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The IP Innovation v. Red Hat and Novell Trial Transcripts - Updated, as text
Wednesday, November 03 2010 @ 04:22 AM EDT

The judge has ruled [PDF] that we can read the unredacted trial transcripts from the IP Innovation v. Red Hat and Novell patent infringement trial last April. As you may recall, Red Hat and Novell won, and in Texas too, the jury finding that all the patents asserted were invalid. So we've been dying to read these transcripts together. But there was a lengthy argument over redactions, so I waited until that was settled. Here is Judge Randall R. Rader's main reason for letting us read them all:
This court finds that the public should have access to the contested portions of the trial transcript and the admitted trial exhibits. In recent years, the U.S. Court of Appeals for the Federal Circuit has expressed increased interest in patent damages methodologies and the probative value of prior license agreements. See, e.g.,, Inc. v. Lansa, Inc., 594 F.3d 860, 868-73 (Fed. Cir. 2010); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1323-39 (Fed. Cir. 2009). The trial testimony in this case highlighted the parties’ differing damages methodologies and treatments of prior license agreements to the patents-in-suit. Public access to such testimony provides the public with a more complete understanding of the damages methodology in this patent infringement case. This court’s rulings on damages issues and its discussions with the damages experts regarding the license agreements may also be relevant to future litigants in preparing their damages cases.
So here they are. If you've ever been curious to know what a patent litigation trial is like, this is your chance. It will no doubt help you in finding prior art in the future, by seeing how the lawyers used it here. It's rather dazzling, with a live demo of a 1985 Amiga. Yes. The Amiga was still alive and usable for the demonstration by Red Hat and Novell's expert to show prior art.

The full title of the case is IP Innovation, LLC and Technology Licensing Corp. vs. Red Hat, Inc. and Novell, Inc. The trial lasted from April 26, 2010 through April 30, 2010, and here are the transcripts of the jury trial, along with some contextual materials like voir dire, joint preliminary jury instructions, and the parties' exhibit lists:
April 26 AM, Voir Dire

April 26 PM, Opening Statements

Joint Preliminary Jury Instructions

April 27 AM

April 27 PM

April 28 AM

April 28 PM

April 29 AM

April 29 PM

April 30, Closing Statements

Closing Instructions by the Judge (separately, but they are in the April 30th transcript as well)

Defendants' Exhibits List

Plaintiffs' Exhibits List

The plaintiffs' opening statement, by Arthur A. Gasey of the firm Niro Scavone Haller & Niro, offended me, as he made remarks that were pejorative about Linux, seeming to imply that Open Source software is pirated. And I was puzzled why he would mention Windows, when there is no established connection between Microsoft and these plaintiffs. But he does. For example, here's a brief whiff:
Now, the evidence is also going to show that the Defendants recognized the value -- recognized the worth of these inventions, the multiple virtual desktops, but that they didn't pay for them.

Red Hat and Novell take most of the features that they use in their software from outside their company. The evidence is going to show -- you're going to see an article from an industry magazine that quotes words from Red Hat's CEO, Mr. Whitehurst -- that's him up there -- that says: We contribute less than 20 percent of what makes up what they call the Linux kernel. It's the material that they use to create the software that's accused of infringement in this case.

What Red Hat and what Novell do, what the Defendants do, is pick and choose the features that users -- that they know users want to put in their software. They take them and they incorporate them into their software.

You're going to hear how Novell does the same thing, too. Novell, like Red Hat, competes with Microsoft. They compete with Windows. They want their customers to go ahead and use their products instead of Windows. And they want to be able to leap-frog, to move ahead of Windows.

They needed to make sure that they had a computer product that -- or software that a user would want bad enough to switch from Microsoft Windows to them. So what did they do?

They tested their products. As a matter of fact, they spent about 1500 hours of testing to find out which parts of a given design worked. In other words, what features worked and what ones didn't. The parts that worked well, they used. And the parts that didn't, they threw away. And some of the features that they kept, that they used throughout all the different products that are accused in this case are the features that include what's covered by my clients' property.

