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Novell v Microsoft Trial Transcripts, Day 6, Oct. 25, 2011 ~pj (Richardson)
Tuesday, June 12 2012 @ 09:49 PM EDT

Here's the transcript from day 6 of the Novell v. Microsoft antitrust trial, as text. That makes it Tuesday, October 25, 2011, and Novell puts on its second live witness, Gregory Lee Richardson. He's a software engineer who first worked for Microsoft, right after school, but then went to work for WordPerfect and then Novell, then Corel, and then back to Novell, and during the relevant time period this trial is about he worked with Adam Harral in the shared code group.

His testimony is similar to Harral's, that Microsoft encouraged Novell to use its extensions for Windows 95, and then snatched them away after Novell had invested time and effort based on those now undocumented extensions. He also testifies regarding the dispute over using the Microsoft logo.

But first there is a dispute between the lawyers over exchanging slides, and the judge says he doesn't know which side is right or wrong, but he just tells them both to grow up and do what they are supposed to do.

And then he describes what he says is his current understanding of Novell's case, and it's rather odd. He seems to be saying that he misunderstood what the case is about.

Jump To Comments

And when he states his current understanding, he asks if there is any case to support what he now views as Novell's case, that a monopolist has to help a competitor, and Novell says yes, there is. Novell v. Microsoft, referring to the judge's own opinion [PDF] and ruling [PDF] earlier on Microsoft's summary judgment motion that ended up being appealed and eventually overturned. How could he not have reread that material prior to the trial, I can't help but wonder, if he has memory issues?

Here's the interchange between the judge and Novell's attorney, Jeff Johnson, at the opening of the day about the judge's apparent confusion:

THE COURT: Let me try -- we've got a couple minutes, I tried to write it out, and I sort of wish I brought it down. There's going to be a recurring issue in the case. First, I need to know from Novell now, and you don't need to give it to me now, maybe back in the briefing on the instructions I'll understand it better, but I don't quite know why I hadn't picked this up before. But until I heard the opening statements, I really thought that WordPerfect -- Microsoft had made Windows 95 incompatible with WordPerfect as an application system. I don't know why I thought that, and I probably missed it in the papers. I now understand that is not the case. That as a word processing application WordPerfect could be used by Windows 95, and an icon could have been installed and it could have been used. And to the extent I just missed this, I apologize, but frankly that's where I was.

Now that I understand the issue better, and I understand Novell's position that providing documentation for the NameSpace extension APIs increase functionality and that the third way is different than simply sitting on top of the -- having the application sitting on top of the operating system. I understand that.

But it does add a new dimension, which is to what extent a monopolist has to cooperate with a competitor by providing to the competitor product enhancement that the monopolist has made to his own product through its own investment and research and development. And to that, I don't know if there's -- no case that I thought of comes to mind that does that. There may be cases out there. I just need to know at some point, now that I focused upon that issue I need to know, need to know from Novell what authority there is.

It's almost like I was trying to think of an analogy since I couldn't stand watching the Raiders. It was almost like asking somehow the owner of the -- a monopolist somehow built a railroad around and made three, I think three, it's three mountains fronting one another, and that the fourth, the plaintiff sort of required that you extend that railroad to us, too, so that we can engage in the enhancement which you made for yourself.

Now, I don't -- I'm sure there is a case, and I need to -- and I don't need an answer now. But that is -- I'm just trying to tell you what's been on my mind.

Also, what I went off on yesterday, and it is a terribly, terribly difficult conceptual issue, and that is it seems to me there's inconsistency. I understand Novell's theory. The theory is that Microsoft, as I understand it, withdrew the documentation through the NameSpace extension APIs to target Novell because it saw Novell as a potential middleware threat and because it saw that WordPerfect became so popular that it would supercede Word and that, therefore, people would buy WordPerfect and whatever operating system it was working on and not Windows 95.

This case is not about and cannot be about and, frankly, it seems to me it was what Mr. Harral was concerned about is absolutely right. It may be that Microsoft was using its knowledge of Windows 95 and restricting what it was giving to competitors, application competitors so that it could make Word and Office more dominate respectively in the word processing and the Office suite market. I understand that.

But that is not the claim here. The claim here is different. It has to work to the operating system. And for the life of me it seems to me there is an inconsistency between Novell's theory and the facts, because at least, maybe not all of the facts, but the facts I've heard from Mr. Harral and others that testified that clearly he could not have been clearer that through 1996 at least and for the foreseeable future thereafter what was going to make WordPerfect attractive both as a middleware and as a word processor application was the fact that it was married to Windows 95.

So whatever bad intent Mr. Gates may have had, maybe he did perceive in the long term, I understand Mr. Johnson pointed out it's classic hallmark of any anticompetitive behavior to take a short-term loss in order to gain a long-term profit. Maybe that was Mr. Gates' intent. Assuming it was is not the facts, at least the facts that I've heard so far, which is that WordPerfect wasn't going anywhere through 1996, which is the relevant time period unless it was married to Windows 95 which is the operating system.

There is just -- I've struggled with this. I'm sorry I lost my temper yesterday because it is so hard that time trying to understand it. And like I say, I woke up in the middle of the night and drew up some notes, and I tried to type them out to make my thoughts more clear. But I mentioned this now only because this is hard. It's going to be hard for the jury. It's hard for you all. It's going to be hard for me on a motion for judgment as a matter of law, which I'm going to undertake seriously.

And I'm just alerting you now to now what my mindset is so you know what's happening. I don't need a response, Mr. Johnson, and I don't mean to argue with you. I'm just telling you where -- why I'm having the problems that I'm having.

So just bear that in mind, and we'll get through this.

MR. JOHNSON: Your Honor, if I could since we do have five minutes, and we will address in a fuller fashion to Your Honor.

But two short points. First with your -- with respect to your first comment about duty of a monopolist to help a competitor, and you asked if there was a case. And there is a case. It's called Novell vs. Microsoft. And you addressed this point in summary judgment. In fact --

THE COURT: I was under -- whatever I did, I'll reread it. I was under -- frankly, and I'm embarrassed I was under a misapprehension. I thought that WordPerfect would not run on Windows 95.

MR. JOHNSON: Your Honor, what is important and I do urge you to reread your opinion --

THE COURT: I will.

MR. JOHNSON: -- because what you said was that this is not just the normal case of a monopolist withholding some functionality that it had a right to do so. This was a case that involved an element of deception.

THE COURT: Well, you tell me also in the evidence where there is any evidence that when Microsoft first published the APIs and NameSpace extensions API it knew at that time that it was going to withdraw them. That would be a deception claim. What you're dealing with is something, which frankly what I've heard is Microsoft's own e-mails that you rely upon is an open question until the very end when Mr. Gates makes his decision to withdraw. Now, that may have been wrong. It may very well have been wrong in that it was favoring Word or WordPerfect, but that's not the claim.

I don't see where there's any evidence that at the time that in the alpha and beta releases it intended at that time to withdraw.

MR. JOHNSON: Your Honor, you may recall the evidence that came in through Mr. Gates at the Hood Canal Retreat. There was the discussion of the Radical Extreme which was a plan, a plan, Your Honor, to deny the extensible shell of Chicago to ISVs.

THE COURT: When was that?

MR. JOHNSON: That was in 1993. Mr. Gates endorsed that plan. The actions ultimately taken in this case mirrored that plan.

THE COURT: That's helpful.

MR. JOHNSON: That was deception. That was anticompetitive. That was -- and had they, had they, Your Honor, simply denied the extensible shell to all ISVs, that would have been wrong according to Microsoft's own executives with respect to this point, but it might have fallen within what you said, the lack of duty of a monopolist.

THE COURT: That's helpful.

MR. JOHNSON: Which that's not the case that occurred here --

THE COURT: I don't want to cut you off. It's 8 o'clock. The jury is probably here. Thank you.

In his opinion on the summary judgment back in March of 2010, the judge wrote:
Although the claims asserted by Novell in Counts I and VI are for damage caused to its software applications, the reason Microsoft allegedly engaged in the conduct causing the damage was to obtain and maintain its monopoly in the operating system market – the market in which the DOS Products competed.

Novell’s theory as to those claims is that Microsoft intentionally took actions against Novell’s applications because (1) if those applications had retained their popularity, consumers might insist upon purchasing operating systems with which the applications were compatible, thereby threatening Windows 95’s market power; and (2) “PerfectOffice,” developed by Novell, constituted (or nearly constituted) “middleware,” which could have been effectively used with any operating system and that therefore would have “commoditized” Windows 95 and undermined the monopoly Microsoft enjoyed in the operating system market.

In short, Counts I and VI assert claims for damage inflicted upon Novell’s software applications through the prism of the operating system market.

As you can see, he understood full well back then that WordPerfect could run on Windows 95 but also on other operating systems, and that the other operating systems were the real threat. In fact, his opinion goes on to quote the Fourth Circuit Court of Appeals in an earlier ruling, that touches directly on this issue:
The Fourth Circuit described Novell’s theory as follows: Novell contends that the technological connection between operating systems and applications gives rise to a significant barrier to entry into the operating- systems market and thus protects Microsoft's Windows monopoly. Novell maintains that its office-productivity applications [such as WordPerfect and Quattro Pro] could perform well on a variety of operating systems and that, during the relevant time period, they were the dominant office-productivity applications in the market. The thrust of Novell's argument is that its popular applications, though themselves not competitors or potential competitors to Microsoft's Windows, offered competing operating systems the prospect of surmounting the applications barrier to entry and breaking the Windows monopoly. That is, Novell argues its products could provide a path onto the operating-system playing field for an actual competitor of Windows, because a competing operating system, running the popular Novell software applications, would offer consumers an attractive alternative to Windows. Novell, 505 F.3d at 308. Furthermore, Novell argues that its package of office productivity applications contained middleware and included a desktop shell which could potentially allow PC users to “live” in that desktop shell in lieu of operating in Windows 95, thereby “threat[ening] to become an alternative platform for applications programs that would reduce the need for end-users to upgrade their operating system in order to obtain new application features.” (See Dkt. No. 1952, Exh. 3 at 9 (Noll Expert Decl.).)
And here's the part about whether a monopolist has to help out a competitor:
Microsoft attacks Count I by arguing that that Novell has not presented evidence that Microsoft did anything beyond refusing to cooperate with Novell, and refusing to assist a competitor is not anticompetitive conduct in violation of § 2. Although a monopolist generally has a right to refuse to cooperate with a competitor, this right is not unqualified: a refusal to cooperate may be anticompetitive if it is an “attempt[] to exclude rivals on some basis other than efficiency[.]” See Aspen Skiing Co., 472 U.S. at 600–01, 605 (internal citations and quotations omitted); accord Data Gen. Corp., 36 F.3d at 1183 (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992)). That said, courts should be “very cautious” in recognizing exceptions to the right to refuse to cooperate “because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying the anticompetitive conduct by a single firm.” Trinko, 540 U.S. at 407.

In determining whether a refusal to cooperate is impermissible, a court may consider the entirety of the monopolist’s pattern of conduct, the potential impact on consumers, and the monopolist’s motive—for example, whether the monopolist had a legitimate business justification for its actions or sacrificed short-term profits in an effort to destroy a competitor....

Further, Novell has presented evidence of predatory motives. Just as consumer demand for the multi-day pass would have increased the monopolist’s short-term profits in Aspen, refraining from misleading Novell about the namespace extensions and print functionality may have increased Microsoft’s short-term profits by increasing Windows 95’s consumer appeal via allowing Novell’s popular applications to achieve better functionality on it. (Cf. Dkt. No. 1952, Exh. 3 at 11 (Noll Expert Decl.).) A fair inference arises that inhibiting WordPerfect’s and Quattro Pro’s ability to achieve functionality on Windows 95 was an effort to “sacrifice short-run benefits and consumer goodwill in exchange for a perceived long-run [anticompetitive impact].” See Aspen, 472 U.S. at 610–11. This inference is particularly believable in light of the substantial concern within Microsoft that popular applications might undermine Microsoft’s monopoly in the PC operating system market.... Further evidence of this anticompetitive motivation is found in:

(1) The history of voluntary, and therefore presumably profitable, Microsoft-Novell cooperation—both generally over the years and specifically in sharing API information pertaining to Windows 95—to optimize application functionality on Microsoft’s operating systems....

(3) The minimum purchase agreements and per system licenses with OEMs, both of which made it harder for WordPerfect and Quattro Pro to access the OEM market.

Microsoft argues that “if a monopolist does extend a helping hand, though not required to do so, and later withdraws it . . . does he incur antitrust liability? We think not.” (Dkt. No. 1947 at 32 (internal marks omitted) (quoting Olympia Equip., 797 F.2d at 376).) Microsoft’s alleged conduct here, however, is distinguishable from the conduct in Olympia Equipment. Microsoft did not just withdraw a charitable helping hand; rather, Microsoft allegedly first cooperated in an effort to improve its own product, subsequently misled Novell into relying on information provided pursuant to that cooperation, and then withdrew its cooperation after Novell reasonably relied on Microsoft’s representations.
I quoted large chunks so you will understand why I'm so puzzled that he's waking up nights wondering what the case is about, and if he is, why doesn't he go back and reread his own opinion? I also stress it, because this theme shows up again and again.

The PDFs for the day are:

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

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

______________

NOVELL, INC.,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

_____________

Case 2:04-CV-01045 JFM

_____________

BEFORE THE HONORABLE J. FREDERICK MOTZ

DATE: October 25, 2011

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JURY TRIAL

VOLUME VI

Reported by: KELLY BROWN HICKEN, CSR, RPR, RMR
BECKY JANKE, CSR, RPR
PATTI WALKER, CSR, RPR

567

A P P E A R A N C E S

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

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

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

NOVELL
BY: JIM LUNDBERG, ESQ.

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

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

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

568

I N D E X

WITNESS: GREGORY LEE RICHARDSON EXAMINATION BY: DIRECT BY VISHIO PAGE 580
CROSS BY HOLLEY PAGE 606
REDIRECT BY VISHIO PAGE 731
RECROSS BY HOLLEY PAGE 745

EXHIBITS RECEIVED INTO EVIDENCE

DEFENDANT'S 627 ... PAGE 705

569

SALT LAKE CITY, UTAH, TUESDAY, OCTOBER 25, 2011

* * *

568

I N D E X WITNESS EXAMINATION BY PAGE GREGORY LEE RICHARDSON DIRECT BY VISHIO 580

CROSS BY HOLLEY 606
REDIRECT BY VISHIO 731
RECROSS BY HOLLEY 745

EXHIBITS RECEIVED INTO EVIDENCE DEFENDANT'S PAGE 627 705

569

SALT LAKE CITY, UTAH, TUESDAY, OCTOBER 25, 2011

* * * * *

THE COURT: Okay. I think I need to hear a dispute between you -- I think I'd had -- we're here to discuss the production by Novell to Microsoft certain things, and I decided to wait to hear it this morning when I heard from Mr. Johnson just had a long history. Let me hear the history and --

MR. JOHNSON: Thank you, Your Honor. You know, prior to the openings, as is my practice, anyway, is to exchange those opening slides which are summary exhibits and the like, which both sides used in their openings so that you could verify that they were accurate summaries and based upon appropriate data. I asked for those three times, and I got no response to any of those requests. So I did not take time after openings Mr. Tulchin requesting all of my slides. And, moreover, Your Honor, the reason for requesting summary slides is to make sure that it was being presented as an accurate portrayal. The openings themselves, of course, are not evidence.

And, frankly, Your Honor, given what happened in Microsoft's opening in this case, I'm a bit concerned about what use may be made of my opening slides. They certainly have the transcript of everything I said in opening, and I think that's sufficient since the slides themselves are not

570

evidence and are not given to the jury.

THE COURT: Mister -- I don't know who's going.

MR. PARIS: Discussion with Mister -- Good morning.

Frankly, Mr. Johnson has misrepresented what actually happened. We had about a week and a half of discussions back and forth, trying to get to an agreement on a stipulation that concerned exchange first of underlying -- a stipulation that dealt with the admissibility of underlying expert data We went on and on about this for about a week and a half. I have copies of correspondence that went back and forth between the parties. I thought at one point Sunday before trial started that we had an agreement. I spoke with Mr. Johnson Sunday afternoon and Ms. Vishio about that. We sent over an agreement, what I thought was an agreement Sunday evening.

Monday morning after voir dire, we were told that it wasn't acceptable. We tried to get to an understanding. That only concerned the exchange of summary exhibits. What I then asked them for at the conclusion of opening statements on Tuesday, so Tuesday evening, was that we simply exchange the demonstratives that each side had showed to the jury. That seems like an obvious thing to me since that is the normal practice that if something is shown to the jury, it goes to the other side.

We were willing to give them ours. I have one with

571

me today. I've had them with me every day that we've been in here. So frankly, what Mr. Johnson had to say about the expert data stipulation, that we weren't able to come to an agreement on is sort of, it sort of misses the point, you know. We engaged in those 10 days of discussions. I think they were good faith discussions. We just had a different view as to the extent as to which we would preview each other's summary exhibits. But that really has nothing to do whatsoever with the exchange of slides that have now been shown to the jury and on behalf of Microsoft.

I think I can speak for Mr. Tulchin. We take issue with his characterization of Mr. Tulchin's opening statement. There was nothing inappropriate about it at all. If they think there is, they think there is. But that doesn't have -- that's it, has no bearing on whether we exchange exhibits to each other -- I'm sorry -- exchange slides that were shown to the jury.

THE COURT: Mr. Johnson?

MR. JOHNSON: The data stipulation which we tried to reach is wholly apart from the question of exchanging the summary demonstrative. We asked three times for those data exchange. In fact, in the last e-mail which Ms. Vishio sent to Adam, we said, we are prepared to exchange those slides now. And again, no response.

So once again, I feel like there hasn't been that

572

kind of exchange in the past. And now to ask for my complete set of slides, which again is not evidence, I just think is unnecessary and inappropriate, Your Honor. Thank you.

THE COURT: This is by far the most frivolous dispute that I have ever heard in a case involving good counsel in 26 years on the bench. I feel like a croupier here in Salt Lake City presiding over what seems to be a crap shoot, and I don't know who's at fault. But I'm not happy about it, as you well know because the reasons I've expressed before.

I also right now feel like a parent, probably a mother rather than a father presiding over one of the -- I know you boys don't like each other, but grow up. Something shown to the jury, give it to each other. This is crazy. You ought to be ashamed of yourselves, and I'm ashamed for you. I will --

Anything else we have to take up this morning?

MR. PARIS: No, Your Honor.

MR. JOHNSON: No, Your Honor.

THE COURT: Let me try -- we've got a couple minutes, I tried to write it out, and I sort of wish I brought it down. There's going to be a recurring issue in the case. First, I need to know from Novell now, and you don't need to give it to me now, maybe back in the briefing on the instructions I'll understand it better, but I don't quite know

573

why I hadn't picked this up before. But until I heard the opening statements, I really thought that WordPerfect -- Microsoft had made Windows 95 incompatible with WordPerfect as an application system. I don't know why I thought that, and I probably missed it in the papers. I now understand that is not the case. That as a word processing application WordPerfect could be used by Windows 95, and an icon could have been installed and it could have been used. And to the extent I just missed this, I apologize, but frankly that's where I was.

Now that I understand the issue better, and I understand Novell's position that providing documentation for the NameSpace extension APIs increase functionality and that the third way is different than simply sitting on top of the -- having the application sitting on top of the operating system. I understand that.

But it does add a new dimension, which is to what extent a monopolist has to cooperate with a competitor by providing to the competitor product enhancement that the monopolist has made to his own product through its own investment and research and development. And to that, I don't know if there's -- no case that I thought of comes to mind that does that. There may be cases out there. I just need to know at some point, now that I focused upon that issue I need to know, need to know from Novell what authority there is.

574

It's almost like I was trying to think of an analogy since I couldn't stand watching the Raiders. It was almost like asking somehow the owner of the -- a monopolist somehow built a railroad around and made three, I think three, it's three mountains fronting one another, and that the fourth, the plaintiff sort of required that you extend that railroad to us, too, so that we can engage in the enhancement which you made for yourself.

Now, I don't -- I'm sure there is a case, and I need to -- and I don't need an answer now. But that is -- I'm just trying to tell you what's been on my mind.

Also, what I went off on yesterday, and it is a terribly, terribly difficult conceptual issue, and that is it seems to me there's inconsistency. I understand Novell's theory. The theory is that Microsoft, as I understand it, withdrew the documentation through the NameSpace extension APIs to target Novell because it saw Novell as a potential middleware threat and because it saw that WordPerfect became so popular that it would supercede Word and that, therefore, people would buy WordPerfect and whatever operating system it was working on and not Windows 95.

This case is not about and cannot be about and, frankly, it seems to me it was what Mr. Harral was concerned about is absolutely right. It may be that Microsoft was using its knowledge of Windows 95 and restricting what it was giving

575

to competitors, application competitors so that it could make Word and Office more dominate respectively in the word processing and the Office suite market. I understand that.

But that is not the claim here. The claim here is different. It has to work to the operating system. And for the life of me it seems to me there is an inconsistency between Novell's theory and the facts, because at least, maybe not all of the facts, but the facts I've heard from Mr. Harral and others that testified that clearly he could not have been clearer that through 1996 at least and for the foreseeable future thereafter what was going to make WordPerfect attractive both as a middleware and as a word processor application was the fact that it was married to Windows 95.

So whatever bad intent Mr. Gates may have had, maybe he did perceive in the long term, I understand Mr. Johnson pointed out it's classic hallmark of any anticompetitive behavior to take a short-term loss in order to gain a long-term profit. Maybe that was Mr. Gates' intent. Assuming it was is not the facts, at least the facts that I've heard so far, which is that WordPerfect wasn't going anywhere through 1996, which is the relevant time period unless it was married to Windows 95 which is the operating system.

There is just -- I've struggled with this. I'm sorry I lost my temper yesterday because it is so hard that time trying to understand it. And like I say, I woke up in

576

the middle of the night and drew up some notes, and I tried to type them out to make my thoughts more clear. But I mentioned this now only because this is hard. It's going to be hard for the jury. It's hard for you all. It's going to be hard for me on a motion for judgment as a matter of law, which I'm going to undertake seriously.

And I'm just alerting you now to now what my mindset is so you know what's happening. I don't need a response, Mr. Johnson, and I don't mean to argue with you. I'm just telling you where -- why I'm having the problems that I'm having.

So just bear that in mind, and we'll get through this.

MR. JOHNSON: Your Honor, if I could since we do have five minutes, and we will address in a fuller fashion to Your Honor.

But two short points. First with your -- with respect to your first comment about duty of a monopolist to help a competitor, and you asked if there was a case. And there is a case. It's called Novell vs. Microsoft. And you addressed this point in summary judgment. In fact --

THE COURT: I was under -- whatever I did, I'll reread it. I was under -- frankly, and I'm embarrassed I was under a misapprehension. I thought that WordPerfect would not run on Windows 95.

577

MR. JOHNSON: Your Honor, what is important and I do urge you to reread your opinion --

THE COURT: I will.

MR. JOHNSON: -- because what you said was that this is not just the normal case of a monopolist withholding some functionality that it had a right to do so. This was a case that involved an element of deception.

THE COURT: Well, you tell me also in the evidence where there is any evidence that when Microsoft first published the APIs and NameSpace extensions API it knew at that time that it was going to withdraw them. That would be a deception claim. What you're dealing with is something, which frankly what I've heard is Microsoft's own e-mails that you rely upon is an open question until the very end when Mr. Gates makes his decision to withdraw. Now, that may have been wrong. It may very well have been wrong in that it was favoring Word or WordPerfect, but that's not the claim.

I don't see where there's any evidence that at the time that in the alpha and beta releases it intended at that time to withdraw.

MR. JOHNSON: Your Honor, you may recall the evidence that came in through Mr. Gates at the Hood Canal Retreat. There was the discussion of the Radical Extreme which was a plan, a plan, Your Honor, to deny the extensible shell of Chicago to ISVs.

578

THE COURT: When was that?

MR. JOHNSON: That was in 1993. Mr. Gates endorsed that plan. The actions ultimately taken in this case mirrored that plan.

THE COURT: That's helpful.

MR. JOHNSON: That was deception. That was anticompetitive. That was -- and had they, had they, Your Honor, simply denied the extensible shell to all ISVs, that would have been wrong according to Microsoft's own executives with respect to this point, but it might have fallen within what you said, the lack of duty of a monopolist.

THE COURT: That's helpful.

MR. JOHNSON: Which that's not the case that occurred here --

THE COURT: I don't want to cut you off. It's 8 o'clock. The jury is probably here. Thank you.

MR. PARIS: Your Honor, I know we need to bring the jury in, but I very much disagree with what Mr. Johnson said.

THE COURT: I don't want to hear from you all. The purpose was not to engender argument. It was to tell people what was on my mind.

MR. PARIS: Thank you, Your Honor.

MR. JOHNSON: Thank you, Your Honor.

(Whereupon, the jury returned to the court proceedings.)

579

THE COURT: Good morning, again, everybody. I think we're ready for another witness.

MS. VISHIO: Good morning. My name is Mariam Vishio on behalf of Novell.

