6346 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXIV 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:05 a.m., January 4, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 6347 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 RICHARD M. HAGSTROM 7 MICHAEL E. JACOBS Attorneys at Law 8 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 9 500 Washington Avenue South Suite 4000 10 Minneapolis, MN 55415 (612) 339-2020 11 STEVEN A. LAMB 12 Attorney at Law Zelle, Hofmann, Voelbel, 13 Mason & Gette, LLP 550 South Hope Street 14 Suite 1600 Los Angeles, CA 90071 15 (213) 895-4150 16 ROBERT J. GRALEWSKI, JR. Attorney at Law 17 Gergosian & Gralewski 550 West C Street 18 Suite 1600 San Diego, CA 92101 19 (619) 230-0104 20 KENT WILLIAMS Attorney at Law 21 Williams Law Firm 1632 Homestead Trail 22 Long Lake, MN 55356 (612) 940-4452 23 24 25 6348 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY SHARON L. NELLES 3 JOSEPH E. NEUHAUS JEFFREY C. CHAPMAN 4 MICHAEL A. PLATT Attorneys at Law 5 Sullivan & Cromwell, LLP 125 Broad Street 6 New York, NY 10004-2498 (212) 558-3749 7 ROBERT A. ROSENFELD 8 KIT A. PIERSON Attorneys at Law 9 Heller Ehrman, LLP 333 Bush Street 10 San Francisco, CA 94104 (415) 772-6000 11 BRENT B. GREEN 12 Attorney at Law Duncan, Green, Brown & 13 Langeness, PC Suite 380 14 400 Locust Street Des Moines, IA 50309 15 (515) 288-6440 16 STEVEN J. AESCHBACHER Attorney at Law 17 Microsoft Corporation One Microsoft Way 18 Redmond, CA 98052 (425) 882-8080 19 20 21 22 23 24 25 6349 1 (The following record was made out 2 of the presence of the jury at 8:05 a.m.) 3 THE COURT: Who wanted to start? 4 MR. TULCHIN: Yes, Your Honor, thank 5 you. 6 Good morning. Happy new year. 7 THE COURT: Good morning. 8 MR. TULCHIN: I'd like first, Your 9 Honor, to hand up two memoranda. I don't know 10 if the Court has seen these yet. 11 Thank you, Your Honor. 12 THE COURT: Thank you. 13 MR. TULCHIN: The first was filed on 14 December 29. 15 I should say, Your Honor, both of 16 these pertain to Ronald Alepin and go to 17 fundamental questions about the scope of his 18 testimony. 19 The first of these memoranda was filed 20 on December 29, and I'll discuss that in a 21 moment. 22 The second, Your Honor, was served 23 last night and will be filed this morning, and 24 that second memorandum came to be, if I can put 25 it that way, as a result of demonstrative 6350 1 exhibits that the Plaintiffs provided to us in 2 the last 48 hours. Some I believe yesterday 3 and some the day before. 4 Demonstratives that they say they will 5 use on direct examination of Mr. Alepin. 6 And those demonstratives in particular 7 raise some very fundamental issues about what 8 Mr. Alepin will do and whether his testimony is 9 in direct conflict with prior orders of this 10 Court. 11 To take these though in order, Your 12 Honor, if I may, our memorandum filed last 13 week, again December 29, I believe it was the 14 very end of last week, pertains to Mr. Alepin's 15 qualifications to offer expert testimony on a 16 number of different subject areas. 17 And I'll try to make this brief, Your 18 Honor, but essentially, Mr. Alepin has 19 testified along the following lines. 20 First, he has not graduated from any 21 college. He has no college degree of any kind. 22 He's never taught a course, a college course 23 either. He's not published any papers in any 24 field. He is not an economist, and he's never 25 conducted any peer-reviewed study in any field. 6351 1 Beyond that, he has no experience 2 designing or developing operating systems for 3 personal computers. He has no experience 4 designing or developing applications, office 5 productivity applications such as those at 6 issue in this case. 7 He's never conducted any basic 8 research in the field of computer science, and 9 he has not constructed, and he has testified 10 that he's not qualified to construct, but-for 11 worlds, alternative worlds in antitrust cases 12 or in the context of an antitrust case. 13 And he certainly has no legal 14 qualifications that would permit him to offer 15 opinions about whether certain conduct is 16 anticompetitive. 17 Something that again, I think is a 18 legal conclusion and that -- but in any event, 19 Mr. Alepin has no qualifications in the field 20 of law or economics, certainly not in antitrust 21 economics. 22 He also apparently will be delving 23 into the question of Microsoft's compliance 24 with the final judgment in the government case. 25 And on that I'd like to say more just 6352 1 a little bit later. 2 So the memorandum filed last week, 3 Your Honor, makes the points that I've just 4 mentioned and explains the basis for which we 5 believe it is likely that Mr. Alepin will cover 6 the very subjects on direct examination that he 7 has conceded he does not have expertise in. 8 He neither has specialized scientific 9 knowledge nor the relevant experience to offer 10 opinions, for instance, about the design and 11 development of the kinds of software at issue 12 here. 13 We have cited to the Court the case of 14 Bornn, B-o-r-n-n, versus Madigan, 15 M-a-d-i-g-a-n. It's 414 N.W. 2d 646, Iowa 16 Court of Appeals 1987, where the Court of 17 Appeals affirmed a decision that a police 18 officer did not have expertise to testify about 19 accident reconstruction issues. 20 The police officer in question had 21 been on the force for 30 years, had 22 investigated in the prior ten years 100 23 accidents and in the prior 20 years before that 24 many more than that and was an expert in 25 accident investigation, but the Court found 6353 1 that he was not an expert in the related field 2 of accident reconstruction. 3 Mr. Alepin, for example, in his report 4 in this case devotes ten pages to what he calls 5 the alternative worlds, worlds that would have 6 existed, he says, in the absence of Microsoft's 7 alleged anticompetitive conduct. 8 But in his testimony in the federal 9 MDL case before this report was submitted, Mr. 10 Alepin testified that he is not qualified -- 11 that was the word -- to predict the existence 12 and describe but-for worlds in antitrust cases. 13 Nothing has changed between the date 14 of that deposition, and there's no assertion 15 that anything has changed with respect to his 16 opinions. 17 There is a great deal of material in 18 the demonstratives which we were recently 19 provided that seems to indicate that Mr. Alepin 20 will offer opinions about tying and bundling 21 and whether putting two products together in 22 one package, that is, so-called bundling is 23 anticompetitive. 24 He apparently will offer opinions that 25 certain bundling or tying -- excuse me -- 6354 1 eliminates competition or even violates the 2 antitrust laws. These are ultimate questions. 3 It's one thing to have an expert 4 testify on subjects within the scope of his 5 expertise. If Mr. Alepin has any expertise in 6 this case, it's in a very narrow area, and he 7 proposes to go well, well beyond that. 8 As another example, Your Honor, as the 9 Court knows from the opening statements and 10 otherwise, the Plaintiffs have made allegations 11 in this case that certain product 12 preannouncements constitute what they call 13 vaporware and that such conduct violates the 14 Iowa competition laws. 15 Well, it's one thing to talk about 16 preannouncements. Nobody has argued here that 17 product preannouncements are necessarily 18 unlawful, only that they're unlawful -- and 19 this is Plaintiffs' argument, I believe. 20 They're unlawful if the party making 21 the preannouncement does not have a good faith 22 basis for believing that the product can be 23 launched on the predicted date. 24 What Mr. Alepin does is to offer his 25 opinions about consumer behavior. He talks 6355 1 about product preannouncements, and then he 2 says I believe that these preannouncements 3 would have affected the market that consumers 4 would have reacted to a preannouncement in the 5 following way. 6 For example, consumers would not have 7 purchased a competing product because of a 8 Microsoft preannouncement. 9 Well, he's not an expert in consumer 10 psychology, he doesn't say he is, or consumer 11 behavior. He's not an expert in psychology at 12 all. He's not a sociologist. He has no 13 experience in the advertising business. And 14 this goes well, well beyond the scope of his 15 expertise. 16 It's one thing to talk about 17 preannouncements. It's another to offer this 18 ultimate opinion that consumers as a whole 19 would have responded to a preannouncement in a 20 particular way. 21 Ronald Alepin is certainly not 22 qualified to offer that opinion. 23 And then, Your Honor, getting to these 24 demonstratives that are the subject of the 25 second memorandum, and I must say that these 6356 1 subjects are closely related because 2 Mr. Alepin's lack of experience or training or 3 specialized knowledge in, for example, the 4 field of law or economics is an important fact 5 to keep in mind when thinking about the 6 demonstratives. 7 We received in the last couple of 8 days, I believe it's over 300 different 9 demonstrative exhibits or pages of 10 demonstrative exhibits from Plaintiffs' 11 counsel. 12 Many, many dozens of these, Your 13 Honor, are findings of fact that the Court has 14 given collateral estoppel effect to. 15 And let me just go through if I can, 16 as quickly as I can, and still make the points 17 that we need to make, let me go through why 18 what the demonstratives seem to show ought not 19 to come into evidence through this witness or 20 in some cases at all. 21 First, with respect to Mr. Alepin, 22 these many, many dozens of findings of fact, 23 and apparently Mr. Alepin's intention to 24 testify on direct examination about the meaning 25 and import and significance of the conclusions 6357 1 of law and findings of fact, all of that should 2 be off limits to him because none of it was 3 disclosed in his expert report. 4 Mr. Alepin did not say in his expert 5 report, which I believe is 165 pages, that he 6 would testify about the meaning or import or 7 significance of findings of fact. 8 He has no expertise in economics or 9 law. He doesn't claim to. 10 And clearly, we think that 11 collaterally estopped findings ought not to be 12 the subject of testimony in any event. 13 Your Honor, I'm sure you'll remember 14 that when it came time for the parties to file 15 motions in limine, the Plaintiffs filed a 16 motion seeking to exclude entirely the 17 testimony that we intended to offer of Dean 18 Richard Calkins -- that's C-a-l-k-i-n-s. And 19 in Dean Calkins' expert report, he had 20 indicated that he intended to provide the jury 21 with background and context about the 22 government case. 23 The Court granted Plaintiffs' motion 24 in limine thereby preventing us from calling 25 Dean Calkins, and in the Court's ruling, Your 6358 1 Honor stated, quote, any reference to the prior 2 United States government case is dealt with by 3 the collaterally estopped findings, unquote. 4 Well, besides the fact that Mr. Alepin 5 did not disclose in his expert report that he 6 would go through the findings and these 100 or 7 more findings that are demonstrative exhibits 8 now apparently show that he will, or that the 9 Plaintiffs hope he will, but besides that, 10 apparently what the Plaintiffs intend to do is 11 to use Mr. Alepin to bolster the findings. 12 And I just want to stop there for a 13 minute. 14 There are demonstratives that indicate 15 that Mr. Alepin is going to talk about a 16 particular finding of fact, apparently explain 17 it, perhaps read it to the jury, certainly show 18 it to the jury again, and then discuss the 19 evidence that underlies that finding of fact. 20 And Your Honor I'm sure will remember 21 your ruling on December 7, which I can refer 22 to, I think, as the antibolstering ruling, that 23 neither side should be permitted to offer the 24 same evidence from the government case to 25 bolster an existing finding. 6359 1 We go back to the principles of 2 collateral estoppel. The Plaintiffs sought 3 collateral estoppel. They obtained it on 146 4 findings. 5 By definition, we believe that means 6 that they cannot go back and use the same 7 evidence underlying those findings to bolster 8 or explain or embellish those findings with the 9 jury. 10 And Mr. Alepin actually does something 11 even worse than that with the findings. 12 According to the demonstratives, as 13 best we can tell, he will use a finding to 14 bolster an opinion he has about Microsoft 15 conduct outside the time frame of the 16 government case. 17 And just to provide an example, Your 18 Honor. There are a number of these. 19 Mr. Alepin talks about the conclusion 20 of law -- it's number four in the preliminary 21 instructions -- prohibiting OEMs from using the 22 active desktop feature of Windows. 23 And then there are a number of slides 24 in which Mr. Alepin wants to explain what that 25 means and how it works, and then go beyond the 6360 1 findings to use that conclusion -- I shouldn't 2 say findings. In this case it's a conclusion 3 of law -- to use that conclusion to bolster his 4 opinion about other Microsoft conduct. 5 Now, Your Honor, just by way of 6 example, it's one thing for a witness to say in 7 my expert opinion, assuming the witness is 8 qualified as an expert to offer this opinion, 9 in my expert opinion, here's what Microsoft did 10 in 2003, just to pick an example. 11 And I believe that that conduct had 12 the following consequences, again, assuming the 13 necessary expertise. 14 It's another thing to say the conduct 15 that took place in 2003 is the same kind of 16 conduct that in the government case the courts 17 found to be anticompetitive. 18 That's a legal conclusion that 19 Mr. Alepin certainly has no expertise to offer. 20 So what the demonstratives show is 21 that he will take a finding or a conclusion of 22 law, try to explain it, try to bolster it with 23 the underlying evidence, and then even worse, 24 go on and say there is other conduct outside 25 the government case that's of the same nature 6361 1 and is prohibited by the conclusions of law in 2 the government case. 3 Now, this gets, Your Honor, into the 4 question about the final judgment. 5 And, Your Honor, when I was either 6 delivering my opening statement, or perhaps it 7 was just before then, I think it was during the 8 midst of it, there was a question about the use 9 of the final judgment in evidence and whether I 10 could show portions of it to the jury. 11 And the Court at that time excluded, I 12 believe, the last eight or nine pages of the 13 final judgment. 14 These are pages which talk about the 15 enforcement mechanisms set up in the government 16 case. 17 And just by way of example, there's a 18 three-person technical committee that was 19 appointed. These are independent people; 20 they're not Microsoft people. And they are 21 people with expertise and a high reputation in 22 the software industry. 23 Those three people have a staff of 35 24 -- a staff of 35, and they are actually 25 stationed on Microsoft's campus, its 6362 1 headquarters in Redmond, Washington. 2 The Department of Justice, through the 3 technical committee and otherwise, has been 4 actively monitoring Microsoft's conduct to see 5 whether it complies with the final judgment 6 over the last four-plus years. 7 What Mr. Alepin apparently intends to 8 do is to, in effect, act as some super 9 technical committee or super Department of 10 Justice and to tell the jury that in his 11 opinion Microsoft's conduct after entry of the 12 final judgment does not comply with it. Or so 13 the demonstratives that we got in the last day 14 or two indicate. 15 And he even has some demonstratives 16 talking about Internet Explorer Version 7, 17 which was introduced, I believe, in October of 18 this past year, 2006; in other words, after the 19 close of the class period in this case, which 20 only runs through June 30, 2006. 21 And the demonstratives show that 22 Mr. Alepin will testify, or the Plaintiffs hope 23 he will testify about whether the release of 24 Internet Explorer 7 is in compliance with the 25 final judgment and accords with the Court's 6363 1 conclusions of law in the government case. 2 This is way, way beyond his expertise. 