This testing took literally 1500 hours of videotape of users using their products to see what worked and what didn't. And the result is we know that it worked, because people in the industry knew that the multiple virtual desktops feature was a big, big difference. As a matter of fact, it was one of the biggest differences between Windows and Linux. These products are what's called Linux products rather than Windows products. It's a category of software. In the Windows world they only had one desktop; the Linux products that are accused here have typically four desktops, but they can have more. They have the ability to go ahead and separate your screen so that you can have different tools for different sets of tasks. And if there was no other reason to switch from Microsoft Windows to the Defendants' products, virtual desktops would be more than enough reason to go ahead and switch.

Now, the evidence will show that several of the Defendants' software products took and used the features covered by my clients' patents.

The jury ruled otherwise, but did you get the feeling that this guy misunderstands Linux? And that he seems to be trying to do Microsoft a favor by painting Linux vendors as… well… thieves? He is stressing how significant it is to have 4 desktops, because they get more money if the feature they claim is infringed is the reason you want the product. Of course, that is the last thing you need in a server, and most of Red Hat and Novell's money comes from servers, so it sort of makes no sense, his little speech.

Red Hat only contributes some of the kernel because Linux, the kernel, is Open Source software, so it's written by a lot of folks. And the apps too. But they are free to use it all, because the licenses say they can. And you can too. The jury is told that after the trial is over, they can go and download it for free too. And I hope they did, some of them.

Here's more of his hilarious description of how Red Hat and Novell give away software:

As Mr. Reiter pointed out this morning, the Defendants' whole business model makes a big deal of the fact their software is free; we give it away. And that's true. But what they don't tell you is that Red Hat makes money, I often say, specifically by selling free software. Those aren't my words. Those are the words of Red Hat's CEO. You're going to hear evidence that they make money and that they've been able to build a very, very profitable model by giving away free software. They make hundreds of millions of dollars a year doing this.

And how do they do this? They do it by giving away things like my clients' property away for free in order to make a profit. They've trespassed on my clients' property.

My, my. He sounds like the RIAA describing file sharers or something. That is so not the way Red Hat and Novell make their money.

When Red Hat's and Novell's attorney, Josh A. Krevitt of Gibson, Dunn & Crutcher, stands up to speak, he opens by telling the jury that he found listening to the other side's opening statement "a bit frustrating":

There is so much to this case, so much that the evidence will show in this case that you didn't hear. It's a little like listening to one side of a telephone conversation and having really no sense of the overall story. And so I'm going to give you the rest of the story or at least a sense of what the rest of the story is, and I think you'll see it's very different from what you just heard….

First, I want to talk about infringement, and I want to make very clear that the Defendants, Red Hat and Novell, have never used the ideas in these patents, period, and on that question of infringement, the evidence will be clear.

Mr. Hill said earlier today that the patents are about workspaces and desktops and switching from one workspace to another, and Mr. Hill said, it's no more complicated than that. It's no more complicated than that. Well, it isn't complicated, but it's a lot more specific than that. That is not what these patents cover. That is not what Xerox invented.

Workspaces had been around for years long before these patents. Switching from one workspace to another workspace had been around for years long before these patents, so we're going to demonstrate that to you. These patents are specific.

Mr. Gasey told you that the claims govern the patents, and he put on a nice graphic that showed a yard and a fence around it. What you didn't see, though, is the actual claims in this case, and when you see them, you'll see they take up a lot of space. This is what the Plaintiffs must prove infringes. Every single word of these claims, the Plaintiffs must show we do.

If it were just as simple as switching from one workspace to another workspace and no more complicated than that, it would have taken far fewer words to say it. That's not what the patents claim. It's not what the patents cover. And when you understand -- and we're going to show you this in this case. When you understand what the patents actually cover, what that fence really is, and then you understand what our products do, it will be very clear that our products do not infringe. They simply do not use the ideas in the patents, and that's going to be very important….