Novell calls Gregory Richardson.

THE COURT: Mr. Richardson, please come forward.

THE CLERK: Please raise your right hand.

GREGORY LEE RICHARDSON,
called as a witness at the request of Plaintiff,

having been first duly sworn, was examined

and testified as follows:

THE WITNESS: Yes.

THE CLERK: Please be seated.

Please state your full name and spell it for the record.

THE WITNESS: Gregory Lee Richardson. G-R-E-G-O-R-Y, L-E-E, R-I-C-H-A-R-D-S-O-N.

DIRECT EXAMINATION

BY MS. VISHIO:

Q: Good morning, Mr. Richardson. Mr. Richardson, where do you live?

A: I live in Pleasant Grove, Utah.

Q: How long have you lived in Utah?

A: I've lived in Utah for over 20 years.

Q: Where are you currently employed?

580

A: I work for the Church of Jesus Christ of Latter-Day Saints.

Q: And what do you do there?

A: I'm a software development engineer. I work in the genealogy program for the church.

Q: How long have you been employed by the Church of Jesus Christ of Latter-Day Saints?

A: It will be four years in December.

Q: How long have you been a software engineer?

A: For over 20 years.

Q: Before I get into your work as a software engineer, would you, please, tell the jury where you went to college.

A: I went to college at Brigham Young University.

Q: And when did you graduate?

A: I graduated in 1988.

Q: What is your degree in?

A: I have a double major in computer science and Portuguese.

Q: What did you do after you attended Brigham Young University?

A: My first job was at Microsoft.

Q: And how long have you been employed by Microsoft?

A: For a little less than two years.

Q: And what was your position there?

A: I was a software tech engineer.

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Q: And what were your job responsibilities as a software tech engineer?

A: My position was to validate that the software that was being produced worked as it was supposed to, find any problems and make sure that they were fixed appropriately.

Q: What products did you support?

A: Well, I worked on a variety of products while I was at Microsoft. Initially I worked on their internal compiler debugger interpreter, which was a product that they used to produce their own products. It was used to produce Word and Excel. Later I worked on a product that provided help in Windows, WinHelp. I worked on a variety of smaller products. I worked in a group that provided shared support for all the applications. And so there was a small product dialog management. There was a bug tracking system, a variety of small pieces used by all the applications.

Q: And what operating systems do you support?

A: In my group we supported Windows, we supported DOS, we supported the MacIntosh, and we supported OS2.

Q: Do you recall when you left Microsoft?

A: I left Microsoft in spring of 1990.

Q: And what did you do after you left Microsoft?

A: I went to work for WordPerfect Corporation.

Q: What was your position then?

A: I was a software development engineer.

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Q: And as a software development engineer what were your job responsibilities?

A: I developed software specially initially WordPerfect for Windows 5.1. So I was a software developer that help create the first word processor that WordPerfect did for Windows.

Q: And what did you do after that?

A: After the initial version of WordPerfect for Windows, WordPerfect for Windows 5.1 shipped, we took a portion of the code that we had written for WordPerfect for Windows and made it into a shared code that could be shared by other applications for Windows that WordPerfect was creating. We also took functionality from other WordPerfect products such as the mail program and used those in that same base so that everybody could share that functionality.

Q: And how long were you on the shared code team?

A: I worked in shared code from the end of the 5.1 product until -- I was -- several years later after Novell had purchased WordPerfect and Corel had purchased WordPerfect. So probably eight or nine years I worked in shared code.

Q: Do you know Mr. Adam Harral?

A: I do.

Q: Was he a member in the shared code team?

A: He was.

Q: Do you recall approximately when WordPerfect was

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acquired by Novell?

A: Novell purchased WordPerfect in 1994.

Q: Did the merger affect your day-to-day job responsibilities as a software developer?

A: No. I continued to work on the same products. I continued to work in the same office. There wasn't really a direct impact on me and my duties.

Q: You had mentioned that after Novell that Corel had acquired WordPerfect, the application, as well. What did you do at Corel?

A: I continued to work on WordPerfect in the shared code group for about a year. And then I was transferred to another product called Remagen, R-E-M-A-G-E-N, that is a client server. Remagen was a Citrix-like product. It allowed you to run an application on the server and have a representation of that product on a client's machine in an attempt to make it easier to manage the software, that the server would have the software installed in a controlled environment, and then clients could log into that server and access the server.

Q: How long were you employed by Corel?

A: I worked at Corel for just less than two years.

Q: And what did you do after you left Corel?

A: I returned to Novell.

Q: And what was your position there when you returned?

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A: Once again, I was a software development engineer. And I worked in the advanced development group. The product that I worked on initially was a product that accelerates access to the Internet. So that when your browser attaches to a web server like CNN and Google, that happens more quickly.

Q: How long were you employed by Novell the second time around?

A: I was employed by Novell the second time around about nine years. So I went there in 1988 and left in 2007.

Q: Why did you leave?

A: I was laid off.

Q: And what did you do after you left Novell?

A: After I left Novell I came to work for the Church of Jesus Christ of Latter-Day Saints.

Q: Let me return to your employment at WordPerfect. Did Microsoft have a practice of promoting its operating systems to WordPerfect?

A: That was common. Every time there was a new release of Windows we would get advanced information about it. And we talked with Microsoft personnel at their conferences to learn about the conference and learn about the new features and what were the advantages of this operating system.

Q: Before I get into your experience with those conferences, are you familiar with Microsoft's logo certification program for Windows 95?

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A: I am.

Q: And can you explain to the jury what you know generally about that program?

A: The logo program was a seal of approval that Microsoft gave to applications indicating that they had looked at them and they worked well on Windows 95. So it was a logo that you could put on your software that indicated that Microsoft approved of it.

Q: How would a software developer obtain the logo?

A: There were a variety of requirements. The requirements that I specifically dealt with were related to compatibility of the application that we were running on Windows 95 and Windows NT. The requirement was that the various executables, the same version of the code had to run both Windows 95 and Windows NT. So my responsibility was to take the shared code and make it work in both places.

Q: Were you successful?

A: I was not.

Q: Why not?

A: As I attempted to take that functionality, import it to Windows 95 and Windows NT, I encountered a variety of circumstances where the functionality was either incompatible, it being done so differently I couldn't make it work both places, or functionality was entirely missing in Windows NT. The requirements were that the software would degrade

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gracefully where there wasn't compatible functionality, but I ran into the obstacles that were so large that I couldn't make enough work to make it worth while to move the software into Windows NT.

Q: How long did you try to make the code compatible between Windows 95 and Windows NT?

A: I spent two months doing that.

Q: What happened next? Did Novell obtain a logo?

A: My understanding is Novell did not obtain the logo.

Q: Let me get back to your earlier testimony about the conferences that you mentioned previously. You testified earlier that Microsoft held conferences to promote the operating systems to WordPerfect. Did you ever attend any such conferences where Microsoft promoted Windows 95 prior to its release?

A: I attended two conferences. The first conference was early in 1993. It was a very early preview of what was planned for Windows 95. They didn't have any code actually ready to show to us to show something working, but they wanted to present this new model, which was a pretty dramatic departure from the way things had been done previously where access to information on Windows became document centric and object oriented. It was a really new concept, and they wanted to kind of sell that to us, that concept really early in the process and get by on that concept.

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Q: And what is the object-oriented concept that you're referring to?

A: So that's a little bit difficult to understand. Object orientation moves from having just a list of APIs that you called access functionality in the operating system to dealing with objects that then have functionality associated with them. And so it's a stronger model. It was a good move. It was a good change, and we were able to see the advantages. And we were very excited about that and wanted to move forward with that technology. We thought it was a great idea.

Q: Do you remember any specific functionalities that Microsoft was promoting for Windows 95?

A: What I recall is a variety of places where they kind of turned this view perspective around to making it object oriented. They included the ability to drag and drop things from various places and pick up an icon and move it someplace and have it be received wherever you dropped it. They had a new way of looking at the way you would interact with clipboard. So you would copy something and then paste it someplace else, how it all works.

And then, of course, the file system which changed to be more object oriented where you would take a document and look at the document to see what you could do with it rather than go to the operating system to see what files you could operate on.

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Q: Are you familiar with the term NameSpace extension?

A: I am.

Q: What are those?

A: NameSpace extensions were the way that this new object-oriented file system allowed you to present a collection of items to the operating system. So when you have a folder and it has a variety of items in it, a NameSpace would be provided to that folder and would enumerate the items within that. The NameSpace extension allowed you to provide different kinds of collections rather than just files on a hard drive.

Q: Did Microsoft promote this NameSpace extension functionality to WordPerfect?

A: My recollection is that they were very excited about this, and we became very excited about this as we understood the technology.

Q: Mr. Richardson, if you would, please turn to Plaintiff's Exhibit 113 in your binder. It's also on the screen in front of you and behind you.

Have you seen this document before?

A: Yes. I believe I have.

Q: What is this document?

A: This is a presentation describing functionality that was being provided in Windows 95 to promote those features.

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Q: On the bottom right-hand corner of the page in front of you, you'll see an NOV number with the number 71 at the end. Do you see that?

A: Yes, I see that.

Q: If you can turn to Page 90, I'd like to direct your attention to the slide entitled, "Explorer Integration Details."

A: Okay.

Q: First of all, Mr. Richardson, what is the Explorer?

A: The Explorer is one of the places you can go to go explore the names. So if you want to look for files or other things that are presented by NameSpaces, this is the place you go. It's kind of the replacement for what had been the Windows file manager in Windows 3.1. You would start up the file manager, and you could browse through your drives and your different files, and then you would find a file and could launch an application from there.

So this Explorer is kind of the same kind of functionality, but it did go by going through NameSpace extensions rather than just by going and looking through the drives.

Q: And what is your understanding of what Explorer integration is as shown in this slide?

A: So as we see right over here, this area right here is a tree that represents the things that are available, the

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places that are available for me to go. So we have the drives, A drive, floppy drive, C drive. My Computer is one of those NameSpaces. It's the place where you start. You go to that NameSpace, and it has a collection of things within it. In this case, we have the A drive and the C drive. But the C drive then is expanded to contain a variety of folders within it.

At this point right here, it looks like it's presenting a custom NameSpace. So this is a place where someone can come in and say, I want to present a new collection of items. And this is a custom NameSpace here with the items enumerated by that NameSpace, which are not necessarily files on the file system.

Q: Did WordPerfect want to integrate into the Explorer?

A: We saw pretty quickly that there's some really powerful things that we could do with this. This was a very powerful new paradigm. And there was a lot of advantages. There was a variety of things that we could do that could present very useful functionality to our users to making their experience of using our product better.

Q: And how would you achieve creating these custom folders?

A: So there were a series of new functionalities available in Windows 95. The shell extensions that allowed us

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to create our own extensions register those with Windows, and then they would show up within the browsers of those NameSpaces. There's two dominate browsers; the Explorer itself, and then the file open dialogs that were presented inside applications. So if you're in an application and you want to go find something, you would go to either the file open dialog or the Explorer, and you could navigate to whatever item you're looking for.

Q: Mr. Richardson, I'd like to direct your attention to the first couple of bullets there. The first bullet point says:

Not for most applications, and states that Explorer integration, quote, only should be used if your application displays a pseudo-folder, electronic mail, document management, et cetera, end quote.

Did WordPerfect plan to display pseudo-folders for electronic mail?

A: They did.

Q: And did WordPerfect plan to display pseudo-folders for its document management system?

A: They did.

Q: What other custom folders, if any, did Novell plan to integrate into the Explorer?

A: There were a number of other custom NameSpaces that we intended to provide. One of them was a collection of bit

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maps with our presentations program, like to create slides. So we navigated to the bit map depository. Even though it was just a big compressed file with a lot of bit maps in it, it would appear with a series of folders with files in them, so you could find a bit map to put into your document.

We also created or intended to create NameSpaces that allowed us to access things on the Internet. So we created an FTP NameSpace an HTP NameSpace that allowed you to browse the Internet. We also integrated our QuickFinder technology so that the results of a search would show up in a NameSpace.

So, for example, if you're in the file open dialog and you're working on a document but you can't remember where you saved it but you could remember something what it had in it, you might be able to look for Mr. John Smith, and the search technology would then search all of your drives for all files that had Mr. John Smith in them and present those files that had that name in it as members of a folder in the NameSpace extension.

Q: Are you familiar with a browser from Netscape called Navigator?

A: I am.

Q: And what is Netscape Navigator?

A: Netscape Navigator is a Web browser or an Internet browser just like Internet Explorer. And it was one of the

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very first browsers that could talk to a web server and present the content to you on your local machine.

Q: Did Novell have any relationship with Netscape?

A: They did.

Q: And what was that relationship?

A: Well, my relationship -- or my involvement with that relationship was that Novell got rights to the Netscape Navigator source code. So I took the Netscape Navigator source code and constructed a NameSpace for the Internet, so that in this location right here rather than seeing a list of files, you would see a web page. So if I were to go to Google or CNN, that content would show up right here. You could then follow those links, browse them to some location, and this was available in our file open dialog so you could hit the open binder and it would bring that content into the application we're using. So you could insert a graphic off of the Internet, or you could take a web page that had other content in it and open it directly into the word processor.

Q: Mr. Richardson, if you would, please turn to Plaintiff's Exhibit 344 in your binder. Again, this will be on the screen in front of you and also behind you. This is a Microsoft document entitled Web-Like Shell, Architecture, and the subheading, "Internet Explorer integration, in place navigation and page view" followed by the date November 8th, 1995. Do you see that?

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A: Yes.

Q: When you were working at Novell, had you ever seen this document before?

A: No, I had not.

Q: I'd like to direct your attention to the second page of this document, specifically the second full paragraph that bears the heading, Windows 95 Shell NameSpace Extension. Do you see that?

A: I do.

Q: This paragraphs states, quote:

Although we haven't clearly defined how we present documents on WWW to the end user on the Explorer left pane, i.e., the hierarchy, we know that they don't belong to any of existing folders, shell's NameSpace. It is quite natural to use the NameSpace extension mechanism, see picture below, to plug the URL NameSpace into the Explorer's NameSpace, end quote.

Mr. Richardson, is this what you were describing earlier with Novell's plans for integrating Netscape Navigator into the Explorer?

A: Yes. It sounds very similar.

Q: And why would Novell want to integrate Netscape Navigator into the Explorer?

A: Well, the significance of the Internet was becoming

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very important. There were lots of contents on the Internet. There was a lot of graphics, bit maps, clip art that was available. Plus there was a desire for WordPerfect to be a place where you could edit your web content. So you could go out to a web page, load that document into WordPerfect, edit it and then save it back out to the Internet after having edited in WordPerfect.

Q: In addition to the Explorer were users able to access Novell's custom folders anywhere else on the desktop?

A: Yes, they could.

Q: And where was that?

A: So NameSpace, once it's registered, would appear in the Explorer. And they'd also appear in any file open dialog or any application that was unable to make use of NameSpaces. So once you extended a NameSpace in the system, it was available to everybody.

Q: Are you familiar with the term common file open dialog?

A: I am.

Q: And what is that?

A: The common file open dialog is a file dialog that allows you to open file, attain a file or to select a directory. It's used by every application. If you're going to want to access any of your data, you have to be able to load it and you have to be able to save it.

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So the common dialog was a simple dialog that happen to traverse these NameSpaces.

Q: Would Novell's custom folders have appeared in the common file open dialog?

A: Well, we initially thought they would, but when we tried to, our NameSpaces didn't show up in the common file open dialog.

Q: Did WordPerfect plan to use Microsoft common file open dialog as its file open dialog for WordPerfect?

A: Well, once again, we evaluated that when it first became available, when we first got the first copy of Win95 functionality. And we evaluated and we considered making use of it, but we determined there was two problems for us that we couldn't overcome with the file open dialog. The first was that part of the history of WordPerfect was extremely strong in file management support. So in WordPerfect for DOS it was common for people to open up WordPerfect and just stay in WordPerfect for doing all of their file management because the file management was so strong in WordPerfect for DOS.

Moving into Windows 3.1, 3.0 and 3.1, we had extended that capability that we had with our DOS product into the Windows' arena. And so we had functionality available to us that hadn't been available through the standard operating system. For example, the ability to do file operations like copy and delete from within the file open dialog hadn't been

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available in DOS and hadn't been available in 3.1. We also had -- in the DOS product, we had extended the ability of the user trying to interact with their document over what was available in DOS. Some of you who may remember DOS remember that your files had 8.3 names. They had eight characters and a dot and three characters, and that was all you could use to describe a document.

Well, WordPerfect had extended that to allow you to have a long file name, and we restored that name with the top of the document before the rest of the data of the document. In our file management system when you look at a list of files, you could see that long name, that descriptive name. That was functionality that wasn't available prior to that in Windows or in DOS. We wanted to have that same information available to us. That information that had been in the WordPerfect documents has to move into Windows 5.1. As we looked into expanding the common dialog of customizing it, we couldn't get enough customization into it in order to support the level of functionality we had in previous versions of WordPerfect Windows and in DOS product.

The second problem we had related to these NameSpaces, our custom NameSpace, and, in fact, not even all of the Microsoft NameSpaces showed up when we first evaluated the Win95 product. It seemed to a certain subset of those NameSpaces that were available, and so our extensions didn't

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show up. So we determined that we wouldn't be able to make use of the common file open dialog.

Q: Mr. Richardson, please take a look at the image marked for identification as demonstrative Number 10 on the screen in front of you. What is this image?

A: This is a picture of the file open dialog that we created for Windows 95 in WordPerfect.

Q: And you testified that Novell wanted to add additional NameSpaces or custom folders. Can you explain to the jury where Novell's custom NameSpaces or custom folders would have been able to appear on this screen?

A: So the NameSpaces would appear in a variety of places. This area right here we mentioned before is the tree, and we see My Computer up there, which is the desktop. We see some of the items that contained there are drives, the floppy and C drive. So they would appear in this area right here. This window is a special window being used for QuickFinder technology which was search-and-indexing technology.

So one of the things that we wanted to do to help our users to be able to access their documents was as they worked on documents, loaded them, they saved them, we would automatically index them and put them in the special NameSpaces. So we wanted these NameSpaces to be very easy for them to find, very easy for them to access.

In addition, NameSpaces could be nested within

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other NameSpaces so you could have a NameSpace that was contained within another NameSpace. In that circumstance, it would be possible to have NameSpaces show up in this window, and it would just show up as another folder.

Q: Mr. Richardson, please take a look at the image marked for identification as demonstrative Exhibit Number 16 now on the screen in front of you. Can you, please, tell the jury what this screen represents?

A: So this red box right here represents the view that you would see in that tree view which is now obscured behind this area with this front graphic. This represents some of the NameSpaces that we intended to make available within the NameSpaces that we were providing. So you can see here once again some of the Microsoft NameSpaces, network neighborhood, recycle bin. This quick lists was tied into the QuickFinder search and indexing technology went into the access of those search results. My favorites would be the list of your files that you have in your browser that you've saved in your favorite list. And so if you were to click on one of those, you would go to that view right here of that page, and then you can follow that links wherever you want to.

So those are some of the -- that's a brief representation, showing the NameSpaces that we had working along with the Microsoft NameSpaces for the user in the file open dialog.

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Q: Is this an exhaustive list of the NameSpaces that Novell intended to include?

A: No, it's not.

Q: Did there come a time when you became involved with the NameSpace extensions?

A: There did.

Q: And what were the circumstances of you becoming involved?

A: So I was working in the shared code group, which was responsible for the file open dialog. I was not the primary developer initially that worked on that. A co-worker took that technology and wrote the initial version of the file open dialog and reached the point where he was, he felt he was mostly complete when he started encountering problems with the performance of the NameSpaces. The time it took to take a NameSpace and find all the entries that were contained within that were so slow that it would take several minutes for the dialog to populate a folder. It was just terribly, terribly slow.

As that -- it appeared to us based on our observation of those same NameSpaces within the Explorer that there was some additional communication that was going on that allowed them to speed up that process. As we worked with Microsoft and tried to get the answer to that, it became obvious that there was something there that was missing that

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we didn't have that we needed to have. And then subsequently the retraction of the documentation, our determination of what we had to do to get around those problems led to the additional resources to work on the file open dialog.

So I was kind of pulled into that effort, along with a number of other people who were working on our team. And eventually there were seven of us who all joined that team.

Q: Can you tell us how Microsoft's decision to retract the documentation for the NameSpace extensions affected Novell's Windows 95 products?

A: Yes, I can. So when we reached this point where the performance was unacceptable and we tried to work with Microsoft to get a resolution and they didn't provide the additional documentation, and they finally came back and said, well, we're not even going to let you use what you've already got, we're not going to continue this documentation, and we may change them so they may break so don't count on these, at that point we took a look at what our options were.

One option was to go back to what we had done with Windows 3.1 and go back to the file open dialog that we had in our application for the Windows 3.1. The problem with that was just as Microsoft had left behind the Microsoft filing manager to go to the Explorer there was a whole new set of functionality that was unavailable to us in the old file open

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dialog. We couldn't access the new Microsoft NameSpaces. We couldn't get to network neighborhood. We couldn't get to My Computer. So those locations that were crucial to being able to access files in the Windows 95 environment weren't available to us in what we already had, so we couldn't do that.

We went back and looked at the common file dialog again, and the problem still remained in that we couldn't extend it to get the functionality that we already had in our existing Windows product and in our Windows -- or DOS product, and our NameSpaces weren't showing up. And so we couldn't extend it with all this new functionality that we created. So that didn't work out for us.

We also then looked at saying, well, how do we work around the problem? How do we build up the part of the system that Microsoft isn't letting us use so we can get the same functionality and be able to move forward? If we didn't do that, then I don't believe that we had a product that we could ship on Windows 95. If you're a word processer and you can't access your files or if you can't save your files, then you don't really have a word processer. Yes, we could edit the documents, but we didn't have a way to get access the place where the documents were stored or any access enough of the locations to give us a WordPerfect product. We had to meet at least the level of where our last product had been and be able

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to access all the areas that were important to access in the new operating system.

So we had no choice but to move forward. The options that we had were to either revert in functionality to something that was unacceptable or to simply not be able to access our files in Windows 95.

Q: And what did Novell decide to do?

A: We determined the only option we had was to move forward and to replace the functionality or build up for ourselves the functionality that Microsoft was not allowing us to use.

Q: And how would you go about rebuilding that functionality?

A: Well, there were several pieces to that. The first was that we had to guess what that communication was between the Explorer and the NameSpaces that was allowing them to have the functionality perform so that it didn't take several minutes to populate each folder. We had to replace, and I realize some of these are technical terms, but the interfacing that you would be using as support accessing the NameSpaces would refer to things like iMoniker and iShellBrowser. We had to do our own implementation of those interfaces. We had to build that whole infrastructure that Microsoft had built up through our file system and through the Explorer and replace that ourselves trying to guess as best we could and model as

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best we could off of what they did.

Then the last piece we had to do was go to each of the NameSpaces that Microsoft had provided. Since we didn't know how they were talking to themselves we had to put a wrap around them that allowed us to talk to them and provided adequate performance so that we could render their NameSpaces as well as they did themselves.

Q: And how long did this process take?

A: Well, we didn't know how long it was going to take. We had hoped it would be something that was fairly quickly. We -- when we very first started looking at this it was kind of an unknown. So we all started working on it. We pulled in more and more people. We ended up pulling in seven people. And with those seven people, it took us about a year.

That year, though, was an extraordinary amount of work for those of us who worked on the product. All of us worked between 90 and 100-plus hours a week for almost that entire year. There were weeks where I remember going to work on Monday morning. I'd worked all day Monday, stayed all night. I worked all day Tuesday. I stayed all night. I worked until about 10 o'clock on Wednesday. I went home for six hours, came home and started working again. We often got our 40 hours in by Tuesday. We worked every day of the week. We worked Monday through Sunday. I'd take time off Sunday to go to church, and then I went right back to work. I almost

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didn't see my family for that entire year.

Q: In your view, would the time that it took to rebuild the functionality had been impacted with the addition of more developers to assist you?

A: No, I don't believe so. We reached a point where adding more people would have just made a sillier, running into each other more. We brought in everybody that we thought was useful to help, you know, separate things out and do things separately as we could. But extra people would have probably just slowed us down.

Q: Now, Mr. Richardson, you haven't worked for Novell for a number of years. Why are you here testifying today?

A: Well, I have a story to tell. This is what happened to me, and so my intent is to just tell my story and let it be heard.

Q: Thank you.

Pass the witness.

THE COURT: Mr. Holley?

MR. HOLLEY: Thank you, your Honor.

CROSS-EXAMINATION

BY MR. HOLLEY:

Q: Good morning, Mr. Richardson. We haven't had the pleasure of meeting. But my name is Steve Holley, and I represent Microsoft.

Now, you were showed Plaintiff's Exhibit 113, and

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I'd like to put that back up on the screen, if we could. I didn't hear you say whether you were present at this presentation where these slides were represented. Were you there, sir?

A: I don't recall if I saw this presentation at a conference or if it was distributed another way.

Q: But you saw this at the time back in 1993; is that your testimony?

