And, again, that somebody
else was Sun. It is now Oracle.
Google doesn't have the license, and that's why we're
here. We're going to ask you at the end of phase one to hold
Google liable for infringement in particular of copyrights
because of the Java components that they incorporated in
Android without a license.
Let's learn a little more about Java technology, why
it was so successful, and how it was licensed to companies in
the computer industry.
Java was so successful because it solved a very
difficult problem for programmers. The problem was this: In
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the old days when you developed software, you developed it for
a particular kind of computer.
And you may recall this. If you went down to the
software store and you bought software for your early Mac or
your PC, you had to go to the Mac section or you had to go to
the PC section. To some degree, you still have to do that, but
you'll see how Java solves this problem if people take
advantage of it. You had to look at the sides of the box, and
it said this works on a PC or this works on a Mac.
What that meant is that companies that were
developing software had to prepare a version of their software
for each of these different kinds of computers.
It's as if the computers spoke French, German, and
Spanish. And so the software developer had to create a French
version, a German version, and a Spanish version of the
software for each of those kinds of computers.
Well, the folks at Sun had a very interesting take on
this problem, and a very interesting solution. They asked
themselves, what if we could write and prepare the application
program just once, and run it on any computer?
What if we don't have to worry about shipping or
distributing a version of this software for each flavor of
computer that's out there? For French, German and Spanish.
I've kept my languages straight. What if we could just do it
once and run it on any kind of computer?
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And the answer was to give the developers tools to
write and prepare their application programs in a new language,
Java, and then put something called this Java virtual machine
on all of the computers to translate from Java into French,
German, and Spanish.
So the programmers who would write and prepare their
applications in a common language, in Java, ship it out
whatever way it was going to be shipped.
As 1995 came around, the internet is looming large in
people's minds. We are getting software downloaded across the
Internet. We are not looking at the side of the box to see
what kind of software we are going to buy. It has to run
anywhere.
And we'll put this layer, this translation layer on
our PCs and other kinds of computers so that the Java code will
run everywhere.
So when you're on your PC and that screen comes up
and it says you've got to update Java, what you're updating is
the Java virtual machine on your computer, so if you get Java
programs they will run on your computer.
And this became known as write once, run anywhere.
And it's like it's the motto, it's the mission statement for
Java, for the Java community, for Sun and now Oracle. We have
to protect this ability of Java to be written -- the ability of
developers to write once and for the applications to run
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anywhere.
And so this is now, in the Java world, this is the
way the world looks. You have an application programmer
preparing a program in Java and sending it out however it gets
sent out. And then it's installed on the local computer, say,
in our homes. And there's this translation layer called the
Java virtual machine. And, lo and behold, a program written
once can run anywhere.
But there's a huge requirement and challenge, and
it's a technical challenge and it's a governance challenge and
it's a legal challenge. You have to maintain the consistency
of all ends of this -- of this -- of this system.
So what the programmers prepare and call Java, and
send out over the Internet, let's say, when it lands in our
computers, our computers have to be precisely tuned to
understand that Java, the Java virtual machine and Java
programs have to mesh perfectly. Otherwise, we will have
translation errors, and the program won't run properly.
So a major challenge in the Java world was
maintaining Java's consistency or, as the computer folks would
say, its compatibility.
Now, you can tell what the other challenge here is.
How do we get all these people to write in this new language?
Maybe some of you know about Esperanto. The idea
about Esperanto was giving everybody a common language so that
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people could talk around countries without having to learn each
other's individual language.
The same with Java. How do we get people to learn
Java? And the answer was a huge investment in training and in
tools for these developers, and a particular kind of tool that
is at issue in this first phase of this lawsuit, and that is
these APIs and the associated Class libraries.
Now, the basic idea of Application Programming
Interfaces and Class libraries is pretty simple. The idea is,
if programmers out there in programming land are writing
functions over and over again on their own, why not have
somebody like Oracle -- or before it Sun -- write up that code
and put it in a little library so that when the programmers
need to do that function they can call on the prewritten code
rather than having to write it themselves.
At that level, it's all pretty simple. Prewritten
code that keeps developers from having to write these program
components from scratch themselves.
But they have to be described very well, and they
have to be designed very well because they, too, need to be
rapidly learned and rapidly used by programmers.