And so now let's take a look, if I may, at Red Hat and Novell because the picture you heard a few moments ago is not entirely accurate regarding Red Hat and Novell. So I want to describe the companies and their business in just a little bit more detail. So Red Hat and Novell -- these are clients of Red Hat and Novell. They didn't know I was going to do this, but I am so proud to be representing them. And this gives you a sense of the companies around the world that use their software. These are Red Hat and Novell customers.

Mr. Gasey, at least to my ears, portrayed open-source software as this pirated software that you take this and you just throw it out there. These are some of the most respectable companies in the world. Everything from University of Texas and Texas Children's Hospital, Warner Music Group and Sony and NASA all use software provided by Red Hat or Novell. My sense is that if Red Hat and Novell resembled in any way the companies Mr. Gasey portrayed, these companies would not do business with them. And as the evidence will show, Red Hat and Novell do not resemble in any way the companies Mr. Gasey portrayed….

He then goes on to describe the difference between proprietary software and open source, and in that way he answers the slur about Red Hat "only" contributing 20%:
You can't see -- you can use Microsoft products, but you can't see the source code. You can't copy it. When you click, I accept the terms of this software, if you've ever done that, I don't know if you've ever read it -- a lot of people don't -- but one of the things it says is you can't copy it. You can't make a copy for your friends and distribute it. That's not permitted. And the source code, the actual underlying code, which you'll hear about, is secret. Nobody can get access to it.

So Microsoft builds the code, controls the code, develops it, and then it sells it to you. So if you want Microsoft's Windows system, you have to buy it. It may come on your computer when you buy that, but you have to buy it. And when you want another copy of it, you've got to buy another copy of it. That's proprietary. That's one model.

Open-source is entirely different. There are no secrets with open-source software. The underlying source code, what some companies like Microsoft consider the crown jewels is freely accessible and knowable to everyone. Everyone immediately and for free can see all of the source code of my clients' products. Everyone can see it for free. There are no secrets, and that's very important.

So why would a company operate in this environment? Why would a company operate where nothing that they provide is secretive. Here's why. Open-source is built on what used to be a revolutionary idea, a new idea, and now, as you can see by the customers that we have, is no longer such a new idea. And that is, if everyone around the world, if all of you and all of these smart people and people in Europe and people in Asia, if everyone can see the code and everyone can make changes and suggestions, folks sitting in their basements or in their kitchens, people that are computer engineers, people that are just really smart 17-year-old kids, if everyone around the world can look at the source code, tear it apart, criticize it, suggest improvements, every single day around the world, millions, millions of open-source software engineers are making changes and improvements to the software.

The idea is that if you operate in that environment where everything is open and available and everyone can be making changes and improvements, you'll wind up with the very best ideas. You'll wind up with the best software because you will harness, not just really smart engineers at Microsoft, however many there are, but the whole world. So Red Hat and Novell has really really smart engineers too, but they also get the benefits of you and all these folks and everyone else around the world that make changes to the open-source software….

Now, Mr. Gasey put a slide up from a quote from an executive at Red Hat that said Red Hat contributes only 20 percent of the software and the Linux kernel, and we'll explain those things. Mr. Gasey actually turned that on its head. That's a really cool thing that Red Hat contributes 20 percent, and here's why.

The open-source software, remember, everyone around the world is contributing, everyone around the world is making changes. So you would think one company would not be in a position to contribute fully one fifth of all the software that is included in the open-source Linux software, and we'll explain that. But Red Hat does that because of the smart engineers that work at Red Hat. Novell also makes dramatic contributions -- and you'll hear about this -- to the 1 open-source software.

So you have Red Hat's contributions, and you have Novell's contributions, but you also have all the contributions from everyone around the world. And we put this here just because I like the quote, but it's the idea upon which open-source is based:

Nobody is as smart as everybody.
No matter how smart, no matter how educated, no matter how brilliant a company you have, you can't be as smart and educated and as brilliant as everyone around the world. That's how open-source works….