A: I recall seeing this presentation. I don't remember the exact date that I saw it.

Q: Okay. Well, it's true, is it not, Mr. Richardson, that Microsoft provided an entire series of new controls in Windows 95 that benefitted software developers like Novell?

A: There were many features in Windows 95 that we were very excited about.

Q: And you used them, didn't you?

A: We made an attempt to use the best of the operating system.

Q: Well, and you did, didn't you? You used tool bars and status bars and sliders and column headings. You used lots of controls in the new operating system, didn't you?

A: There were a variety of functionalities in the operating system that we made good use of.

Q: But I'm trying to establish, sir, that not only were they there and not only were you excited by them, but you

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used them?

A: We used many of them. Some of them were not adequate to provide the functionality we needed, and we replaced them. But there were many of them that we did make use of, yes, sir.

Q: Now, if you had wanted to put a folder in the Windows Explorer to store all the documents created by WordPerfect from Quattro Pro, that was easy, wasn't it?

A: It was easy to create a folder in the file system, that is correct.

Q: And you did that, didn't you?

A: Users did that.

Q: Well, you did it, didn't you?

A: I as a user making use of Windows 95, there were times when I created folders in Windows 95, that is correct.

Q: Right. But problematically both WordPerfect and Quattro Pro created a file called My Files that was the storage location for all the documents; isn't that right?

A: I'm not familiar with the default settings for those applications.

Q: Can we look at DR-2, please?

Now, you'll agree with me, won't you, sir, that this is the file open dialog in Corel WordPerfect Office that was released in March of 1996?

A: It looks like it is, yes.

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Q: Okay.

And I'm sorry, Mrs. Vishio. I apologize. Here's the whole stack.

MS. VISHIO: Thank you.

MR. HOLLEY: Sorry. That wasn't fair.

Q: BY MR. HOLLEY: So looking at this, this My Files folder is where WordPerfect and Quattro Pro files went by default; isn't that right?

A: I'm not familiar with what the preference settings were for those two applications.

Q: So your testimony is that you don't know how WordPerfect and Quattro Pro actually worked when they were released?

A: What I meant to say was that I don't recall knowing what the preferences were for where files were saved for WordPerfect and Quattro Pro.

Q: But you do agree with me that it was possible and, in fact, it did happen that Novell was able to add a My Files folder to the file system that showed up both in the Windows common file open dialog and in the Windows Explorer?

A: It's -- it's very possible for an application to create a folder in a file system in Windows 95.

Q: Now, an e-mail client is a product that displays a collection of e-mail messages as items; right?

A: I'm sorry. Would you repeat that?

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Q: Sure. An e-mail client is a product that displays a list of e-mails as items; right? Either in your sent box or your in box?

A: An e-mail client can do that, yes.

Q: Okay. And a clip art gallery similarly displays a collection of items, a bunch of pictures that you can stick in presentations; right?

A: That is correct.

Q: Okay. Now, that's very different from what a word processor or a spreadsheet does; right? Their principal role is not displaying the list of files like objects.

A: Let me make sure I understand your question. Your question is, is the purpose of a word processor to display a list of items?

Q: Yes.

A: I would not characterize a word processor that way.

Q: Okay. And let's go back to Plaintiff's Exhibit 113 to that page that Ms. Vishio had you looking at earlier, which is number 4390 on the end.

A: I'm sorry. What was that?

Q: I think it's the one that says Explorer Integration Details, and it says 90.

A: All right.

Q: Novell has a much nicer color version than I have, so we'll have to live with this grey one, which is harder to

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read.

But the second line down there says, not for most applications, exclamation mark; right?

A: Agreed.

Q: Okay. And what it says is, only should be used if your application displays a pseudo-folder. And then it gives two examples, electronic mail, document management, et cetera; right?

A: (Witness indicates by nodding head up and down.)

Q: Do you agree with me that that's what it says, Mr. Richardson?

A: It does say that, yes.

Q: Okay. And it also says that you shouldn't, it says "not" all in capital letters, should not edit documents with an Explorer extension.

A: (Witness indicates by nodding head up and down.) Yes, it says that.

Q: Okay.

A: Agreed.

Q: Now I'd like to -- I'd like to put up ER-7.

And I'll show this again to you, Mr. Richardson, so you're not turning around looking at the screen.

Now, Mr. Richardson, this is a chart that I made. But I think it sort of follows much of what you said this morning. I guess we'll need to add one more thing across the

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bottom, which is your Internet NameSpace. But what you said was that Novell wanted to add various products as NameSpaces; is that right?

A: Well, I wouldn't quite state it that way. We wanted to add functionality of various products as NameSpace.

Q: Okay. And those were all products that were different from word processors and spreadsheets; right?

A: They were integrated with the word processor in many of these cases. Specifically in the case of Soft Solutions and QuickFinder, these were specifically integrated into WordPerfect. So when you had a WordPerfect document you restore it in your document management system and retrieve it from your document management system. Very closely integrated.

With QuickFinder technology, once again we wanted to very tightly integrate this with the word processor so that whenever you worked in a document it was automatically indexed. And whenever you were trying to open a document and retrieve it into WordPerfect, you could make use of a QuickFinder technology to retrieve that. So they're a very tight integration.

Q: So tight that if I look at the box for Corel WordPerfect Office you won't find Soft Solutions in it, will you?

A: I don't have information related to how that was

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marketed on the box. I don't know that information.

Q: So you can't tell me one way or the other whether if I install Corel WordPerfect Office I even get Soft Solutions?

A: I can't tell you whether on the box that they displayed the name of Soft Solutions.

Q: Okay. Now, as I understand your testimony, it wasn't just that you wanted Soft Solutions, the clip art library, the QuickFinder search engine and the WordPerfect e-mail client to show up inside WordPerfect and Quattro Pro, but you wanted them to display in the Windows user interface even when WordPerfect and Quattro Pro were not running; is that right?

A: That was the way the functionality worked as Microsoft had designed it, so when you add a NameSpace extension, it showed up everywhere. Now we saw that as a benefit and were desirous of that. That was a functionality that Microsoft provided.

Q: And you thought that would make Windows 95 a better operating system, didn't you? You thought if you could add a document management system, a search engine, a clip art library, an e-mail client and an early web browser, you would make Windows 95 a better operating system; isn't that right?

A: It was our intent to make the user's experience on Windows better because they had WordPerfect installed.

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Q: Well, when you say WordPerfect, you need to be more precise. You mean WordPerfect technologies; right? Not WordPerfect, the word processing software?

A: So when the WordPerfect suite was installed we wanted their experience on Windows to become a better experience.

Q: And you wanted that to be a better experience even if it happened to be that the user wasn't using your word processor or your spreadsheet at the time?

A: That's correct.

Q: Now, you testified, I believe, earlier that the object-oriented design of Windows 95 was great, I think that was your word?

A: We really liked some of the concepts, yes.

Q: Now, was the shared code group writing an object-oriented program in languages?

A: I believe that we started using C++, which is an object-oriented programming language, around the time that we did the Windows 95 development, although I don't recall precisely at what point we started using it.

Q: And there was a general lack of experience on the shared code team using C++, wasn't there?

A: There was a general lack of experience in the industry generally with using object-oriented languages because they were brand-new.

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Q: Who wrote C++?

A: That's a good question. I don't know that I have complete knowledge of that. My understanding is that a graduate student initially wrote C++ as a compilation of post compile for C language programming. So you would write a C program in C++, and you would run it through this C++ processor and it would convert it into C code.

In fact, I remember in the first conference I went to with Microsoft where they presented Win95 the Microsoft developers were struggling with using C++. And they tried to present these new concepts to us, these logical minded concepts in C and apologized it was so much complicated to do it in C than it was in C++ because object-oriented programming did make it a lot easier. But it was a transition they explained they were going through even as we were starting to go through that.

Q: Microsoft's Visual C++ which Microsoft wrote was one of the leading conversions of C++ in the market in 1994, wasn't it?

A: I don't remember market share. I remember Microsoft was a little bit late to the market with C++. When I first went to Microsoft I worked on their internal compiler debugger interpreter, which at that time was called C#, and they named it C# because it was supposed to be twice as good as C++. At that time Microsoft was not pursuing C++

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technology, and other compiler vendors were. So I think Microsoft was probably a little bit late to the game on that, although Microsoft certainly has excellent C++ compiler now and developed very good technology for compilation.

Q: Would you agree with me if people were going to classes to learn how to write C++ that it's very hard for them to be developing high quality software in C++?

A: The concept of C++, an object-oriented in general are a little bit complex. But most of the people that I worked with were able to make that transition relatively quickly. There's a variety of concepts that you have to learn. Once you've learned those and start using it, it becomes progressively easier to use that. And I would say that most of the developers I worked with probably within a month or two were fairly comfortable with C++.

Q: Okay. I'd like you to look at what's been marked as Defendant's Exhibit 108.

Now, Mr. Richardson, you were part of the PerfectFit group in May of 1995; is that right?

A: Yes, I believe that's correct.

Q: And I'd like to direct your attention to the, it is the fourth page of this document, which has the number NOVE 01904058, and tell me when you're there.

A: Sorry. Could you read that number again?

Q: I'm sorry. It is 4058.

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A: Okay.

Q: Now under the heading, "What was accomplished this month," and we're in May of 1995, it says:

We all attended an advanced C++ class to better enable us to code this project.

Isn't it sort of akin to saying to someone, I'm writing a novel in French, but I'm taking French classes at the same time, this idea that in May of 1995 people in the shared code group were taking classes to learn the language that they were writing in?

A: So there was a desire of WordPerfect for people to continue education throughout their career. And although I don't recall this particular coursework, it wasn't uncommon for people to go to conferences about Windows, conferences about C++, conferences about other technologies to keep ourselves -- to keep the saw sharpened, as it were.

Q: Well, let's look down under the heading, "Problems encountered," which is just below this. And it says:

Our lack of experience in the area of OOAD --

And that stands for object-oriented application development; correct?

A: I'm not sure what the acronym, the person who wrote this is referring to. OO is object oriented. But I'm not familiar necessarily with an OOAD.

Q: Okay. So but:

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Our lack of experience in the area of OOAD causes us to underestimate the complexity of the architectural design.

That was something that was causing problems at Novell in May of 1995, people in the shared code group were underestimating the complexity of tasks because of their lack of experience?

A: My experience was that that was not the case. We had a very bright group of developers. Many there were newer developers who had less experience. But as a rule, we had a very good group of developers who had a lot of experience and did a very good job designing.

It's not uncommon for tasks to take more time than you expect them to. Windows 95 had that same issue. It took considerably longer than it was originally projected to.

Q: In fact, that's routine in the software industry, isn't it?

A: It's not uncommon for things to take longer than you think they would.

Q: People are very optimistic about their deadlines.

A: (Witness indicates by nodding head up and down.)

Q: Okay. Now you yourself are a very experienced Windows programmer; right?

A: I started programming with Windows 2.

Q: And that was back in the mid '80s?

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A: In the late '80s.

Q: Okay. And you have experience in developing applications to run on Windows operating systems?

A: I worked at developing Windows applications for many years. The last time I developed for Windows was in 2007.

Q: And you understand how to read the documentation for Windows operating systems; that's right, isn't it?

A: I've used Windows documentation for a lot of years.

Q: Okay. And you're familiar with something called MSDN or Microsoft Developer Network; right?

A: I am.

Q: Can you tell the jury what that is?

A: So the Microsoft Developer Network is a resource that provides information that helps develop Windows applications.

Q: Mr. Richardson, I'm sorry. I'm afraid your microphone is not on because I'm having a difficulty hearing you.

THE COURT: Can you all hear?

THE WITNESS: I apologize. Do I need to repeat that answer?

Q: BY MR. HOLLEY: Thank you, sir.

Now, you're also familiar with the series of books published by the Microsoft Press about how Windows operating

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systems function; correct?

A: I'm familiar that Microsoft Press does produce a variety of resources about Windows development.

Q: And third-party publishers also wrote many, many books about how to write for Windows; isn't that right?

A: That's correct.

Q: And that was true back in the mid 1990s, it's as true as it is today; isn't that right?

A: So there's a certain amount of lag time that follows introduction of technology and production of those books. But, yes, generally speaking after the introduction of the technology a variety of resources follow to help develop which code to those environments.

Q: Okay. I'd like to ask you if you're familiar with one book from the Microsoft Press, and I'll just bring it up and show it to you so you don't have to stare across the room. But have you seen this book before, The Programmers Guide For Windows 95?

A: It does look familiar, but I don't recall having used this book myself.

Q: Okay. And there's a chapter in this book entitled Extending the Chicago Shell; right? And feel free to look at the index if you'd like. But there's a chapter called Extending the Chicago Shell. I think it's Chapter 12.

My question, Mr. Richardson, is have you seen the

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material that appears in Chapter 12 of The Programmers Guide for Windows 95 either in this form or in some other iteration?

A: I don't recall this docket or this book being available at the point that we were writing our first shell extensions. The information that was provided -- the document, the documentation that was provided to us I believe has already been introduced in this court. We had the shell, object by H, the H file included these. I'm not sure we had a lot more documentation on that.

Q: Let me ask you to look at what's Defendant's Exhibit 72. Now, this is an article that appeared on the Microsoft Developer Network by a guy name Kyle Marsh in May of 1994 entitled "Extending the Chicago Shell." Would you agree with me that this is basically the same content that appears in Article 12 of the book that was published a year later?

A: I would have to take the time to read them both and compare them. I'm not familiar enough with the document to say that.

Q: All right. Let's take a look at the second page of what is Defendant's Exhibit 72. There's a section here entitled, "Shell Extensions." And it says:

Shell extensions enhance the basic functionality of the shell by providing additional choices for manipulating file objects or additional information. There are five shell

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extensions.

And then it lists, context menu handlers. And if you turn to Chapter 12, it says, context menu handlers, and it says exactly the same words after.

And then we look at Defendant's Exhibit 72, it says drag-drop handlers. If we look back at the book --

MS. VISHIO: Objection, Your Honor. Is there a question pending?

MR. HOLLEY: I'm in the process of asking the question.

THE COURT: So the answer is not yet.

MR. HOLLEY: She's rushing me, Your Honor.

Q: BY MR. HOLLEY: So, Mr. Richardson, my question is, the five shell extensions that are described in Defendant's Exhibit 72 are also described in Article 12 of Defendant's Exhibit 559, the book; isn't that right?

A: I haven't reviewed the book. But --

THE COURT: If you want to represent that's so, that's so.

MR. HOLLEY: Okay.

Q: BY MR. HOLLEY: Well, I'd just like to turn back to Defendant's Exhibit 72 and point out to you the number that appears on the bottom of the first page. It says NOV-B. And that shows that this document was produced from Novell's files. Have you seen this document before today?

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A: Let me make sure I'm referring, I've got the right document.

Q: Okay.

THE COURT: I think it's 72.

MR. HOLLEY: 72.

Q: BY MR. HOLLEY: 72, Mr. Richardson.

A: Okay. I'm lost.

Q: Sorry about that.

Okay. So the question I have for you is, this document was produced from Novell's files, and we know that because it has the Novell's production number down at the bottom. And my question to you is whether you've seen it before today?

A: I don't recall. Is this the document you're referring to?

Q: Yeah. I'm blind without my -- yes. No. No. I'm sorry. It's this one, Mr. Richardson.

A: This document?

Q: 72.

A: I don't recall specifically seeing this document.

Q: Do you recall seeing a documentation in the form of MSDN articles in May or June of 1994 about how to extend the Chicago shells?

A: I remember finding documentation, but I don't recall this specific time frame or the specific documents.

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Q: Now, in terms of the shell extensions that are described here, context menu handlers which allow you to add a context menu when you right check on a file, and things that allow you to add items, specific icons, those things all remained documented throughout the development of Windows 95; correct? They were documented in the M6 beta, the M7 beta, all the way through; correct?

A: I believe that's correct.

Q: And, in fact, Novell used those shell extension mechanisms in developing WordPerfect for Windows 95 and Quattro Pro for Windows 95; isn't that right?

A: That's correct.

Q: Now, I think this is clear from your testimony, but I just want to be sure that we're all on the same page. When you learned in October of 1994 that Microsoft was withdrawing support for the NameSpace extension APIs, that didn't mean that the code in the operating system that implemented those APIs went away, did it?

A: My understanding is that the code remained. Just the documentation was retracted.

Q: And you were allowed to keep the documentation that you got in June of 1994 in the M6 beta; right? No one came and took that back from you?

A: That's correct. However, we were warned that those interfaces might change and might not continue to work. So it

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might not be wise to depend upon them.

Q: Now, I'm trying to make sure I understand your testimony. You said on direct examination that rather than pull the APIs because you'd been told that Microsoft might not support them in the future, you decided to clone them inside the shared code; is that right?

A: That's not the way I would characterize that. We decided that in order to achieve the functionality that had never been documented, and to guarantee that we would continue to operate that we would have to create our own infrastructure that mirrored the infrastructure that Microsoft had created.

Q: Well, it was a clone, wasn't it?

A: Well, we didn't have visibility into how they did adequately to say. I mean, a clone to me implies that it's identical. So we did our best to imitate the functionality. But not knowing how it worked I wouldn't call it a clone.

Q: Can we look at DR-35, please.

Okay. These are the 17 Comm interfaces that you sought to implement in shared code; right?

A: That looks correct.

Q: Okay. And 16 of these are Windows APIs; right?

A: I'm not sure I understood the difference between the 16 and the 17.

Q: Okay. Well, you made one up; right? You created IPF Moniker. IPerfectFit Moniker.

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A: I see where you're headed.

Q: Okay. But the other 16 are interfaces exposed by Windows 95.

A: Those are interfaces that are defined by Windows 95. And I don't recall if we had to create additional interfaces besides the PF Moniker. My recollection is we did, but I can't recall the specifics.

Q: Did you talk to a copyright lawyer before setting up doing this?

A: I don't recall speaking with a copyright lawyer.

Q: Okay. And who's idea was it that Novell would clone all of these interfaces in Windows 95?

MS. VISHIO: Objection, Your Honor. Mischaracterizes his prior testimony.

THE COURT: Yeah. I think he said it's not a clone. So it's sustained. Just rephrase the question.

MR. HOLLEY: Okay.

Q: BY MR. HOLLEY: Whose idea was it that Novell would re-implement these 16 Windows interfaces in Novell's own products?

A: So I guess there's a couple answers to that. First of all, the infrastructure that we created was not merely the interfaces that were provided, but the infrastructure that recalled them. So an interface is a collection of calls that you make. So if someone supports an interface, you know that

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you can call a certain kind of functionality. You expect a certain kind of functionality from them. So when you support an interface, you merely say, you can call me and ask me these questions, and I know how to answer them.

And so the work was not merely providing implementations that supported these interfaces, but building the infrastructure that knew how to tie them altogether, that knew how to call them.

So the purpose of the interfaces was for people to provide implementations that made use of them so in providing these interfaces or implementations of these interfaces, all we did was go to the registry like everybody else did like the documentation told us to do, and we said, I support this interface. And they could call us, and they could say, okay. I can give you this kind of question because you know how to answer that.

So we provided a substantiation of these interfaces. The interfaces had been defined by Microsoft. We continued to make use of those interface definitions as the documentation had instructed us to, and then we provided the infrastructure that knew how to call them.

Q: And that was hugely, hugely complex, wasn't it?

A: It cost us a lot to figure out how to do it and then to actually implement it.

Q: Right. It was a big, big job to create your own

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implementation of these 16 Windows APIs, wasn't it?

A: So once again, that was one portion of the task, was to provide implementations for our objects that supported each of these. And that wasn't the huge task. The bigger task was creating that infrastructure behind that, you know, how to make use of these that knew how to call them and knew how to ask questions.

In addition to that, we had to go to each of the Microsoft NameSpaces and provide a wrapper around them because we didn't know how to ask the questions that were -- in order to get the performance that we needed there was some kind of connection there that we had never been given visibility to. So we had to guess what that was, provide that and then wrapper around their NameSpaces so that we could talk to them, as well.

Q: Is it your testimony, Mr. Richardson, that it was easier to do what you just said, which is write your own implementation of the code that exposed these interfaces and the code that called these interfaces, than it was to simply keep calling the interfaces that Windows exposed that you had been told about in the M6 beta?

A: So there were three options that we had that we considered at the point where the documentation was retracted, and I kind of went over those before. We looked at each of those options very seriously. We didn't know which one was

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going to be the right option, and we certainly weren't looking for a big task. But as we looked at the options, we looked back at the option only accessing the file system and not having access to the other NameSpaces. If we couldn't access the network neighborhood, then no one could get their documents to or from network. Or if we couldn't go to My Computer, that was the place that everybody went to start in Win95.

The lack of those NameSpaces seemed to us to be an insurmountable problem. We wouldn't have a Windows 95 product if we didn't have access to those. It wouldn't be functional enough to be considered a reasonable product in Windows 95. So that one was off the table. We couldn't do that.

The next option was to -- sorry. I lost my place. So one option was to go back to what we'd had previously. The next option was to go with the common dialog. Now, the common dialog had access to some of these NameSpaces. It had access to My Computer. It had access to some of these Microsoft NameSpaces. But we couldn't get all the Microsoft NameSpaces to show up, and we couldn't get any of our NameSpaces to show up.

So all this functionality that we'd invested in that represented the work of dozens of developers for QuickFinder, for Soft Solutions, for the e-mail client, all of that work couldn't be used at all. We had to throw it all out

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if we went with common dialog. In addition, the common dialog wouldn't even give us the level of functionality we had in our last release in Windows or that we had on our DOS card. It was a huge step backwards for us. And we felt it simply wasn't an option. If we were to go with that option we didn't really have a product. So we were left with the third option.

Now, when we started, when we made that choice, we didn't know how big it was going to be. We estimated based on what we knew that there was a big unknown there, but we hoped that we would be able to complete that in a relatively quick period of time. We didn't start immediately with seven developers knowing it was going to take us a full year. We decided that was the only option we had left. The others simply wouldn't work. We were in a rock and a hard place. We couldn't go forward. We couldn't go back. Our only choice was to try to replicate this functionality so that we could have a product that was reasonable under the Win95.

Q: Now, when you said that you couldn't get access to the Windows NameSpaces, you were aware, were you not, that it was very simple using a Windows APIs called iShellFolder to bind to the system NameSpace; right? You knew that?

A: So what I said was that we couldn't get the common dialog to bind to all the Microsoft NameSpaces or to bind to any of our NameSpaces. So the Microsoft functionality provided the common dialog was the one that didn't do this,

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not us.

Q: Okay. Fine. So you couldn't change Windows 95's common file open dialog, the one that Microsoft wrote --

A: Correct.

Q: -- to do what you wanted it to do. But inside your own file open dialog it was simple to display the entire system NameSpace; correct?

A: So the binding of two NameSpaces was not a difficult part of the problem in creating our own file open dialog. Okay. That was not the difficult part of the process. That was not the costly part of the solution we had to compete with.

Q: So Novell could have made a choice to write a file, open file for WordPerfect and Quattro Pro that displayed the entire Windows 95 NameSpace including the briefcase, My Computer, my network neighborhood, all that stuff would have shown up in your file open dialog; right?

A: Yes, that's correct. The problem we encountered was not difficulty in binding them, the problem was in dissolving the list of items contained within each folder. Using the APIs that were exposed, the performance was so slow that it would take up to three or four minutes to render the content of a full -- of a large folder. So we discovered that when we used the interfaces which had been published with the Microsoft NameSpaces it was very slow. When we put our

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NameSpaces in the Explorer and it rendered the content of our folders, they were very slow. But when we put the Microsoft NameSpaces in the Microsoft Explorer, they were very fast. There was some communications happening there. There was some interaction that we didn't have access to that hadn't been published, we couldn't get to. The performance was so bad that it was unusable. You can't wait two or three or four minutes every time you try to open a file. It was something unacceptable.

Q: I'd like to have you look at something that Mr. Harral was shown during his direct examination. It was H-06, and I think we can put it up on the board. And I'll give you this copy so you can see it, Mr. Richardson. It's probably easier not to turn over your shoulder like that.

Now, Mr. Harral testified that this was the file open dialog for PerfectFit 2.3 that showed up in applications for Windows 3.1; and that's right, isn't it?

A: That looks correct.

Q: Okay. And so I'm looking here, and I see that there is something called Quicklist, and that is presenting some of the spaces in the file system that you thought users would want to have easy access to; correct?

A: I don't recall this functionality. But that looks like a reasonable interpretation.

Q: Okay. And it also allowed users to view files

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without opening the application. That's what the view button is; right?

A: I'm sorry -- yes, that's correct.

Q: Okay. And you could also use the QuickFinder technology that you talked about earlier?

A: There's a QuickFinder button there.

Q: Right. And all of this once done -- I'm sorry. One more. You could access the network; right? You could press the network button, and it would take you out to network drives or Windows NT server drives; right?

A: (Witness indicates by nodding head up and down.)

Q: I'm sorry. I didn't hear your answer, sir.

A: I'm sorry. What was the question?

Q: The question was you could press the network button, and you could have access to various network drives.

A: Yes, that's correct.