So, there's these things called APIs, which can be
thought of as the blueprints for these libraries. And in Java
because -- you'll see this term "class." And "class" is all
over Java. But for present purposes, just think of a class as
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a module or a block of code.
So we have these Class libraries, these prewritten
program components, and then we have their blueprints called
these the APIs.
And the developer sits down with the blueprints in
the form of this book that's on the screen, or here in hard
copy form (indicating). But, in fact, it's now, in 2012
it's -- it would be many, many volumes if it were to be put in
a book.
And these APIs provide the tools for the developer to
write into their programs the facilities provided by these
prewritten components.
APIs are blueprints. Class libraries are the code.
APIs are the blueprints. You can think of Class libraries as
the house. And it's a house that's kind of difficult to
navigate if you're just navigating it on your own. So the
blueprints are a guide. They tell you how to navigate this
complicated structure.
So now we have to add another layer to our design
here. So in addition to the Java virtual machine on our
computers, we have to provide these Class libraries. Because,
remember, the programmers are going to program using the Java
programming language.
They're going to write using the information they
have about the Java Application Programming Interface. And
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then the program is going to be installed on our computers.
And that program is going to look for that prewritten module of
code so that the programmer didn't have to write it himself.
That way, if all of this works, and if the Class
libraries and the APIs are consistent, we'll get write once,
run anywhere, and it will all be easy to use, and programmers
will write lots of applications, and Java will flourish, and
we'll have this common programming language, and we'll have
write once, run anywhere.
This was an amazing success. I struggle to come up
with another example in the computer industry. Perhaps the
iPhone is the only other example I can think of as something
that got so successful so quickly.
By 2005, a ten-year span, 6 million developers had
learned how to program in Java. And there were billions of
dollars of software being sold and developed based on Java. It
was an industry, a community. It was thriving. It was going
great guns.
And this is a presentation that Sun gave to Google in
2005, when Google and Sun were talking about Google's need for
a license, because Google wanted to take advantage of this huge
investment and success.
Now, I mentioned that this problem -- that there's
this kind of technical problem, and it's kind of a -- it's a
legal problem.
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How do you get everybody to follow the rules and keep
that consistency so that write once, run anywhere works? And
the answer is, it's a kind of technology all its own. It's a
set of licenses and a set of rules that Sun developed and now
Oracle administers that have requirements in them that you keep
Java compatible.
And so these are some examples of the kinds of
licenses that were available and are available for Java. They
let companies do various things to meet their needs, to prepare
distribution of code so that they can have their own Java
platform.
I want to focus on the one at the bottom. It's
called the GPL open source license. We'll be hearing more
about this. As Judge Alsup indicated, open source is one of
the topics we'll be hearing about in the course of this trial.
So there are -- the first three categories are what
in the Oracle world we think of as commercial licenses, because
typically money changes hands for those rights, along with this
requirement to keep Java compatible. And then there's this GPL
open source license, in which money doesn't change hands but
something else important does.
So in the Oracle world, when do you need to get a
Java license? When, per Oracle, did Google need to get a
license?
If all you're doing -- all you're doing, it's the
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important step, right? It's writing applications. What we
care about as users of computers is applications.
So if what you are doing is writing applications, a
cooking program, a wordprocessor, a game, using Java, you don't
need a license. You just read the book. You sit down at your
computer and you write code that takes advantage of Java.
On the other hand, in this licensing system that was
set up, if you as a company want to provide your own set of
these prewritten program components called Class libraries
based on these Java API designs, then you need to take a
license, you need to agree to maintain those Class libraries as
consistent, as compatible, and you need to pay some money.
It's a commercial endeavor.
And each of us, when we download Java on to our
computers -- just to kind of finish the picture here -- we
click through a license. So if we're downloading Java software
components onto our computers, we click through a license.
What Google took and what we're here for in phase one
is these API designs, without permission, without a license.
Why did they do that? Well, first, there's the basic
rationale behind Android. And this is -- these are more
internal Google documents that you'll see over the course of
this litigation. And I need to explain how they get in front
of you in this trial. Because we're Oracle, and we're
presenting to you Google's documents.
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Well, that's the way the system works. In the course
of a lawsuit each side exchanges its internal documents with
the other because that helps us find out the truth of what
really happened when businesses make decisions.
And so this is an internal Google document from
April 18th, 2005, that explains Google's rationale for making
this initial decision that Google needs to get a mobile -- set
of mobile software.