3 And, of course, if Mr. Alepin is going to 4 pretend that he, rather than the United States 5 government and the committee and the staff of 6 35, is the authority on Microsoft's compliance, 7 then, surely Microsoft must be able to examine 8 on cross Mr. Alepin about those last eight or 9 nine pages of the final judgment to show the 10 jury that it's not Mr. Alepin who was appointed 11 by the courts in Washington to monitor 12 compliance, but that there is this mechanism. 13 You know, it's one thing for 14 Mr. Alepin to say -- and he doesn't have the 15 expertise or training or background to say it 16 -- Microsoft hasn't complied. 17 I don't think he should be permitted 18 to say that. But if he is permitted, surely 19 Microsoft must be allowed to show the jury that 20 in the government case, the United States of 21 America Department of Justice set up this very 22 elaborate mechanism to try to ensure 23 compliance. 24 Mr. Alepin even proposes, according 25 again to the demonstratives, to violate this 6364 1 Court's ruling about innovation and lack of 2 choice. 3 There is demonstratives that we just 4 received earlier this week as we were all 5 filing back here from our respective holiday 6 period, demonstratives where Mr. Alepin 7 indicates that it is his opinion that 8 Microsoft's conduct regulates the pace of 9 innovation and inhibits technological 10 advancement. 11 He talks about less innovation, less 12 variety, less choice. 13 He talks about again inhibiting 14 technological advancement. 15 These are in slides that are Exhibit M 16 to the brief that we submitted. And I haven't 17 tried yet, Your Honor, to give you this large 18 book of exhibits. 19 And his slides go on to talk about the 20 ways in which Microsoft's conduct denies 21 consumers choice and leads to a world of less 22 innovation. 23 Now, this seems to be completely 24 contrary to the Court's clear ruling that a 25 loss of choice and a lack of innovation are 6365 1 claims that cannot be made in this action. 2 The Plaintiffs haven't tried to 3 challenge that ruling. They haven't asked for 4 reargument of it. I don't think they can get 5 through Mr. Alepin another bite at that apple. 6 And lastly, Your Honor, the Court also 7 ruled that settlements should not be put into 8 evidence. 9 There are demonstrative exhibits that 10 are time lines in which Mr. Alepin not only 11 refers to settlements that Microsoft has made 12 with competing companies, but, in fact, 13 demonstratives where he refers to lawsuits 14 being filed at a particular time. 15 So there's a demonstrative that says 16 that Sun, Sun Microsystems filed a lawsuit on a 17 particular day; that Be, the owner of the Be 18 operating system filed a lawsuit on a 19 particular day. 20 And yes, lawsuits are common in 21 America, and Microsoft has been sued by a 22 number of competitors, no question about that. 23 But this is another example of 24 Mr. Alepin's testimony apparently going in a 25 direction that is directly contrary to a Court 6366 1 ruling in this case, a ruling that evidence of 2 settlements ought not to come in. 3 Sorry for the length of this, Your 4 Honor, but there's an awful lot here pertaining 5 to Mr. Alepin that we think is just 6 fundamentally improper and ought not to be 7 permitted, and it seemed to me best that we 8 raise this in advance rather than interrupt the 9 examination in what would be essentially a 10 question-by-question basis and would probably 11 take the whole day with objections. 12 THE COURT: Was any of this brought 13 before the Special Master? 14 MR. TULCHIN: No, Your Honor. These 15 issues were not -- let me back up one second. 16 Demonstrative exhibits are not 17 disclosed by one side to another until, I 18 believe, 48 hours before -- 19 THE COURT: No, I meant the other 20 about the foundation for his opinion. 21 MR. TULCHIN: No, Your Honor. No. 22 There was no mechanism before the 23 Special Master to attack the testimony of 24 experts. The Special Master's job, if I can 25 recall correctly, was to deal with exhibits 6367 1 only, designated exhibits. 2 And with our motion that was filed on 3 December 29, this is directed to Mr. Alepin's 4 expertise and the apparent intention to put in 5 evidence that goes -- that pertains to subjects 6 that are beyond his expertise, that was not 7 something for the Special Master. 8 THE COURT: Thank you. 9 Response? 10 MR. WILLIAMS: Thank you, Your Honor. 11 I note that it's 8:30 on the first day 12 back from our holiday break, and I want to 13 address the last point that Mr. Tulchin 14 addressed. It really goes to the timeliness of 15 their motion. 16 Mr. Tulchin is correct that there was 17 no mechanism before the Special Master to raise 18 issues of expert qualifications to testify, but 19 this Court set up such a mechanism, and that 20 was the schedule on briefing and arguing 21 motions in limine, which both sides availed 22 themselves of, as is the practice in this 23 state, to try to get issues like this, issues 24 of qualifications of experts resolved before 25 trial so that we don't find ourselves in a 6368 1 situation that we're in right now at 8:35 with 2 the jury waiting in the room after being told 3 we want you to come back the first week of 4 January, we're going to start promptly at 8:30, 5 and here we are arguing something that should 6 have been raised back on September 15th, which 7 was the deadline for motions in limine. 8 Microsoft brought a motion challenging 9 one of our experts at that time, and we 10 responded in a timely fashion, and we argued it 11 as part of the three days of argument we had 12 before this Court back in October, as you'll 13 recall, and Your Honor ruled and ended up 14 denying that motion. 15 Plaintiffs brought some motions, 16 timely motions, challenging the qualifications 17 of some of their experts. We won some; we lost 18 some. But we all availed ourselves of that 19 process. 20 So I am absolutely bewildered by the 21 fact that a firm like Sullivan and Cromwell 22 with a high reputation, competent firm, why it 23 is they would wait until the last business day 24 of the year, December 29th at 4:30 p.m. during 25 the holiday break to raise issues which should 6369 1 have been raised three months earlier -- three 2 and a half months earlier. 3 Because, Your Honor, if you look at 4 the submission, the December 29th submission, 5 and you look at the exhibits to that 6 submission, you will find that all of those 7 exhibits were known to Microsoft and its 8 counsel far before -- long before the September 9 15th deadline. 10 I'll tell you what the exhibits are. 11 They're his expert report, Mr. 12 Alepin's expert report which was disclosed on 13 June 2nd of this year. 14 There's his curriculum vitae, which 15 was appended to that report. There's his 16 July 18, 2006 deposition, which they took. 17 There's a 2003 deposition from the MDL 18 proceeding of Mr. Alepin that Microsoft took. 19 And the other exhibit that they 20 attached for some reason is an excerpt of an 21 expert report of Professor Mackie-Mason from 22 June 2nd. 23 So there's absolutely no reason why we 24 should be hearing this and having the jury wait 25 in the anteroom to cool their heels so that 6370 1 Microsoft can get heard something that should 2 have been brought months ago. 3 So, Your Honor, what I propose we do, 4 and what we should do, is we have a jury here 5 that's ready to go; they're back from their 6 break. We have a witness here. We have now a 7 time of 8:35. 8 Let's get the jury in here, get them 9 seated, get the witness in the witness stand, 10 swear him in, and Mr. Lamb here, who is going 11 to be conducting the direct of Mr. Alepin, can 12 lay the foundation before the jury and before 13 Your Honor for Mr. Alepin's qualifications. 14 And, Your Honor, what you will find, 15 what you will hear, is that he has 35 years of 16 experience in the computer industry. He has 17 substantial experience developing software. 18 He has been a consultant for the 19 federal government in actions against 20 Microsoft, the state governments. 21 He's been a consultant and an expert 22 in the Economic Union on the proceedings over 23 there. 24 And you will hear in detail what his 25 expertise is. 6371 1 So I put that to Your Honor, and I ask 2 you how you want us to proceed. We can do it 3 that way, or I can go into a full-blown 4 argument and we might as well tell the jury to 5 go home because it's going take a while. 6 THE COURT: Why was this motion made 7 so late? 8 MR. TULCHIN: Well, Your Honor, there 9 are two motions, and nothing Mr. Williams says 10 applies to the second concerning the 11 demonstratives that we just received. 12 THE COURT: Let's talk about the first 13 then. 14 MR. TULCHIN: The first, Your Honor, 15 doesn't go to Mr. Alepin's qualifications in 16 toto. So it's not a question of trying to 17 exclude Mr. Alepin as a witness. It goes to 18 his qualifications to offer opinions on certain 19 subject matters that are outside the scope of 20 his expertise. 21 THE COURT: Did you know about these, 22 what he was going to offer? 23 MR. TULCHIN: Yes, we did, Your Honor. 24 THE COURT: Why did you wait till 25 December 29th? 6372 1 MR. TULCHIN: Well, Your Honor, 2 because we didn't believe that this was a 3 motion in limine which would otherwise -- 4 ordinarily a motion in limine goes to a 5 witness' qualifications in toto to testify. 6 THE COURT: Why would you file the 7 motion -- why not just wait till the witness 8 gets on the stand? 9 MR. TULCHIN: Well, we can, Your 10 Honor. 11 THE COURT: Either one or the other. 12 MR. TULCHIN: If we -- 13 THE COURT: If you knew about it back 14 in September, I don't know why you didn't file 15 the motion back then. 16 MR. TULCHIN: Again, Your Honor -- 17 THE COURT: You had the report. 18 MR. TULCHIN: We didn't believe that 19 this was an appropriate motion in limine. We 20 thought the way to do this was to go through 21 what we believed would be particular subject 22 areas that are outside the scope of his 23 expertise. 24 The demonstratives that we just 25 received this week, Your Honor, make it pretty 6373 1 clear unless there's -- unless they're not 2 going to use them, that Mr. Alepin indeed is 3 going to testify about the subject matters that 4 we think are beyond the scope of his expertise. 5 I would offer this as a suggestion, 6 Your Honor, because I must say -- I understand 7 Mr. Williams' concern about keeping the jury 8 waiting, and I don't want to keep the jury 9 waiting as a general proposition either. We 10 want to proceed and make progress. 11 Could we do this? If we're going to 12 commence now without any rulings on these 13 motions, could we do so with the understanding 14 that we are entitled to conduct a voir dire of 15 Mr. Alepin on his qualifications, which I 16 understand is permissible, in any event. 17 And, secondly, that the demonstrative 18 exhibits to which we object not be used or 19 shown to the jury until we've had a chance to 20 go through them with the Court? 21 MR. WILLIAMS: Your Honor, could I 22 respond to that? 23 First of all, they can ask Mr. Alepin 24 whatever questions they want that are properly 25 within the scope of his testimony. 6374 1 If they want to question his 2 qualifications, they're free to do that on 3 cross-examination. I don't see why we should 4 have to interrupt our direct to accommodate 5 them when they're three and a half months late 6 with a motion. That's the first point. 7 The second point has to do with a 8 demonstrative. They're untimely there, too, 9 Your Honor. 10 We had a procedure set up where 48 11 hours before a witness is to testify, the party 12 that's proffering the witness provides the 13 other side with the demonstratives that they 14 think they will use. We did that, and there's 15 no allegation that we were tardy at all. 16 24 hours later the other side is 17 supposed to provide their written objections. 18 They didn't do that one either, Your 19 Honor. They were late on that. And I have 20 here a stack of E-mails where we kept asking 21 them because they did indicate we have some 22 objections, but they wouldn't tell us what they 23 were. 24 And we kept asking them throughout the 25 day yesterday what are your objections? When 6375 1 are we going to see your objections? Oh, 2 they're coming. Oh, they're coming. 3 It wasn't until 10:30 last night that 4 we got a written document that summarizes what 5 their objections are. We still didn't get the 6 particularized one until I believe it was after 7 midnight, Your Honor. 8 So this is purely a problem of their 9 making. 10 And, again, we protest having to keep 11 the jury waiting, interrupt our direct to 12 accommodate them when they're the ones who 13 aren't timely, and I have yet to hear any 14 reason why. 15 THE COURT: Okay. Anything further on 16 this? 17 MR. TULCHIN: Just this, Your Honor. 18 I mean, ordinarily, one would be 19 entitled to conduct a voir dire on an expert's 20 qualifications in any event. So I'm not sure 21 why we wouldn't be permitted here. 22 And as far as the demonstratives, I 23 agree again with Mr. Williams that there is a 24 procedure. 25 We were all coming back from our 6376 1 holiday vacations, and that's the reason, along 2 with the fact that there are 300 pages of 3 demonstratives, that we were a little bit later 4 yesterday than we should have been. 5 MR. WILLIAMS: 14 and a half hours 6 later is not a little bit later. And I don't 7 want to quibble with Mr. Tulchin. 8 The fact of the matter is, we were all 9 coming back from the holidays. We met the 10 deadline. We complied with it. And we think 11 -- if they want to object to some 12 demonstratives, they should do it at the time, 13 and let's just -- let's get the testimony 14 going. We've been delaying this long enough in 15 our view. 16 THE COURT: Anything else? 17 MR. WILLIAMS: Not from Plaintiffs, 18 Your Honor. 19 MR. TULCHIN: No, sir. 20 THE COURT: Very well. 21 What we'll do is we'll start the 22 witness, and you can make your objections at 23 the appropriate time. 24 Demonstrative exhibits should be shown 25 first to counsel for Defendant. They can make 6377 1 their objection. The Court will rule on it at 2 that time before it's even shown to the jury. 3 And Iowa law does allow them to 4 conduct voir dire on the qualifications to make 5 any groundwork for a -- an objection based on 6 lack of expertise or foundation. So I'll let 7 them do that. 8 MR. TULCHIN: Thank you, Your Honor. 9 THE COURT: Anything else before we 10 start? 11 MR. TULCHIN: Just one piece of 12 information, Your Honor. 13 May it please the Court. Mr. Holley 14 will be examining Mr. Alepin. 15 THE COURT: Okay. 16 MS. CONLIN: Your Honor, this is Steve 17 Lamb, who will be examining Mr. Alepin. 18 MR. LAMB: Good morning, Your Honor. 19 One final thing, though, as a 20 practical matter there are a number of slides 21 that simply say, you know, this is who he is, 22 this is where he worked. They've all been 23 provided ahead of time. They haven't told us 24 which slides they object to. 25 THE COURT: That's too bad, isn't it? 6378 1 You got to show it to them first. That's the 2 practice in Iowa. 3 MR. LAMB: We have showed it to them 4 first, Your Honor. 5 THE COURT: They can object or not 6 object before you show it to the jury. Do you 7 have plates with them? 8 MR. LAMB: They have them. They've 9 all been provided. 10 THE COURT: Then we'll go through 11 them. 12 MR. TULCHIN: If we could -- 13 THE COURT: I don't know how else to 14 do it. 15 MR. LAMB: It's just going to be -- 16 serially it's going to be very difficult, Your 17 Honor, because of that. And it's going to 18 really break up the examination. 19 THE COURT: Mr. Lamb, you would agree 20 that opposing side has a right to make 21 objections, would you not? 22 MR. LAMB: Your Honor, I would, and I 23 would agree that we had a procedure to do so 24 and they haven't done so, and they've designed 25 this in order to break up this examination. 6379 1 And that's their purpose and that's what they 2 are accomplishing. And that's what I'm frankly 3 concerned about. 4 THE COURT: Have you gone through 5 the -- 6 MR. TULCHIN: Your Honor, if we could 7 know which, for example, Mr. Lamb intends to 8 use this morning. There are more than 300. 9 There's no indication of the order in which he 10 intends to use them. 11 THE COURT: Have you gone through them 12 all? 13 MR. HOLLEY: Yes, Your Honor, we have. 14 THE COURT: Do you know which ones 15 you're going to object to? 16 MR. HOLLEY: Yes. We intend to object 17 to every single one that purports to quote some 18 portion of a finding of fact. 19 We intend to object to every single 20 time line that refers to lawsuits filed against 21 Microsoft or settlements entered into by 22 Microsoft. 