Q: And all of this was done without NameSpace extension APIs because they didn't exist yet; right?

A: That's correct.

Q: That's correct. Okay. Now, let's look at DR-3.

Now, this is the Windows 95 common file open dialog. This was a service that Microsoft had wrote, put in the operating system and told every application developer in the world including Novell, you can use this for free; right?

A: That's correct.

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Q: Okay. And what this did was give any application developer access to all of the Windows system NameSpaces including My Computer, the desktop, the network neighborhood and my briefcase; is that right?

A: It provided access to a number of the Microsoft NameSpaces. My recollection is that it did not provide access to all of the Microsoft NameSpaces.

Q: But if Novell had chosen to use the Windows 95 common file open dialog, it would have been getting exactly the same services from the operating system that all of the thousands of other applications that called this common file open dialog done; is that right?

A: That's correct. The issue is that this dialog was not comparable to the functionality that we had to the dialog you just showed us. It didn't provide as much information that we had in Windows 3.1 or as we were able to provide in our DOS product. It also didn't allow us to add our NameSpaces into this.

Q: Okay. Let's look at DR-6, please.

All right. I made this up having listened to Mr. Harral, but I think it's consistent with what you said this morning. Novell had four objectives, and let me -- and I'm going to give you this so you're not looking over your shoulder at the screen. Thanks.

So I think you've said that one of the things you

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wanted to do was to display the Windows 95 system NameSpace in the file open dialog. That was one of your goals; right?

A: Display the system NameSpace in a file open dialog. I'm not sure what you're referring to with system NameSpace.

Q: You know what the Windows 95 system NameSpace looked like; right? It was the --

A: There were a number of NameSpaces provided by Windows. I don't recall one specifically being named the system NameSpace.

Q: Okay. Let's talk about displaying the tree view for Windows 95 in your file open dialog. You know what I'm talking about with that; right?

A: So the tree view doesn't tie directly to a NameSpace but provides access to a variety of NameSpaces. I'm just trying to make sure I understand what you're asking me.

Q: Well, there's a desktop NameSpace; right? You're familiar with that concept, aren't you?

A: Correct. Correct.

Q: And the desktop NameSpace includes all of the sub-NameSpaces starting with my desktop?

A: So that's what you're calling the system NameSpace.

Q: Yes. That's what I'm calling the system NameSpace.

A: Okay.

Q: So if we can agree that the desktop NameSpace and the system NameSpace are the same thing, one of Novell's

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objectives was to display the system NameSpace or the desktop NameSpace in its file open dialog; right?

A: I believe that was one of our objectives, yes.

Q: Okay. And then the second objective was the one you've been talking about, which was to display both the system NameSpace plus Novell's extra technologies like QuickFinder and the clip art library in the file open dialog.

A: That was a desire, as well.

Q: Okay. And then you had two other objectives which didn't really have to do with your file open dialog but had to do with Windows, as such. One of those was display those Novell technologies like QuickFinder in the Windows Explorer even when I'm not running WordPerfect or Quattro Pro; right?

A: That's correct.

Q: Okay. And your fourth objective was to add Novell's technologies to the Windows common file open dialog, the one that shows up in everybody else's applications, and you wanted to add Novell technologies to that, didn't you?

A: That kind of was a freebie that came along with having the -- any NameSpace. So when it showed up in our dialog by adding some functionality to our dialog, it also became available, at least, and became available in common file open dialog.

Q: So if I installed PerfectOffice on top of my Windows 95 machine in the old world, I would have seen

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Novell's QuickFinder, its clip art library, its e-mail client, its document management system, its web browser when I opened into its Quicken; right?

A: You would have seen all of our NameSpaces available in anybody's file open dialog that had access to the NameSpaces.

Q: What did that have to do with WordPerfect or Quattro Pro?

A: Well, the same thing that if I added a printer driver, that that printer driver now became available for every allocation it desired to print. It was a Microsoft technology that when you added it it showed up everywhere. We took advantage of that.

Q: I'm sorry, sir. I didn't mean to cut you off.

A: We wanted to take advantage of that. But I don't know that -- I'm not sure that it was our desire to interject ourselves potentially to other applications more than it was to take advantage of the functionality Microsoft was providing to the user.

Q: But you would have in your world interjected yourselves as you said into everybody else's application that chose to use the Windows common file open dialog; isn't that right?

A: Yes. In the same way that we would interject our printer driver for every other application that wanted to

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print when we copied our printer driver to the system.

Q: And when you copied your printer driver to the system, you were making Windows 95 a better operating system because you were adding support for more printers; isn't that right?

A: That's correct.

Q: That's correct. And if you were augmenting Windows 95 by adding your document management system, your e-mail client, your clip art library to all of these Windows system components like the file open dialog, you were making Windows 95 a better operating system, weren't you, sir?

A: That was our belief.

Q: Now, the people developing WordPerfect, the word processing application, really didn't care what the shared code team was doing with NameSpace extensions; isn't that right?

A: I'm sorry. Could you repeat that?

Q: Sure. The people who were working on WordPerfect, the word processing application, they really didn't care what you were doing in the shared code team with your effort to re-implement these 16 Windows APIs. That didn't matter to them one wit, did it?

A: I would not characterize it that way. That was not my experience interacting with the WordPerfect theme that they didn't care.

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Q: Did you have occasion to read Mr. Harral's testimony last Thursday before you took the witness stand, sir?

A: I have not read it.

Q: You have not read it? Did anyone tell you what he said about this topic?

A: I have not discussed that.

Q: Okay. So I want to show you --

THE COURT: I thought we'd go about another 10 minutes. Is that okay with everyone?

MR. HOLLEY: We're going to go another 10 minutes, Your Honor?

THE COURT: Yeah. We'll go another 10 minutes.

MR. HOLLEY: Okay. Sorry. I thought you said we're going to take 10 minutes. Okay.

THE COURT: I just want to make sure that was okay with everybody.

MR. HOLLEY: Thank you, Your Honor.

Q: BY MR. HOLLEY: I'm just trying to make sure I have the right page. But I think if you look at Page 287 of the trial transcript. Let me confirm that before we put it up.

Just bear with me one moment, Your Honor.

270, please. Page 270.

This is kind of backward, but I'm going to let you read from this.

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Now, here Mr. Harral's testifying, and he says:

The question isn't about WordPerfect's product at that point. It's about what the users want to do and can we give them the tools to provide that.

You agree with that; right? That the question in terms of the shared code word wasn't about WordPerfect, per se, but instead about giving users in Windows tools like a document management system and an e-mail plan?

A: So I'm not sure of the context here. Can I take a minute to --

Q: Sure. By all means. It's not -- if you need to read around and get yourself familiar with what he was saying, that's perfectly fine.

(Time lapse.)

THE WITNESS: Okay. I think I understand the context of what he's saying now.

Q: BY MR. HOLLEY: Okay. And you agree with what he's saying there, that the question isn't about WordPerfect product, namely, Quattro Pro and WordPerfect; it's about what users want to do, and can we give them the tools to provide that. That's what these new NameSpaces were all about, isn't it?

A: I think I would have phrased it slightly different. I think I would have said it's not only about WordPerfect product at that point, it's about the user's dat

A: It's about

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the user being able to access their data and be able to do the things they want to and extending the user's ability to use their data to achieve their intentions.

Q: Extend the user's ability to use their data whether or not they happen to be at that particular moment using WordPerfect or Quattro Pro; right?

A: Whether or not they're using WordPerfect. So if they're within WordPerfect and the last time they entered the document it was in Word Starter they should still be able to find it.

Q: Right. So QuickFinder would not only look in the store for WordPerfect and Quattro Pro documents, but once it had been installed and enhanced Windows 95, it would allow me to look for documents basically created in any program; isn't that right?

A: That's correct.

Q: Okay. Let's go back to DR-6, the objectives again.

Can I see the next screen?

Now, I think we've talked about all of these things. But let's see how Novell could have achieved its objectives.

Objective number one is displaying the desktop NameSpace or system NameSpace in a file open dialog.

And if that's all you wanted to do, you could have used the Windows common file open dialog, that's one option;

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right? We're limiting ourselves to just displaying the system NameSpace in a file open dialog. You could use the one in Windows; right?

A: So some clarifying questions I would make. These are four objectives, and I agree that Novell had these objectives, although I don't necessarily believe this is an exhaustive list of those objectives. And I think we've already talked about the question of what the Windows 95 common file open dialog offered us and the drawbacks that it had for us. We were unable to achieve the desired results we had for two major reasons with the common file open dialog; it would not meet our needs because we couldn't provide the same level of functionality that we had in 3.1, and we could not provide the same functionality we had in DOS, and we could not have our NameSpaces appear in the common file open dialog. This is not an option for us. It didn't work for us.

Q: Okay. All software development is about a series of tradeoffs; isn't that right? You look at the benefits of a choice and down side of that choice, and you have to decide what to do; right?

A: And the consequences of producing an inferior product to our previous release or to provide a product that's guaranteed to be inferior to every other product in Win95 was not an option for us.

Q: Well, I heard you say that, sir. And I'd like, if

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you would, just bear with me and answer my questions as we go through this, and you'll have an opportunity to say what you would like to say.

But focusing on the first objective, which is to display the system or desktop NameSpace in a file open dialog, you could have, you could have made the choice to use the Windows common file open dialog just like thousands of other people did; is that right?

MS. VISHIO: Objection, Your Honor. Asked and answered.

THE COURT: I don't think so. We'll see. We'll see what we have.

THE WITNESS: So I believe I have answered this question more than once. The file open dialog does display the system NameSpace. It does not display all of the Microsoft NameSpaces, and it does not display additional NameSpaces. So the statement that it does display the system or the desktop NameSpace is correct.

Q: BY MR. HOLLEY: That same is correct, okay. And I think we also agreed earlier that by calling iShellFolder and binding to the desktop NameSpace, you could have inside the PerfectOffice file open dialog also shown the desktop NameSpace; right?

A: So I believe I've already addressed this, as well. The binding to the NameSpaces was not the problem. The

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problem was the performance that arose from doing that. We couldn't enumerate the items within the NameSpace sufficiently fast to make it usable. So this wasn't an option for us.

Q: Did it occur to you that that was just the way the system worked, that it was slow when anybody other than another component of the operating system sought to enumerate one of the system NameSpaces?

A: So we certainly considered that possibility. So Explorer didn't have that problem. The common file open dialog didn't have that problem. And as we reviewed the Word beta, it did not have that problem. So it appeared that those who had access to evidently some information that we didn't or access that we didn't have were able to do this more quickly.

Q: You're quite aware, are you not, sir, that no version of Microsoft Word ever extended the system NameSpace, are you not?

A: I'm not testifying to what they did. I'm testifying to the experience that we saw as we made use of it.

Q: Okay. Now, let's look at option -- or objective, excuse me, number 2, which is you keep telling me you wanted to do two things; you wanted to both display the desktop NameSpace and add some Novell spaces. And you could have done that; right? You could have had one window of your file open dialog that showed the system NameSpace, and then could you have had the window right next to do just like you did in the

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Windows 3.1 PerfectOffice 2.3 file open dialog, display places you thought users might want to go or things you thought users might want to do like use QuickFinder; that's right, isn't it?

A: I would not characterize it that way, either. We really didn't take time to discuss the differences between the access to the technology in the 3.1 file open dialog. For example, the QuickFinder, the level of integration there was that you could launch the QuickFinder. That's it. The level of integration provided by NameSpace is that I could automatically index and have them show up right there in the dialog. I could right click on an item, and one of the options would be to find with QuickFinder.

So the level of integration making the experience easier and more effective for the user is a completely different thought. I wouldn't say it is equivalent, no.

Q: Okay. Not necessarily exactly the same, but you certainly could have made QuickFinder technology available to the users in the file open dialog had you chosen to do so even if you were exposing the system NameSpace in a window right next door.

A: I don't believe we could have provided an adequate experience for the user without the technology the way we did it.

Q: That's your opinion, sir, about what would be adequate for users; right?

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A: It's my opinion that a product that didn't have that level of integration would not be able to be competitive in the Win95 environment.

Q: And you decided it was worth one year of time, one year to provide that marginal improvement in what you thought would be a better user experience; is that your testimony?

A: We were between -- in my opinion we were between a rock and a hard place. We couldn't move forward; we couldn't move back. The options we had in front of us of making use of the common file open dialog or reverting back to our Windows 3.1 functionality were unacceptable in the Win95 environment, that our only option was to move forward.

Q: You're aware, are you not, sir, that Mr. Skillen of Corel ordered the shared code team to use the Windows common file open dialog after Corel completed the acquisition of WordPerfect. You're aware of that, aren't you?

A: I don't recall that happening.

MS. VISHIO: Objection; foundation.

THE COURT: Overruled. The question is does he know.

I'm sorry. Did you know? I didn't hear your answer.

THE WITNESS: I cannot recall that happening.

Q: BY MR. HOLLEY: You were never part of any discussion where Mr. Harral or anyone else told you that

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senior management had directed the shared code team to stop this exercise of re-implementing 16 Windows APIs and instead to use the common file open dialog that was available in the operating system for free?

A: So I think I heard more than one question in there. The implementation of each of these APIs would have been done regardless of whether we're using the file open dialog or not. The implementation of NameSpaces was done to extend our functionality wherever NameSpaces were used. So I think that's a separate question in whether or not we did an open file dialog.

Q: Okay.

A: So we were going to implement those interfaces regardless of whether we used a common file open dialog or not.

Q: Okay. That's an interesting clarification. So you intended to re-implement these 16 Comm interfaces so that you could create your own pluggable architecture so that GroupWise, for example, another Novell product, could plug itself into your own NameSpace extension mechanism that you were writing; is that correct?

A: So I think once again there's a mischaracterization of what the interfaces are. When you provide a NameSpace, you support these interfaces. So you provide a piece of code that can be called into to ask these set of questions. So

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providing those was an ability to extend the system. We were going to provide those functionalities whether we get our own common dialog or whether we used the Microsoft common dialog. So that the suggestion that providing those was only because we were providing our own dialog and was somehow extra work because of that decision I would say is probably not an accurate characterization of what we did. The NameSpaces that we provided were provided because that's the way you did functionality in Win95 regardless of whether we provided our own NameSpace or not. The decision to do our own NameSpace was based on the problems that we encountered with making the user experience acceptable for our user base. We had to have acceptable performance, and we had to provide at least the same level of functionality that we had in our previous release. That was our motivation.

Q: Sorry, Mr. Richardson. Mr. Richardson, can you tell the jury, give the jury one example, one, of any product from any company that in the period 1994 to 1996 added NameSpaces to the Windows Explorer of the Windows common file open dialog? One.

A: So I was not the person in the team who dealt with other corporations. There was a -- I believe it was a CompuServe forum that was used for people who were working on NameSpaces. My understanding from talking with my co-workers who were involved with that was that it was a very active

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group. But I did not work with them directly. I don't have any direct knowledge of which other companies provided NameSpaces.

Q: Well, the answer to my question is that you cannot tell the jury the name of one product in the period between 1994 and 1996 that did what you said was imperative for Novell to do, which is to add NameSpaces to the Windows common file open dialog and to the Windows Explorer. You can't tell us one, can you, sir?

A: I'm not familiar with any company specifically that provided NameSpace.

THE COURT: Okay. Let's take a short recess. I'm ready whenever anybody else is.

(Recess.)

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STATE OF UTAH

ss.

COUNTY OF SALT LAKE

I, KELLY BROWN HICKEN, do hereby certify that I am a certified court reporter for the State of Utah;

That as such reporter, I attended the hearing of the foregoing matter on October 25, 2011, and thereat reported in Stenotype all of the testimony and proceedings had, and caused said notes to be transcribed into typewriting; and the foregoing pages number from 567 through 649 constitute a full, true and correct report of the same.

That I am not of kin to any of the parties and have no interest in the outcome of the matter;

And hereby set my hand and seal, this ___ day of ____ 2007.

_______________
KELLY BROWN HICKEN, CSR, RPR, RMR

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THE CLERK: Are we ready?

THE COURT: Absolutely.

(Jury brought into the courtroom.)

THE COURT: Go ahead.

Q: BY MR. HOLLEY: Mr. Richardson, I'd like to return very briefly to one topic that we talked about before the break. To your knowledge, no component of Microsoft Office, be that Word or Excel or PowerPoint or Access or Outlook used the NameSpace extension API's to add custom containers to Windows explorer, right?

A: I have no knowledge of whether they did or not.

Q: You're certainly not here to testify that they did, are you, sir?

A: I have no knowledge of whether they did or not.

Q: Okay. Let's go back to DR-6, the objectives chart. And let's look at number 3, which is the Displaying Novell Technologies Such as QuickFinder in the Windows explorer. Now, this is something that really was neither here nor there for WordPerfect and Quattro Pro themselves, right?

A: Well, I'm not sure that I'm qualified to speak to the -- the design decisions and directional decisions for those applications, but my understanding is that, in

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every environment that WordPerfect was installed, starting with DOS, that it was their desire to provide a good experience for the user that helped the user whether they were doing word processing or not. In fact, with WordPerfect for DOS, it was one of the reasons that WordPerfect was the dominant word processor on the operating system.

So I think it was a very strong desire to have a positive influence on the environment in which they were installed.

Q: But, just to be clear, there was no obstacle whatsoever to adding an icon on the Windows 95 desktop that a user could click on, and it would launch WordPerfect, and you could have one for Quattro Pro, too, as well, right?

A: To my knowledge, it was not a difficult task to add an icon to the desktop.

Q: And, if you clicked on the icon, that icon, through shell extension mechanisms, was associated with an executable file, and that file would launch when you clicked on the icon, correct?

A: I'm not sure that was even -- involved shell extension technology. A link on the desktop is a fairly simple thing to do.

Q: Okay. So we're agreed that it was simple to

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add an icon for WordPerfect and Quattro Pro to the Windows 95 desktop, right?

A: Right.

Q: And it was also equally simple to add WordPerfect and Quattro Pro in the start menu of Windows 95?

A: That was not a difficult task.

Q: That was not difficult. Okay. Now, you talked a little bit this morning about living in applications and living in Windows explorer. Have you ever had any occasion to look at any market research conducted, since the middle of 1994, to see what percentage of users, instead of clicking on an icon on the desktop or hitting start and using the start menu to launch an application, instead, went start, Windows explorer, went into the Windows explorer tree view and then used that to launch an application?

A: I was not involved with determining user intent or to finding what the best experience was for users. I was a software developer not a user experience designer.

Q: You use Windows 95, or you did, right, sir?

A: I have used Windows 95.

Q: Right. And do you use Windows 7 now?

A: No, I do not.

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Q: You do not. Okay. Well, when you did use Windows 95, was it your common practice to not use the icon on the desktop or use the start menu but, instead, go into Windows explorer into the tree view and use that to launch applications?

A: I frequently used the right mouse and executed applications from an object.

Q: Right. So, what you would do is drag a Corel WordPerfect document to your desktop, and, thanks to the shell extension mechanisms, that document, letter to mom, dated August 5, if you clicked on that document, you could run it right off the desktop, correct?

A: So I think maybe you misunderstood, or I didn't make clear my answer.

Q: Okay.

A: I usually navigate to the file and then right click on the file and run the application from there. That's my general practice.

Q: Okay. Fair enough. Okay. So you could go to My Files and go into any of the documents listed in My Files and click on those, and, thanks to the object-oriented nature of Windows 95, each of those files was linked to an application; isn't that right?

A: So, a file can be linked to an application. Yes, that's true.

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Q: Okay.

A: I'm not sure what the question was.

Q: No. I'm just trying to explore the ways you used Windows 95. So, when you launched applications in Windows 95, you would go into the file system, find the document that you wanted to use, and then run it from that icon, correct?

A: That was my practice, and that's still generally my practice.

Q: That is still your practice. It was even easier to do that, wasn't it, sir? You could drag that letter, whatever document you were particularly interested in, you could drag it from the file system and leave it on the desktop, and if it was some report you were working on for your boss, you could leave it on the desktop, and when you clicked on that document, the application would launch, right?

A: That is possible to do that, yes.

Q: Now, let's turn to objective number 4, which is Displaying Novell Technologies Such as Quick Finder in the Windows 95 Common File Open Dialog. Now, because WordPerfect and Quattro Pro were not going to use the Windows common file open dialog for all the reasons you have told us several times this morning, this didn't matter, right? It didn't matter to WordPerfect and

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Quattro Pro, as such, that Novell technologies like Soft Solutions, the email client, the clip art library showed up in the common file open dialog that other applications used?

A: So, I don't recall ever having that conversation with developers in WordPerfect or Quattro Pro, with regard to their desires about the file open dialog. However, the functionality, the file functionality that was provided by WordPerfect, both Windows 3.1 and in DOS, was extremely important, and that was a common theme.

Q: Okay. I -- with the thanks to my colleagues on the other side, I'm wondering if we can show what Ms. Vishio showed you this morning, which is Demonstrative Exhibit 16.

Could we show that, please.

Now, as I understood your testimony, this was a mockup -- you're not suggesting that this was ever in a shipping product -- but this is a mockup of what you would have liked to have done with the NameSpace extensions in a file open dialog. Did I understand your testimony correctly?

A: Yes. I believe that's correct.

Q: Okay. And if you -- if Novell's view of the world had come to be, this extended NameSpace would have

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shown up not only in the file open dialog for Novell's own applications, it also would have shown up in the Windows explorer tree view, and it would have shown up in the Windows common file open dialog that other applications used; is that right?

A: That's correct.

Q: Okay. Did you give any thought, sir, as to what would happen to a user if seven different applications added four new NameSpaces, so that every time you tried to find a file, there were 28 NameSpaces that had nothing to do with the application that you were running, but they were all there for you to look at? Did you think about that?

A: I don't recall that ever being part of our discussion.

Q: Well, that would be terrible for users, wouldn't it? It would be very confusing. If I opened Quicken, which is a, you know, check balancing program, and suddenly I see 28 NameSpaces in this very, very long file dialog, I have no idea what they are doing there; isn't that right?

A: That would be conjecture on what a user might experience there. I don't know that I could predict what a user's reaction would be.

Q: So you can't tell me, one way or the other,

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whether seeing 28 random NameSpaces inside Intuit's Quicken, would or would not be confusing to novice users?

A: I'm not sure what's meant by random NameSpaces, but I couldn't predict what the behavior would be, what the reaction might be.

Q: But you do agree with me that, if everyone had used the NameSpace extension mechanism the way Novell intended to use it, the Windows common file open dialog, the basic file open dialog that Microsoft made available to all applications, could have been completely trashed up with all sorts of NameSpaces provided by all sorts of people. Isn't that right?

A: My experience was that our NameSpaces did not show up in the file open dialog, so that would not have happened.

Q: But, sir, that wasn't my question, Mr. Richardson. My question was, if you had been able to do what you wanted to do, as you've testified this morning, if you had been able do that, and all other ISV's had been able to do that, the Windows common file open dialog could potentially have hundreds of NameSpaces. Isn't that right?

A: The fact that it didn't allow it, maybe precluded us from even considering that possibility.

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However, not all of our NameSpaces show up in every container. So, a variety of our NameSpaces would not have shown up here. There were some that we wanted to put here, but simply the introduction of additional NameSpace doesn't mean it would have shown up on My Computer. Not all NameSpaces show up under My Computer.

Q: Well, I appreciate that, sir, but the way that the mechanism worked, you could have added whatever NameSpaces you wanted, right? You could have added a thesaurus NameSpace, a spell checker NameSpace. You could have added all of those NameSpaces to the Windows explorer and to the Windows common file open dialog; isn't that right?

A: Well, no, we couldn't have added them to the file open dialog because our NameSpaces wouldn't show up there at all, and I don't recall any intent to ever add a speller or thesaurus to the explorer.

Q: All right. I appreciate that you want to tell me things, but I want you to answer my questions. I asked you that, if you had been able to do what you say this morning that you wanted to do, okay? You're with me so far? You could have added NameSpaces for an infinite number of Novell technologies to the Windows common file open dialog; isn't that right?

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A: I don't recall every having the intention to add any significant number, certainly not an infinite number of NameSpaces to either the explorer or the file open dialog.

Q: All right. You can't answer the question that I asked you, sir?

A: I believe that I answered the question. Maybe I didn't understand it.

Q: Okay. Sorry. Then that's probably my fault. But let me ask you one more time. If Novell had been able to do what you said this morning that Novell wanted to do, which is to add NameSpaces, both to the Windows explorer and to the Windows common file open dialog, there was no limit imposed by the system, by Windows 95, on how many NameSpaces you could have added; isn't that right?

A: It was never our intent to add a large number of NameSpaces. The operating system, to my knowledge, does not have any constraints that would preclude us or anyone else from adding any number of NameSpaces to any of the containers that allowed you to add NameSpaces within them.

Q: Thank you, Mr. Richardson. I'd like you to look, if you would, sir, at what's been marked as Defendant's Exhibit 8. Mr. Richardson, this document --

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you can ignore the November 5, 2008 date. That is an unfortunate relic of automatic dating programs which date documents the date they are printed, but, so, please ignore that, that's -- this was produced by Novell that way, and it's not anybody's fault. But, have you seen, before, this WordPerfect Windows 95 shell integration feature documentation document?