And I want to now show you also, when we talked about open-source and there was the suggestion -- maybe it was just to my ears -- that this was some inappropriate business method because things are just taken and distributed for free, not only do all of those customers that you saw a moment ago use open-source software, use Red Hat and Novell software, but lots and lots of government agencies too and government agencies you-all have heard of.

So let's look at the White House, for example. On Tuesday of last week, six days ago, the White House issued this press release. And as you can see, it's talking about open-source, and it's talking about open-source in exactly the way I talk about open-source today. It says, this code is available for anyone to review, use, or modify. We are excited to see how developers across the world put our work to good use in their own applications. By releasing some of our code, we get the benefit of more people reviewing and improving it. That's open-source; that's how it works.

So the White House is having its software freely available, everyone can look at it on the theory that if you've got lots of really smart people looking at the software, they're going to make improvements and make it better and better. And it's not just the White House. Let's look at the next one, and there are many many, so I'll stop after this, I promise.

This is the Department of Defense from October of last year in a memorandum to the Secretaries of the military departments, the Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense, lots of other folks you see up here. And as you can see right in the beginning -- this is right in the beginning of the memo -- to effectively achieve its missions -- we're talking about the missions of the Department of Defense of the United States of America -- to effectively achieve its missions, the Department of Defense must develop and update its software capabilities faster than ever to anticipate new threats and to respond -- and respond to continuously changing requirements. The use of open-source software can provide advantages in this regard.

So you've -- whatever you think of the White House and whatever you think of the Department of Defense, here they are telling you how important open-source software is to them and how important and valuable it is as a means of improving software for everyone.

He did a beautiful job of defending against the slur against Linux, don't you think? I loved the list of Linux users. Nothing like dropping names. After the opening statement describing Red Hat and Novell more or less like pirates, it certainly helped to list the White House and the Department of Defense and such as the defendants' customers.

One of the things he tells the jury they'll get to see is the working Amiga from 1985, which he'll be using to show them that the patents are not valid, since Workbench used the same functionality years before. You know what? The community came up with that still-running Amiga. Amazingly enough, a working Amiga. It's not just code that open source produces. It's people willing to help and share and do whatever is helpful. It will fight for its software. And the community includes folks who save old hardware and software. That Amiga, as you'll see, really did help, because the jury got to see prior art with their own eyes.

The Amiga is first mentioned on April 28 [PDF], in the morning session. There is a discussion between the lawyers and the judge first thing that morning about using it, page 2 of the PDF, page 6 of the transcript. But it's used in the trial and the jury first sees it in action the following day [PDF], beginning on page 83 of the transcript. The demonstration lasts until page 95, followed by testimony on how it represents prior art. But earlier, on pages 21-39, the expert witness, David Wilson, describes the Amiga and what he plans to demonstrate. And then he tells the significance of what he will be showing:

Q. So what are you here to talk to the jury about?

A. Talk about my investigations on -- of the patents being asserted and investigations of prior art that might potentially have an impact on the patents.

Q. Now, we've all been staring at some things on a table out here. Can you tell us what we're actually looking at?

A. Well, I have two examples of prior art where I actually assembled old computer software and hardware and managed to find sets of things that represented prior art to the time the patent was filed. And I will show you those in operation, which is a lot more fun than just hearing me talk about them….

Q. So, Dr. Wilson, now is it your opinion that each of the Amiga Workbench, the Mac Apple Switcher, and the Chan room model anticipate all the asserted claims by themselves?

A. The Chan room model by itself anticipates all the asserted claims, all the claim elements of the asserted patents, and invalidates those claims. Switcher also by itself anticipates all the asserted claim elements -- the claim elements of the asserted claims and invalidates the patent. And the Amiga system, if you take Dr. Zimmerman's interpretation of how to interpret these claims, I believe it meets the elements of each of these claims and invalidates the patents.