So the idea is, let's acquire Android, this company
that has this mobile software, and embed Google in the fastest
growing segment. And there are hundreds of millions of mobile
phones being shipped, and who knows what's going to happen to
desktops.
So -- and Google even told all of its investors in
its annual report in December of 2005, If we don't get into
this business, we are going to be in trouble. If we are slow
to develop products and technologies that are compatible with
nonPC communication devices, we will fail to capture a
significant share of an increasingly important portion of the
market for online services. And, of course, as you can see,
they were talking about mobile telephones.
So this is the basic reason why they get into mobile
in the first place.
Where does Java come into the picture? So we're
still back in 2005 here (indicating), after the acquisition,
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but Android development hasn't been launched.
And Mr. Rubin sends to Mr. Page an e-mail and he
says, "Android is building a Java OS." OS stands for operating
system. It's another term applied to the software we're
dealing with here.
And he says, We are making Java central to our
solution because Java as a programming language has some
advantages. It's the number one choice for mobile development.
There exists documentation and tools. These APIs are tools.
And they are documented. And then there are other advantages
for Java. So we are going to make Java central to our
solution.
And one of the important reasons we're going to do
that is, we want to harness all those developers out there who
will write apps.
There are 6 million Java developers worldwide. Tools
and documentation exist to support app development, and we
won't need to create our own developer organization. We can
leverage off of the existing base of developers. We can
leverage off of Sun's innovation in Java, and Sun's investment
in the developer community.
And the APIs were really important. Here's an
internal message explaining the specific link between APIs and
leveraging the Java application programmer community.
We enable developers who are familiar with
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programming in Java to leverage their skills to quickly build
Android apps. The APIs in Android enable developers to build
extremely capable mobile apps that can rival what can be done
on a desktop.
There is no dispute in this case that there are 37
Java API packages. I will explain what that means, I assure
you. Thirty-seven Java API packages consisting of hundreds and
thousands of elements of the APIs in Android.
So when Mr. Chu is talking about the APIs in Android,
he is talking about the -- among others, he's talking about the
37 packages of APIs from Java that are in Android.
So this is where Google is. They're using Java.
They're using these APIs. And they know they need a license.
And you don't have to take it from me. This is an
e-mail from Andy Rubin, again to Larry Page, October 11, 2005.
He says, My proposal is that we take a license that
specifically grants for us the right to open source our
product. He's talking there about Android. We will pay Sun
for the license. And for another kind of license that you'll
be hearing about, called a TCK.
So Rubin proposes, let's take a license. I want to
make Java central to Android. I know that there's property
here. I don't have a right to use that property without
permission. I need to get permission. Let's take a license.
Mr. Lindholm writes to one of his colleagues about
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his work on the project. He says he's been helping Andy with
some issues associated with Android. This is mostly taking the
form of helping negotiate with my old team at Sun for a
critical license.
Now, Mr. Lindholm had been a Sun software engineer
and was very familiar with the way Java was licensed, this kind
of structure that I described. And so Google enlisted him to
help work on these negotiations and work with Sun to try and
get a license that met Google's needs.
In fact, there were several key executives and
programmers and others at Google who had come over from Sun at
various times and knew the whole setup. They knew the way the
licenses worked. They knew what the property was. They knew
the kind of permission Google needed.
One of those was Eric Schmidt, who was a very senior
executive at Sun and, as you know, is, from what I mentioned
before, is one of the three top executives at Google. Was and
is.
Two others you'll see over the course of this
presentation and the trial, Joshua Bloch and Eric Chu, also
knew a lot about Java at Sun.
In fact, almost a hundred Sun people went to work at
Google over the course of the years between 2005 and the
present.
So Eric Schmidt asks a good question in 2006. So
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here's where we are in the timeline. We're about a year into
it now with Android development.
And he says, how are we doing on the Sun deal? If
we're not going to get permission maybe we shouldn't be using
Java. Is it time to develop a nonJava solution to avoid
dealing with them?
So recall that earlier e-mail I showed you in which
Andy Rubin said, instead of making enemies his other choice was
to go with that other programming language, and Eric Schmidt is
asking this question, look, we're not going to get a deal with
Sun. Maybe we ought to go down a different path because we
can't use somebody else's property in our business without
permission.
But that wasn't the decision. The decision, instead,
was that Android would be a Java-based system. And that
decision was final. And Google took no license.