A: I don't recall seeing this while I was working at Novell.

Q: All right. On page 2, there's a reference to a series of meetings that were held on August 31, September 23 -- these are all 1994 -- August 31, '94, September 23, '94, and September 30, '94. Do you see that sir?

A: You're on the second page?

Q: Yes, sir.

A: Yes, I. --

Q: There are three meetings referred to.

A: I see that.

Q: Okay. And each of these meetings Adam Harral is listed as being present. Do you see that, sir?

A: Yes.

Q: Did Mr. Harral discuss with you, because you were working with him on the shared code team, what transpired at this Windows 95 shell integration, these meetings that were being held in the fall of 1994?

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A: I don't recall this particular meeting.

Q: I'm sorry, sir. I didn't hear your answer.

A: I don't recall this particular meeting.

Q: You don't recall. And do you recall being told anything by Mr. Harral about what transpired at any of these three meetings?

A: I don't recall talking with Adam about -- specifically about these meetings.

Q: Okay. I'd like you to take a look, if you would, sir, to the page -- and I'm looking at these control numbers down at the bottom. It's 41719. The internal page is 6. Maybe we should look at the previous page, 5, first. Now, this, as I understand it, is a list of various shell extensibility features that might have been included in Windows -- excuse me -- in WordPerfect for Windows 95, but were not. Is that your understanding, sir?

A: I haven't read this document. I'm not familiar with what's being discussed here.

Q: Okay. Well, I appreciate that you haven't read it, sir, but I just -- were you aware that there were certain shell extensibility features that WordPerfect for Windows 95 might have had but were not included in the product because the operating system, as designed, did not support that kind of extensibility?

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A: Well, I believe I already testified earlier that we had wanted to make extensions for the common file open dialog but we decided not to. I'm not sure what the question is.

Q: Well, I heard that testimony, and I appreciate that. I was wondering whether you were aware of the fact that there were other kinds of extensibility features -- that's a terrible phrase -- extensibility features that WordPerfect for Windows 95 might have taken advantage of but didn't because those extensibility features were not supported by Windows 95 as Microsoft designed the product?

A: So, let me see if I understand the question. You're asking if I was aware that there were features that weren't supported in Win 95 that Perfectfit decided not to make use of?

Q: No. A different question, different question, I'm asking you whether you were aware of the fact that the people developing WordPerfect, the word processing application, thought about various ways that they might extend the shell of Windows 95 but decided not to because they discovered that the way that Microsoft had written the operating system, those sorts of extensions weren't possible?

A: I was not part of that conversation.

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Q: You were not part of that conversation. Okay. Directing your attention to page 6, Item K at the bottom.

Can you highlight that, please?

Okay. This, as I understand it, is referring to what we've been talking about this morning, both Ms. Vishio and I have been talking to you about this morning, which is registering custom folders, which function as object containers with the same behavior as a folder. That is a custom NameSpace, right, that's just a different formulation --

A: Correct.

Q: Of words?

A: Correct.

Q: Okay. It says this type of shell extension is referred to as a NameSpace browser. And you're familiar with that terminology, are you not, sir?

A: I am familiar with that terminology.

Q: And it says, to the user: "It appears that the shell understands an application hierarchy that is not part of the file system. Custom folders are designed such that a hierarchical relationship" -- excuse me "-- such that hierarchical relationships and contents can be displayed in the appropriate panes of the file browser window."

So this is what Novell, according to your

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testimony, wanted to do, wanted to add the soft solutions document management program, the email client, the clip art library, to the explorer tree so that it looked like file folders, basically, in the --

THE COURT REPORTER: In the what?

MR. HOLLEY: In the directory. I'm sorry. I need to speak more clearly.

THE WITNESS: I'm sorry. That was a long question. Could you repeat it for me?

Q: BY MR. HOLLEY: Yes, it was. And it didn't help that I trailed off at the end. Your testimony today is that Novell wanted to do what this is describing, which is add soft solutions and email client and the clip art library as custom containers with the same behavior as a folder; is that right?

A: Yes. That's correct.

Q: Okay. And then, in bold down here in this document it says: "We will not take advantage of this feature since Microsoft has discontinued support of the required API's since this document was originally written."

And I invite you to take as much time as you want to look through this document, but my question to you, sir, is, is there any indication in this document that the inability to do this is a problem for

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WordPerfect?

A: I haven't read the document, and I wasn't part of this meeting. I wasn't part of the production of this document, so I don't know that I could comment on the intent of the people who wrote this.

Q: Well, let's take a look at Mr. Harral's testimony at page 327 of the trial transcript. Do you still have that up there, Mr. Richardson?

A: Yes, I do, thank you.

Q: It's in different pieces, so I'm not sure if 327 is in that piece.

A: No. I don't have that.

Q: Okay. Just because you're probably inundated, can I take that back and get you the right one? Okay. There you go. I got you the right page, I think. Now, I'm particularly interested in the question and the answer, but, you know, read around as much as you want. This isn't some kind of a gotch-ya game, but starting to page 10 the question was asked: So the shell integration being talked about in this document with respect to WordPerfect, the word processor, and Mr. Harral says uh-huh, and we go down further.

Did that have anything to do with the NameSpace extension API's?

And he answered: "I don't know anything that

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WordPerfect," the word -- excuse me -- "WordPerfect word processor needed to do for a NameSpace extension."

You have no basis to disagree with that testimony, do you, sir?

A: I'm sorry. Can I read that again?

Q: Sure. Sure.

A: I'm sorry. And the question was?

Q: The question is, you agree with Mr. Harral, right? You don't know of anything that WordPerfect, as a word processor, needed to do vis-a-vis NameSpaces?

A: I'm sorry. The question isn't clear. The question he is responding to is what? What was the question that he was responding to?

Q: Well, you know, I guess you will have to go up one page to see the very first part of this dialog.

A: So, I wouldn't have stated it quite the same way he did, where he responds, starting on line 15, on page 327: "I don't know anything that WordPerfect processor needed to do for NameSpace extensions. They did have shell extensions, but I don't recall a NameSpace extension that they needed to do."

I believe that what he's saying is that there wasn't a NameSpace that the WordPerfect development group was responsible for providing. That's how I would interpret his response, that the shared code group was

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providing all the NameSpace extensions that were required by the WordPerfect application, but the WordPerfect developers, themselves, were not responsible for providing a NameSpace.

Q: Okay. So, when Mr. Creighton, back in Defendants Exhibit 8 writes, in Item K: "We will not take advantage of this feature since Microsoft has discontinued support of the required API, since this document was originally written," he meant we wouldn't write something?

A: I don't know what Mr. Creighton meant.

Q: Okay. Now, did I understand you correctly this morning, Mr. Richardson, to say that, between the receipt of the M6 documentation in June of 1994, for the NameSpace extension API's, and October of 1994, when Microsoft informed Novell that it no longer was committing to support those API's in the future, that you had already written code that called upon the API's?

A: That's my understanding.

Q: Did you write that code, sir?

A: I did not.

Q: Who did?

A: Steve Giles was the primary developer on the file open dialog functionality, and Adam Harral was the technical lead for that group.

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Q: Did you ever see, with your own eyes, any such code?

A: I did see demos.

Q: Okay. You saw demos. Did you see any concept design specifications or any other design documents for that code?

A: I may have, but I don't recall.

Q: When were you first told by Novell's legal department that you had an obligation to save documents relevant to this case?

A: I don't recall.

Q: Was it 2004?

A: I don't recall.

Q: Well, you gave a deposition in another case involving Microsoft in December of 2001; isn't that right?

A: I was deposed previously about Microsoft, correct.

Q: In 2001, correct?

A: I believe that was the correct date.

Q: And you were defended at that deposition by Mr. Lundberg, who is sitting in this courtroom, right?

A: That's correct.

Q: And you testified at that deposition about all the topics that you've talked about today; is that not

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right?

A: I believe we covered many of the same topics.

Q: Did Mr. Lundberg tell you, in connection with that deposition, that you should gather together and save the documents that you had that related to the NameSpace extension API's and the requirement of the logo licensing program that you testified about this morning?

MS VISHIO: Objection, Your Honor. Attorney/client privilege.

THE COURT: Why don't you ask if anybody.

MR. HOLLEY: Fair enough, Your Honor.

Q: BY MR. HOLLEY: In connection with that deposition back in 2001, where you testified about the topics that you've testified about today, did anyone at Novell tell you that you should gather together and save the documents that you had that relate to NameSpace extension API's and the compatibility requirement of the logo licensing program?

THE COURT: And you have a continuing objection to this whole line.

MS. VISHIO: Thank you, Your Honor.

THE COURT: Go ahead.

THE WITNESS: As I recall, I no longer had any documentation on my machine related to either of those issues, and the documentation that was available was

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either available on network drives or the email system, and so I wouldn't have had anything to gather. I don't recall specifically being told to gather documents, but I didn't have anything left on my computer that -- to be gathered. I no longer had a copy of the source at that point. I no longer had even the same computer that had been used to develop Win 95.

Q: Had someone told you, back in 1994, to save those things, you would have done it, wouldn't you, sir?

A: I'm sure if I had been asked to preserve some document, I would have made an attempt to do so.

Q: And you threw those documents away in the ordinary course of business because no one told you not to; isn't that right, sir?

A: I don't recall specifically throwing away any documentation. Most of the documentation was maintained on the network or in document management systems or in the email archives.

Q: Do you know whether the email archives that existed in the document management systems that existed in October of 1994 were still around in 2007, when Novell responded to Microsoft's document requests in this case?

A: I don't have any knowledge of that.

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Q: There was a policy in the shared code group, sir, wasn't there, that you were supposed to store both design specifications and source code on particular network drives in the Novell computer system; isn't that right?

A: That's correct.

Q: That is correct. And, to your knowledge, if a concept design specification existed for this code that you testified today was written between June of 1994 and October of 1994, it should have been on the Novell computer system; isn't that right, sir?

A: I don't have any experience with how they maintain the documentation. I just don't have any knowledge in that areA:

Q: I thought you just told me, sir, that there was a policy in place at Novell that design specifications and code were supposed to be stored on the Novell computer system. That's right, isn't it, sir?

A: So, what I believe the question was, was, was there a policy within my group. And, yes, there was a policy, a practice within my group to maintain our documentation in a common location in the -- on a network drive. I don't know what Novell's policy -- I don't recall what Novell's policy for retaining documents at that time was.

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Q: Well, if someone had told anyone in the shared code group, in October of 1994, don't throw away the things that are in the shared code group's server shares, they would not have been thrown away, would they, sir?

A: I would not have thrown them away.

Q: Now, you testified that after you learned that Microsoft was not committing to support the NameSpace extension API's in the future, you came to the conclusion that you couldn't rely on those. Did I understand your testimony correctly, sir?

A: My recollection is that we couldn't depend upon them being there. That was the communication that we received, based on my conversations with my co-workers, that they were told that they couldn't count on them continuing to work.

Q: Well, you're familiar with debugging tools, are you -- I'm sorry. Ms. Vishio stood up.

MS. VISHIO: I apologize. I don't mean to interrupt, but I just wanted to make sure that the record reflected our continuing objection to that prior line of questioning.

THE COURT: Sure. Absolutely.

MS. VISHIO: Yes. Thank you, Your Honor.

THE COURT: I'm sorry. I thought I said that.

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Q: BY MR. HOLLEY: I'm sorry, Mr. Richardson, that -- Ms. Vishio needs to make a record, and she wasn't trying to interrupt us.

You are aware, are you not, sir, that there are things called debugging tools and other reverse engineering tools that application developers can use to find interfaces in an operating system even if Microsoft has never documented them, right?

A: Debugging tools can be used for a variety of purposes, among them for reverse engineering.

Q: Okay. In fact, you are aware, are you not, sir, that entire books were published about how to call undocumented interfaces in Windows 95, for example, right?

A: That may be the case.

Q: All right. Well, have you ever seen this book? It's a very thick book, entitled Unauthorized Windows 95, by a man named Andrew Schulman. Have you ever seen that book, sir?

A: I have seen that book.

Q: Okay. You have seen that book before. And the entire book is about interfaces in Windows that Mr. Schulman discovered using reverse engineering tools and then he explains to software developers how to call them; isn't that right?

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A: I believe that's a correct characterization of this book.

THE COURT: Ms. Vishio, there's only one copy of the book. I just told Ms. Vishio if she wanted to look at it, she could.

MR. HOLLEY: Yeah, Your Honor, I'm sorry. Amazon only has limited numbers of ancient books, but that's the book.

THE COURT: Some may say that's one too many.

MR. JOHNSON: I've got a copy, Your Honor. I should have brought it.

MR. HOLLEY: All right. Well, it's no secret.

Q: BY MR. HOLLEY: Now, how is, Mr. Richardson, that it's possible for Mr. Schulman to write an entire book about interfaces as to which Microsoft has never provided any documentation, but you testified that Novell couldn't call API's that had already been documented in the M6 Beta of Windows 95?

A: So, I don't have any knowledge of how Andrew Schulman did his work, the time period he did it, nor the period of time it took him to accomplish that work, nor do I know what level of cooperation he had with Microsoft to achieve that. My -- I'm sorry. What was the rest of the question?

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Q: The question is, if Mr. Schulman can find all these interfaces inside Windows 95 that Microsoft has never published and write a book in which he explains how to call them, how is it that you, at Novell, could not call interfaces that Microsoft had documented?

A: So, I believe I've covered this. I'll try to cover it again. Perhaps it was unclear. The API's that were called were -- were understood, and we provided those to common NameSpace. It was documentation that was not provided that caused us a problem, and then building up the infrastructure that made use of the calls to those API's that was the complexity. That was what took the time. Simply calling these API's was simple. We had the documentation. We knew how to call them. It was the documentation that wasn't exposed plus building up that whole system that made use of those API's, that was the complexity for us at the time, and, in addition, putting the wrappers around the pieces that Microsoft had provided because we didn't know how it was that the system was talking to them.

Q: Mr. Richardson, I'm going to give you analogy and see whether you agree with it. Your testimony is equivalent to saying: I didn't know how to open the door to the house, so I decided to rebuild the entire house. Isn't that what you're saying?

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A: I wouldn't characterize it that way.

Q: But that's exactly what you did?

A: I could provide my own analogy if you'd like.

Q: No. Actually, you don't get to ask the questions. It may not seem fair. I do, but what you did is, because you didn't feel that you could call the API's, you decided to reimplement them, meaning to write all of the code underneath those API's yourself. That's what you did, didn't you?

A: No. Once again, we didn't reimplement the API's. Everybody who provided a NameSpace provided the API's. So the implementation of the API was constant. That was done prior to us having the documentation retracted. The difficulty was creating up, once again, the infrastructure that made use of those API's.

Q: All right. So, your testimony is that, before October of 1994, Novell had already written the implementation of the 16 or 17 interfaces that we had looked at earlier. That's your testimony?

A: I'm sorry, could you repeat that?

Q: Sure.

Can we put that up again, the list of the interfaces? I forget the DR number. Bear with me one moment, Mr. Richardson. So it's DR-5.

So, it's your -- I'm not trying to put words in

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your mouth, I'm just trying to understand what you're telling me. You're telling me that, before October of 1994, when Novell learned that Microsoft was not committing to support the NameSpace extensions in the future, Novell had already written the code to implement all of these Comm interfaces?

A: So, my testimony is that Steve Giles, in working with the documentation for Microsoft, had written our own file open dialog that made use of the interfaces provided by Microsoft necessary to interact with the NameSpace extensions.

I was not yet involved with the file open dialog at that point. I wasn't directly working on that code. It was in my group. We shared a technical lead, but I wasn't working on that work directly, so some of these API's are not used by NameSpaces directly. Some of them are used to provide functionality; for example, the IContext menu, that wouldn't necessarily be directly used, wouldn't be implemented by the file open dialog. It would be implemented by someone who wanted to extend that particular API.

So, I'm not sure I can answer your question. It groups things together probably that I wouldn't group together.

Q: It's my fault, I'm sure. I thought -- I

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understood you to say earlier that Steve Giles, between June and October, wrote a Perfectfit file open dialog that called the NameSpace extension API's in Windows 95, and you weren't happy with the performance of that file open dialog. Did I understand that much of your testimony?

A: Steve Giles created the file open dialog. At the point where he was nearing completion of that, and as we were trying to optimize and work through the final issues, we discovered performance issues that were unacceptable.

Q: Okay. And then you went to a different option, which was to reimplement these interfaces yourself, right? Instead of calling them in Windows, you were going to implement them yourself in code that the shared code team wrote?

A: I also wouldn't call that an accurate characterization. The implementation -- the browser calls these interfaces. It provides some of these interfaces, but most of these interfaces are provided by other pieces of code that are the ones that actually provide the functionality. The file open dialog is providing the environment in which they are called, and so, we didn't implement most of these interfaces.

We made use of them in the file open dialog --

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Q: Okay. I think --

A: -- so we didn't decide to reimplement these interfaces, no. That wouldn't be accurate.

Q: Okay. I think you and I are having a terminological problem, and that's my fault, I'm sure. When -- you're using the word "implement" to say call the interfaces?

A: No, sir. I am using the word "implement" to mean I provide this interface, and someone can call it.

Q: Okay. So there are one of two choices, right? Either these interfaces, which are in Windows 95 are being called in the operating system, or somebody wrote code at Novell so that, when somebody else called the interface, the same functionality that the operating system was going to supply to the calling program was supplied. You agree with that right?

A: I believe that's technically inaccurate. Every NameSpace or -- there's other objects that provide some of these extensions as well, but every piece of code that wants to provide functionality provides these interfaces and then they are called by a NameSpace browser. The explorer is a NameSpace browser, the common file open dialog is a NameSpace browser, our open dialog is a NameSpace browser. So we made use of, we called the API's as implemented by the NameSpaces. Some of those

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NameSpaces were provided by Microsoft.

We did not rewrite those NameSpaces. We did put wrappers around them because we needed to get access to them in a way that we didn't know how to talk to them. We did implement our own NameSpaces as well, and in those cases, we did implement these interfaces for those objects, but not for the rest of the system.

Q: I'd like to show you what's been marked as Defendant's Exhibit 106. Mr. Richardson, this document is entitled Concept Design Specification, Perfectfit 95, File System File Open, and it's dated March 31, 1995. Have you seen this document before?

A: I don't recall having seen this document.

Q: Well, didn't you work -- weren't you one of the seven people writing the Perfectfit 95 file system file open in March of 1995?

A: I was. I just don't recall this document.

Q: Okay. Now, directing your attention to the page that has the control number, 6188 at the bottom, it's about, I don't know, halfway through this document. It's entitled API Specifications.

Can you explain to the jury what this is referring to when it says: "The Perfectfit NameSpace browser component user will need to know about the following Comm interfaces, although C++ wrappers will be

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written for those that want to be insulated from Comm."

A: And the question is?

Q: Can you explain what that means?

A: It appears, IMoniker is the interface provided by Microsoft that allows you to interact with a file object. So, I believe that this is saying that the Perfectfit NameSpace browser has to understand how to talk to file objects in Microsoft -- in Win 95.

Q: Well, how did you understand IMonikerInterface meant or what IPersistStream meant or IStream or IShellFolder? How did you understand what all of these Windows 95 interfaces meant and how they worked, if you never got the documentation from Microsoft that you needed?

A: So --

Q: How did you know that?

A: So, these interfaces were among the interfaces presented at that first developer conference. These interfaces, the code may have been extracted from the shell obj.h file, the header file which defines interfaces. It looks to me like this interface was simply extracted from that header file.

Q: I thought that was just machine documentation that no human being could make any sense of, that shell obj document?

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A: Well, some people don't consider developers human beings.

Q: But you and I can read this, right?

A: It is very technical.

Q: Okay. It's very technical, but the shell obj document, which we are going to look at that minute, isn't just machine documentation is it? It's a bunch of commentary and code written in a computer language that anyone with sophistication understands; isn't that right?

A: So, my understanding of shell obj.h is that it's a machine-generated file, which means that there's a mechanical process that goes through and produces the file based on some input.

Q: But a man named Satoshi Nakajima, in Redmond, Washington wrote a document called shell obj space 060994, didn't he?

A: I have no knowledge on that.

Q: You don't know one way or the other, do you?

A: I don't.

MR. HOLLEY: Could we look at what's Defendant's Exhibit 142, please.

Q: BY MR. HOLLEY: Now, you'll agree with me that this document, which says it's copyright Microsoft Corporation 1991 to 1994, is the documentation that

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Novell got with the M6 Beta of Windows 95 in June of 1994, correct?

A: This looks like a copy of -- a correct copy of shell obj.h, and I don't think I could testify as to when this was produced or to whom it was delivered, when.

Q: When did you first see it, sir?

A: I believe I probably saw parts of this information at the initial conference in 1993. It was probably available with some of the Betas. I didn't have primary responsibility for this, so Steve Giles would have been introduced specifically to the contents of this file before I was. I probably started working directly with this file after the documentation was retracted.

Q: All right. You used the word "probably" an awful lot in that answer, so I would like to probe what it is you remember. You don't remember getting this document, dated June 6 -- or excuse me -- June 9, 1994, at some conference in 1993, do you?

A: I remember having this file and looking through this file. I don't recall the specifics of how it came into my possession.

Q: Right. You don't have any memory about when you first got it, do you, sir?

A: I don't know.

Q: Okay. So, every line in this document that

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begins with two slashes, that is in English, is it not? If you look through this entire document, every line that begins slash, slash is a comment, and it's in English, readable by any of us in this room; isn't that right?

A: That may be an over generalization, but they are comments meant to help clarify the code.

Q: They are documentation of the code, are they not, sir?

A: They are comments that provide additional information about the code.

Q: All right. Well, let's look at page 2 at IContextMenu just as an example.

Could we blow up the bottom part of that, that ends under the dash marks. So, this -- all of this is commentary because it all begins slash, slash, and, therefore, it's all a comment field. It's not machine language. It's English. And what it does is it explains what this API called IContextMenu does, and it tells you how to invoke it, and it tells you what to expect when you do invoke it; isn't that right, sir?

A: Let me read the documentation for a moment, please.

Q: Sure. Sure.

THE COURT: You're idea of English is different from mine.

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MR. HOLLEY: I guess the beauty is in the eye of the beholder, Your Honor.

THE WITNESS: Okay. I'm sorry. What was the question, again?

Q: My question is, this is documentation of what the interface called IContextMenu does, right?

A: This covers that functionality, that's correct.

Q: And if we looked through this document, we'd see similar documentation, and I invite you to -- we don't all want to sit here while you do it -- but there is documentation for each one of the shell extension API's in this document in these similar sorts of comment fields. That's correct, isn't it, sir?

A: The documentation here provides much information but doesn't necessarily provide all information necessary to be able to invoke it or to make use of it.

Q: Well --

A: It describes how it's invoked, but it doesn't necessarily -- this particular example, the documentation appears fairly complete, but that isn't necessarily the case for each of the items, interfaces described here. They cover some of the information that you need to implement it, not necessarily all the information you would need to invoke it.

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Q: Well, would you agree with me that Microsoft has created a gold standard for documentation where, not only does it tell people what interfaces do and how to call them and what to expect, but Microsoft, in -- through the Microsoft developer network, gives people sample code that calls interfaces, and it provides long written explanations for how to do that, but all of that fancy documentation is not necessary for very sophisticated software developers who are experts at Windows programming. Isn't that right?

A: Well, there's a number of assertions there. I think Microsoft does do a good job of documentation. There are certainly others who do an equally good job with documentation. The amount of documentation related to the number -- or the expertise of the developer, I'm not sure I would necessarily agree with that categorization.

An expert developer may not need to ask much example code, but he certainly still needs an explanation of all of the syntax and semantics of every API.

Q: Okay. But that's in this document, is it not? The syntax and the semantics of every one of these API's is in this document, and somebody who is an expert Windows programmer can do it because Steve Giles did. Isn't that right?

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Steve -- you have already testified that Steve Giles of Novell, in the shared code team, took this documentation and wrote a file open dialog. That's your testimony; isn't it, sir?

MS VISHIO: Objection. Compound.

THE WITNESS: So, which question would you like me to answer first?

THE COURT: And I'll sustain the objection. Break it down.

MR. HOLLEY: All right. I got carried away.

Q: BY MR. HOLLEY: We know that you can use this documentation to write a file open browser that calls the Windows 95 shell extension API's because Steve Giles, according to you, did it between June and October of 1994.

A: So, Steve made use not only of this documentation but also extensive support. From my recollection of conversations with him, he indicated that he needed significant support from premier support and through the CompuServe forum in order to complete the work that he did.

Q: Which he apparently got, right, because he did it?

A: That's correct.

Q: Okay.

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A: To the point that he finished it, he got the support he needed.

Q: Great. Okay. Now let's talk again about Quickfinder. Now, you said that Quickfinder was part of the WordPerfect word processing application? Did I misunderstand you when you said that?

A: So, Quickfinder was developed outside of the development group that did WordPerfect, but the integration of Quickfinder into WordPerfect was very tight.