23 We intend to object to every single 24 one in which he purports to explain or 25 embellish a finding of fact or conclusion of 6380 1 law. 2 We do not object to the opening slides 3 where he touts his credentials. So if that's 4 Mr. Lamb's question, we do not object to those. 5 MR. LAMB: Your Honor, if I may, for 6 ease of the procedure, perhaps we could proceed 7 because I can represent to the Court that the 8 issues regarding the conclusions of law, those 9 won't happen until the second day, okay. So 10 that's not going to happen today. 11 As to a time line, we'll be happy to 12 review the time line before we put it up. 13 And as to any finding of fact -- what 14 we did was we provided them all the findings of 15 fact that were gone over in opening. We have 16 absolutely no intention of going over every 17 finding of fact. There's only a handful. So 18 we'll stop before we do any finding of fact, 19 and we'll designate the finding of fact. Is 20 that acceptable? 21 THE COURT: That's good. Anything 22 else? 23 MR. HOLLEY: No, Your Honor, just -- 24 THE COURT: You'll provide them a 25 written document stating exactly which 6381 1 objections you have to each of the 300? 2 MR. HOLLEY: Yes, we will do that. 3 I think they know that from the paper 4 that we filed this morning, but if there's any 5 doubt, we will go through them one by one, yes, 6 Your Honor. 7 MR. WILLIAMS: There is doubt, Your 8 Honor, and we would like that, just for the 9 record. 10 THE COURT: They'll do it then. 11 Also the examination is to be done 12 from that table there. You can I guess turn 13 that -- do you know how to -- 14 MS. CONLIN: Your Honor, can we just 15 stay in that chair? Can Mr. Lamb -- there's no 16 reason for us to move. 17 THE COURT: That's fine. That's 18 close. 19 MS. CONLIN: We really don't feel like 20 we need that. 21 THE COURT: Mr. Holley is allowed to 22 move closer to the jury for cross. 23 MR. HOLLEY: Thank you, Your Honor. 24 MS. CONLIN: But we don't feel like we 25 need that extra thing. 6382 1 THE COURT: Mr. Holley will probably 2 need it. 3 MR. LAMB: If we could have ten 4 minutes to set up because we also have a white 5 board that we want to put up, Your Honor. 6 THE COURT: Sure. Go ahead. 7 MR. WILLIAMS: Thank you, Your Honor. 8 (The following record was made in the 9 presence of the jury at 8:55 a.m.) 10 THE COURT: Good morning, Ladies and 11 Gentlemen of the jury. 12 Please excuse the delay. Had a legal 13 matter to take care of. Again, blame me, don't 14 blame anything. 15 I gave you a handout, or Carrie did, 16 of three instructions. Those instructions were 17 orally read to you. I put them in printed form 18 to put in your book. So at your convenience 19 you can put them at the spot they belong. That 20 would be great. 21 So everyone got pens and paper and all 22 that? 23 Plaintiffs may proceed. 24 MR. LAMB: Good morning, Your Honor. 25 If I may, I'd like to introduce myself to the 6383 1 jury since I haven't met them before if that's 2 okay. 3 THE COURT: You may. 4 MR. LAMB: Good morning, Ladies and 5 Gentlemen. 6 My name is Steve Lamb, and I have the 7 honor of representing the Plaintiffs in this 8 case, and I'll be calling the first witness, 9 Ronald Alepin. 10 THE COURT: Approach and be sworn. 11 RONALD ALEPIN, 12 called as a witness, having been first duly 13 sworn, testified as follows: 14 THE COURT: Please have a seat, and 15 you can adjust the microphone so we can hear 16 you. 17 Very good. Good ahead. 18 MR. LAMB: Thank, you Your Honor. 19 DIRECT EXAMINATION 20 BY MR. LAMB: 21 Q. Good morning, Mr. Alepin. 22 A. Good morning. 23 Q. It's going to be a little tight in 24 there, so bear with us, okay? 25 First, as we get started this morning, 6384 1 we're going to go through a series regarding 2 your background and your qualifications so the 3 jury understands who you are. 4 First of all, what is your occupation, 5 sir? What do you do? 6 A. I'm a computer industry consultant. 7 Q. And how long have you been a computer 8 industry consultant, sir? 9 A. Since 1981. That would be about 26 10 years. Going on 26 years. 11 Q. And during those 26 years, have you 12 had an occasion where you formed your own 13 company? 14 A. I did, yes. 15 Q. And can you tell the jury briefly the 16 name of that company and essentially what it 17 does? 18 A. It's the Los Altos Systems Research, 19 and it provides consulting services to computer 20 industry firms. 21 Q. Can you for the jury, please, identify 22 some of the clients you've done work for, sir? 23 A. I've done work for companies like 24 Intel, IBM, Oracle, Fujitsu, Toshiba, 25 RealNetworks, Sun Microsystems, Yahoo, and 6385 1 several dozens more. 2 Q. And you understand that you've been 3 retained to testify as an expert; correct? 4 A. Yes. 5 Q. And during the course of your 6 examination here today, you've gone through and 7 you've prepared some slides, some PowerPoint 8 presentations that will assist you in your 9 testimony; right? 10 A. I have. 11 Q. And we're going to go through those 12 from time to time. 13 Also, just so the jury knows, you have 14 a little clicker yourself so you can go back 15 and forth if you need to, if you need to 16 amplify or explain something that you feel is 17 necessary; okay? 18 A. That's the clicker right there. I 19 apologize, I left it at the table. 20 Q. Okay. 21 MR. LAMB: May I approach, Your Honor? 22 THE COURT: You may. 23 Q. We have the technology and 24 occasionally we use it properly. 25 Now we're armed with the clicker. 6386 1 MR. LAMB: Could I have the next 2 slide, please? 3 Q. And when did you start with Los Altos 4 Systems Research? 5 A. 1981. 6 Q. Where is it located, sir? 7 A. It's in what's call Silicon Valley. 8 That's just in the San Francisco Bay area. 9 Q. In your mind, is there any 10 significance to the Silicon Valley in relation 11 to the computer industry? 12 A. Well, it's the epicenter of high tech 13 and computer technology. 14 Q. And can you identify for the jury some 15 of the hardware companies that you've done some 16 work for? 17 A. As a consultant? 18 Q. Yes. 19 A. I've done work for Toshiba and Sun 20 Microsystems and Amdahl and Fujitsu, among 21 others. 22 Q. How about software companies, what 23 software companies have you been retained on 24 behalf of? 25 A. I've done work for -- Fujitsu also is 6387 1 a software company. So I've done work for 2 Fujitsu, for Yahoo, for Oracle, for Caere, 3 among others. 4 MR. LAMB: Could I have the next 5 slide, please? 6 Q. I understand you've also been a 7 technical advisor to Morrison & Foerster; is 8 that correct? 9 A. Yes, I still am. 10 Q. Can you explain to the jury what that 11 work entails as a technical adviser to Morrison 12 & Foerster? 13 A. It's a rather unique position. 14 Certainly it was a unique position when it was 15 created. 16 I'm essentially available to the 17 clients of Morrison & Foerster to help get an 18 understanding or help develop an understanding 19 about the technologies and the businesses and 20 the opportunities or transactions that they 21 would like to work through with the law firm. 22 Q. And during the course of that work, 23 are you called upon from time to time in your 24 work for Morrison & Foerster, do you have 25 occasions where you either accept or decline 6388 1 engagements? 2 A. Yes. 3 Q. Can you explain to the jury why that 4 happens? 5 A. Why I accept -- well, if I don't 6 believe that I can contribute to the 7 understanding or to the purposes that the 8 engagement seeks to achieve, I won't take that 9 matter. 10 Q. And have you ever been called upon in 11 relation to your work with Morrison & Foerster 12 to provide opinions relating to whether or not 13 claims are viable? 14 A. Absolutely, yes. 15 Q. And does that at times often conflict 16 with or go contrary to what it is the company 17 or client that you've been retained to wants to 18 pursue? 19 A. Yes, indeed that's quite often the 20 case. 21 Q. And in those circumstances, what do 22 you do, sir? 23 A. Well, sometimes I'm called upon to 24 assess independently the technology or the 25 claims, or what have you, and to provide an 6389 1 outside opinion without a vested interest in 2 the outcome. 3 So oftentimes it's like saying the 4 emperor has no clothes or in this dog won't 5 hunt, or whatever the prevailing expression is 6 for it. 7 But that's -- sometimes I have to 8 break bad news to the executives about what 9 they thought was a good business investment or 10 a good position in a potential litigation or 11 something like that. 12 Q. And you also mentioned that you've 13 done work for Fujitsu; correct? 14 A. I have, yes. 15 Q. And you've also been employed by 16 Fujitsu; correct? 17 A. Well, I was -- as an independent 18 consultant, I was employed by Fujitsu, but not 19 as an employee. 20 Q. Okay. Through your company then? 21 A. That's correct. 22 Q. And what position did you hold at 23 Fujitsu? 24 A. I held a variety of positions over the 25 course of my engagement, beginning as the chief 6390 1 technology consultant to Fujitsu, and 2 ultimately ending up as the vice president of 3 strategic planning and the chief technology 4 officer for Fujitsu software corporation. 5 Q. What does the chief technology officer 6 do? What is that position? 7 A. Well, that's a position -- I think 8 it's emerged over the past ten or 15 years in 9 high-tech companies particularly, and the basic 10 idea is that you have someone with experience, 11 and perhaps some insight, and the goal is to 12 think about the future, think big thoughts, and 13 see how technology is emerging and how that 14 technology can be exploited as business 15 opportunities. 16 So translating technological evolution 17 into business opportunities that the company 18 can or cannot pursue. 19 Q. Okay. And during the course of that 20 work, have you -- did you have an opportunity 21 to actually review computer code? 22 A. Yes, I do that as a regular matter. 23 Q. Okay. And when you do that, can you 24 explain to the jury what that means? When you 25 say you're reviewing a computer code, what do 6391 1 you do physically? 2 A. Well, for people who are practitioners 3 of software developers, reading code is like 4 reading a book or reading -- 5 Q. For you maybe. 6 A. Yes. 7 There's not a lot of character 8 developing and not a big plot in there, but 9 it's a very -- it might be like an architect 10 reading a blueprint. But this is more 11 detailed, and there are more steps to it. But 12 -- and when I say more steps, some programs can 13 have millions of steps in them, and so the 14 review is a lengthy process. 15 It's an involved process, but it's 16 like reading a book. 17 Q. And you believe you're qualified to do 18 that? 19 A. Yes, very much so. 20 Q. Okay. 21 MR. LAMB: Could I have the next 22 slide, please? 23 Q. I also understand that you generally 24 have four separate practice areas. Can you 25 just as an overview explain to the jury what 6392 1 those are? 2 A. Excuse me. This is kind of an ex-post 3 review. 4 I'm looking back and saying well, 5 these are actually the way my business has 6 turned out. 7 Generally the four roles are, one is 8 an industry participant where I'm actually 9 perhaps running a business or assisting a 10 business in actually executing a business plan 11 or software development. 12 Second one is where I'm involved in 13 transactions. I'm called in because somebody 14 wants to evaluate a technology or negotiate a 15 contract or a deal, a licensing deal to get 16 some technology. 17 The third role is in public policy 18 where I've been engaged to advise and explain 19 technology and how or what policymakers and 20 government agencies should do vis-a-vis the 21 technology or the emerging trends in the 22 computer industry. 23 And the last one is like today, where 24 there's some litigation or dispute. 25 MR. LAMB: Could I have the next 6393 1 slide, please? 2 Q. Now, as an industry participant, give 3 us a little bit more detail about what you've 4 done as an industry participant. Have you 5 worked both in hardware and software? 6 A. Yes, I have. 7 Q. And I understand you've worked as an 8 executive; correct? 9 A. That's correct, yes. 10 Q. You mentioned some companies. I think 11 Fujitsu, Caere, and Amdahl; right? 12 A. Yes. 13 Q. Tell the jury what it was that you 14 did, other than what you've already testified 15 to, regarding Fujitsu in relation to being an 16 industry participant. 17 A. Well, I was -- I think before I was 18 the vice president of strategic planning, I was 19 the general manager of Fujitsu's -- Fujitsu 20 software's enterprise, software division. 21 I had responsibility for the 22 development, the testing, the planning, the 23 sales, the marketing, basically everything to 24 do with Fujitsu's line of enterprise software. 25 Q. Okay. What does Fujitsu do as a 6394 1 company? Generally give us a broad brush of 2 that. 3 A. Well, I think Fujitsu is perhaps the 4 third or fourth largest computer company in the 5 world. 6 They make computers from 7 supercomputers. I think their supercomputer 8 today is the fastest, but that could change on 9 a daily basis every day. 10 They make mainframe computers. They 11 make portable computers, laptops and tablets 12 that you can see sometimes in hospitals. They 13 make server computers. They make operating 14 system software, middleware, applications 15 software. 16 They're the largest service provider 17 providing consulting services and development 18 services for their customers in Japan and 19 Europe and in the United States. They're a 20 global IT company. 21 Q. Okay. When you say IT, what does that 22 mean? 23 A. Information technology. 24 Q. Okay. You also mentioned a couple 25 terms, and we're going to go into some more 6395 1 detail in a bit and actually go through and 2 have you explain to the jury some of the terms 3 that you're going to use, but you referred to 4 enterprise software. Can you tell the jury 5 what that means, enterprise software? 6 A. Enterprise software is software that's 7 used by businesses, not small businesses, but 8 businesses that have hundreds and hundreds of 9 employees. 10 Q. What does it do? 11 A. Well, it basically helps large 12 companies do the kinds of things that large 13 companies need to do involving large capacity, 14 high volumes, rapid response time. 15 So, for example, you can think of an 16 airline company reservation system as being an 17 enterprise software application, and the 18 database that stores all of the records is an 19 enterprise software -- is a piece of enterprise 20 software as well. 21 Q. And you also mentioned middleware. 22 What's middleware? 23 A. Middleware is a layer of software that 24 gets its name because it sets in the middle 25 between operating system software and 6396 1 applications software. 2 Q. You also mentioned that Fujitsu has an 3 operating system; correct? 4 A. Fujitsu has several operating systems, 5 yes. 6 Q. And again just in general terms, we'll 7 get into more detail later, but what's an 8 operating system for the jury? 9 A. An operating system is a software 10 program that allocates and manages the 11 resources in the computer. 12 By resources, I mean the memory, the 13 disk drive, the keyboard, the mouse. 14 And allows application programs that 15 the user is using to get access to the CPU, to 16 the central processing unit, to execute and to 17 interact with the user. 18 Q. And during the course of time that you 19 worked with Fujitsu, did you review the 20 operating code? 21 A. I did, yes. 22 Q. Okay. And did you also review the 23 middleware? 24 A. In addition to authoring it, I did 25 review it, yes. 6397 1 Q. When you say in addition to authoring 2 it, what does that mean? Tell the jury what 3 that means, authoring it. 4 A. Well, we -- sometimes you can take 5 analogies too far, but as I mentioned before, 6 software is like a book, and we sometimes refer 7 to writing code as authoring software. 8 Q. So you participated in the writing of 9 that code? 10 A. Yes. 11 Q. Now, in relation to Caere, can you 12 describe to the jury what type of company Caere 13 is or was? 14 A. Caere was a -- it's changed names now, 15 but Caere was a company that was founded by Bob 16 Noyce, who was one of the founders of Intel 17 Corporation in the mid-1980s, and it developed 18 hardware and software that did optical 19 character recognition. 20 Q. What does that mean, optical character 21 recognition? 