And the jury agreed, evidently.

Cross examination of this witness goes on until page 165, and it's very well worth reading, as he does a fabulous job of handling attempts to undermine his testimony.

Dr. Wilson used to work at Sun by the way, and here's how he described his work background, when he is asked about that and about how many languages he can program in:

A. Well, I won't go through the whole list. My first job where I was paid to do computer programming was for IBM in 1966 using what they called for Fortran assembly language on a mainframe.

And I've shrunk my programming down over the years from the room-filling mainframe down to iPhone that fits in your pocket. I programmed in Fortran, Paschal, C, C++, Smalltalk, Objective-C, various visual programming languages. And, in fact, my son and I invented a kind of dataflow visual programming language for one product we shipped.

Q. What does that mean, you invented a visual dataflow programming language?

A. Well, we invented a language -- a new kind of a spreadsheet where you actually -- it was all drag and drop and you wired components up together, and it represented a way to program the spreadsheet rather than typing in formulas like you do in Excel. It's very cool.

Q. You mentioned you teach classes. What kind of classes do you teach?

A. Well, starting in 1984, the year the Macintosh was introduced, I started -- I was contracted by Apple Computer to put together their first general purpose programming classes on how to program the Macintosh. So I spent over ten years teaching Apple developers how to write programs for the Mac.

Since then, I've also taught database programming and applet programming at Boeing.

I've taught -- I worked for Sun Microsystems, who invented Java, to teach advanced Java classes. But, of course, Sun Microsystems doesn't exist anymore. They were swallowed by Oracle. I worked at Portal Software in Cupertino, which made an internet-billing system, and now they've been swallowed by Oracle. In fact, I realized when thinking about this that my son, Steve, who worked at Sun has now been swallowed by Oracle, and he's an employee at Oracle now.

Swallowed by Oracle. It made me smile.

The judge instructs the jury on the law beginning on page 117 on April 30th [PDF]. Then on page 150, the plaintiffs' attorney, Mr. Gasey, begins his closing statement. It ends on page 179, and then Red Hat's and Novell's lawyer, Mr. Krevitt, begins his closing. And he tells it plainly:

I just -- I want to say at the outset, though, about how we got here and what we think this case is about. What we think this case is about and what the evidence has already shown and what I hope is clear to you-all is that IPI and TLC were given patents by Xerox. Those companies exist, this is in the record, to get money for patents they acquire by suing folks. So IPI and TLC went ahead and sued some people, and as part of that settlement, they were given these patents.

You remember during Mr. Cooper's testimony he said several times, and Mr. Gasey kept using this language, that they bought the patents, IPI and TLC bought the patents. Remember that? They didn't buy the patents. They didn't pay any money for the patents. They brought a lawsuit, and as part of that settlement, they were given the patents.

Remember I showed you the agreement, and Mr. Gasey objected to you seeing the agreement. I showed the agreement in which Xerox gave the patents away. How do you have a case where you represent to the jury that somebody bought patents without showing the agreement that gave them the patents in the first place? That's the Plaintiffs' case.

Because what happened here is IPI and TLC, when they sue people, they expect them to roll over, to pay some money, to go away. That's the game plan. That's the program.

Remember Mr. Cooper testified about the TLC licensing programs for these patents? It was -- it was a question I asked him. He said first thing we did is we had a licensing program when we got the patents. We -- we developed a licensing program.

The licensing program was suing three companies, waiting three years, and filing three lawsuits. Welcome to the TLC licensing program. You-all are a part of it. That's what's going on here. And why didn't my clients roll over? Why is it Michael Tiemann from a Red Hat has been here all week and Markus Rex from Novell and Justin Steinman with premature twins flying down? Why didn't we?

Mr. Vickrey asked Dr. Putnam today, how can it be that your clients, that your clients would pursue this case when they're paying you more money than it would cost to make us go away, just to pay us off? How could that possibly be?

Because it's wrong.