Q: Well, in fact, Quickfinder was developed by people who didn't even work for Novell, right? It was licensed in from somebody else?

The original Quickfinder technology, I believe, it was licensed several years prior to -- that it happened in Windows. I'm not an expert on that technology or how it was licensed.

Q: Okay. Now, it wasn't necessary, in order to make Quickfinder prominently available to users of Windows 95, to make it a shell NameSpace extension in Windows explorer, was it?

A: I'm sorry. Could you repeat that question.

Q: Sure. In order to prominently display Novell's Quickfinder technology in the Windows 95 user interface, it wasn't necessary to make it a NameSpace extension in

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the Windows explorer, right?

A: I don't believe -- I want to make sure I understood the question. Your question was that, in order to make the functionality prominent to the user?

Q: Yeah.

A: So, I would say that the intention of the Quickfinder integration was not to make the functionality prominent to the user but, rather, to ease the user's experience and provide a better experience for him. So, I'm not sure that prominence was necessarily a role.

Q: Okay.

Let's look at DR-9 if we could, please.

Now, we made this slide last night, but when we installed Corel WordPerfect Office that was released in June of 1994, one of the options that we had was to install Quickfinder.

THE COURT: What -- I'm sorry.

MR. HOLLEY: I'm sorry. '96. It would have been nice if it was '94. The --

MR. JOHNSON: We wouldn't be here, Your Honor.

MR. HOLLEY: Well, we couldn't have been here because Windows 95 wasn't out in '94.

Q: BY MR. HOLLEY: But, anyway, last night we installed Corel WordPerfect Office, and it came out in 1996, and one of the options that was available was

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putting the Quickfinder application right on the desktop. You're aware that that was possible, are you not, sir?

A: I didn't recall that.

Q: Okay. But you don't have any doubt that this is possible based on what you see here on the screen?

A: No.

Q: Okay.

And can we look at DR-10, please.

And this is another way that Novell could have made Quickfinder technology available. In fact, Novell did make Quickfinder technology available to users on Windows 95, which was by adding the Quickfinder application to the start menu when you hit the start button. That was a possibility, was it not, sir?

A: It certainly is possible to add Quickfinder as an application to the start menu, yes.

Q: Okay. Now, Novell didn't have purely user-friendly interests in heart in making Quickfinder technology prominently available in Windows 95; isn't that right? Wasn't there a competitive motivation for doing that?

A: I don't know that I'm qualified to testify to the -- the desires of the designers of the product with regard to competitiveness. I'm a software developer, and my interaction with Quickfinder was to make the user

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experience better. The interaction that I had with those that set the direction of the product with regard to Quickfinder was ease of use and functionality provided to the user.

Q: Would you feel differently about what you were doing if you knew that the people, who did run the Quickfinder product, thought that it -- making it visible in Windows like this was a way to deflate Microsoft's future operating system plans?

A: I'm not sure. The question is -- you're asking me to speculate on what my feelings might have been if some information had been available to me 17 years ago?

Q: Yes.

A: That I didn't have then?

Q: Right. Well, you've been testifying today, without any apparent problem, about things that happened 17 years ago, right?

A: I'm just asking if that's what you're asking.

Q: Yes, sir. That is exactly what I am asking you.

A: So, I have to think about that because I'm not sure how I would have felt. I can say that I liked the technology, and I liked the integration of the technology. I thought it was really fast. It was very effective at finding things, and I think it would have

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been a good augmentation to the functionality provided to Windows users at large.

Q: It would have augmented the functionality in the operating system, and you thought that would be good for users?

A: I think that would have been good for users.

Q: Okay. You're aware that Microsoft, at this time, was developing a new object-oriented operating system called Cairo. The project name was Cairo. Are you aware of that?

A: I remember hearing about Cairo.

Q: Okay. And one of the things that the Cairo shell, this new object-oriented Cairo shell was going to do, is make it very easy to find any kind of object anywhere in the system; isn't that right?

A: I don't recall the details of the functionality related to search on Cairo.

Q: You do recall, though, that search was a critical part of the Cairo operating system as it was being designed in 1994?

A: I don't recall that, no.

Q: You don't recall? Okay.

Let's look at DX-73.

This is a document entitled Quickfinder 32 bit, a Chicago Explorer Extension. And it's dated September 6

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of 1994. And up at the top, in the concept section, this reflects what you've been telling us today, which was adding Quickfinder to the Chicago explorer menu to extend explorer's capabilities gives Chicago users full text indexing and retrieval, right?

A: It looks like that's what it says.

Q: Okay. And just so we're all clear, what this is saying is, Novell could have added a product to Windows outside of WordPerfect and Quattro Pro, which would have given users of the operating system something they wouldn't otherwise have, which is text and indexing and retrieval; is that right?

A: I don't know if there was ever an intent to ship Quickfinder outside the context of WordPerfect and Quattro Pro.

Q: But you told me this morning, sir, that once Quickfinder was installed, by whatever mechanism; for example, by installing PerfectOffice, that it would be in the system, and it would have placed itself in Windows explorer. In your world, it would have placed itself in Windows explorer and in the Windows common file open dialog, and it would be available even if I never ran WordPerfect once, right?

A: Once again, it didn't show up in the file open dialog.

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Q: It didn't because of the way you designed the product, but in your vision --

A: I don't believe that is an accurate characterization.

Q: Excuse me, sir. I need to finish my question and then you can answer. If you had been allowed to do what you wanted to do, what you testified this morning on direct that was critical for you to do, Quickfinder, among other Novell technologies, would have shown up, after the installation of PerfectOffice, in the Windows explorer and in the Windows common file open dialog, even if I never once ran WordPerfect or Quattro Pro on my machine. Isn't that right?

A: No, sir. The Quickfinder would not have appeared in the common file open dialog.

Q: That was not your plan?

A: The reality was that, when we added extensions, they didn't show up in the file open dialog, the common file open dialog. Whether that was an intent or not of ours, is irrelevant. It didn't work.

Q: Well, I appreciate your view of what's relevant and what's not, sir, but I really do need you to answer the questions that I ask you. And the question that I asked you was, do you -- was it your intention? That is my question. Was it your intention, in 1994, to have a

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system where, if I installed PerfectOffice, I would get Quickfinder in the Windows explorer and the Windows common file open dialog even if I never once ran WordPerfect or Quattro Pro?

A: I can't agree with that for two reasons. It was not our intent to put our NameSpaces into the common file open dialog because it didn't work. We stuck them in, and they didn't show up. So, to suggest that it was our intent to do something that we knew wouldn't happen, I don't think that's accurate. The other issue -- I'm sorry. Could you repeat the question, please?

Q: Well, let me ask you a different one. When Steve Giles started writing the code that you testified about just now, in order to call the NameSpace extensions, what he was trying to do, the reason that Steve Giles wrote that code, was so that Novell technologies, like Quickfinder, the email client, the Soft Solutions document management system would show up in the Windows explorer and the Windows common file open dialog, correct?

A: So, your question is, was the intent of producing the file open dialog or the NameSpaces -- I'm not sure what your question was there -- to augment the functionality of the explorer and the common file open dialog?

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Q: Yes, sir.

A: No. I would not agree with that. Once again, it was not our intent to extend the common file open dialog because it wasn't extensible. We had --

Q: Let's focus --

MR. JOHNSON: Let him finish.

MR. HOLLEY: I thought he had.

THE WITNESS: So, it wasn't our intent to extend the common file open dialog because we were unsuccessful in doing that. We realized that early on, and that wasn't a goal of ours. That wasn't an intent.

Q: Well, let's be clear about chronology, if we could. I'm asking you about the intent at a very specific period of time, and I ask you to bear with me on this. In June of 1994, when Novell got DX-142, which was the documentation that Microsoft provided in the M6 Beta, and Mr. Giles, according to your testimony, began writing a Perfectfit file open dialog for Windows 95, his intention, the company's intention, at that time, was to create a system where Novell could add its own NameSpaces both to the Windows explorer and to the Windows common file open dialog?

A: So, the decision to create our own file open dialog followed the evaluation of the common dialog where it was determined that NameSpaces couldn't be added to

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it. That was one of the reasons we determined to write our own file open dialog.

Q: I'm going to ask you a yes-or-no question, and I really need you to answer it, sir. In June of 1994, when Mr. Giles began writing the file open dialog for Perfectfit, is it correct that the intention, at that time, was to add Novell technologies, like Quickfinder, to the Windows explorer and the Windows common file open dialog? Yes or no?

A: My understanding -- since I wasn't the one working on it, my understanding, through conversations with Steve and Adam, was that the intent of the file open dialog, the primary intent of the file open dialog was to provide file open services for the WordPerfect applications. It was not -- the primary purpose was not to extend the explorer or the common file open dialog.

Q: Did I ask you about the primary purpose? Can you answer the question, sir, that I asked you?

MS VISHIO: Your Honor, he's trying his best to answer the question.

MR. HOLLEY: He is not, Your Honor.

THE COURT: I think you can say yes or no and then you can explain it.

THE WITNESS: Given the number of constraints placed upon the statement, I would have to argue, no, I

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don't believe that was the intent.

Q: BY MR. HOLLEY: Even though you weren't the person responsible for making that decision at the time?

A: I was not the person responsible. I was not the person who had the intent.

Q: Okay. All right. Let's go back to DX-73. Now we're talking about Cairo, and we're talking about Novell's desire to add searching and indexing functionality to Windows 95. Now, in this document, under Impact -- we've talked about the concept. The concept is to add Quickfinder to the Chicago Explorer menu to extend explorer's capabilities, giving Chicago users full text indexing and retrieval.

And then, under Business Opportunity, it says: "Microsoft has said that text indexing and retrieval will be part of its future operating system called Cairo, which, at best estimates, is one and a half to two years away from shipping."

Were you aware of that at the time, sir, that Microsoft was developing Cairo, but it was one and a half to two years away from shipping?

A: I was aware that there were plans for Cairo. I don't recall estimates on how long it would take to be shipped.

Q: Okay. And then, under Impact, it says:

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"WordPerfect, the Novell applications group" --

So that's not just referring to WordPerfect, the word processor, that's referring to the whole applications group, right?

A: It sounds like it.

Q: Okay: "WordPerfect, the Novell applications group, can provide under Chicago what Microsoft says they will only do under their future product called Cairo. Adding this functionality now will popularize Chicago and build a customer base with certain expectations, thus delaying the acceptance of Cairo because users will already have text retrieval and indexing which is faster than they can get under Cairo."

So, what Novell was doing was trying to make Windows Chicago, Windows 95, a better operating system by giving users searching and indexing functionality that would improve Windows 95, but Novell hoped would delay and impede acceptance of Microsoft's next operating system. Isn't that what this says?

A: Well, it looks like this was written by someone named Rodney Smith.

Q: Uh-huh.

A: It appears this may have been his opinion.

Q: Okay.

THE COURT: And I'm just curious. In Illinois,

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don't they pronounce Cairo, Key-ro? I just wondered whether people mispronounce this all the time?

MR. HOLLEY: In Illinois, there is a small town that one of my senior partners grew up in called Cairo.

THE COURT: I assumed there was a connection with Chicago, Capone and Kay-ro. I was wondering if people had been mispronouncing Cairo all the time.

MR. HOLLEY: No, Your Honor. It was all called the road to Cairo, so it was Chicago, Nashville, Memphis, Cairo. So those were the code names. But don't ask me -- some Egyptologist thought it was very entertaining.

THE COURT: Yesterday, I saw thunder and storm yesterday, but I don't remember seeing lightening on the Novell side.

MR. HOLLEY: I think people who make up these things --

Q: BY MR. HOLLEY: Just to be clear, this is another Novell document, right? It says Novell confidential down at the bottom. And it's got an NOV-B number on it. You're not suggesting that this is anything but a Novell record, are you, sir?

A: I have no knowledge of where this document came from.

Q: Okay.

A: I'm not suggesting it did or didn't come from

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Novell.

Q: Do you think that Microsoft had an obligation to help Novell do something that would impede acceptance of some new Microsoft product still under development?

A: I believe that Microsoft had an obligation, as they worked with us and provided technology to us, to work with us in good faith, as we worked with them in good faith.

Q: But -- I appreciate that.

A: And I believe adding functionality to their existing operating system is acting in good faith.

Q: You thought you were doing them a favor. You were going to make Windows 95 better and thereby help Microsoft, whether they liked it or not, right?

A: We thought it was making the experience better for users.

Q: Okay. But can you answer my question, which is, do you think that Microsoft had an obligation --

THE COURT: Isn't that really argument?

MR. HOLLEY: Pardon, Your Honor?

THE COURT: Isn't that really argument, as opposed to what his opinion is?

MR. HOLLEY: Okay, Your Honor. I'll move on if that's the Court's view.

THE COURT: I can see this opening up a lot

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that I don't want opened up.

MR. HOLLEY: Okay. Well, all right. We'll move on.

Q: BY MR. HOLLEY: Did you have, Mr. Richardson, any responsibility for communicating directly with Microsoft about getting documentation for Windows operating systems?

Not directly. Prior to Windows 95, our premier support had been very accommodating to allow various people to call on a single account. My recollection is, with Win 95, they tightened that down, and most of the communication went to one or two individuals in our company who were the contacts for premier support. So it wasn't normally my responsibility to communicate with them. Sometimes I would be in the room while the phone was on speaker phone, and I might have spoken up occasionally, but it wasn't my -- I wasn't the primary contact with Microsoft.

Q: Okay. And the two people you referred to are Lynn Monson and Adam Harral; is that correct?

A: I believe those are the two.

Q: Okay. Were you aware, sir, in 1994, there was a group at Microsoft separate from premier support called the developer relations group?

A: I don't recall.

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Q: Okay. And I take it, then, that you never had any contact with a man named Brad Struss, who was the person in the developer relations group responsible for dealing with WordPerfect and Novell?

A: I don't recall working with him directly.

Q: Now, in October of 1994, when Novell learned that Microsoft was refusing to commit to support the NameSpace extension API's in the future, did you make any effort to communicate to anyone at Microsoft?

A: Did I, personally, make an effort?

Q: Yes, you, sir.

A: No, I did not.

Q: Did you make any effort to communicate to senior management at Novell, including Mr. Frankenberg, Mr. Rietveld, Mr. Brereton or Mr. Moon about the NameSpace extension API issue in October of 1994?

A: No, sir.

Q: Now, I want to make sure I understand your testimony. You told the jury that, after Novell made the determination that it had to follow what you called option 3, I believe, which was to write your own NameSpace browser, you, personally, and other people on the shared code team worked hundred-hour weeks for a year; is that right?

A: We worked extended over-time for a year.

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Q: Okay. And is that the only thing that you were doing at the time?

A: I had responsibilities that I hadn't -- that hadn't gone to anybody else for code that I had already completed, to work on bugs or to work on in collaboration with other teams.

Q: Okay. But you weren't working on any other major projects at the time?

A: My primary responsibility was working on the file open dialog.

Q: I'd like to show you a document entitled Perfectfit Analysis and Design Document Help Subsystem Version 3. And it has -- it's dated internally April 11, 1995. Now, Mr. Richardson, directing your attention --

THE COURT: For the record, do you want to mark this as your next exhibit?

MS VISHIO: Your Honor, I must confess, I don't know where we ended up.

THE COURT: Okay. Why don't you say next number, and it will be the next number.

MR. HOLLEY: The next number, Your Honor.

THE COURT: And right now it's for identification to let the other side know.

MR. HOLLEY: We're going to call this Defendant's Exhibit 627 for identification.

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MS. VISHIO: Your Honor, can we not publish it to the jury, yet, then?

THE COURT: Yeah. Don't put it up --

MR. HOLLEY: Fair enough.

THE COURT: -- until defense counsel have had a chance to look at it.

MR. HOLLEY: Fair enough.

Q: BY MR. HOLLEY: Mr. Richardson, if you would, sir, can you turn to page 3 of this document, entitled Revision History. Sorry, I can see it, and you can't. Okay. This shows, does it not, sir, that you wrote this document in three iterations, starting on March 8 of 1995, revising it on March 16 of 1995 and revising it again on April 11, 1995; is that right, sir?

A: That's correct.

MR. HOLLEY: Your Honor, I'd move for the admission of Defendant's Exhibit 627.

MS VISHIO: We have no objection, Your Honor.

THE COURT: Thank you. You can put it back up.

(Defendant's Exhibit 627 received in evidence.)

Q: BY MR. HOLLEY: Okay. So -- and, again, you know, we have another one of these strange dates on the front, which we should ignore, because that's the date that this document was printed, not the date it was written. But, Mr. Richardson, this is something -- a big

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project that you were doing in the spring of 1995; is that correct?

A: I was involved with this project. My role, as I recall, was to take the work that had been done by the user experience people and formulate the requirements, which were then granted to another team which was actually doing the work.

Q: Okay. But you are the author of this analysis and design document, sir?

A: I produced the document.

Q: Okay.

A: I did not produce the analysis.

Q: All right. And in your -- in the answer that you just gave me, you said that you took information from a usability test group. Did I understand you, sir?

A: The usability -- or the user experience group.

Q: Okay. Now, I'm sure you'll tell me if I'm wrong, but I thought you told me earlier today, when we were talking about potential user confusion, if we added, you know, 20 or 30 NameSpaces to the Windows explorer, that you really didn't know anything about usability testing or user experience. Did I misunderstand you there, sir?

A: So, I was not a member of the user experience

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team, but I took their requirements and translated them into development requirements, which were then passed along to another team. I don't claim to be a usability expert.

Q: Fair enough. Fair enough. Now, are you aware that, in the summer of 1995, in July of 1995, that there was an increasing level of frustration, at the senior management levels in Novell, that the file open dialog that the shared code team was writing was taking an awfully long time to get finished?

A: There was certainly pressure to complete tasks. My manager was Tom Creighton. I think he probably did a pretty good job of insulating us, who were actually trying to get the work done, from pressures coming from other sources.

Q: Well, part of the problem in the summer of 1995 is that nobody knew what they were supposed to be writing; isn't that fair?

A: I'm not sure what you mean by that.

Q: The people writing the software code for the Perfectfit file open dialog for Windows 95 weren't quite sure what they were supposed to be writing. Isn't that fair?

A: I wouldn't characterize it that way. When we realized we were going to have to do this bigger effort

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to try to get things done, I think it's fair to say we didn't how big it was. We didn't know everything that was going to have to be gone. We had a general idea of what needed to be done, and we certainly didn't know the details, and we didn't know how much resources it was going to take, how long it was going to take, but we knew where it started, and so we started. And as we worked, we learned more and -- until we finished the product.

Q: Okay. Well, let's look at Defendant's Exhibit 114. Now, this is a document entitled Perfectfit 95 Open File Dialog. And that is, in fact, the very thing we have been talking about just now, right? This is the open file dialog that people were working on in the summer of 1995?

A: I haven't read this document. I don't know if I've seen this before, but we were working on the open file dialog in that time period, yes.

Q: Okay. And there is, under the history section of this document, which appears about in the second paragraph there, there is a series of dates. Who was Jack Young?

A: Jack Young was one of our usability experts.

Q: Okay. So let's read them from the bottom up. We won't look at every single one of them. But it says: "Jack Young called a meeting describing a proposal

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for the dialog. Gary Gibb, Steve Giles, Bruce Tiejen "-- I'm probably mispronouncing that terribly -- "attended.".

Now, Gary Gibb had what job, sir, at this time.

A: If I recall correctly, Gary was responsible for the production of WordPerfect at this time period, although that may not be accurate.

Q: Okay. And Steve Giles, you've told us before, was a member of the shared code team?

A: That's correct.

Q: Correct? And he was still working with you at this point on the file open dialog that you were working on, too?

A: That's correct.

Q: Okay. And Bruce Tiejen was --

A: Tiejen.

Q: Okay.

A: Tiejen.

Q: Tiejen. Okay. Sorry. I wouldn't have guessed that from the spelling, but, okay. And what was his job?

A: Bruce Tiejen was the developer on the Quickfinder who was mostly responsible for the NameSpace integration.

THE COURT: You might spell Tiejen for the court reporter, if you might. Is it T-i-e-j-i-e-n?

MR. HOLLEY: I think there's a "T" missing in

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this typing, Your Honor. I thought it was T-i-e-t-j-e-n, but I'm probably the worst person to ask, but I've seen other documents where it's spelled that way.

Q: BY MR. HOLLEY: So, Mr. Richardson, as I understand it, there was a meeting on June 2 of 1995, in which the meeting participants seemed interested in and the group proceeded to evaluate and treat the design, and there was a proposal made by Bruce Tiejen -- and I'm probably going to continue to mispronounce this -- about a tab dialog.

I mean, this all sounds to me -- and, I mean, correct me if I'm wrong, but it sounds to me like people are still talking about the design of the file open dialog, and we're now two months before the release of Windows 95; is that right?

A: I did not attend this meeting. I don't know specifically what was discussed, but it was a constant process while I was working at WordPerfect, to evaluate where you were along the way, to make sure that you're headed in the right direction. It was not at all uncommon for usability to review what we were doing, as we reached the end of a project, to ensure that we hadn't introduced usability concerns.

So, it doesn't surprise me that there's a usability evaluation at this point in the project.

710

Q: But let's look at what happened ten days later. Let's go up and highlight June 12 of 1995. It says: "Trying to understand the functionality of the dialog. In talking to Steve Giles, Jack and Bruce different answers. Some brainstorm attempts and general lack of overall functional design occurs."

Doesn't that suggest to you, sir, that in July -- excuse me, in June of 1995, two months before the release of Windows 95, there was a lack of overall functional design for the file open dialog that people were working on?

A: I'm not familiar with the meeting. I don't know what they discussed, and I don't know who produced this document or why they had this evaluation. I just don't have any direct knowledge about it.

Q: Okay. But, just to be clear, down at the bottom in italics this document says Novell Confidential, and it has an NOV-B sticker. You're not suggesting that this isn't from Novell's files?

A: I'm just suggesting, I wasn't privy to this discussion. My experience in working with the dialog at this point was we had made significant progress, and there was a lot of good functionality that had shown up.

THE COURT REORTER: I'm sorry. I can't hear you very well.

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THE WITNESS: So, my experience in working with the dialog at this point was that there was a significant amount of functionality, and it was looking very good. That's my recollection.

Q:
BY MR. HOLLEY: All right. Well, appreciate that. Let's look at the first paragraph of this document, which says -- I think it probably means "the," but it says: "This main purpose of this document is to provide a functional description of the open dialogue for Storm."

Now, Storm is the code name for PerfectOffice, right?

A: I don't recall the code names for things.

Q: Okay. All right. Well, you don't have any doubt that we're talking about the same open file -- file open dialog that you and I --

A: It appears that's what they are talking about.

Q: Okay. And it says: "This document lists function and behavior and, most important, a consensus of open dialog functionality. This document was necessary to alleviate differences of opinion of how this dialog would be implemented. Coding will occur from the information provided by this document."

Now, how is it possible, Mr. Richardson, that

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you have testified that coding was basically done, as I understood your testimony, when this document says coding will occur from the information provided by this document?

A: So, my knowledge is that coding had occurred, that there was a significant amount of progress made. It doesn't seem to me to say that coding would begin and hadn't ever been performed. You know, I think they were simply saying that their expectation was that the result of this conversation would be that something might actually be coded, it would actually affect the code, although that is entirely speculative. I was not at this meeting, and I don't know who wrote this or why they wrote what they wrote.

Q: Okay. Let's look at page 10 of this document. It has the control number 11401, if that's any easier. But the internal document number is 10. Are you with me, sir?

A: I'm on page 10. Yes. Thank you.

Q: And the part I'm interested in appears under -- I assume that MISC is an abbreviation for miscellaneous. Do you use that kind of abbreviation?

A: That seems reasonable.

Q: Okay. And then under 3, it says: "Common Open Dialog. We'll support common open dialog functionality

713

within our open wrapper. The installation default would be the PF open dialog." And that's a reference to the Perfectfit open dialog, is it not, sir? Didn't you refer to the dialog that you were writing as the PF open dialog?

THE COURT: A yes or no to that question. Is PF dialog the Perfectfit open dialog?

THE WITNESS: Yes. I'm sorry. I didn't understand that was the question.

Q:
BY MR. HOLLEY: I'm sorry, sir. I thought you heard me. I guess I'm having a hard time being heard today.

So, as I understand this, what it's saying is that, in July of 1995, there is a plan at Novell to give users, at the time that PerfectOffice is installed, a choice of using two file open dialogs. One is the Windows common file open dialog, referred to here as the common open dialog, and the other one is the one that was being written at Novell at the time, the PF open dialog; is that right?

A: It appears that that's what this is saying. Once again, I am not familiar with this meeting. I don't recall this issue.

Q: All right. And let's look at page 15 of this document. That's a picture, is it not, of the Windows 95

714

common open dialog?

A: All right.

Q: You don't know?

A: It may be. I don't know that I could definitively state that, but, okay.

Q: Okay. But you don't have any doubt that that's the picture that the author of this document decided to include at the back?

A: Okay.

Q: Okay. Now, you were shown, during direct examination --

I'd like to look at -- if you guys wouldn't mind putting up Demonstrative Exhibit 10.