22 A. If you've looked at the bottom of your 23 check, for example, you can see that there's a 24 funny kind of encoding. The digits are printed 25 in a very specific way on the bottom of the 6398 1 check, and that's called optical character 2 recognition font. And what that enables banks 3 to do is they can read your check 4 automatically. 5 Back in the old days, we didn't have 6 very sophisticated handwriting recognition 7 software, so -- or even recognition software 8 that worked with different fonts and different 9 typesetting, so the -- there was a need to use 10 a specific font on information or business 11 records that you wanted to be able to process 12 without error electronically. 13 Q. And what did you do for Caere? 14 A. I did a number of things, one of which 15 was to create software that managed a network 16 of UPC scanning devices. 17 UPC is bar codes, and that's -- if you 18 look at that laser light at the checkout, I 19 developed software that allowed a network of 20 these scanners to be operated from a single 21 computer. 22 I also worked on software that -- 23 passports, you have now two lines of 24 information written on the bottom, encoded on 25 the bottom of the photograph page of your 6399 1 passport. That was something that the passport 2 office back in 1986, I think, mandated. So 3 they said we're going to start switching to 4 those kinds of passports. And that required a 5 breakthrough in technology. It seems pretty 6 simple now. 7 But to be able to read two lines of 8 information in a single swipe, even though the 9 passport officer might have tilted the passport 10 as it was being read through the scanner. 11 And I worked on helping to get that to 12 work. 13 I also helped the company establish a 14 skunk works project that ultimately led to 15 their development of true optical character 16 recognition for any kind of font. 17 Q. What's a skunk works project, sir? 18 A. Skunk works project is a project that 19 a company will launch outside of the normal 20 chain of command in a company. 21 So what you do is you -- you don't 22 want to distract perhaps your current 23 engineers, or you're not certain that they 24 possess the correct skill set because you're 25 trying to take the company in a new direction, 6400 1 so you go off and you set up a parallel or 2 autonomous organization somewhere, and you tell 3 them we want you to do this and don't worry 4 about filling in the normal time records and 5 don't worry about filling in the normal daily 6 reports and stuff like that. Just focus on 7 doing this one thing for us. 8 Q. How about Amdahl, what did you do at 9 Amdahl, sir? 10 A. Well, I was -- I came to Silicon 11 Valley in 1976 to work for Amdahl Corporation. 12 They were a manufacturer of mainframe 13 computers that were IBM compatible. 14 I came to start or to be a part of 15 their software development organization. 16 And I then progressed -- I was an 17 employee at that time. I progressed to be the 18 manager of the benchmarking and performance 19 analysis center. 20 And ultimately my last job at Amdahl 21 before I left to start my own company was as 22 the head of product marketing for Amdahl's next 23 generation of mainframe computers. So I did a 24 number of different things. 25 Q. And Amdahl is a hardware company? 6401 1 A. Amdahl is a hardware, software and -- 2 or was a hardware, software, and services 3 company. 4 Q. What type of hardware did they engage 5 in? 6 A. They made multimillion dollar, very 7 big mainframe computers. 8 Q. So they didn't make any of the 9 personal computers? 10 A. No. 11 Q. And in relation to software, what 12 types of software did Amdahl do? 13 A. They made -- developed operating 14 systems software and systems software that 15 worked with the mainframe computers. 16 Q. And were you involved in that software 17 development? 18 A. I was, yes. 19 Q. In what way? 20 A. I developed three of their software 21 products. 22 Q. What were those? 23 A. Well, they're kind of complicated. 24 They're very deep down inside the bowels of the 25 operating system. 6402 1 But the first of which was a 2 hyperviser, something that would enable a 3 mainframe computer to run more than one 4 operating system at a time and to do it very 5 efficiently. 6 Q. And that's called a hyperviser? 7 A. Well, today it's called VM, virtual 8 machines, because each machine thinks that it's 9 in control of the computer, but it's not 10 really. 11 Q. What other products did you develop? 12 A. I made a piece of software that 13 enabled multiple mainframe computers to share 14 data with integrity. 15 By that I mean you could make sure 16 that no application would write or overwrite 17 data that another application on a different 18 computer was using. 19 Q. You also have Boole & Babbage listed. 20 What did you do for Boole & Babbage? 21 A. For Boole & Babbage I developed a 22 system utility kinds of software for them. 23 Q. What does that mean, system utility 24 software? 25 A. Well, for mainframe computers in 6403 1 particular, and especially in those days, every 2 second counted, mattered to the owner of the 3 computer because they were spending millions of 4 dollars on the computer and millions of dollars 5 in salaries, and people who would mount tapes 6 on the computer and change disk drives on the 7 computer. It was a very big operation. Raised 8 floor, water cooling. So every second counted. 9 And that meant that there were 10 companies that could provide or could sell 11 products that optimized or improved their 12 ability to use the computer. 13 One of those was a piece of software 14 that I wrote that saved a fraction of a second 15 when by rearranging the data files on a disk so 16 that the arm, like that turntable arm, didn't 17 have to move from one end of the disk to the 18 other. So it optimized the position of the 19 files so that they'd be underneath the heads. 20 That saved fractions of a second every 21 minute or so. And, you know, fractions of a 22 second every now and then can add up to minutes 23 over time, and companies were willing to spend 24 money for that. 25 Q. So fractions of a second are important 6404 1 in your industry? 2 A. Fractions of a second were very 3 important, yeah. 4 Q. I want to move to the next slide and 5 talk about the second practice area, 6 transactions. 7 A. Uh-huh. 8 Q. Why don't you describe for the jury 9 what that means, what that practice area 10 entails as you're involved. 11 A. Well, it's not hard and fast, but 12 generally the kinds of engagements involve due 13 diligence, which is -- means that I'm called in 14 to make sure that things are from a technical 15 sense or from a business sense as they're 16 represented to be. 17 So if I'm representing one side who's 18 -- who wants to buy a company or a piece of 19 technology, I'm called in to go in and poke 20 around and make sure that the technology can do 21 what they say it does and that the customers 22 are happy. 23 Q. And when you do that, when you review 24 that technology, have you from time to time 25 reviewed source code and operating code? 6405 1 A. I have, yes. 2 Q. What's the next major or subcategory, 3 that licensing negotiations, what does that 4 involve? 5 A. Well, some engagements involve my 6 helping a company, particularly a large 7 company, negotiate contracts and where they can 8 license a particular technology and use it in 9 their software or in their systems or another 10 kind of licensing negotiations where we 11 negotiate a patent cross license, where the -- 12 in our business, it's quite common that we 13 negotiate cross licenses, that you can use my 14 patents and I can use your patents, and so you 15 have to come to terms on that and value. How 16 important are your patents; how important are 17 my patents? And we come to some sort of deal 18 on that. 19 Q. Okay. On the slide, you list a couple 20 of references to Fujitsu. What did you do for 21 Fujitsu in relation to transaction work? 22 A. Well, I've got done a number of 23 things, but sort of on the vein of patent cross 24 licenses, I negotiated or helped to negotiate 25 the patent cross license between Fujitsu and 6406 1 Intel. Both companies are semiconductor 2 manufacturers. 3 I mentioned Fujitsu was a computer or 4 an IT participant, but they're also a large 5 manufacturer of semiconductor devices, CPU 6 chips, and other stuff. 7 So I helped to negotiate patent cross 8 licenses between those two firms. 9 Q. How about for Toshiba? 10 A. For Toshiba, I've had a number of 11 engagements, one of which was to determine the 12 extent to which certain kinds of problems were, 13 in fact, real problems with hardware suppliers. 14 Q. What type of company is Toshiba? What 15 do they do? 16 A. Toshiba -- we don't hear much the term 17 used these days, but it's a conglomerate. It's 18 a company that makes -- if you plug it in and 19 it uses electricity, Toshiba probably makes it. 20 They make television sets and DVD 21 players and laptop computers and disk drives. 22 They make the disk drive, I think, that's in 23 the iPod. They make just about everything that 24 you can plug in. 25 Q. Okay. And then you also have Oracle. 6407 1 What did you do for Oracle in relation to 2 transaction work? 3 A. I've in the past assessed or done due 4 diligence on -- excuse me -- an Oracle 5 acquisition of a software company to determine 6 whether the software in question did what it 7 was represented to do by the sellers. 8 Q. What type of company is Oracle? 9 A. Oracle is the -- I'm going to say it's 10 the second largest computer software company in 11 the world, but it may be the third. I'm not 12 sure. 13 Q. What types of software does Oracle 14 deal with? 15 A. Oracle sells -- develops and sells two 16 different kinds of software. One is enterprise 17 applications. Those are the kinds of things 18 that larger companies use to manage payroll, 19 human resources, their accounts payable, 20 accounts receivable. So there's that kind of 21 enterprise application software. 22 And they make a second kind of 23 software which is middleware and including the 24 -- I think they're the largest supplier of 25 database software for industry. 6408 1 Q. And you also did some work for Yahoo 2 in transactional areas? 3 A. I did, yes. 4 Q. Can you tell the jury what that was? 5 A. Yahoo -- I think it's the most visited 6 website in North America. 7 And they have a number of services 8 that they provide, including Yahoo groups and 9 chats and telephone, and all kinds of other 10 stuff. Some of that they develop in-house. 11 Some of that they've acquired. 12 And I've worked in -- with Yahoo in 13 some of its acquisitions of software that fills 14 in the portfolio of services that Yahoo 15 provides to its users. 16 MR. LAMB: Can I have the next slide, 17 please? 18 Q. In relation to public policy, describe 19 what you've done for the jury in relation to 20 that practice area of public policy. 21 A. I've advised government policymakers, 22 essentially the -- on how or what steps should 23 be taken to make -- to interact with the 24 information technology industry. 25 So this could involve, for example, 6409 1 establishing the correct level of protection, 2 intellectual property protection for software 3 or how the government -- the U.S. government, 4 federal government should establish procurement 5 policies for acquiring information technology. 6 Q. And you listed a couple examples 7 there. Why don't you explain to us, when you 8 say the 1984 IBM undertaking, what does that 9 mean? 10 A. In the late 1970s, the European 11 community, France and England, Italy, Germany, 12 and several other companies began an 13 investigation into IBM -- certain IBM practices 14 in the mainframe computer industry. Mainframe 15 computers were the dominant kind of computer 16 paradigm at the time. 17 And this -- the result of this 18 investigation in which I participated both to 19 advise the commission on the nature of the 20 industry culminated in an agreement that IBM 21 undertook in 1984 to change certain of its 22 business practices and that's -- 23 Q. What was your role in relation to the 24 IBM undertaking? 25 A. Well, I participated in advising the 6410 1 commission on the nature of the industry and 2 who the players were and how the business 3 worked and how consumers -- consumers being big 4 businesses who were spending millions of 5 dollars -- were affected. 6 And so I had that kind of role at the 7 beginning, and then afterwards I was advising 8 them on the -- on how it was working, how the 9 undertaking actually worked in practice. 10 So the undertaking went on for more 11 than a decade, I believe. 12 And so periodically, there would be 13 these kind of well-baby checkup events where 14 the commission would say, well, how are things 15 working? Is it doing the job? Is everybody 16 happy with this? 17 Q. And what would you physically do in 18 response to that question, how is it working? 19 A. Excuse me. 20 Well, I would take a look at the 21 information, talk with the development teams 22 who were using the information and make a 23 determination about what the disclosures were, 24 whether they were adequate. 25 So whether there was enough -- IBM was 6411 1 asked to -- or agreed to disclose information 2 specifications about its computer equipment, 3 and I was asked to review it for adequacy. I 4 was asked to review it for completeness and for 5 price; how IBM could charge for certain of this 6 information. So I was asked to determine how 7 much it should cost. 8 Q. From a technological perspective, is 9 it important in the industry, in the computer 10 industry that there is this disclosure 11 information? 12 THE COURT: Hang on one second. I 13 didn't know if he had water or not. 14 MS. CONLIN: He brought his own. 15 THE WITNESS: Thank you. 16 MR. HOLLEY: Your Honor, I object to 17 that question. 18 I thought we were in the process of 19 establishing the witness' credentials and that 20 we're now going into substantive areas, and I 21 would ask Mr. Lamb focus in the first instance 22 on qualifications. 23 THE COURT: Please rephrase the 24 question. 25 Q. The question was, in the industry, is 6412 1 the disclosure of the type of information that 2 you're talking about that IBM disclosed 3 important from a technological perspective in 4 your -- 5 MR. HOLLEY: Your Honor, same 6 objection. 7 THE COURT: Overruled. You may 8 answer. 9 A. The -- 10 Q. Do I need to repeat it again? 11 A. Let us be safe. 12 Q. Okay. From a technological 13 perspective in relation to your testimony that 14 you just gave about IBM's disclosures, is it 15 important that those disclosures take part in 16 the industry? 17 A. Absolutely. It's essential that 18 disclosures of technical specifications take 19 place, yes. 20 Q. Can you just briefly explain why 21 that's important to the jury? 22 A. Well, the technical specifications of 23 a product -- a software product or a hardware 24 product involve the ways in which you can 25 attach other pieces of technology to those 6413 1 products. 2 And without the rules or the 3 specifications for attachment, you can't get 4 them to work, or if you can get them to work, 5 you can't get them to work well together. 6 So in our business, specifications are 7 the life -- the air supply for interconnection 8 and interoperation. 9 Q. Okay. Briefly, the 1989 European 10 union, quote, software directive, end quote, 11 what was that? 12 A. The -- I mentioned the European 13 community, the member states having each 14 different laws and the laws governing in 15 particular information technology and software. 16 So what were the copyright laws for 17 software was different in France from Germany 18 and England, and the European community had 19 sort of set as a goal to harmonize the laws 20 among the member states that affected commerce, 21 and software development is part of commerce, 22 so they were concerned about having a 23 consistent set of laws in the community. 24 My role was to help the commission 25 determine the appropriate level of protection 6414 1 for software should it be something other than 2 copyright, which was a real question, or should 3 it be copyright but with certain exceptions. 