When somebody sues you and there's no basis to the lawsuit at all, it's wrong. You don't pay to make them go away, because what you don't want to fuel, you don't want to fund that litigation machine. It's going to steamroll over someone else and it's going to steamroll over you another time. It's wrong.

So what did my clients do? They said, no, we're not going to pay to make IPI and TLC go away. No, we're not. We're not going to give them money just because it would be easier. We are going to take this case and we are going to submit this case to 11, originally 12, 11 strangers in Marshall, Texas. That's how comfortable we are in the merits. That's how comfortable we are that when the evidence comes out, the jury will agree with us.

Which they did. Of course, the attorney talks about the Amiga:
You saw Dr. Wilson demo those machines, and he was very excited about those machines, very excited about computers, loves his computers. And he demoed the Apple machine, and he demoed the Amiga machine, and you saw it with your own eyes. Now, Mr. Gasey told you not to believe those eyes, and Mr. Hill will probably echo that, but you saw it with your own eyes. Those machines invalidated every single thing that the patents do.

And Dr. Wilson didn't just say, take my word for it. He didn't do a demo and talk fancy about his son, Steve, and then sat down. Mark Lyon brought him through every single claim element for each one of those machines, every single claim element, element-by-element-by-element, and they were satisfied....

The Amiga Workbench was also not shown to the patent office. And Dr. Wilson testified at length, showed the system, worked on the system and explained to you on a claim-by-claim basis, Dr. Wilson did for invalidity what Dr. Zimmerman did not do for infringement.

Dr. Wilson did not just say, take my work or word for it. I didn't go over to a whiteboard and just do checks. Dr. Wilson walked through item-by-item, element-by-element, system-by-system why they are invalidated. The Amiga Workbench is an example.

Then the plaintiffs get their last chance, and they describe Red Hat and Novell as haters of software patents. Heh heh:
And if you focus on the evidence and you focus on what you see in this courtroom, a Plaintiff who decided they wanted to stand up for their property rights, knowing when they stood up for the property rights that they were going against the behemoths of the industry, knowing that they were going against people who openly say they hate software patents, knowing that they were going to have to sue those folks, and they were going to be put through three years of hell just to get here to try to get a fair shake to try to hope that a jury would look at the situation and judge it on the facts, judge it by what they believe is the truth, not by what the best experts you can buy, that you can purchase, and the best lawyers you depending on how they can spin it.

My clients took that on. And they knew it would be -- they'd have to weather the storm to get here, and they have. They've weathered the storm.

The jury goes out and comes back that same day and the judge reads the questions and ask how they found, yes or no:
THE COURT: ...I'm going to ask you just in numerical order. I think we all know what the questions are. I'll ask you Question No. 1, 2, 3, 4 --


THE COURT: -- all through the 23, and you'll just give me the unanimous verdict of your jury. Question 1 is a yes or no on infringement.


And so on down the list, and that was it. Here is the Jury Form [PDF], so you can see at the end that they ruled that all the patents were invalid. And on the damages page, they wrote zeros. The judge thanked them all, praised the quality of the lawyers, and court was adjourned.

Of course, the plaintiffs didn't just go home and stay there. They filed a motion for judgment as a matter of law, but it was denied [PDF].

Red Hat and Novell later asked for attorneys' fees and costs, but they judge gave them only the latter, $160,000. To get attorneys' fees, he wrote in his order [PDF], the case would have to be exceptional:

The court wholeheartedly endorses the disposition of this case by entering final judgment on the jury verdict, but it does not make the claims entirely baseless.
Entirely baseless is a mighty low bar, I must say. But he does say he wholeheartedly endorses the disposition of this case. Here's the Final Judgment [PDF] and an Order clarifying it [PDF].

Updated: And here are the transcripts, with links to text versions of each one:

April 26, Voir Dire

April 26, Opening Statements

April 27 AM

April 27 PM

April 28 AM

April 28 PM

April 29 AM

April 29 PM

April 30 AM, Closing Statements

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