Andy Rubin to Schmidt May 11, 2007. More talk about
negotiating with Sun. And Andy Rubin says, I don't see how we
can work together and not have it revert to arguments about
control.
Sun was very concerned about protecting its revenue
stream from Java and also protecting the consistency of Java.
And so Rubin says, I'm done with Sun. They won't be
happy when we release our stuff. But we're going to go ahead
anyway.
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Now, you're going to hear a lot from Google about
some public praise of Android from Sun executives. But what
the evidence in this trial will show is that whatever might
have been said publicly, in order to try to create a good
atmosphere for a possible deal between Sun and Google, on a
private basis Sun was making it very clear to Google that Sun
was not happy that Google was using Sun's intellectual property
in Android without permission.
Let's talk for a minute about open source. You saw
earlier that Mr. Rubin wanted to negotiate an open source
license with Sun. It's very important to understand that open
source means a lot of things, and there are different kinds of
open source agreements.
And the one that Sun released Java under and that
Oracle released Java under -- I showed you on that chart with a
list of licenses -- is called a GPL or General Public License.
And you may hear from Google, well, why is Sun -- why
is Oracle making such a big deal about this intellectual
property? They released it under the GPL. They made it
available under an open source basis.
So they've made their intellectual property, Google
will imply, they made their property available to the world.
Why are they coming after us for Google's use of that
intellectual property in Android?
And the answer is actually very simple. Google did
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not agree to the terms of the permission of the license for
open source that Sun, now Oracle, developed and applies. And
that license is called the General Public License.
And here's the deal: If you take code under the
General Public License, and you write new code on top of that
code, you have to give it back to the open source community.
You cannot keep it for yourself. And that's fabulous for open
source folks who like to program in a community environment and
share their code with each other.
But it turned out that Google thought it was not so
good for its business plans. And so they didn't agree to the
particular kind of open source license. They did not want to
have this kind of give and give back set of rules applied to
it.
So they never agreed to the GPL. They never agreed
to take the Java intellectual property on the open source basis
that Sun, now Oracle, makes it available under.
And, again, you can see this in internal messages at
Google. So this is one from Andy Rubin to his team, August 11,
2007. And he says, "The problem with the GPL is that it's
viral."
What that means is that very rule, that if I take
this code and I add to it, I'm kind of infected with this
requirement to give the code that I write back. And he doesn't
want that because he thinks that will slow Android's adoption
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by mobile phone companies.
So he rejects the GPL license. He rejects the open
source license that is available for Java.
And he notes, look, Sun had good business reasons.
You can see at the bottom of this slide, Sun had good business
reasons for making this choice. Wanted companies to have to
come back and take a commercial license and pay royalties
because the companies would realize that GPL is great for
sharing but maybe it's not so great for business.
You're going to hear a lot about another open source
technology or project in the course of this trial. It's called
Apache Harmony. Apache Harmony was a project to create an open
source version of Java under a different kind of license,
called the Apache license. It doesn't have this rule that when
you take and modify you have to give back.
And so what Google does is they take the code for the
Class libraries from this Apache project and they incorporate
it into Android.
And their argument, their excuse to you is going to
be, well, Apache was out there, and Sun, now Oracle, never took
any action against Apache. You'll hear all about what happened
to Apache, believe me.
But the important point, at this stage of
understanding this case, is that Google knew that Sun
restricted Apache Harmony from going onto cell phones. It
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never allowed Apache Harmony to go on cell phones.
And Google knew that. And this message reflects
that. These restrictions prevent Apache Harmony from
independently implementing Java. And then he goes on to say,
Not to mention, Android, though that's water under the bridge
at this point.
Why was it water under the bridge? Because Google
had already made the decision to incorporate Java in Android
without a license.
And Schmidt, former Sun executive, says, I'm not
surprised, because he understood what Sun's business needs
were.
Was Google forthright about its use of Java in
Android? You will see a lot of indications of conscious guilt,
that Google knew that what it had done was something that would
make Sun very agitated and perhaps lead to litigation.
So what Google does is it tells its developers not to
demonstrate Android to any Sun employees or lawyers at a trade
show. And then they tell the developers to scrub the J word
from Android. "The J word" being Java.
Now, Google will argue to you that this use of Java
intellectual property in Android is fair. And you'll get
instructions from Judge Alsup at some point about what fair use
is all about.