4 And that's what I did. 5 Q. Okay. And then the 1995 IBM consent 6 decree sunset, explain generally what that was 7 to the jury. 8 A. Excuse me. In 1956 -- that's a long 9 time ago -- IBM entered into a settlement 10 agreement with the Department of Justice, and 11 since that time, I believe almost all -- all 12 settlement agreements with the Department of 13 Justice for antitrust -- this is not -- I'm not 14 an authority here on that particular aspect, 15 but they began -- they had a provision that 16 said they'll expire. So ten years from the 17 date that we sign the settlement agreement, 18 they fall away. 19 The 1956 consent decree didn't have a 20 sunset provision, didn't have a provision that 21 would cause it to end. 22 IBM came to the department in '95, I 23 think, and said, you know, we'd like to end 24 this, and so the department asked me to 25 determine what -- whether it still mattered and 6415 1 what the policy goals were from 1956 and how we 2 could transition to the end of that particular 3 decree. 4 So I have to look at the industry and 5 look at the provisions and go into the archives 6 and understand what was -- what everybody was 7 thinking then and now. 8 Q. Let's turn to the next slide, the last 9 practice area, litigation. 10 Take a moment and just describe the 11 general areas in which you're involved in that 12 particular practice area, sir. 13 A. Well, I get involved in three 14 different areas in litigation, and it's 15 probably not a precise category, but most of 16 the time I work in alternative dispute 17 resolution, which is kind of like mediation, 18 where my job is to go in there and try and talk 19 with the experts on the other side and the 20 people who were making the decisions and see if 21 we can get some kind of understanding about 22 what the technical issues are and why they're 23 important and why they matter and how we might 24 reach an agreement outside of a litigation 25 context. 6416 1 As a consultant to counsel, I -- I'm 2 available to assist in these engagements to 3 help counsel understand the technology in a 4 litigation and to review documents and help 5 them and the lawyers get up to speed on this 6 independent from the in-house folks. 7 So it's a separate set of eyes that is 8 looking at that, and I can help there. 9 And, finally, when it gets down to 10 litigation as today, an expert witness. 11 Q. Okay. You've listed some examples, 12 just briefly for the jury these four cases. 13 Fujitsu versus IBM arbitration, what areas were 14 you engaged in in that particular case? 15 A. Well, in 1983 Fujitsu and IBM entered 16 into a contractual agreement which had a clause 17 that said if we disagree at some point in the 18 future, we're going to go to arbitration. 19 IBM and Fujitsu were the -- were two 20 very large IT companies, and the dispute 21 involved billions of dollars, involved the 22 licensing of technology and copyright and all 23 kinds of related problems. 24 Basically, my engagement began as the 25 technical consultant to the firm Morrison & 6417 1 Foerster and to the Fujitsu, and I had to 2 explain the industry, and then I had to conduct 3 probably the world's largest analysis of 4 operating system software that's ever been done 5 involving more than 20 million lines of code. 6 And at one point I had a team of 30 7 engineers reporting to me. We developed tools 8 for the analysis, mechanical analysis of 9 software. 10 An entire system was developed to 11 compare the source codes of several operating 12 systems and dozens of products that were system 13 software, including language software and other 14 middleware. 15 And then I had to present or -- 16 complete the analysis and present the reports 17 to the arbitration panel. 18 The result was an agreement. The 19 parties entered into an agreement that called 20 for a period where they would license 21 specifications between the two companies. 22 And my job was to determine what 23 specifications were approvable under that these 24 were interface specifications, and to review 25 all of the specifications passing between the 6418 1 two companies, as well as to administer a 2 secured facility. 3 We created a secured facility in which 4 the source codes of the other company's 5 software could be put and members of one side 6 could review the source code of the other 7 company, and that was done in a facility that 8 had all kinds of safeguards and independent 9 monitoring, and it was very, very elaborate. 10 Q. When you say interface specifications, 11 what do you mean by that, sir? 12 A. Well, earlier I mentioned the ways in 13 which the pieces of IT components fit together. 14 That's -- the connection point is the 15 interface. It's the interface between one 16 software component and another software or 17 hardware component or the user. 18 Sometimes we call it the user 19 interfaces, your interface to a piece of 20 software. 21 Q. So how they communicate to each other? 22 A. That's how they communicate and how 23 you can -- a little more formally it's how you 24 can request and receive the services of another 25 piece of hardware or software. 6419 1 Q. Okay. The next case, Tripole versus 2 Novell. Briefly, what did that involve and 3 what was your engagement in that case? 4 A. That was a more recent one. So that 5 was a contractual dispute over Novell -- its 6 acquisition of another company. 7 Q. Why don't you tell us what Novell is 8 first for the members of the jury who don't 9 know. 10 A. Novell is a company that I think 11 started in 1980s. It was -- about ten years 12 ago it was the largest independent software 13 vendor that made Workgroup server software, 14 file and print servers, and middleware, 15 including directories, electronic directories, 16 and maybe people are familiar with Groupwise. 17 At one point Novell owned WordPerfect. 18 Novell was a very large software company. It's 19 not so large today. 20 Q. Okay. And what did you do in relation 21 to that litigation, sir? 22 A. I did a couple of things, one of which 23 was to assess the state of the industry, 24 middleware, and particularly server computing 25 software around 2000, 2002, the time frame of 6420 1 the transaction, and to determine why the 2 transaction didn't work out as everyone had 3 hoped it would work out. 4 Q. Okay. 5 A. And the second part of that was to 6 review the source code for the product to 7 determine whether or not pieces of the source 8 code from the licensing company had -- were 9 still in use in the Novell product. 10 Q. And this case, where you reviewed the 11 source code and you reviewed the status of the 12 industry, during what time period was this case 13 going? 14 A. Well, it -- my involvement in the case 15 just concluded in early December, I think. 16 Q. Okay. 17 The next case, Iconix versus 18 NetPickle, what was your engagement in that 19 case, sir? 20 A. It wasn't to choose the name of the 21 company. 22 Q. Okay. We won't blame you for that. 23 A. Basically, this involved a company 24 that developed software for social networking 25 websites. 6421 1 Social networking websites are like 2 myspace.com or Friendster, and this particular 3 company developed the ability to put slide 4 shows in your space. So My Space, each user 5 gets on, and they can create their own little 6 website pictures of themselves and blogs and 7 friends, and it's all kind of a community for 8 each individual user. It's very popular among 9 my children and -- I don't have a space. 10 But this particular software was -- 11 enabled the user to create a slide show and to 12 put animation and little flowers and things 13 like this on it and that other people could 14 come and visit your slide show and say, wow, 15 that's a great slide show. 16 It was very exciting, lots of 17 minihits. Lots of visitors to the slide show 18 creation company. 19 And it was a copyright dispute and an 20 employment services dispute, and I was called 21 upon to analyze the source code for the website 22 to determine whether it had been copied. 23 Q. Whether it had been what? 24 A. Whether it had been copied. How one 25 company, whether the NetPickle folks had copied 6422 1 the software from Iconix. 2 Q. And then the last case, Micro Unity 3 versus Intel, what was the nature of your 4 involvement in that case? 5 A. Excuse me. Micro Unity was a company 6 that -- or still is a company that developed 7 semiconductor chips that were very good at 8 processing multimedia. 9 Multimedia is like audio tracks, video 10 clips, that kind of stuff. 11 And they were -- they came into being, 12 I think, in the mid-1990s to try and get their 13 chips adopted. 14 And Intel in the -- a little bit 15 later, recognized the importance of multimedia 16 and began incorporating into its chips 17 extensions, into its central processing chips 18 extensions that would enable it to process 19 multimedia data faster. 20 And that it turns out was a patent 21 matter. The Micro Unity folks had some 22 important patents in that area. 23 And so my job was to assess the 24 importance of multimedia and multimedia 25 extensions to the software and hardware PC 6423 1 industry. 2 MR. LAMB: Your Honor, would now be a 3 good time to take a break, or do you want me to 4 continue on for a while? 5 THE COURT: We'll take a ten-minute 6 recess. 7 Remember the admonition that I've 8 given you before. Leave your notebooks here. 9 We'll be in recess till 10 a.m. 10 All rise. 11 (A recess was taken from 9:48 a.m. 12 to 10:01 a.m.) 13 THE COURT: Everyone else be seated. 14 You may continue, Mr. Lamb. 15 MR. LAMB: Thank you, Your Honor. 16 THE COURT: Sir, you're still under 17 oath. 18 MR. LAMB: Can we get the next slide, 19 please? 20 Q. I want to turn now to 21 Microsoft-related engagements, Mr. Alepin, and 22 could you please describe for the jury what 23 you've been retained to do in relation to 24 Microsoft engagements other than this case that 25 we're here for today? 6424 1 A. Okay. Excuse me. 2 In late 1993 I was hired by the 3 Department of Justice, the antitrust division, 4 the special trial counsel, to assist the 5 department in an investigation of Microsoft's 6 practices. And my job was at that time to 7 provide the department with an understanding of 8 the industry, the major players, to help them 9 understand the technology and the products and 10 then to review the documents Microsoft had 11 provided in conjunction with the department's 12 investigation, as well as finally to meet with 13 industry participants, other companies. The 14 development teams had other companies who were 15 in the same business or related businesses to 16 Microsoft. 17 Subsequently, I was retained by the 18 Assistant Attorney General. The Department of 19 Justice has an attorney general, who was Janet 20 Reno at the time, and there are a number of 21 other divisions within the department, one of 22 which is the antitrust division, and Anne 23 Bingham was the Assistant Attorney General, and 24 she hired me to be her consultant in some 25 proceedings that the -- in September of 1994 6425 1 and again in nineteen -- at the beginning of 2 1995 when there was another investigation that 3 the department undertook of different Microsoft 4 practices. 5 Q. Let's back up a bit, sir. 6 When you say that you reviewed 7 documents, give the jury a sense of the type of 8 documents that you reviewed in relation to this 9 engagement. The number of documents, things of 10 that nature, if you would, sir. 11 A. Well, the number of documents was I 12 want to say infinite, but it was something less 13 than infinite. But there were hundreds of 14 boxes of documents, each of which contained 15 business records, E-mails, presentations, 16 market analyses, financial reports that 17 Microsoft had turned over to the government at 18 the government's demand. 19 And in addition, there were records 20 and reports and interviews of other companies 21 that had been taken, which I also reviewed. 22 Q. Okay. What else have you done in 23 relation to Microsoft related engagements? 24 A. Well, I was the department's adviser 25 or consultant with the Microsoft/Intuit 6426 1 acquisition. Microsoft and Intuit -- Intuit 2 was the maker of -- or still is -- the maker of 3 personal accounting checkbook management 4 software, Quick Books or Quicken, and Microsoft 5 and Intuit went -- made an agreement to merge. 6 And the Department of Justice was 7 concerned about the impact of that, and so I 8 was asked to participate in the review of the 9 impact of that. 10 I was asked to -- forgive me, I'm not 11 sure whether your question meant in addition to 12 the Department of Justice or -- 13 Q. No. Just with the DOJ right now, sir. 14 I apologize. 15 A. I was also the chief consultant to the 16 attorney -- Assistant Attorney General for the 17 investigation into Microsoft -- the MSN network 18 and other issues associated with Microsoft's 19 release of Windows 95 in that time frame. 20 Q. What were you asked to do in relation 21 to that engagement, sir? 22 A. There were a number of things, but the 23 most important one was to determine the 24 potential impact of some bundling of 25 Microsoft's network MSN with Windows 95. 6427 1 Q. Okay. From a technological 2 perspective, when you say bundling, what do you 3 mean? 4 A. From a technological perspective, 5 bundling is when you combine two things 6 together, two separate products in the same box 7 and sell them as one. 8 Q. Okay. We'll talk about that further 9 later. 10 Have you also been retained by various 11 states' attorneys general? 12 A. Yes. 13 Q. When did that happen? 14 A. In 1997, I believe. 1997, I think. 15 Q. Okay. And what was the nature of that 16 engagement? 17 A. Well, the -- excuse me -- the states' 18 attorneys general, that's not all of the 19 states, but a significant number of them, the 20 attorneys general began an investigation into 21 certain Microsoft practices, and that 22 investigation led to some litigation, and I was 23 the consultant that advised the attorneys 24 general on the industry, on the technology and 25 on the impact of the practices on the business. 6428 1 Q. Okay. 2 MR. LAMB: Go to the next slide, 3 please. 4 Q. Let's turn to Microsoft-related 5 engagements in relation to certain industry 6 association. 7 First, if you could explain to the 8 jury what the CCIA is. 9 A. Well, the information technology 10 industry is like a lot of industries. We have 11 organizations where companies get together and 12 try and develop policy recommendations or 13 common positions to represent the interests of 14 the industry participants. 15 The Computer and Communications 16 Industry Association is one of those kinds of 17 associations. 18 They help formulate policy on -- on 19 H-1 visas, for example. So do we need more 20 technology people to be available. 21 So there are a number of different 22 policy areas and different issues that affect 23 the industry, and that's the computer and 24 communications industry. 25 Q. And what were you engaged by them to 6429 1 do? 2 A. I was engaged by them to assist in 3 their intervention before the European 4 Commission in proceedings -- in an 5 investigation of Microsoft. 6 Q. How about the SIIA, what's that? 7 A. Like the CCIA, the SIIA is the 8 Software and Information Industry Association. 9 Their focus is a little more tuned to 10 software and information versus computer and 11 communications, but they have an overlap of 12 members, and they are an industry association. 13 Q. And what was the nature of your 14 engagement in relation to the SIIA? 15 A. I had a similar position which was to 16 assist in their intervention -- that's kind of 17 an intervention in European context, I 18 understand anyway, is where you petition and 19 you ask to be heard before the commission and 20 the judges in proceedings. 21 So I was asked to represent the 22 technology and the business interests of the 23 members before the commission and the courts. 24 Q. Okay. How about the ECIS, what's 25 that? 6430 1 A. ECIS, the European Committee for 2 Interoperable Systems, that's an organization 3 that was founded back in 1988, '89, the purpose 4 of which was to ensure that interoperability 5 specifications, interoperability information 6 would be available and that public policy would 7 favor the disclosure of interface information, 8 among other things. 9 So they're an organization that number 10 -- IBM is a member, Sun is a member, Oracle is 11 a member. And they, too, intervened in 12 proceedings against Microsoft. 13 Q. Now, aside from Microsoft-related 14 engagements in relation to these industry 15 associations, are you a member of any other 16 professional association or industry 17 association? 