Now, you didn't mean to testify, did you, sir, that is the file open dialog that appears in Corel PerfectOffice as released, right, when you gave all that testimony this morning?

A: I don't know if this is an actual screen shot or if this is a prototype mockup. This appears to me to be very similar to the Perfectfit open dialog in Windows 95.

Q: Well, it's interesting that you refer to it as a prototype mockup because that's exactly what it is, isn't it?

A: I don't know where the graphic was generated.

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Q: Well, when you gave the testimony today, that this was the file open dialog that Corel used, didn't you think it was important to figure out whether that was true or not?

MS VISHIO: Objection. This mischaracterizes his prior testimony.

THE COURT: Sustained.

Q:
BY MR. HOLLEY: You don't know one way or the other, do you, sir, whether this is something other than a paper prototype of something that Novell thought about doing?

A: This looks very much like the file open dialog. It underwent many mutations. This could very well have been a screen shot from an actual invocation of the file open dialog, or it could be a mockup. I couldn't definitively state it's one or the other.

Q: Well, let's look at DR-1, please, which is the Perfectfit file open dialog. Your testimony is that those two things are the same.

And can we flip back to Demonstrative Exhibit 10?

A: They look very similar to me.

Q: Okay. Do you see, in the real Perfectfit file open dialog -- and I'm happy to show this to you so we don't have to flip back and forth. Do you see a

716

find-file tab or a file-content tab or a find-by-form tab?

A: I do not see those.

Q: Okay.

THE COURT: Is this a good time to break for lunch?

MR. HOLLEY: Yes, Your Honor.

THE COURT: Okay. About 20 minutes. See everybody then.

(Lunch break.)

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THE COURT: Welcome, and welcome to the students from Copper Hills High School today.

It might not be interesting to jump in the middle. It's a big antitrust case. Novell vs. Microsoft.

(Jury present)

THE COURT: We have students from Copper Hills High School sitting in the back.

BY MR. HOLLEY:

Q: Mr. Richardson, this morning on direct you testified that one of the namespaces that you yourself worked on was adding support for each HTTP and FTP; is that correct?

A: That's correct.

Q: And I didn't hear you say when you did that. Can you tell the jury when you started working on that?

A: I believe that was after Corel purchased WordPerfect products.

Q: So that was certainly not in the time period that Novell owned WordPerfect and Quattro Pro, correct?

A: I don't recall the exact time period that we were given the license or access to the namespace code. It was shortly after we got that code, but I don't recall the exact time.

Q: But you are sure, are you not, sir, you did that after Corel purchased WordPerfect and Quattro Pro?

A: I don't recall the exact timing. It was shortly after receipt of the access to the code that we started working on

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that.

Q: Are you retracting the answer that you gave me two minutes ago?

A: I am saying I don't recall precisely the time line.

Q: I'm asking you a different question, which is are you sure that it was after Corel purchased WordPerfect and Quattro Pro?

A: I am not completely sure. I recall starting on it shortly after I got access to the code. I don't recall specifically whether that was before or after Corel purchased WordPerfect.

Q: So I don't mean to belabor this, but when you gave me the answer a couple of minutes ago that it was after Corel purchased WordPerfect and Quattro Pro, you misspoke?

A: I'm trying my best to recollect the time period. It's a little bit fuzzy for me.

Q: You are quite sure that it was not during 1994; are you not, sir?

A: My recollection is that we had the agreement with Netscape and shortly after that we started on that work.

I'm sorry. Go ahead.

Q: No, I'm sorry. I didn't mean to interrupt you, sir.

I appreciate your testimony that it was shortly after the source code license was signed, but you can't give me any further information about when that event occurred?

719

A: I don't recall the exact timing.

Q: Now you were shown a document written by a developer at Microsoft called Satoshi Nakajima entitled Web-like Shell Architecture. Can you tell me, sir, when you first saw that document? And I'm happy to show it to you again if you don't have it up there. It's Defendant's Exhibit -- it's hard to read -- 337, I think. It's this one.

I'm sorry. I should look at the top. It's 344, Mr. Richardson. Do you have that one? It's in your notebook. Yes. Okay.

So we're looking at this Microsoft document entitled Web-like Shell Architecture, Internet Integration -- Internet Explorer Integration, in-place Navigation and Page-View. When did you first see this document?

A: I saw this document during a trial prep for this trial.

Q: So the first time you saw this document was when Novell's lawyers showed it to you?

A: Correct.

Q: Do you know when the integration that's described in this document first occurred at Microsoft?

A: I have no knowledge of that.

Q: So if I told you that the first time this occurred was with Internet Explorer 3 in OEM Service Release 2 of Windows 95 in the spring of 1996, you couldn't agree or disagree with me on that?

720

A: I have no knowledge of that.

Q: You testified this morning, sir, about the requirements of the Windows 95 logo licensing program; is that right?

A: Correct.

Q: Now Novell had no use for a logo for Windows 95 because Novell never sold applications for Windows 95; isn't that right?

A: I am not sure I understand that question.

Q: Well, the products weren't released during the time that Novell owned them; isn't that right? The first Windows 95 applications weren't released until after Corel bought WordPerfect and Quattro Pro.

A: My recollection was that when we -- when I worked on the certification issues of shared code from Windows 95 to Windows NT, it was our intent to ship on Windows 95. That was during the time that Novell -- that I was with Novell.

Q: My question was a little bit different. My question was whether Novell as a corporation had any use for a logo when Novell as a corporation didn't own the products that the logo was going on at the time they were released?

A: So the products were being developed under Windows 95 at the point that Novell owned the application, which was the period of time when I was working on the issue. I don't know that I can address what Novell's corporate motivations were.

721

Q: Isn't it just a matter of common logic, Mr. Richardson, that a logo is something that goes on a box for a product, and if you don't market the product, you don't need the logo; isn't that right?

A: My involvement with the logo certification was in satisfying the requirements at the point that I still worked for Novell.

Q: Your testimony, sir, is you cannot answer the question whether the ability to put a logo on a box in the stores mattered or didn't matter to Novell because Novell never released the products that the logo was supposed to go on?

MS. VISHIO: Objection, Your Honor, argumentative.

THE COURT: It's close, but overruled.

You can answer.

THE WITNESS: So my understanding was that the intent of satisfying the requirements for the logo was expected to take some period of time, and they were preparing for that with the expectation that they would achieve that. While I was working for Novell, I was asked to perform that. That would indicate to me that the people telling me to do that evaluation were interested in achieving that certification. So it appeared to me that at least my management cared about that while I was working for Novell.

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BY MR. HOLLEY:

Q: All right. Now you were not responsible for communicating with Microsoft about the requirements of the logo licensing program, were you, sir?

A: I was not responsible for communicating with Microsoft.

Q: Were you aware that there were communications between Novell and Microsoft about the requirements of the logo licensing program?

A: Based on my communications with those working on my team and my management, I understood there was a dialogue.

Q: Who's Mark Calkins? A better question, what was Mr. Mark Calkins' position at Novell in 1994?

A: Mark Calkins was an executive. I don't recall his position.

Q: I would like to show you what's been marked as Defendant's Exhibit 22. This is an e-mail from a Brad C at Microsoft. Do you know who Brad C is, sir?

A: I do not know who Brad C is.

Q: Brad Chase in the Windows 95 team, you never heard that name before?

A: I don't recall knowing Brad Chase.

Q: And Glen M, is that the e-mail alias at Novell for Glen Mella, M-e-l-l-a?

A: I believe that's correct.

Q: And Bruce B is the e-mail alias for Bruce Brereton, is

723

that correct, at Novell?

A: I believe that's correct.

Q: And Mr. Brereton was in charge of all of PerfectOffice; is that right?

A: I believe that's correct.

Q: Have you ever seen Defendant's Exhibit 22 before?

A: I don't recall having seen this previously.

Q: The first paragraph it says, dear Mark. It's written to Mr. Calkins. It says, dear Mark, thanks for your note and for voicing your concerns to us regarding the Windows 95 logo program. I am sorry I did not get back to you sooner, but as you can imagine things are very busy.

Now this is April of 1995, so we are three months before the release of Windows 95, correct?

A: Okay.

Q: Four months. I can't count. It's that late in the day. So four months before the release of Windows 95, correct?

A: All right.

Q: Now were you aware of -- and take as much time as you need to look at this. Were you aware that Microsoft, starting on the bottom of page 1 of this document and carrying on to page 3, went line by line through Novell's specific issues about the compatibility requirement for degrading gracefully on Windows NT?

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A: I'm sorry. Could you repeat that?

Q: Sure. Did you know before looking at this document in the courtroom today that Microsoft had provided detailed responses to the issues that Novell had raised about the difficulty that Novell said it was having in meeting the compatibility requirement for the logo licensing program?

A: I was not party to this communication, this conversation.

Q: Directing your attention, sir, to the third page of this document. Strangely, it's numbered 13 at the bottom, but it's the third page, looking at the paragraph that starts at this point in time --

MR. HOLLEY: And let's just highlight everything down to the signature there so it blows up and everyone can see it more easily.

THE WITNESS: I'm sorry. What page are you on?

BY MR. HOLLEY:

Q: It's numbered 13 at the bottom, but it's the third page of the document. Don't ask me why, but that's the way it is.

Are you with me, sir?

A: Yes. Thank you.

Q: Here Mr. Chase writes to Mr. Calkins at Novell, at this point in time, we do not believe the issues you raise constitute significant enough architectural issues between

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the Windows NT and Windows 95 to warrant an exception being granted. I would be glad to have a conference call between our teams should you have any additional questions. Brad Struss will be glad to set this up if you wish.

Did you know that Microsoft had told Novell in April of 1995 that if Novell had any additional questions on the issue of compatibility, that Mr. Struss would be happy to set up a meeting between the two companies?

A: I was not party to this conversation. I did not know any of this information.

Q: Do you know whether Novell ever took Microsoft up on that offer and had the meeting that Mr. Chase suggested he would be happy to have?

A: I do not know.

Q: Okay. Now you testified, I believe, that you worked for two months trying to get a single WordPerfect executable to run both on Windows 95 and Windows NT. Did I understand that correctly?

A: No. No. I worked on getting the shared code to work correctly on Windows NT.

Q: I apologize. So what you were working on was getting the shared code block of code to run -- the same block of code to run both on Windows 95 and Windows NT?

A: That's correct.

Q: You testified this morning that that was impossible?

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A: The obstacles were so large that we abandoned that effort.

Q: Can you explain to me, sir, why this product, which is called Corel WordPerfect Suite 7, which is the released product, says on the front for Windows 95, Windows NT 3.51, and Windows NT 4.0? I'm happy to show it to you, sir.

A: So can I explain why they put that sticker on the box? No, I don't have an explanation of that.

Q: Well, somebody figured it out, didn't they?

A: I can testify to my experience when I tried to port the code and it presented obstacles I could not overcome.

Q: You didn't mean to suggest to the jury that it was impossible, did you, sir, because somebody did it?

MS. VISHIO: Objection.

THE COURT: Actually two inferences can be drawn. Either the certification was wrong or somebody figured it out. But I assume you can represent everybody says that. I assume there is no question about that. I'm just talking about a matter of logic.

MR. HOLLEY: Your Honor, the box says that the product runs on the two operating systems.

THE COURT: Fine.

BY MR. HOLLEY:

Q: So your testimony was that you couldn't do it, but you have no explanation for why the box says it was done?

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A: I don't know why that appears on the box.

Q: Novell wasn't in the habit of putting stickers on boxes that were false, right?

THE COURT: I'm sure that's true. I was just speaking as a matter of logic. I think we all agree.

MR. HOLLEY: Thank you, Your Honor.

BY MR. HOLLEY:

Q: Now I would like to mark what has been marked as -- I would like to show you what's been marked as Defendant's Exhibit 155. Were you aware that in January of 1995, the most senior executives at Novell, which would be Mr. Frankenberg, the CEO of Novell, Mr. Rietveld, the president of the WordPerfect division of Novell, Mr. Moon, the senior vice president for engineering, and Mr. Brereton, who was in charge of PerfectOffice, were all you talking about the Windows 95 logo licensing program?

A: I did not communicate with them on this issue.

Q: Now you were aware, were you not, sir, that Novell had its own logo licensing program called Yes It Runs On NetWare? Were you aware of that?

A: I recall hearing the term, but I don't recall ever doing any work directly related to that.

Q: Let's look at the last paragraph on the first page of this document. It says, in discussions about a high profile approach, Greg and David noted the similarities in this logo

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program with Novell's YES certification and logo program. Novell's program similarly requires dual compatibility. An ISV's NetWare compatible program must also be compatible with UnixWare, Lanalyzer, and other technologies.

Just so the jury is clear, NetWare is one Novell product that is a server operating system, right?

A: It's a file, print operating system.

Q: File and print operating system. And UnixWare is a variant of Unix from AT&T that Novell bought, correct?

A: I believe that's correct.

Q: So in order to get the Yes It Runs On NetWare certification, an ISV had to both show that its product ran on NetWare and ran on a version of Unix; is that right?

A: It appears that's what this document says.

Q: It goes on to say, it appears that if we are to challenge Microsoft on this program, they could throw it back in our faces. Do you see that?

A: I'm sorry. Where are you now?

Q: In the middle of that paragraph it says, it appears that if we are to challenge Microsoft on this program, they could throw it back in our faces.

A: Is that a question?

Q: I'm just asking you -- I just want to make sure that you and I are on the same page. Do you see that?

A: I see that.

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Q: It says, we are already experiencing substantial push back from our ISVs. And that, again, just so we're all clear, that refers to independent software vendors, right?

A: That's correct.

Q: It says, there is a good argument to be made that if we push this with Microsoft, our ISVs will have increased standing to challenge the YES program. Do you see that?

A: I see that.

Q: So senior management at Novell was worried that if they got mad at Microsoft about the requirement that a product both had to run on Windows 95 and Windows NT, it would come back to bite Novell because Novell required for its logo program that the product had to run on both NetWare and UnixWare, and Lanalyzer and other technologies, right?

A: It appears that's what this document says.

Q: Let's turn to the second page of this document. It says, our conclusion -- I'm looking at the first paragraph. Sorry, sir. Our conclusion today was to recommend you send the letter to Brad. This is an e-mail to Mark Calkins. You send the letter to Brad and see how he responds. If Microsoft either modifies the program generally, or cuts Novell its own deal, then we have what we want, use of the logo without the NT compatibility requirement. If the response is no, then we proceed without the logo and decide how to position our decision.

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You had no idea before today that the president of the WordPerfect group and the CEO of Novell were having a discussion in January of 1995 about how to position the compatibility requirement for Windows 95; isn't that right?

A: I was unaware of this conversation.

Q: Then down a little lower it says, consequently, we are choosing not to participate in the logo program. At this point, our inclination is to take a lower profile approach.

Were you aware that Novell's senior management had made the choice not to participate in the Windows 95 logo licensing program?

A: I was not.

MR. HOLLEY: I have no further questions, Your Honor.

THE COURT: Ms. Vishio.

REDIRECT EXAMINATION

BY MS. VISHIO:

Q: Hi, Mr. Richardson.

Did Novell intend to release a suite of applications on Windows 95?

A: That was my understanding.

Q: During the time that Novell owned those products, was it your understanding that it was Novell's intent to obtain the logo?

A: That was my understanding.

731

Q: Mr. Richardson, do you know whether any of Microsoft's own products, for example, Internet Explorer, received an exemption from the logo certification requirements?

A: I do not know.

Q: Now Mr. Holley on his cross-examination of you did not allow you at one point to give your analogy. But would you be able to give your analogy now of the re-creation of the functionality and put that into your own words?

A: Yes, I could. So in my understanding, the more appropriate analogy would be perhaps if you were building let's say an automobile and you were making use of an engine from another person. If all of a sudden you couldn't make use of that engine anymore, it couldn't talk to your transmission -- it wouldn't work with your transmission so your car wouldn't move anymore, so we had to build a wrapper around that engine that knew how to talk to your transmission, as it were, so the car could go again.

So we were moving along, we reached a roadblock we couldn't get around, and we had to build a mechanism that allowed us to have everything move forward again.

Q: Now also on cross-examination Mr. Holley had asked you a number of questions about the reasons Novell chose not to use the common file open dialog. Do you remember that?

A: I'm sorry. Could you repeat that?

Q: Yes. On cross-examination you were asked a number of

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questions about the reasons Novell chose not to use the common file open dialog. Do you remember that?

A: Yes.

Q: You mentioned some performance problems and the fact that certain namespaces did not show up in the common file open dialog?

A: That's correct.

Q: Did the shared code team share these concerns with Microsoft?

A: So I didn't talk to Microsoft directly, but my understanding from working with Steve and Adam was that those concerns were communicated with Microsoft.

Q: Did you participate in any calls with Adam and Steve on these issues?

A: I believe that those conversations occurred before I started working on the file open dialog. I was brought in to work on the file open dialog as a result of those conversations.

Q: When you started working on the namespace extensions, did you participate in any conference calls following that time period regarding issues concerning the namespace extensions?

A: I don't recall any specific conversations at that point.

Q: Do you recall having conversations regardless of

733

whether you recall the specific contents of those conversations?

A: There were conversations that we had on an ongoing basis with Microsoft about a variety of issues, so we would frequently ask them questions. I would guess on an average that we called and talked to the Microsoft Premier Support people once a week and for maybe an hour or two. And so it was fairly frequent. I just don't recall specific instances of talking with them about this technology.

Q: Was it your understanding that Microsoft promoted namespace extension functionality to software vendors for the purpose of extending the explorer?

A: My recollection was that that was part of the sales pitch is this is a wonderful new system, this is going to change the world, and we want everybody to be a part of it. That is the general feeling that I remember from the communications that I had with Microsoft at the conferences.

Q: Did the partial documentation that you received in the 1994 beta that we looked at, would that have allowed you to have extended the explorer?

A: So we could add namespaces to the explorer, yes, with that documentation.

Q: Now you testified earlier that Novell wanted its namespaces to appear in both the explorer and in the file open dialogs, whatever applications happened to be running

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at that time. Why would Novell want this functionality?

A: Well, we wanted to have a product that was not only best of breed, the best product that you could have for doing word processing, but we also wanted to, by virtue of having our application installed on your computer, have a better experience for everything you did on your computer.

Q: I would like to redirect your attention to Plaintiff's Exhibit 114 that you saw on cross-examination. This is a document that Mr. Holley had shown you on cross.

I apologize. I did mean Defendant's Exhibit 114.

If you would, please turn to page 10.

A: I don't know where I have it, where that is.

Q: It's Defendant's Exhibit 114. I would like to direct you to the section that you looked at previously under the miscellaneous section, number three there.

Did the custom file open dialog Novell was working on support all of the functionality that was available in the common file open dialog but also additional functionality as well?

A: Yes, that's correct.

Q: Mr. Richardson, what does it mean to have documentation for an API redacted?

A: Well, the information is no longer published, and there is a presumption that the API may not continue in the same behavior.

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Q: What could have happened if you relied on those APIs whose documentation was redacted?

A: Well, a variety of consequences could have resulted from that, from crashing WordPerfect, or whatever applications was making use of us, to simply using the functionality.

Q: Mr. Richardson, I'm handing you what has been identified as Plaintiff's Exhibit 225. Plaintiff's Exhibit 225 is a Microsoft document, an e-mail, you will see at the top, from Brad Struss to -- from Brad Struss to Doug Henrich. Then there's an e-mail going back from Brad Struss to Brad Chase and some other individuals. It's the second e-mail that I would like you to focus on.

Have you ever seen this e-mail before?

A: I have not.

Q: If you look at the third e-mail on this page from Scott Henson to a number of other individuals, dated October 12th, 1994, this e-mail continues onto the second page of that document. On the second page of the document there are a number of headings marked off, the cool stuff that they can still do, and then do you see the section marked the conversation?

A: I'm sorry. Where?

Q: On that page there are two headings. One is called the conversation.

736

A: Yes, I see that.

Q: If you look what really is the second full paragraph under that section, it says, quote, there is a set of APIs which allows you to extend the explorer visually in a manner that makes an application look as though it were a system-level hierarchical component, i.e. like the control panel, fonts folder, printers folder, et cetera. We have taken a hard look at these APIs and because it makes it very difficult for us to support our long-term objectives with the Windows shell, we have decided to return these interfaces back to their system-only status. This means that if you are using these APIs, you should stop.

Now this conversation is directed to tell the ISVs, as you can see from the paragraph right above that.

Mr. Richardson, is this consistent with your understanding of what Microsoft told Novell after the namespace extensions were retracted, the documentation for the namespace extensions were retracted?

A: Yes, it is consistent.

Q: Mr. Richardson, I would like to redirect your attention to Defendant's Exhibit 108. This was a document that was also shown to you on Mr. Holley's cross-examination. But I just want to ask a couple of questions about this document. The first is the title, which is called PerfectFit Extended Services Group. Were you a member of the PerfectFit

737

Extended Services Group?

A: I don't recall that name for a group. I probably would have been part of any group labeled PerfectFit group, but I don't recall the name PerfectFit Extended Services Group.

Q: Now you testified earlier that Microsoft retracted the documentation for the namespace extensions. Isn't it true that that retraction would have affected all software vendors, not just WordPerfect?

A: That's correct.

Q: You also mentioned that you were familiar with the CompuServe forum; is that right?

A: I was aware of it, but I didn't participate on it.

Q: Do you recall -- is it based on your understanding from your conversations with those that were checking the CompuServe forum that there were other companies interested in using the namespace extensions?

MR. HOLLEY: Your Honor, I'm sorry to object, but that calls for pure hearsay. He said he wasn't part of the forum. She's asking whether he heard somebody say something.

THE COURT: Rephrase the question.

BY MS. VISHIO:

Q: Based on your understanding of conversations with others in the shared code group who were on the CompuServe forum, is it your understanding that other companies were

738

interested in the namespace extension functionality?

A: It was my understanding based on my conversation --

THE COURT: That calls for hearsay and is leading, but that's all right. Go ahead.

MS. VISHIO: I'm sorry. I couldn't hear your answer.

THE COURT: Go ahead.

THE WITNESS: It was my understanding in my conversations with Steve Giles and Adam Harral and with Bruce Tijen, who is a member of the forum, told me they were members of the forum, there was considerable activity on that forum with a variety of different companies participating.

BY MS. VISHIO:

Q: Mr. Richardson, I would like to redirect your attention to Defendant's Exhibit 72. This was also shown to you on your cross-examination. Again, this article is entitled Extending the Chicago Shell by Kyle Marsh, and it's dated May 10th, 1994. Do you see that?

A: I do.

Q: I would like to turn your attention to the second page of this document under the heading shell extensions. Are the shell extensions listed here also namespace extensions?

A: No, not -- well, sometimes it can be difficult because the two are cross related. And I am not sure it's always

739

easy to specifically say this is one or this is the other. The shell extensions were provided after as you have an icon for a file on your desktop in the folder, those are things that you can do with that file from there. They all relate to the file. So you can take -- you can click on that icon and you can drag it someplace, you can drop it, you can do a right mouse click and get menu options that relate to that file. So all of these are related to doing that functionality.

So namespace extensions, that's what we're talking about namespaces are the things that a namespace would implement in order to show up as a folder. So they are kind of disjoint -- they are separate groups of functionality. Although they are all related, all the same thing of how you would interact with your files, these sets of functionalities relate to what you can do with a file and the others relate to creating this folder that has things in it that aren't really files.

Q: Now is it your testimony that this article provided the necessary documentation for Novell to be able to use the namespace extension functionality?

A: Mostly. So we were able to make use of the extensions that had been documented. And understand, most of this work was done by Steve and Adam before I joined this effort. They had done a lot of this work before I got there. But

740

the problems that we ran into were -- there appeared to be some extra communication that was going on that allowed us to have the appropriate performance. We had to build in that mechanism ourselves. So it was undocumented things that were never documented that were the obstacles that we ran into. If we wanted to run our own namespace browser like the common open dialog or like the explorer, there was extra information that wasn't part of these exposed APIs that we needed to have access to.

Q: Mr. Richardson, I would like to direct your attention to the last page of this document under the summary section. The summary reads, the shell extensions described in this article allow applications to facilitate the task of navigating within a system or network. In some cases, however, applications may want to extend the shell further with the namespace browser. Namespace browsers allow applications to expose the hierarchical structure of objects through the Chicago shell. A good example of a namespace browser is a file that displays the hierarchy of the user's mail folder. In my next article, I will be discussing namespace browsers in detail. Stay tuned.

Mr. Richardson, was that article that Mr. Marsh references in the summary ever provided to you before the release of Windows 95?

A: I remember a document or document contents similar to

741

this. I don't recall the specific document. But I recall documentation similar to this or contents similar to this that seemed to promote or invite the integration of namespace browser -- namespace extensions. And also the second sentence -- or the third sentence here says, namespace browser allow applications, we felt we had a green light to create our own namespace browser as well as creating namespace extensions. So not only would we create namespace extensions, it would show up in other namespace browsers like explorer and other file open dialogs, but also to create our own namespace browser.

Q: Do you recall whether you received the article that's referenced here before the release of Windows 95?