The important point to keep in mind is, Android is
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not a charity project; that Google makes a lot of money from
Android, and it's money that at least a portion of which we
will argue to you in a later phase of this trial is properly
Oracle's because of their use of Java intellectual property.
(Audio recording was played in open court, and was
not reported by the court reporter.)
MR. JACOBS: So this is Google's pitch. We don't
make money off of Android. We give it away for free to the
world, and they put it on their cell phones and their tablets,
and isn't that great?
But look. We're talking about businesses. And, in
fact, Android is hugely profitable for Google. This is Eric
Schmidt on an earnings call in October with the investment
community, making it clear that the way they make money with
Android is the way they make money on any kind of search or
other services is through advertising.
And the idea is that with Android on cell phones we
will click on Google search, and we will get Google-sponsored
advertisements, and so Google will make money the way it makes
money.
So let me briefly explain what exactly the property
is that's at issue in phase one, this intellectual property,
these copyrights in these Application Programming Interfaces
and Class libraries.
Should start out with the fact that the Java
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materials in question are copyrighted. And the way you
copyright something is you create it, and then you can kind of
amplify or strengthen your copyright protection by putting a
copyright notice on what you create. So you can see this Java
documentation with the copyright notice on it. And then you go
to the copyright office and you register your copyrights with
the Library of Congress and you get a certificate.
All of that is designed to make your copyrights more
enforceable, more clear, the world can go to the Copyright
Office and check and see what your registration is.
And that's exactly what Sun, and now Oracle, does
with Java. So all the materials we're talking about, the
copyright has been registered with the United States Copyright.
Now, copyright is kind of interesting. Copyright is
actually right in the Constitution. The founders realized that
patents and copyrights could fuel the new economy in the -- as
the United States was being formed.
And so in an Article 1, Section 8, Clause 8, it says,
"To promote the progress of science and the useful arts we're
going to secure to authors the exclusive right to their
writings."
And so copyright is about writings. And this is
referred to as the copyright and patent clause. Of course, the
inventors are the patents, and writings are copyright. And
copyright, among other things, protects writings.
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Now, Google may try to say to you, well, these aren't
the kinds of writings that copyright is meant to protect
because there is no creativity in these application program
interfaces. We think of poetry. We think of literature.
That's what copyright is all about. These APIs are trivial.
They'll give you some examples of Application Programming
Interfaces that look very tiny.
But, in fact, Google's own expert in this case,
Google's own Application Programming Interface designer has
said exactly the opposite, that creating Application
Programming Interfaces is very creative, it's very rewarding.
And you'll hear from the actual developers of APIs
what it takes to actually create a good API. And Google's own
expert said it's like being an artist, a football player, a
concert violinist.
And Google's API expert, in-house API expert, has
given presentations like this, in which he says API design is a
noble and rewarding craft, and it's tough.
So why wouldn't we want copyright to protect this
kind of writing, this kind of creativity?
What Google copied is a mix of things. And to help
explain this I want to go back to my blueprints and house
analogy.
So if the APIs are the blueprints and the code is the
house, think about how someone could copy your architectural
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plans. There are a couple of different ways. They could take
your blueprints and they could copy your blueprints into their
blueprints. They could take your blueprints and they could
build a house from it. Or they -- and they can look at the
house that you built from the blueprints and copy from your
house into the house that they're building from the blueprints.
So you can copy from the blueprints to the plans,
blueprints to the house, house to the house.
And that's essentially what we will show you here,
that Google copied the Java API designs into the Android APIs,
and then they based their Class libraries, their houses on the
Java API designs, and they even copied from our house into
their house. They copied actual lines of code.
Now, these API designs are incredibly complicated and
intricate. They are a writing in the most -- in the most basic
sense. Somebody sits down and painstakingly creates these
Application Programming Interfaces.
I mentioned 37 packages. Those are on the left of
this slide. Each of those packages has something called
classes. And you can see the classes in Java on the left and
the identical classes in Android on the right, and they do the
exact same thing.
And this is essentially undisputed. Google is not
going to tell you, We did not implement the API designs in
Android. They're going to try and explain to you why it was
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okay to do that, but they are not going to say they didn't do
it.
THE COURT: Mr. Jacobs, you're down to about five
minutes to go.
MR. JACOBS: We will be showing you this copying in
detail over the course of the trial.
We'll be showing you the copying from the
documentation, the paper if you will, into their paper. We'll
be showing you the copying from the paper into their code. So
from the blueprints into their house.