18 A. I am. Just to be clear, I'm not a 19 member of these. I'm an independent consultant 20 to these organizations. 21 Q. Right. I'm saying apart from these. 22 A. Right. 23 Q. What associations are you a member of, 24 sir? 25 A. I'm a member of the ACM. 6431 1 Q. What's that? 2 A. The Association for Computing 3 Machinery, which for some people it's 4 interesting. I like it. 5 Q. What others, sir? 6 A. I'm a member of the IEEE. 7 Q. What's the IEEE? 8 A. The Institute for Electrical and 9 Electronic Engineers. 10 Q. What's admission for IEEE? 11 A. Well, you can get there if you have a 12 degree in engineering or if the institute board 13 deems that your experience and qualifications 14 are sufficient to merit membership. 15 Q. And do you have a degree in 16 engineering? 17 A. No, I don't. 18 Q. And how did you attain membership? 19 A. I have met the criteria that the 20 institute applies for membership. I qualified. 21 Q. Do you have a degree? 22 A. No, I don't. 23 Q. Did you attend college? 24 A. I did. 25 Q. When did you attend college? 6432 1 A. From 1967 on to 1970 or '71. 2 Q. And at some point in time you left 3 college; right? 4 A. I did. 5 Q. Why did you leave college? 6 A. I got an offer from a company that had 7 every kind of computer possible, and they would 8 hire me and let me go to school at the same 9 time. 10 Q. What company was that? 11 A. That was Bell Canada. 12 Q. We'll talk about that some more later. 13 A. Sure. 14 Q. Let's turn to the next slide, if we 15 could. 16 Microsoft-related engagements on 17 behalf of private parties. 18 A. Uh-huh. 19 Q. Could you describe what the nature of 20 your engagement was in relation to 21 RealNetworks? 22 A. I was hired by RealNetworks in 23 conjunction with a lawsuit that they had 24 brought here in the United States and in 25 conjunction with RealNetworks in Europe to 6433 1 review the degree to which Microsoft's Windows 2 media player was or was not an integral part of 3 Microsoft's Windows operating system. 4 Q. And what were you physically doing? I 5 mean, were you reviewing code? Were you 6 reviewing documents? What did you do? 7 A. Well, I was reviewing some documents, 8 but publicly available documents, as well as 9 Microsoft documentation available publicly, but 10 the big -- the heavy lifting here was to take 11 the operating system and to pull it apart piece 12 by piece and to put it together in different 13 ways and then to test it to determine whether 14 or not it worked with or without the Windows 15 media player. 16 Q. And you physically did that? 17 A. I did that, yes. 18 Q. Okay. We'll talk about that a little 19 bit later. 20 How about your engagement in relation 21 to Sun? 22 A. With Sun, I was asked to review the 23 degree to which Microsoft's Office applications 24 relied on interface information that was not 25 available to other people to other companies. 6434 1 Q. And did you review documents in 2 relation to that engagement? 3 A. I reviewed some documents, but the 4 engagement terminated -- it terminated abruptly 5 for other reasons. 6 Q. Okay. All right. How about the 7 Oracle engagement, what was that? 8 A. The Oracle engagement, I have been 9 asked to review Microsoft's communications 10 protocol specifications for use in Workgroup 11 server environments that -- 12 Q. Wait a minute. What is a 13 communication protocol? 14 A. Communications protocol is a set of 15 rules that govern the communications over a 16 wire, if you will, between two different 17 computers. 18 Q. Okay. 19 A. Or two different pieces of hardware or 20 software. 21 Q. And what did you physically do in 22 relation to that engagement? 23 A. I went to Redmond to the Microsoft 24 campus and reviewed tens of thousands of pages 25 of documentation. 6435 1 Q. What types of documentation? 2 A. The protocol specifications 3 documentation for the specifications, the rules 4 for the use of the communications protocols 5 that Microsoft uses in its server, web server 6 software and in its Workgroup server software. 7 Q. And have you been to Redmond on more 8 than one occasion? 9 A. In conjunction with this kind of 10 engagement, yes. I'd say three times now. 11 Q. In conjunction with Oracle? 12 A. In conjunction with Oracle, yes. 13 Q. How many times have you been to 14 Redmond to review documents or code in relation 15 to any engagement to include this one? 16 A. To Redmond -- those three times that 17 I've been to Redmond for depositions, but not 18 -- I mean, I think those are the three times 19 that I've been there for the specific purpose 20 of reviewing documentation. 21 Q. When was the last time you were at 22 Redmond to review documentation? 23 A. I'm going to say it's been a blur, but 24 I think it's early December or middle of 25 November. Sometime around -- sometime around 6436 1 Thanksgiving. 2 Q. Of 2006? 3 A. Of 2006, yes. 4 Q. All right. What I'm going to ask you 5 to do now, with the Court's indulgence, is put 6 up the white board so we can do a little 7 drawing. 8 If you could step down, Mr. Alepin. 9 What I'd like you to do, and we'll do 10 this a couple other times throughout the course 11 of your testimony, but just to kind of get us 12 started, if you could give us the next slide 13 please, Darin. 14 And essentially, go ahead and draw for 15 the jury your view of the operating system, the 16 middleware and the applications, and explain to 17 them, at least now in a rudimentary sense, how 18 they interact. 19 A. There are a couple of ways of 20 presenting this, and we use box diagrams and 21 circles. I think I'll use both of those to try 22 and illustrate. 23 Oftentimes we think of computer 24 systems as a series of stacked boxes and in 25 successive layers, if you will, starting with 6437 1 the application, which is really why you want a 2 computer in the first place. It's so that you 3 can get something done that's meaningful. So 4 that's kind of that key piece of the system. 5 And at the bottom, there's the 6 operating system which provides services to the 7 applications. 8 And what I should do here is draw 9 these arrows here. 10 And what these arrows are going to 11 indicate as I go through this is flow of 12 information through interfaces between the 13 various layers of the software. 14 So you have an application where you 15 buy the computer using the services of the 16 operating system and an application using the 17 services of middleware, which in turn can use 18 the services of the operating system. 19 If you think of it in a circle, you 20 can have the operating system at the center, 21 the middleware and the applications. Not all 22 applications use middleware, but some 23 applications use middleware in order to achieve 24 the purpose for which they were designed, and 25 that is to do something useful for us. 6438 1 So that's really the way to think of 2 it. 3 The operating system in the center or 4 at the bottom and applications around the ends. 5 Those are the key touch points for users who 6 are using computers. 7 Q. Go ahead and take your seat again. 8 MR. LAMB: Can you give me the next 9 slide, Darin? 10 Q. What I want to do now, Mr. Alepin, is 11 go through for the jury and review your work 12 experience. 13 And I think you mentioned earlier that 14 you were at university for a while and then you 15 left. What university was that? 16 A. It was McGill University. 17 Q. Where is that located? 18 A. In Montreal, Quebec, Canada. 19 Q. What were you studying at McGill? 20 A. Well, I started off studying economics 21 and econometrics. 22 Q. Did that change at some time? 23 A. Well, I began to do all of the 24 computer programming for the economics and 25 political science and sociology and 6439 1 anthropology departments. Believe it or not, 2 anthropology wanted to use computers. 3 So I began doing all the statistical 4 programming for the department, and I became 5 much more interested in computer science than 6 in economics. 7 Q. Okay. And your first job was with 8 Bell Canada; right? 9 A. My first full-time job was with Bell 10 Canada. 11 Q. When did you first become interested 12 in computers and programming? 13 A. Probably in my third year at 14 university probably. 15 Q. About when was that? 16 A. Maybe 1970. 1970, I think. 17 Q. What was the nature of the computer 18 industry back then? I mean, were there PCs? 19 What was available? 20 A. Well, there were mainframe computers, 21 and that was the -- there were the -- people 22 were still using these old Univac systems that 23 had all the tape drives on them that we could 24 see in the Spencer Tracy and Katharine Hepburn 25 movies, but they also had these new computers 6440 1 from IBM called System 360 computers that was 2 the revolution in computing that began in 1963. 3 Q. And when you went to work for Bell 4 Canada, what did you do? 5 A. The short answer is anything I wanted 6 to do, but I did everything. 7 Q. Okay. 8 A. I did -- it was like a playground. It 9 had one type of every kind of computer -- Bell 10 Canada was the largest IT user in Canada, and 11 they had one kind of every kind of computer and 12 two of many of them. 13 And so I got to program all the 14 different -- from the computers with the wire, 15 plug-in wires, to the computers with the big 16 fast tran drums from Univac to the most modern 17 IBM computers. 18 Q. How long did you work at Bell Canada? 19 A. I worked there for probably close to 20 three years. Somewhere around there. 21 Q. And during that time, did you write 22 any code? 23 A. I wrote lots of code, yes. 24 Q. What types of code did you write? 25 A. Operating systems software code 6441 1 mostly. 2 Q. For what type of operating systems? 3 A. For mainframe operating systems. 4 Q. Have you ever written any code, 5 operations code for personal computers? 6 A. I've written code for operating 7 systems, yes. Probably fits in the category of 8 operating systems code. 9 Q. All right. So you believe it's 10 related? 11 A. Uh-huh, yes. 12 Q. And you've reviewed operating code for 13 personal computers; right? 14 A. I have, yes. 15 Q. Okay. Over how many years? 16 A. Oh, since the early nineteen -- since 17 the early 1980s probably. 18 I bought a personal computer as a 19 Christmas present for myself in 1981, so I've 20 been working with and developing software for 21 personal computers since then. 22 Q. Okay. What was your next job, sir? 23 A. In 1974 I went to work for a company 24 called Societe de Mathematiquees, which was a 25 service bureau company. 6442 1 They provided time sharing services 2 for businesses using at that time the largest 3 computer from Control Data Corporation, which 4 was our mainframe scientific kind of computer, 5 and an IBM mainframe computer. 6 Q. What were you doing at, can I call it 7 SMA, is that okay with you? 8 A. That's fine with me. 9 Q. What did you do at SMA? 10 A. I programmed the operating system 11 basically. I developed extensions and 12 enhancements to the operating system. 13 Q. And what was your next job? 14 A. I went to work for L'Industrielle 15 Services Technique. Or you can call it IST. 16 Q. Thank you, sir. 17 And what did IST do? 18 A. I did more of the same thing, except 19 they had two of IBMs newest, biggest computers 20 using IBM's biggest and newest operating 21 system. 22 Q. And so you're basically doing the same 23 thing you did at SMA? 24 A. Yes, I was doing the same thing. 25 Q. And then your next job was where? 6443 1 A. I then was recruited to come to 2 Silicon Valley. So I went to work for Amdahl 3 Corporation. 4 Amdahl, just to square the circle 5 here, the -- Gene Amdahl was the founder or the 6 man -- one of the principals in charge at IBM 7 for the System 360 project and IBM's very 8 successful generation of mainframe computers, 9 and he went off and started a company to build 10 even bigger and better mainframe computers, and 11 I was recruited to go work there. 12 Q. And what types of work did you do at 13 Amdahl, sir? 14 A. I think I've -- as I described 15 earlier, I provided -- I started as one of the 16 core members of Amdahl's software development 17 team. 18 I developed software for them. I 19 managed the benchmarking and performance 20 analysis center. Developed extensions to 21 Amdahl's hardware. I ultimately was the 22 director of product marketing for the next 23 generation Amdahl computer. 24 Q. When you say product marketing, what 25 do you mean by that? 6444 1 A. What I did was I set or helped to set 2 the requirements for the next generation of 3 computing products. 4 Amdahl was -- its prime product was a 5 mainframe computer, and it costs -- cost 6 millions of dollars to buy, but it costs even 7 much more to develop. 8 So it was important that we get it 9 right. It was important that we understand 10 what the customers needed, understanded what 11 the competition was going to likely produce. 12 We needed to ensure that we could be 13 interoperable with IBM's newer computing 14 systems. 15 So my job was to gather all those 16 requirements and distill them, working with the 17 engineering team to make -- to get the product 18 right, and then get it to market. 19 Q. In relation to your jobs in the 20 computer industry, have you ever been engaged 21 to deal in marketing or anything that you'd be 22 dealing with consumer behavior? 23 A. I have, yes. 24 Q. Can you tell the jury what that is? 25 A. As I just described, my consumers are 6445 1 business consumers, but -- 2 Q. Okay. 3 A. I mean, they're consumers. Still want 4 them to buy, still got to make what they want 5 to buy. 6 In addition, I've -- in my role as 7 general manager, I think I've indicated I was 8 responsible for of the sales and marketing for 9 Fujitsu's middleware software. So I would meet 10 on a regular basis with customers and 11 prospective customers about what they needed 12 and what they wanted and how best we could sell 13 or make things that people would buy. 14 MR. LAMB: If you could give me the 15 next slide, please. 16 Q. I think you've talked about pretty 17 much all of these. Other than, you know, 18 obviously you have -- the bottom one is ongoing 19 involvement in relation to Microsoft, in part 20 in this case; right, sir? 21 A. That's correct. 22 Q. And then also in terms of the EU; 23 right? 24 A. That's correct. 25 Q. What have you been engaged to do in 6446 1 relation to the European Union? 2 A. You mean at present? 3 Q. Yes. 4 A. Well, I've been engaged to, as I 5 indicated, to review the information that 6 Microsoft is making available in the -- 7 according to the European Union's -- I'm 8 struggling to know whether I have a problem -- 9 according to the European Union's decision. 10 Microsoft must supply some 11 information, and I've been going over there to 12 look at it and to examine it. 13 Q. Without getting into the legal 14 particulars, what are you looking at? 15 A. I'm looking at -- I'm looking at tens 16 of thousands of pages of very detailed 17 technical specifications covering interface 18 information, communications protocol interface 19 information. 20 Q. And did that include the trip that you 21 were up to Redmond, Washington, in either last 22 month or in November? 23 A. Yes, that's right. 24 Q. Now, during the course of your time 25 and experience, do you feel that you're 6447 1 qualified to render opinions regarding the 2 computer industry and software technology? 3 A. I do, yes. 4 Q. And over the course of time and 5 throughout your experience, tell the jury how 6 many lines of code do you think you've 7 reviewed? 8 A. More than I've written, but probably 9 millions of lines of code. 10 Q. Over how many -- 11 A. Easily millions of lines of code. 12 Q. Over how many years? 13 A. Oh, reviewed, gosh, since 1969, 1970. 14 Q. And -- 15 MR. LAMB: Could I get the next slide, 16 please? 17 Q. These are the cases that you -- I 18 think you talked about earlier. 19 Just approximately how many cases have 20 you been involved in that went to litigation? 21 A. Not very many. Maybe -- went to 22 litigation, you mean all the way to trial or 23 litigation just where there's a dispute? 24 Q. Well, trial or arbitration. 25 A. Probably dozens, dozens then. 6448 1 Q. Couple dozen? 2 A. Yes, if that's the, sort of the 3 universe, then dozens, I would think. 4 Q. Okay. And you've been involved in 5 other litigation against Microsoft; right? 6 A. Yes, I have. 7 Q. Okay. To your knowledge, have they 8 ever challenged your qualifications? 9 A. No, not to my knowledge. 