A: I don't recall.

Q: Do you recall when you received the full documentation for the namespace extensions?

A: I don't recall.

Q: Mr. Richardson, I have handed what you has been marked as Plaintiff's Exhibit 355. This is an article from the MSDN from July 1996 entitled Extending the Windows Explorer with Namespace Extensions. If you could take a moment to review this article.

Mr. Richardson, have you seen this document before?

A: This does seem very familiar to me. I believe I have seen it before.

742

Q: What is this document?

A: This appears to be an extensive how to on how to create namespaces.

Q: Again, what is the date of this document?

A: July 1996.

Q: As you reviewed this document, does this refresh your recollection that the full documentation for the namespace extension functionality was not available until after Windows 95?

A: That does seem like the case.

Q: Once the namespace extension documentation was republished, could any software vendor have used this functionality to create namespaces?

A: Yes.

Q: Were there any limits imposed on software developers in terms of the number of namespaces that they were allowed to create?

A: Not that I'm aware of.

Q: Now Mr. Holley asked a question about a supposed order at Corel to not use the custom file open dialog, instead to use the common file open dialog. Did Corel, in fact, release its product using the common file open dialog or a custom file open dialog?

A: My recollection is they were using the PerfectFit custom file open dialog.

743

Q: Mr. Richardson, we saw a document earlier that referenced a Mr. Sid Cragun. Do you recall whether Mr. Cragun was a member of the shared code team?

A: He was not.

Q: Would WordPerfect be able to run without shared code?

A: No.

Q: Why is that?

A: Shared code provided a variety of pieces of functionality that were required for the application to actually do anything. So all the access to documents to open a file, to save a file, to print a document, the menus, the keyboards, the tool bars, all of that functionality was provided by PerfectFit. The dialogs, most of the controls on the dialogs were provided by PerfectFit. So without PerfectFit, the application simply wouldn't have run.

Q: Mr. Richardson, I have handed you what has been marked as Plaintiff's Exhibit 268, which is the Novell software license agreement with Netscape. If you would please turn to page 11 of this document where there is a signature block at the bottom of the page.

A: Yes, I see that.

Q: What date appears under the signature block?

A: February 2nd, 1995.

Q: Now you testified that you began working on integrating Netscape's navigator into the explorer after you received

744

the code from Netscape. Would you have received the code in conjunction with this agreement?

A: I believe so, yes.

Q: Does this refresh your recollection of when you were working on integrating Netscape navigator into the explorer?

A: It would have been early in 1995.

Q: In February of 1995, you were still at Novell; is that correct?

A: I believe that's correct.

MS. VISHIO: No further questions, Your Honor.

THE COURT: Thank you.

Mr. Holley, do you have anything further?

MR. HOLLEY: Yes, Your Honor.

RECROSS-EXAMINATION

BY MR. HOLLEY:

Q: Now you have just testified, I believe, sir, that your recollection has been refreshed and you now remember that you were working on integrating Netscape navigator into the PerfectFit file open dialog in early 1995. Is that your testimony, sir?

A: That's correct.

Q: Where is the design specification for that integration?

A: I don't have any idea where the documentation would be.

Q: Is there code that was written that integrated Netscape navigator into the PerfectFit file open dialog?

745

A: I wrote that code that did that, yes.

Q: You wrote that code?

A: I did.

Q: Where did you keep it?

A: That code would have been placed in the source management system.

Q: Did you have occasion in this lawsuit, sir, to review any of the court papers that Novell filed for technical accuracies?

A: I don't believe I have been presented with any documents like that.

Q: I would like to show you what has been marked as Defendant's Exhibit 139. Now this document is entitled Novell's Objections and Responses to Microsoft's Second Set of Requests for Production. It was --

MS. VISHIO: Objection to this. Excuse me.

THE COURT: Just take it off the screen for the jury and you can ask questions. Right now it's just for identification.

BY MR. HOLLEY:

Q: This document is one that Novell sent to Microsoft on March 2nd, 2009 in this lawsuit, sir. Do you have any reason to doubt the accuracies of the statements contained in this document?

A: I am not familiar with this document. I have no reason

746

to believe or disbelieve anything in this document.

Q: All right. Well, turn to page 6, request number three. Microsoft asked Novell in request number three to provide all specifications, documentation, source code and object code -- and I will just stop there to make sure that the jury understands the distinction.

The source code is the code that a programmer writes, correct, in some programming language like C or C plus plus?

A: That's correct.

Q: Object code is the series of ones and zeros that a computer understands?

A: That's correct.

Q: So Microsoft asked Novell to provide all specifications, documentation, source code and object code for any software program developed by Novell that relied on or invoked any of the following APIs exposed by any version of the PC operating system referred to as Chicago or Windows 95, and then it lists IShellBrowser. That's one of the namespace extension APIs, right?

A: Correct.

Q: It lists IShellFolder, that's a second API. It lists IShellView, that's a third namespace extension API, right? It lists IPersistFolder, that's number four. And it lists ICommDlgBrowser, which means I common dialog browser, right? Those are the five namespace extension APIs that Mr. Gates

747

decided in October of 1994 that he would not support, right?

A: That's correct.

Q: So Microsoft asked the question of Novell, please provide us with all the code that you wrote that calls any of those APIs. Let's look at what the answer is. Novell -- the answer that Novell gave was that there was no such code. In addition, Microsoft's decision to make IShellBrowser, IShellView --

THE COURT: Is there some kind of objection?

MS. VISHIO: Objection, Your Honor.

THE COURT: Approach the bench.

(Bench conference held)

THE COURT: I am going to allow the answer to the question. Just so you all know, the parties agreed that -- you know, it will say what it will say and you draw whatever inference you want. It's understood there is no source code that was ever provided by one side to the other. That's not really the point of this. But no source was provided. That would cause all kinds of problems. The source code is pretty confidential stuff.

So I'm going to allow Mr. Holley to ask this question. Just for completeness, if later Ms. Vishio wants to read the whole response, she can do that. That's really not what Mr. Holley wants to get to right now.

MR. HOLLEY: Thank you, Your Honor.

748

BY MR. HOLLEY:

Q: So, Mr. Richardson, I read to you the question, which was provide all specifications, documentation, source code and object code for any software program developed by Novell that relied on or invoked any of the following APIs, and I will save time and I won't read them, but they are the five namespace extension APIs.

I would like to turn, sir, if you would, to page 7 of this document midway down the page, the sentence that begins in addition. It says, in addition, Microsoft's decision to make IShellBrowser, IShellView --

A: I'm sorry. I'm not following. Where are you?

Q: I'm sorry. It's not up on the screen. But, Mr. Richardson, I'm right here on page 7 in this last sentence.

A: Thank you.

MR. HOLLEY: Your Honor, I think rather than having my dramatic reading, can the jury see what I'm reading?

THE COURT: Yes, you can do that. Then Ms. Vishio, I'm going to give her the chance to read the whole thing if she wants to.

BY MR. HOLLEY:

Q: Turning to page 7, the last sentence there that begins in addition, in addition, Microsoft's decision to make IShellBrowser, IShellView, IPersistFolder, and

749

ICommDlgBrowser private, in quotation marks, and IShellFolder a, quote, read only public interface, close quote, effectively prevented Novell from using the namespace extension mechanism and/or implementing the mechanism in a customized fashion. Therefore, as a practical matter, no software that Novell developed could rely upon or invoke those APIs.

How can that answer be squared with your testimony that you wrote such software?

A: So I can testify to what I did and what my experience was. So we developed a number of namespaces. I personally developed FTP and the HTTP namespace. Neither one of those ever shipped. Those are not included in the shipping product. The threat of changing those interfaces so they were no longer invoked or the syntax or semantics changed was part of the reason that we had to build up that infrastructure in an attempt to insulate ourselves from those changes.

Q: Mr. Richardson, if someone had showed to you request number three on page 6 back in 1994 and said please save everything that you have that responds to this request, there were things you would have saved, right?

MS. VISHIO: Objection, Your Honor.

THE COURT: Overruled.

Go ahead. You may answer.

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THE WITNESS: So we had systems in place to preserve our documentation. We had source management systems. We had document management systems. We had network locations with backup facilities for that data. I was not responsible, I did not have a role in maintaining those systems. I don't know what happened to the source. I don't know what happened to the documentation. I know that I did not throw away anything. And the document -- the code that I wrote was checked into our source management system. The documentation I wrote was either sent to the document management system or to the network location. What happened to it after that, I don't know.

THE COURT: Ms. Vishio can read the whole thing now or, defendants, it's up to you.

MR. HOLLEY: Your Honor, I would like to briefly address the exhibit.

THE COURT: Go ahead. She can do it either time.

BY MR. HOLLEY:

Q: I would like to turn your attention to a document that Ms. Vishio showed you, which was Plaintiff's Exhibit 225.

MR. HOLLEY: Can we see that up on the screen, please?

BY MR. HOLLEY:

Q: Now this is a Microsoft document that you had never seen before, right?

751

A: I have not seen this document before.

Q: I would like -- Ms. Vishio showed you the second e-mail. I would like to show you -- sorry, the third e-mail. I would like to show you the second one. Now what it says here is per Paulma. Do you know that Paul Maritz was the senior vice president in charge of all operating systems of Microsoft in October of 1994?

A: I know he was an executive at Microsoft. I couldn't tell you what position he held.

Q: I will represent to you and the evidence in the case will show that in October of 1994, Paulma was the e-mail alias of Paul Maritz, who was the senior vice president in charge of Windows NT and Windows 95. What this e-mail says is, per Paul Maritz, we're now in the process of proactively notifying ISVs about the namespace API changes, will not document them and they will go away/change. So far, Stac, Lotus, WordPerfect, Oracle, SCC appear to be okay with this.

Do you have any reason to believe that the people at Microsoft thought anything other than what this e-mail says, which is as of October 12th, nine days after Mr. Gates made his decision, Microsoft understood that WordPerfect appears to be okay with this?

A: I have no knowledge of their interaction with WordPerfect or why they thought that WordPerfect or any other application was okay with this.

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Q: Fine. Let's turn to page 2, sir. Now there is a heading here which Ms. Vishio mentioned but she didn't show you called The Cool Stuff They Can Still Do. It says, in addition -- I am up at the heading before we get to the points. It says, in addition, we want to emphasize the really hot and cool things you can still do with Windows 95 shell extensions. Then it lists a variety of shell extensions that remain documented, remain fully supported by Microsoft. Is that not right, sir?

A: That looks to be correct.

Q: Now let's go a little further down that page to the paragraph that begins, this decision not only affects people outside of Microsoft.

MR. HOLLEY: Can we highlight that?

BY MR. HOLLEY:

Q: What it says here, sir, is this decision not only affects people outside of Microsoft, like Novell, but inside the company as well. All applications within Microsoft which were originally implementing these interfaces have been required to stop.

You have no reason to believe that anything other than this happened, right? Anybody inside Microsoft who had been using those five APIs was told to stop?

MS. VISHIO: Objection, Your Honor. He doesn't know this document. He can't speak for what Microsoft --

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THE COURT: You were the one who asked him about the document in the first place. So it's overruled.

THE WITNESS: I have no knowledge of what code Microsoft wrote, what they put in their applications. The one thing I can say that surprised us was that when we added namespace extensions, they showed up in Word file open dialog, but they did not show up in the common dialog. I don't know how that worked.

BY MR. HOLLEY:

Q: Sir, that's a very interesting observation, but the answer to my question is that you have no information to impart to the jury that is inconsistent with this statement, which is that when the namespace extension APIs were de-documented, if you want to call it that, all of the people inside Microsoft writing applications, like Word or Excel, PowerPoint, Access, Outlook, they were all told to stop. You have no information inconsistent with that, do you, sir?

A: So, yes, I think so. I agree I have no knowledge of what Microsoft applications did and which APIs they used. I was not privy to that. I was not there. I don't know what they used.

THE COURT: Let him finish.

THE WITNESS: However, our observation was that namespace extensions showed up in their file open dialog

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where they did not show up in the common file open dialog, which led us to believe that there was something that they were doing that was beyond the common file open dialog. What they did or how they did it, I have no idea.

BY MR. HOLLEY:

Q: Let's turn, sir, to the section of this document entitled Q and A up at the top. It looks like another actually two pages in, Q and A.

MR. HOLLEY: I would like to highlight the second question and answer. Why has Microsoft decided not to publish.

BY MR. HOLLEY:

Q: So in this Q and A, the question was asked, why has Microsoft decided not to publish the namespace extension interfaces. Answer: There are a number of reasons. Reason number one: Compatibility. We have determined that it will be very difficult to support these APIs for applications as we move forward.

THE COURT: What document is this?

MR. HOLLEY: It's the same document, Your Honor. Ms. Vishio opened the door to this examination by showing this witness this document.

MS. VISHIO: It's beyond the scope of the redirect, Your Honor.

THE COURT: I don't think so, no. Overruled.

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It's the same document.

BY MR. HOLLEY:

Q: There are three reasons provided here. The first one says compatibility. We have determined that it will be very difficult to support these APIs for application as we move forward with our operating systems. We did not want to encourage ISVs to support interfaces that will go away in the future.

You have no information, do you, Mr. Richardson, to undermine the notion that Microsoft believed in October of 1994 that the namespace extension APIs posed compatibility problems for their future operating system design, right?

A: I am unaware of any compatibility problems that could arise, and unless I'm mistaken, the APIs did not go away in the future. In fact, they are still there.

Q: But you don't know what changes were made in the syntax of the APIs that might have changed that question, do you, sir?

A: The code that we wrote to the original specification, to my knowledge, has never been broken. The syntax and semantics remains the same, as far as I can tell from a client perspective.

Q: System robustness. The namespace extensions were design to be part of the system. As such, they run in the explorer's process space. Badly written namespace extension

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could cause the reliability of Windows 95 to be less than it should be.

You agree with that, don't you, sir, that if someone, not you, but someone who didn't know what they were doing, wrote a namespace extension that was badly behaved, they could have crashed the entire Windows 95 shell, circa October 1994, because at that time namespace extensions were running in the same process as Windows explorer and the rest of the shell, right?

A: That is correct. In addition to that, the APIs they left suffered the same consequence. If someone were to take one of the context by context menu or the other extensions that were left available and wrote them badly and crashed them, you would have had exactly the same consequence. There were a variety of places in Windows where this same level of extensibility was provided. A very good example where if someone wrote one badly and introduced it into the system, it could have crashed.

Q: You would agree with me, would you not, sir, that adding an item to a context menu is much less dangerous than writing a randomly large block of code as a data handler to plug into a namespace extension?

A: No. I would disagree with that. The danger is that when Windows calls the APIs, if the call crashes, it crashes Windows. So regardless of what it is you are doing behind

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it, if you wrote that code badly, it will cause the operating system to crash. From Windows' perspective, the danger is the same.

Q: Now it also says, ship schedule. We have determined the amount of development and testing time it would take to support these APIs through the entire development cycle adds a tremendous amount of overhead to our very rigid deadlines.

You have no reason to believe that Microsoft did not in good faith believe in October of 1994 that continuing to support the namespace extension APIs threatened the ship schedule of Windows 95, do you, sir?

A: I have no knowledge -- direct knowledge of what their scheduling was and what they anticipated the task would take. My experience was in working with the namespace extensions and with the namespace browsers, namely the explorer and the common file open dialog is that they worked very well. When we were working with them, we experienced no instability and to us they appeared complete.

Q: Excuse me, sir, didn't you just tell us all a couple of hours ago that you had terrible performance problems with these APIs, that it took two or three minutes for a namespace to enumerate the contents of the namespace?

A: That problem occurred within our namespace browser, not within explorer namespace browser, but with the common open file dialog.

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Q: All right. Let's turn to the next page of Plaintiff's Exhibit 225. Up at the top it says, question, Microsoft has encouraged ISVs to use shell extensibility, can I still do that? Answer: Yes, there are still lots of exciting things ISVs can do with the shell. For example, you may customize the behavior your application files under the shell by adding extra menu items, context menu extension, adding property sheet pages, property sheet extensions, and/or providing per instance icons, icon extension. For more details, see Kyle Marsh's MSDN article.

That's DX-74, the Kyle Marsh MSDN article. You saw that early, right?

Do we have to look at that again?

THE COURT: He says that's what it is.

THE WITNESS: I have A: copy of that.

BY MR. HOLLEY:

Q: Then the second to the last question and the answer says, what if I decide to use some of the undocumented APIs, i.e. I am a developer that has received some of the preliminary documents on the topic. What will the penalty be? Will you change the interfaces that had been defined? Answer: We will not arbitrarily change these interfaces, but because of how tightly these interfaces are tied to the internals of the shell, we cannot guarantee ISVs that try to call into them will work in future releases of Windows 95.

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There will be no support for ISVs that use this. It will be completely at their own risk.

You are aware, are you not, sir, that many, many ISVs in this period of time called undocumented APIs knowing of the risks but making a choice that the benefits to them exceeded the risks? That happened all the time, didn't it?

A: I would suppose that occurred. There were times when we had to make tradeoff evaluations and determine what was most important.

Q: Then the last question and answer, sir, it says, can I still roll-my-own common dialogs and enumerate the namespace. This document is talking about what I call the system namespace, and you and I agreed we could call it the system namespace or the desktop namespace, right?

A: I'm sorry. Could you repeat the question?

Q: Sure. The question is can I still roll my own common dialogs and enumerate the namespace. Your understanding is mine, which is that this document is referring to the desktop namespace or the system namespace. You can still enumerate that, right?

A: I don't see anything here that refers to the system namespace. In fact, to me this would seem to contradict the answer just prior to this that said don't do this.

Q: So you don't understand what it means?

A: I am saying when I read this, it looks like a

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contradiction to me.

Q: And the answer says, yes, the IShellFolder interface will still be published to allow ISVs to enumerate the namespace. Do you see that answer?

A: I see that's the answer they put here.

Q: Right. You know how to do that, right? It's a very simple command. You tell IShellFolder to bind itself to the desktop namespace inside your file open dialog and it shows you the system namespace, right?

A: No, that's not correct. The IShellFolder interface does not enumerate the items within the folder.

Q: You can bind to it using IShellFolder, and then you can use --

A: You have to bind to the other interfaces which were retracted.

Q: But you knew how do you that, too, didn't you, sir?

A: I'm sorry. I'm not sure -- the question that I heard was is it adequate merely to bind to the IShellFolder to be able to create your own dialog and enumerate the contents and browse a namespace. The answer to that would be no, it is not adequate simply to bind to the IShellFolder interface. You also need the additional interfaces which have been retracted and were told not to call.

Q: Is that right? Let me read you something and see whether you agree with it. You can bind to the desktop

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folder, retrieve the folders IShellFolder interface by using the SH get desktop folder member function? So far so good, right?

A: Yes.

THE COURT: I assume this is from Mr. What's his name book?

MR. HOLLEY: It's from the Programmers Guide to Windows 95, Your Honor. 182.

BY MR. HOLLEY:

Q: You can enumerate folders by using the IShellFolder ENUM objects member function. So you bind to the folder, now you can enumerate the things in the folder. You can bind to a subfolder of any given folder by using the IShellFolder bind to object member function. We're still there, right? You would still agree with that?

A: Uh-huh. (Affirmative)

Q: Using these three functions, an application can navigate throughout the shell's entire namespace, right?

A: So the purpose of the other -- the other interfaces is to allow you to get the information about those icons or those objects necessary to be able to interact with them. So the interfaces to obtain the icon -- or to obtain other information is derived through the rest of those interfaces. So without the rest of those interfaces, you are limited in what functionality you can accomplish.

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Q: But you can use the interfaces that I thought you and I agreed always were documented, like icon text menu, the icon handlers, the data handlers, the drop handlers, the property sheet handlers, those were all documented. And once you had bound to a folder, you could use those documented interfaces to do whatever you wanted to an object, couldn't you?

A: So there are two sets of interfaces that are kind of grouped together. The group that were retracted and the group that were left. So I could provide an object and register it with Windows that would provide icon text menu and icon text, all those other capabilities that was not a namespace browser. It was unrelated completely to namespace browser.

For example, if I wanted to add the ability to access QuickFinder technology from the right mouse click on an item, I didn't have to provide a namespace, right. So those technologies were there as a separate group of functionalities from the ones that were retracted. So there is a big difference between when you are talking about those that weren't part of a namespace and those that were part of a namespace.

So this question is talking about becoming a namespace browser and browsing the namespaces. In order to access those objects completely, I needed to use those APIs that were retracted.

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Q: I don't want to belabor this point, and maybe everyone else in the room thinks I have, but you answered a question that Ms. Vishio asked you by saying that the context handler, the icon handler, the drag-drop handler were all, I thought you said, interconnected with the namespace extension APIs. And in that sense, what I'm asking you is couldn't you have used the APIs which are described in this book and which remain documented throughout the development of Windows 95 to put the system namespace in a file open dialog and do all the things to the objects inside that namespace that you could have done to some object sitting out on the desktop?

A: So if the question is was there a redundancy between the ability of the interfaces that remained versus the interfaces that were removed, and my answer to that would be no, there was not redundancy. Yes, they are related in that they all deal with objects in the file system within the namespace hierarchy, but their purposes are different. That's why they are different interfaces. You could not achieve everything through those retracted interfaces that you could through the ones that remained.

Q: I notice that you adopted this formulation retracted and redacted. I just want to be clear and then I promise this will be my last line of inquiry. But nothing was retracted, right? I mean the APIs stayed in the operating

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system and the documentation that Novell got in June of 1994, no one showed up from Seattle and said give that back, right? You kept it all.

A: So we kept the copies of shell OPG that we currently received, that is correct.

MR. HOLLEY: I have no further questions, Your Honor.

THE COURT: Ms. Vishio, I will give you the choice. You can either read all of two or you can deem it admitted into evidence so if it's used. It's really up to you. So if somebody uses it in closing argument, you can respond by reading from it. Really, it's up to you. I don't care.

MS. VISHIO: Your Honor, I think what we would like to do, if it's appropriate with you, is to just hold on to this and read it in later if it becomes necessary.

THE COURT: Sure. That's fine. I think that's good. It's twenty to, and I know we promised you all you could leave around 1:30. So have a nice afternoon. See you at eight o'clock in the morning.

(Jury excused)

THE COURT: There are two issues that I'm aware of that are still on my plate. The timing still hasn't been resolved. The other is Novell wants to introduce -- to overruled Microsoft's objections to statements made to the

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DOJ. As of this morning, I didn't see a written response from Microsoft. I didn't know if you intended to file one? Tell me.

MS. VISHIO: Excuse me, Your Honor. May we excuse Mr. Richardson?

THE COURT: Of course. I'm sorry, Mr. Richardson. Of course.

MR. HOLLEY: Your Honor, we do intend to respond to that.

THE COURT: You have had plenty to do. It was a question, not a criticism. I assume your answer is going to be in the opening statement they talked about disclosures to Microsoft, not disclosures to the DOJ.

MR. HOLLEY: Among other things, Your Honor. But I think we can commit to have something to the Court tomorrow. I apologize we haven't done that.

THE COURT: No need for an apology. It is not an implicit criticism. It was just a question.

Mr. Johnson, anything?

MR. JOHNSON: No, Your Honor. That will be fine. Glad to hear their response. They didn't specify it was just Microsoft. They said we never complained, period.

THE COURT: I understand.

MR. TULCHIN: Just a housekeeping matter, Your Honor, if I could. The other day Novell's lawyer handed in

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A: list of documents to which they said Microsoft would not object to. With the Court's permission, we would like to hand in the list of Microsoft exhibits to which Novell has not objected.

THE COURT: Go ahead.

MR. TULCHIN: And there may be other exhibits, Your Honor, that will come in.

THE COURT: If something comes in, please let me know. This is not for expedition. But I gather you all know what's going to come in.

MR. JOHNSON: Your Honor, we'll, of course, look over that list and make sure there are no problems with it.

Just to make sure with respect to the list that we submitted some months ago to you, we've heard no objection from Microsoft with respect to any of those exhibits. So I presume that they are admitted without objection.

MR. PARIS: They all look fine.

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

THE COURT: Nothing else to worry about tomorrow. What is tomorrow going to be?

MR. JOHNSON: Tomorrow we're going to have Mr. Gary Gibb as our witness, Your Honor. And I actually thought we would perhaps get more than just a witness in today. I was hoping maybe we would do more than that tomorrow, but we will see.

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THE COURT: That is my next question. I assume we're a little behind schedule.

MR. JOHNSON: You know a little bit, Your Honor, but not terribly.

THE COURT: Thank you.

MR. TULCHIN: Your Honor, we haven't heard if there will be a live witness on Thursday. In view of the 48-hour rule, since we're less than 48 hours, I assume it's a videotape.

MR. JOHNSON: We don't currently anticipate a live witness. Of course, if there were going to be one, I would have told you.

THE COURT: Forty-eight hours aside, if you can think of one in the next two hours, tell him.

MR. JOHNSON: Thank you, Your Honor.

MR. TULCHIN: Thank you, Your Honor.

(Whereupon, the trial was continued to Wednesday, October 26, 2011 at 8:00 a.m.)

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