And it will look like this: It's going to look very
technical. But we'll have our experts and witnesses come in
and explain to you what this all means and why it's so
significant that Google copied in the way that it copied.
And, as I say, this is largely undisputed. It's
right out of their documents. The Java documentation is on the
left. The Android code that shows the copying into the code is
on the right.
And there's a lot of it. We'll bring in boxes to
show you just how much was copied.
Google is going to say, well, Android is this
universe that's so gigantic, and these APIs, these Class
libraries, are just a tiny piece of it.
They are a very important piece. And they are
voluminous in their own right. Probably about 11,000 pages, if
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you print out the API designs, were copied into Google's code.
And the Google developers will admit that they looked
at the Sun materials, the then Sun materials when they created
these Class libraries. And they will admit that they saw the
copyright notices when they see them.
Now, Google is going to say to you, well, we didn't
realize, we didn't think these APIs are copyright protected.
But this is Andy Rubin, the head of Android at Google in 2006,
writing an e-mail saying exactly the opposite. The java.lang
APIs are copyrighted.
And Sun gets to say, this is Sun's right, it's Sun's
prerogative to decide what happens to its intellectual
property, they get to say who they license to.
So when Google says to you, these APIs are not
protectable, think to yourself, well, what about that e-mail
that I will see in the course of this trial from Andy Rubin,
saying the APIs are copyrighted?
Now, I've explained to you, also, that we're not
making any claim, a person can use the programming language to
their heart's content.
Google is going to say, well, Oracle says the
programming language is free and available for everyone to use.
That embraces the APIs.
It's not right. We'll prove it to you. But this
diagram on this slide is designed to illustrate just how tiny
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the language is compared to the Application Programming
Interfaces.
So I told you earlier that if you continue to print
the APIs in books it would be many volumes. But the language
fits into one book.
Here's the worst of it. I explained to you earlier
how important it is that Java remain consistent, that Java
remain compatible. And there's a special license. It's the
license that Andy Rubin was referring to in the e-mail I showed
you a bit earlier, that comes close to what Google claims it
did, which is to take the API designs, the specifications, and
write their own code on their own.
That's what they're going to tell you they did. They
are going to say the code on a line-for-line basis is
different. It's like two houses with the same architecture,
and the flooring and the paint and the screws and nails are in
different places but the design is the same.
And what this license requires you to do, if you're
going to do kind of what Google did, but they didn't agree to
these terms, is adhere to the Java requirements. Make sure you
keep it consistent. Don't do less or more of what is in the
set of rules to maintain Java's consistency.
And you have to do in a clean room. You can't look
at Sun, now Oracle's, stuff. You can't look at our code when
you're writing your code.
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And, in fact, as I said, this is what Andy Rubin
proposed to do, was take that license.
But they didn't make Android compatible. They made
it incompatible. They took some of the Java Application
Programming Interfaces and then wrote some that are different.
So we talk about splintering Java or fragmenting
Java. They broke the basic set of rules governing the Java
community. If you're going to do Java, you have to do all of
it. You have to be consistent.
And so with their own internal documents they make it
clear, does Android support existing Java applications? No,
it's not Java compatible.
So if we go back to our slide about what Java brought
to the world, this write once, run anywhere, now we see a Tower
of Babel forming. Now we see programmers programming in Java;
their programs won't run on Android. Programmers programming
for Android; their programs won't run on Java.
We don't have a single language anymore. We have a
dialect. We have a splintering. We have a fragmentation. And
this is extremely dangerous for Java because the whole write
once, run anywhere proposition depends on consistency.
And then Google did not do a clean room because they
looked at Sun's code. And you see portions of Google's Android
code -- not a lot, but copying is copying; looking is looking.
You will see portions of Android code that are line-for-line
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copied from Java code.
And so you can see on this slide that Android is
not -- was not done in a clean room. It was not done without
looking at Sun, now Oracle's, stuff.
THE COURT: Mr. Jacobs, you're beyond your allotted
time. Why don't you take a minute and finish up.
MR. JACOBS: You bet. Thank you, Your Honor.
Sun warned Oracle around the time of the acquisition
that this was going to be a big battle. Jonathan Schwartz, who
you will hear a lot about in Google's presentation, sent Larry
Ellison, CEO of Oracle, an e-mail saying, We better talk about
our battles with Google Android.