10 Q. And during the time that you've been 11 engaged as an expert, how many times would you 12 say you've actually testified in court, a court 13 like this? 14 A. Just generally, not with respect to 15 Microsoft? 16 Q. Right. 17 A. Maybe four, five times maybe. 18 Q. Four or five times? 19 A. Yeah, not very many. 20 Q. Okay. 21 MR. LAMB: Could I get the next slide, 22 please? 23 Q. You've been asked in this case -- 24 you've been assigned some things to do; right? 25 A. Yes. 6449 1 Q. Okay. Can you for the jury describe 2 what your assignment is? 3 A. Well, the first part of the assignment 4 was to prepare and to present some of the core 5 technology that's involved in the case. That's 6 really the first job, is to try and distill the 7 important technological concepts and to explain 8 them. 9 The second one is to analyze what 10 Microsoft's -- certain of Microsoft's decisions 11 and conduct has had on the technology and the 12 products that are available in the market. 13 And then to assess what these 14 decisions would have had on the companies that 15 are participating in the market; that is, other 16 software vendors, other hardware vendors, and 17 ultimately the choices that consumers have as a 18 result of the impact that it has on these 19 companies. 20 And, finally, to suggest alternative 21 ways that I believe the industry could have 22 evolved had it not been for some of the 23 decisions and actions that Microsoft has taken. 24 Q. And are you comfortable with and do 25 you believe you're qualified to render opinions 6450 1 in those areas? 2 A. Absolutely, yes. 3 Q. And do you hold all of your opinions 4 with a reasonable degree of professional 5 certainty, sir? 6 A. Yes, I do. 7 Q. Okay. Why don't you turn to the next 8 slide, please. 9 MR. HOLLEY: Your Honor, I object to 10 this. 11 Before this witness is permitted to 12 offer opinions to this jury, even in summary 13 form, I believe I'm entitled to voir dire him 14 on his qualifications. 15 THE COURT: You may. 16 MR. HOLLEY: Your Honor, may I move to 17 this table here? 18 THE COURT: Certainly. 19 MR. HOLLEY: Thank you, Your Honor. 20 Your Honor, may I introduce myself to 21 the jury? 22 THE COURT: You may. 23 MR. HOLLEY: Good morning, Ladies and 24 Gentlemen. 25 I'm Steve Holley, and I'm honored to 6451 1 be one of Microsoft's attorneys in this matter. 2 VOIR DIRE EXAMINATION 3 BY MR. HOLLEY: 4 Q. Good morning, Mr. Alepin, how are you? 5 A. I'm fine. Thank you. 6 Q. You're not a lawyer, are you, sir? 7 A. I am not. 8 Q. And you have no formal legal training; 9 is that correct? 10 A. I do not. 11 Q. And you are not expressing any opinion 12 in this case that any of Microsoft's conduct 13 has been improper in a legal sense, are you? 14 A. No, I'm not. 15 Q. You are not an economist, are you, 16 sir? 17 A. I am not an economist. 18 Q. And you have no formal training in the 19 field of industrial organization economics; is 20 that correct? 21 A. No. 22 Q. And -- 23 A. I'm sorry, yes, that's correct. 24 Q. Okay. I understood that to be your 25 answer, sir. 6452 1 A. Sorry. 2 Q. And you have no formal training in the 3 field of antitrust economics, do you? 4 A. No formal training, no, sir. 5 Q. And you are not holding yourself out 6 as qualified to do economic modeling in this 7 case, are you? 8 A. No. 9 Q. You don't have a doctoral degree or a 10 master's degree or a bachelor's degree in 11 computer science, do you? 12 A. No. 13 Q. In fact, you don't have a college 14 degree at all; is that correct? 15 A. That's correct, yes. 16 Q. And you have never taught a course in 17 computer science at any college or university; 18 is that correct? 19 A. I think that's correct. 20 Q. And, in fact, you've never taught a 21 course at the college level in any subject; is 22 that right? 23 A. Not a -- no, no. 24 Q. You have never published a book in the 25 field of computer science, have you? 6453 1 A. No. 2 Q. And you've never published any 3 articles in any scholarly journals about 4 computer science; is that right? 5 A. That's correct. 6 Q. And none of your work in the field of 7 computer science has been peer reviewed by 8 professors of computer science; isn't that 9 right? 10 A. I think that is probably correct. 11 Q. Now, in the last 20 years, going back 12 to the mid-1980s, you have not designed or 13 developed any PC operating systems software; is 14 that right? 15 A. I don't think that that's correct. 16 Q. Okay. Do you recall giving a 17 deposition in California on the 21st of January 18 of 2003? 19 A. I do. 20 Q. And have you had a recent opportunity 21 to review the transcript of that deposition? 22 A. I don't -- recent is -- I'm not sure 23 recent. Perhaps back in June or July when we 24 had another deposition meeting, but maybe not 25 recently. 6454 1 Q. All right. 2 A. Not recently. 3 Q. Well, do you have any reason as you 4 sit here today, sir, to believe that the 5 answers that you gave to the questions at that 6 deposition were wrong? 7 A. No, I don't. 8 Q. Do you recall, sir, being asked the 9 following question and giving the following 10 answer? 11 Question: What I want to know is, 12 have you had any PC operating system design or 13 development experience, you personally, aside 14 from what you did in the mid-1980s with this 15 factory automation software? 16 Answer: No, not that I recall. 17 A. Uh-huh, yes. 18 Q. And that testimony was correct, sir? 19 A. I think there's a larger context in 20 that question. I think we go backwards a 21 little bit before. If I could ask you to -- 22 Q. Well, I'm happy to read more if you 23 tell me what you want me to read. 24 Would it be helpful to you if I gave 25 you a copy of the transcript? 6455 1 A. Yes it, would. 2 MR. HOLLEY: Your Honor, may I 3 approach the witness? 4 THE COURT: You may. 5 MR. HOLLEY: Your Honor, I'm going to 6 give Mr. Alepin, just so he has them, the 7 depositions of his two days of deposition 8 testimony in 2003 and then the deposition that 9 I took of him in July of last year. 10 THE COURT: Okay. 11 Q. Mr. Alepin, just for your reference, 12 sir, where I was was on page 32 of the MDL 13 deposition, and starting at line 21 -- sorry, 14 22. 15 I apologize for the size of the type 16 here. If your eyes are as bad as mine, it's 17 hard to read. 18 A. Could you -- 19 Q. So yes, it's the first -- it's the one 20 on top. Right, that one. And it's on page 32. 21 And what I read to you started on line 22, sir. 22 A. I'm sorry, is it the page -- is it the 23 page -- it's a transcript page or document -- 24 Q. It's the transcript page, sir. 25 It's numbered 8 at the bottom, and 6456 1 then in parentheses it says pages 29 to 32. 2 A. I've got it. 3 Q. Okay. What I read you started on line 4 22 there, and what I want to understand is, 5 what you see that's objectionable about what I 6 read in your answer to that question. 7 MR. LAMB: Object to the extent that 8 that mischaracterizes his testimony. 9 THE COURT: I'm sorry? 10 MR. LAMB: I object to the extent that 11 that mischaracterizes Mr. Alepin's testimony. 12 He didn't say it was objectionable. 13 THE COURT: He can correct it if he 14 wishes by reading it. 15 A. I believe that I understood your 16 question to be whether I had been programming 17 the PC -- the Microsoft PC operating system or 18 the Windows operating system. 19 Q. Oh, well, I apologize. That's 20 certainly not what I meant to ask. 21 What I meant to read to you was the 22 question, what I want to know -- and I'm 23 starting here on line 22 of page 32. 24 Question: What I want to know is have 25 you had any PC operating system design or 6457 1 development experience, you personally, aside 2 from what you did in the mid-1980s with this 3 factory automation software? 4 Answer: No, not that I recall. 5 That's correct, is it not, Mr. Alepin? 6 A. With respect to -- I'm sorry. Yes, 7 with respect to PC -- Microsoft PC-DOS or 8 Microsoft PC Windows, yes. 9 Q. Well, but just to be clear, sir, the 10 question to you does not contain the word 11 Microsoft, does it? It says, and I'm going to 12 say it again -- 13 Question: What I want to know is, 14 have you had any PC operating system design or 15 development experience, you personally, aside 16 from what you did in the mid-1980s with this 17 factory automation software? 18 And your answer sir was: 19 Answer: No, not that I can recall. 20 And that was correct, was it not, sir? 21 A. Yes, I guess it's correct. Yes. 22 Okay. 23 Q. All right. Mr. Alepin, you have not 24 designed or developed any office productivity 25 applications, have you? 6458 1 A. I have not developed any office 2 productivity applications. 3 Q. And you have not reviewed a single 4 line of the source code that Microsoft has 5 produced to the Plaintiffs in this lawsuit; is 6 that correct? 7 A. That's incorrect. 8 Q. Are you aware, sir, that there is a 9 protective order in place in this lawsuit which 10 requires the Plaintiffs to inform Microsoft of 11 every person who receives any of the source 12 code? Were you aware of that, sir? 13 A. I'm not aware of that provision. 14 Q. But you claim that you have reviewed 15 the source code even though we've never 16 received any notice that you did? 17 A. The question was not in this lawsuit. 18 The question was have I ever reviewed any of 19 the source code at issue, and the answer was 20 yes, I reviewed it in conjunction with other 21 litigation. 22 Q. Well, I think the record will reflect 23 what I asked you, which was, have you reviewed 24 any of the source code that Microsoft produced 25 to the Plaintiffs in discovery in this lawsuit. 6459 1 A. It's the same source code, sir. I 2 reviewed it at a different point in time in 3 conjunction -- the same source code at a 4 different point in time. 5 Q. Okay. And can you tell me all of the 6 products for which you reviewed Microsoft's 7 source code, sir? 8 A. The QuickPascal, Quick C, MS-DOS, and 9 certain elements of Microsoft Windows. 10 Q. And that review occurred while you 11 were a consultant to the United States 12 Department of Justice; is that correct? 13 A. I believe it occurred in conjunction 14 with the MDL litigation is really when I think 15 it occurred. 16 Q. Okay. And are you -- your testimony 17 is that you reviewed none of that code in 18 connection with your work for the U.S. 19 Department of Justice? 20 A. You know, I can't -- I can't remember 21 now whether, in fact, I did review some of the 22 code at that time as well or whether it was 23 excerpted for me. 24 MR. LAMB: Your Honor, I object to the 25 extent that this line is going to attempt to 6460 1 impeach versus an attempt to establish 2 qualifications on the voir dire. 3 THE COURT: Just concentrate on 4 qualifications. Sustained. 5 MR. HOLLEY: Yes, Your Honor. 6 Q. You are not an expert in psychology, 7 are you, sir? 8 A. No. 9 Q. And you are not an expert in 10 sociology, are you? 11 A. No. 12 Q. And in connection with your work on 13 this matter, you have not conducted any surveys 14 of consumer behavior, have you? 15 A. In conjunction with this matter? 16 Q. Yes. 17 A. I have not conducted any surveys, no. 18 Q. And you are not qualified to predict 19 the existence of or to describe but-for worlds 20 in performing damage analyses in antitrust 21 cases, are you? 22 A. If that's a particular specialty, I'm 23 -- no, I don't think it's something I do. 24 Q. You are not qualified to provide 25 expert opinions about whether a particular 6461 1 business conduct is pro-competitive or 2 anticompetitive; is that correct? 3 A. If from an economic point of view, no. 4 Q. And not from a legal point of view 5 either; correct? 6 A. Correct. 7 Q. In describing your prior litigation 8 experience for Mr. Lamb, you didn't mention a 9 case captioned Commercial Data Servers against 10 International Business Machines Corporation; is 11 that right? 12 MR. LAMB: Objection, Your Honor. 13 This goes to impeachment, not qualifications. 14 THE COURT: Just a minute. 15 Sustained. 16 MR. HOLLEY: Your Honor, in light of 17 Mr. Alepin's testimony on voir dire, Microsoft 18 renews its motion to preclude him from offering 19 any opinion testimony that exceeds the areas of 20 his expertise, which would mean that he is not 21 entitled to offer any legal opinions, including 22 whether conduct is or is not anticompetitive, 23 whether conduct does or does not comply with 24 the 2002 final judgment and whether particular 25 findings of fact or conclusions of law from the 6462 1 government case mean what he thinks they mean. 2 In addition, Your Honor, he should not 3 be entitled to offer any economic opinions, 4 including constructions -- construction of 5 but-for worlds for purposes of antitrust 6 analysis. 7 He should not be entitled to offer any 8 opinions about consumer behavior, having 9 conducted no studies in that area and not being 10 an expert in either psychology or sociology. 11 He should not be entitled to offer 12 opinions about the design or development of PC 13 operating systems since he hasn't done it for 14 the last 20 years, and he should not be 15 entitled to offer opinions about the design or 16 development of office productivity applications 17 because as he has previously testified he has 18 zero experience in that area. 19 Thank you, Your Honor. 20 THE COURT: Do you wish to proceed 21 with any further qualifications or do you wish 22 to -- 23 MR. LAMB: I would like to ask a 24 couple questions, Your Honor, if I may. 25 THE COURT: You could. 6463 1 Q. A lot was made -- 2 MR. LAMB: Can I retrieve that, Your 3 Honor? 4 THE COURT: Yes, you may. 5 MR. LAMB: Thank you. 6 VOIR DIRE EXAMINATION 7 BY MR. LAMB: 8 Q. A lot was made by counsel from 9 Microsoft about the fact that you didn't 10 graduate from college. You heard that; right? 11 A. I heard that. 12 Q. Do you happen to know of any other 13 individuals, prominent individuals maybe in the 14 computer industry who didn't graduate from 15 college? 16 A. Yes, I do. 17 Q. Who would those be? 18 A. Well, I think Bill Gates is one of 19 them. Bill Gates is the founder of Microsoft. 20 Q. Any others? 21 A. Steve Jobs is the founder of -- 22 cofounder of Apple, and Steve Wozniak is the 23 cofounder of Apple. I think Larry Ellison, the 24 founder of Oracle. 25 We've got quite a few people in the 6464 1 industry who don't have college degrees. 2 Q. Do you believe that Mr. Gates is 3 qualified to testify about the computer 4 industry? 5 A. I'd have to say so, yes. 6 MR. LAMB: I don't have any further 7 questions regarding his qualifications, Your 8 Honor. 9 THE COURT: Anything else regarding 10 voir dire? 11 MR. HOLLEY: No, Your Honor. 12 THE COURT: Ladies and Gentlemen, at 13 this time we're going to take your lunch recess 14 so the Court can make a ruling on this. 15 Remember the admonition previously 16 given. We'll see you at 12 noon. Leave your 17 notebooks here. 18 (The following record was made out of 19 the presence of the jury at 10:54 a.m.) 20 THE COURT: You may be seated. 21 MR. LAMB: Do you want Mr. Alepin in 22 or out of the courtroom? 23 THE COURT: Doesn't make any 24 difference to me. 25 THE COURT: Very well. 6465 1 Any further argument on the Microsoft 2 motion to preclude the Plaintiffs from offering 3 opinion testimony in the areas that Mr. Alepin 4 has -- I guess is going to offer such 5 testimony? 6 MR. LAMB: Your Honor, if I may just 7 briefly. 8 THE COURT: Sure. 9 MR. LAMB: You know, as prior counsel 10 referred to, I think this can be handled on a 11 case-by-case basis. 12 If you take a look at the summary of 13 onions that was put up, and we can put it up 14 again if we need to, there was no reference to 15 anything that counsel for Microsoft was talking 16 about. 17 Mr. Alepin is going to focus on 18 technology and what he knows from a 19 technological perspective, not from a 20 perspective in relation to economics or 21 psychology. He was never offered for that, and 22 that's not what he's going to testify about. 23 MR. TULCHIN: Your Honor, apparently 24 not. 25 The last slide that we saw before 6466 1 summary of opinions was assignment, and there 2 are four bullet points. 3 The third is this: Assess the impact 4 on the industry on the choices available to 5 consumers. So here we are again on consumer 6 behavior. 7 And maybe perhaps we're getting into 8 the area that the Court's ruled upon as to the 9 availability of options or choices for 10 consumers. 11 And then the fourth is exactly the 12 but-for world that he just said he had no basis 13 for offering views of. 14 The fourth bullet point says describe 15 alternative ways in which the IT industry might 16 have evolved. 