And we will prove to you that from beginning to end,
from 2005 to 2010, Google knew that it was using somebody
else's property; that in order to do that it needed a license;
and that it didn't have a license.
There were many attempts by Sun to bring Google to
the table. There were many attempts by Oracle to bring Google
to the table, to get it back into the Java community, to bring
it back into the Java fold. Those were unsuccessful.
And, so, over the course of this lawsuit you're going
to hear a lot of explanation and excuses from Google. And what
I would like you to do is keep in mind what their own documents
say, as Google makes its pitch.
Their own documents say we have to take a license
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from Sun. We'll pay Sun for the license. The APIs are
copyrighted. We're not compatible. Let's scrub out a few more
Js. We need to negotiate a license for Java under the terms we
need, because the alternatives suck.
So as Google rolls out its various arguments to you
keep in mind what they said to themselves, and ask yourself are
the lawyers who are advocating in Google, on Google's behalf in
this trial, being true to the evidence and being true to the
facts?
Thank you very much.
THE COURT: All right. Thank you, Mr. Jacobs.
All right. So we, we heard one of the opening
statements. We will hear the next opening statement in the
morning. And you need to remember to keep an open mind until
you hear both opening statements, and I know you will do that.
Also, keep in mind that nothing that the lawyers say
in opening statements is evidence. Those emails that you just
saw and I'm sure emails you're going to see tomorrow morning,
none of them are in evidence yet. You must wait and evaluate
the evidence as it comes in item by item.
Nonetheless, these opening statements are quite
important in order for you to see what it is that the lawyers
are saying to you is going to be proven or not proven.
Remember the admonition. What was that? No research
about the case. No looking at news. No talking about the case
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even with your loved ones. You can tell your loved ones the
name of the case, but nothing more. Please don't get into
discussing with them what the case is about. And you must keep
an open mind until the very end of the phase one, and then it
will be your duty to deliberate.
All right. 7:45, you must be here on time. If
you're not here on time, we have to just wait for you and all
the other fellow jurors are inconvenienced. So please be on
time or even early if you would like. Someone will always be
here to let you in when you get here.
See you back here tomorrow. Thank you.
(Jury exits courtroom at 1:23 p.m.)
THE COURT: All right. Be seated. Is this the
agreed-upon timeline? Is that it?
MS. ANDERSON: Yes.
MR. JACOBS: Yes, your Honor.
THE COURT: Can you bring 12 copies to the jury, that
we can hand out to the jury tomorrow?
MR. JACOBS: We will take care of it, your Honor.
THE COURT: Okay. Anything you want to bring up with
me now?
MR. VAN NEST: Just briefly, your Honor.
I haven't had time to consult with Mr. Jacobs on
this, but normally we exchange witness and exhibit information
at 2:00. We assume that lead counsel are going to be able to
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get back and look at the finals. I'm wondering if we could
bump it until about 3:00 o'clock today since we have been here
a little bit longer than normal.
MR. JACOBS: Fine with us, your Honor.
THE COURT: Bump what?
MR. VAN NEST: The deadline for disclosing witnesses
and exhibits for the next day.
THE COURT: All right. I guess that's okay with me.
Anything else?
MR. JACOBS: No, your Honor.
THE COURT: Okay. 7:30. We'll see you here bright
and early. Thank you.
MR. VAN NEST: Thank you, your Honor.
(Whereupon at 1:25 p.m. further proceedings
in the above-entitled cause was adjourned
until Tuesday, April 17, 2012at 7:30 a.m.)
- - - -
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I N D E X
PAGE VOL.
Preliminary Jury Instructions 174 1
Opening Argument by Mr. Jacobs 181 1
_ _ _
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CERTIFICATE OF REPORTERS
We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS,
Official Reporters for the United States Court, Northern
District of California, hereby certify that the foregoing
proceedings in C 10-3561 WHA, Oracle America, Inc., vs. Google,
Inc., were reported by us, certified shorthand reporters, and
were thereafter transcribed under our direction into
typewriting; that the foregoing is a full, complete and true
record of said proceedings at the time of filing.
/s/ Katherine Powell Sullivan
Katherine Powell Sullivan, CSR #5812, RPR, CRR
U.S. Court Reporter
/s/ Debra L. Pas
Debra L. Pas, CSR #11916, RMR CRR
Monday, April 16, 2012
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