17 Well, they have an economist, 18 Professor Noll. They have Professor 19 Mackie-Mason. These are people who, while we 20 disagree quite strenuously with their opinions, 21 have training in constructing but-for worlds as 22 economists dealing with antitrust economics. 23 Mr. Alepin does not. 24 So although Mr. Lamb says that he's 25 not going to be offering opinions on the 6467 1 subject matters that Mr. Holley was examining 2 him about, apparently, the slides indicate 3 otherwise. 4 And the summary of opinions, which I 5 don't have, which was the next slide, the very 6 first one, if I have this in the proper order, 7 talks about regulating the pace of innovation, 8 inhibiting technological advancement. 9 The Plaintiffs had a claim in this 10 case about lack of alternatives, lack of 11 choice, inhibiting innovation, and the Court 12 granted Microsoft's summary judgment on that 13 claim. 14 Mr. Alepin apparently is getting right 15 to that. 16 The slide after summary of opinions -- 17 it's numbered 18 on the copy that we have -- is 18 entitled what does this mean? 19 And directly below that, the first 20 bullet point is less innovation, less variety, 21 less choice, fewer operating systems, fewer 22 applications. 23 So it's one thing to talk about the 24 history of the computer industry, it's another 25 thing to talk about the design of software, 6468 1 although Mr. Alepin does not have experience in 2 the last 20 years in the design or development 3 of operating systems software for personal 4 computers and shouldn't be engaged in any 5 opinion delivery on that issue, but these 6 slides indicate again that we're getting well 7 into subject areas that Mr. Alepin has conceded 8 he is not an expert in. 9 And, Your Honor, there were hundreds 10 and hundreds of these slides delivered to us. 11 We were operating on the assumption that 12 Mr. Alepin at least would try to stay close to 13 whatever area of expertise he claims, and these 14 slides indicate that the Plaintiffs intend to 15 take him miles away from those areas. 16 THE COURT: Any response? 17 MR. LAMB: Well, Your Honor, the issue 18 regarding choice related to summary judgment on 19 damages. 20 And again, Mr. Alepin is going to 21 testify very carefully about technology, not 22 economics. That's for other experts. 23 Just as I did in relation to the 24 cases, he didn't testify about results. He 25 didn't testify about that type of stuff. He 6469 1 testified about what he was retained to do. 2 Clearly it's relevant from a 3 technological perspective for Mr. Alepin to 4 explain having reviewed the code, having 5 reviewed the documentation. He can look, for 6 example, at an interface and testify about its 7 availability or unavailability based on 8 Microsoft's conduct. 9 The impact of that could be that some 10 other application is no longer available. That 11 has nothing to do with damages, and it doesn't 12 have to do with an economic or psychological 13 evaluation. 14 What they're trying to do is infuse on 15 these slides questions that don't exist. 16 If they come up, I'm sure they'll 17 raise them, I'm sure they'll object, and I'm 18 sure Your Honor will rule appropriately. 19 MR. TULCHIN: Well, they're apparently 20 coming up, Your Honor. That's why we're 21 raising them now, and I think -- 22 THE COURT: How do you explain that 23 some of these are on the slide? 24 MR. LAMB: I don't know what you're 25 referring to directly, but if you're talking 6470 1 about regulates the pace of innovation, that's 2 technologically. That's from a technological 3 perspective. Inhibits technological 4 advancement. Technologically. From a 5 technological perspective. 6 This doesn't say inhibits economic 7 advancement. This doesn't say inhibits the 8 pace of marketability. 9 It talks about regulating innovation 10 and technology, and that's what he's an expert 11 about, and that's what he's done for the last 12 35 years. 13 THE COURT: What about this design or 14 developing PC operating systems? What do you 15 intend to do with that? 16 MR. LAMB: What are you referring to 17 specifically? 18 THE COURT: Is he going to give 19 testimony on designing and developing PC 20 operating systems? 21 MR. LAMB: He has designed operating 22 systems. He has reviewed operating systems. 23 He's not going to testify that he designed an 24 operating system. 25 He's going to talk about certain 6471 1 qualifications and characteristics of the 2 Microsoft operating system that he reviewed, 3 both through documents from Microsoft and 4 through the actual code. 5 And they can cross-examine him about 6 it. And if he doesn't have a basis for his 7 opinion, it will come out. 8 THE COURT: It came out that he did 9 not -- has never designed or developed PC 10 operating systems. 11 MR. LAMB: I don't think that's what 12 he said. 13 Okay. When you look at what happened, 14 they were asking him that, and he said I 15 thought you were talking about Windows 16 operating systems. When he talked about 17 Fujitsu, he talked about the design of 18 operating systems. 19 Whether or not he's specifically 20 designed a PC operating system such as Windows 21 or DOS doesn't mean he's not qualified to 22 testify about having reviewed it and evaluated 23 it and telling what it does. 24 Otherwise, only someone who had 25 physically done it could testify about it, and 6472 1 that is not the case. 2 THE COURT: Okay. Anything else on 3 this? Mr. Holley? Mr. Tulchin? 4 MR. TULCHIN: Yes, Your Honor, just to 5 respond to Mr. Lamb briefly, if I could. 6 On the lack of innovation point, with 7 all respect to Mr. Lamb, I think his argument 8 amounts to an argument about semantics. 9 The Court has ruled that that claim is 10 out of the case and now they want to get it in 11 not even by the back door, by a side door, a 12 door that's almost adjacent to the door that 13 they thought originally they were going to 14 enter. 15 It doesn't -- it's an artificial 16 distinction to say, well, this witness won't 17 testify about the economic impact of the lack 18 of innovation. He'll only be talking about 19 lack of innovation when it comes to technology. 20 Well, technology is what we're 21 involved with, and this is just a square and 22 direct way of trying to get back into the case 23 and before the jury a claim that the Court has 24 dispensed with. 25 It's a way of trying to get the jury, 6473 1 in effect, to punish Microsoft, award damages 2 against Microsoft for this alleged lack of 3 innovation that apparently this witness will 4 say would have occurred were it not for the 5 conduct at issue. 6 And on the second point, Your Honor, 7 maybe we need Mr. Alepin back on the stand, 8 either within or outside the presence of the 9 jury, but I thought it was quite clear that he 10 said that he had not designed or developed PC 11 operating systems in the last 20 years. 12 The Plaintiffs say that, well, he had 13 something to do with mainframe operating 14 systems many, many years ago and maybe with 15 factory automation systems because he did 16 testify to that on direct, but he has neither 17 designed nor developed PC operating systems 18 throughout the period relevant to this case, 19 and if there's any doubt about it, Mr. Holley 20 perhaps should ask another question when the 21 witness is under oath. 22 MR. LAMB: Your Honor, if I may. 23 THE COURT: Go ahead. 24 MR. LAMB: This expert is obviously 25 experienced enough to be retained several times 6474 1 by the Department of Justice, by the European 2 Union. 3 He testified that in relation to the 4 Windows player he actually went through and 5 deconstructed and reassembled the entire 6 operating system under Windows. That's what he 7 did, okay. 8 There is no requirement under Iowa law 9 that someone to testify about a specific 10 subject matter has to have actually designed 11 that specific subject matter. There is no 12 requirement for that. 13 They're trying to extrapolate into 14 this Court and Iowa law a standard that doesn't 15 exist, a standard that they claim under Daubert 16 is not applicable. 17 THE COURT: What about this lack of 18 choice? Wasn't that thrown out? 19 MR. LAMB: Your Honor, that was thrown 20 out in terms of in relation to damages. 21 THE COURT: How is it relevant if -- 22 MR. LAMB: Because it's a way to prove 23 (a) our monopolization claim; and (b) it's a 24 way to establish willfulness. 25 MS. CONLIN: Your Honor, may I comment 6475 1 on that because I'm the one who lost the 2 innovation claim? 3 THE COURT: Go ahead. 4 MS. CONLIN: Thank you, Your Honor. 5 The loss of innovation and loss of 6 choice is, in fact, an element of the general 7 monopolization claim. 8 We sought damages. That is, we 9 thought we were entitled to them and the Court 10 disagreed, but it still is an essential -- or 11 at least one of the ways of proving that 12 monopolization has occurred. 13 The Court will recall in the District 14 Court decision for which the Court has granted 15 collateral estoppel there are several 16 paragraphs, several sentences that deal with 17 loss of innovation, that deal with loss of 18 choice. 19 The reason for that, Your Honor, is 20 because that proves monopolization. 21 And when I wrote the brief with 22 respect to loss of innovation as damages, I was 23 careful to say to the Court, of course, whether 24 or not we are permitted to seek damages for 25 this element, it is a part of our proof of 6476 1 monopolization, and there is -- there are a 2 number of places within the District Court 3 decision where Judge Jackson deals directly 4 with that issue. 5 And the reason, as I said, that he 6 does that is because that is one of the things 7 that shows that Microsoft has, in fact, 8 illegally monopolized the operating system 9 market. 10 MR. TULCHIN: Actually, Your Honor, as 11 I understand it, Mr. Alepin is not confining 12 himself to the lack of choice when it comes to 13 operating systems. 14 He apparently will be arguing that 15 there's been less innovation and the lack of 16 choice with respect to other products that 17 might work with the operating system. 18 And that clearly was the claim that 19 the Court threw out. 20 It's not just that the Plaintiffs 21 aren't permitted to seek damages on this issue. 22 Their entire claim was thrown out. 23 This is not an element of the claim 24 under Iowa law. It is not an element of the 25 claim that's being litigated here for an 6477 1 overcharge to show that Microsoft's conduct led 2 to a loss of innovation and a lack of choices 3 with respect to congruent or related markets. 4 When it comes to operating systems, 5 he's not an expert on that either, and nothing 6 that counsel has said can bring that back to 7 them. 8 I should also say, Your Honor, before 9 I forget that, the fact that Mr. Alepin was 10 retained by Company X or Company Y or the fact 11 that he was retained by the Department of 12 Justice to look through documents, which is one 13 of the things that I think he said he did, does 14 not qualify him as an expert in an Iowa court. 15 Of course, companies and the 16 government are free to retain people for 17 whatever purpose to get their advice. 18 Testifying as an expert is something 19 quite different. 20 And I want to go back to the case I 21 cited this morning, Bornn against Madigan, 22 414 N.W. 2d 646, and there the police officer 23 had investigated hundreds of accidents in the 24 ten years before this accident. 25 He had investigated, he said, ten per 6478 1 year on average, or a total of a hundred in 2 those ten years. In the prior 20 years, he had 3 investigated many more. 4 The issue there was whether he could 5 be qualified as an expert in accident 6 reconstruction, not investigation, and the 7 Court there said, well, that's close, but it's 8 not close enough. 9 And, furthermore, the Court affirmed 10 the judgment of the lower court, which had been 11 based on the evidence before the jury, and the 12 Judge there had excluded, Officer Mossman is 13 his name, Officer Mossman's offered testimony 14 on accident reconstruction. 15 What we have here is something quite 16 similar because whatever it is that Mr. Alepin 17 is an expert in, and maybe it's reviewing 18 documents for the government, whatever it is, 19 it does not include the economics or the law 20 pertaining to loss of innovation and lack of 21 choice. 22 All they're doing is trying to get 23 back into the case the same evidence that was 24 necessarily excluded when that claim was thrown 25 out. 6479 1 And on the issue of designing or 2 developing operating systems for PCs, again, 3 the related field of operating systems for 4 mainframes that Mr. Alepin apparently worked on 5 in the 1970s is not nearly as close to this 6 field as Officer Mossman's experience in 7 accident investigation in the Bornn case. 8 Thank you, Your Honor. 9 THE COURT: Anything else? 10 MS. CONLIN: Well, Your Honor, with 11 respect to this innovation claim, I think 12 Mr. Tulchin virtually concedes that with 13 respect to operating systems, we have the right 14 to prove that loss of innovation and lack of 15 consumer choice were and are a part of our 16 basic proof of monopolization. 17 For example, but for Microsoft's 18 monopolization of the operating system market, 19 new network computers could have arisen that 20 would have challenged Microsoft's monopoly. 21 The same is true with respect to new 22 middleware being developed that would have 23 challenged Microsoft's monopoly, and the lack 24 of consumer choice is -- there are dozens of 25 cases in which the issue of lack of consumer 6480 1 choice and loss of innovation are denominated 2 as part of the proofer of monopolization. 3 I think that Mr. Tulchin is trying to 4 lead the Court into applying in this case the 5 Daubert standard which has, of course, been 6 specifically rejected by the Iowa Supreme 7 Court. 8 There's no other explanation for his 9 insistence that because Mr. Alepin has not 10 designed an operating system he can't testify 11 about it. 12 He has looked at Microsoft's operating 13 system, which is, of course, pretty much a 14 monopoly, as we have already learned. 15 And the fact that opportunities for 16 the design of operating systems have not been 17 available would preclude anybody from 18 testifying under the standard that Mr. Tulchin 19 seeks to impose on the Court and on the 20 Plaintiffs. 21 That is not the standard in Iowa. 22 That has never been the standard in Iowa, and 23 the Supreme Court has specifically rejected the 24 possibility that this should be the standard in 25 Iowa. 6481 1 Every single one of the opinions which 2 the Defendant challenges today were in 3 Mr. Alepin's report in June -- filed June 2nd 4 of 2006. 5 To have to come here in the middle of 6 his examination -- at the beginning of his 7 examination and reply to these pretty 8 off-the-wall comments is really not fair and 9 not what the Court intended when it set up this 10 schedule for motions in limine. 11 But the fact is that these challenges 12 to Mr. Alepin's qualifications are without 13 merit and should be rejected. 14 MR. TULCHIN: Just one thing, Your 15 Honor, if I may. 16 I'm sorry to extend this. 17 The dozens of cases -- I'd be 18 interested in getting the citations that 19 Ms. Conlin says she has to dozens of cases on 20 the subject. 21 But they certainly don't entitle 22 Mr. Alepin to construct this alternative world, 23 the but-for world which he has acknowledged he 24 is not qualified to construct, and that's all 25 that the Plaintiffs now are asking; that 6482 1 Mr. Alepin be permitted to say -- and this is 2 testimony that Dr. Noll may be qualified to 3 give -- that Mr. Alepin be entitled to say were 4 it not for this conduct, the world would look 5 different. I can construct this but-for world, 6 and in that alternative universe, here are the 7 kinds of choices that would be available. 8 Not necessarily just choices in 9 operating systems. You know, I think there 10 would be more OS/2 out in the market than there 11 are today, but choices with respect to other 12 software as well. 13 That's exactly what Mr. Alepin 14 conceded he is not qualified to do. That's 15 what we're talking about. 16 We're back to lack of innovation based 17 on the construction of this imaginary 18 alternative world that they say would have 19 existed in the absence of this conduct. 20 They have experts on that subject. 21 Mr. Alepin is not one. 22 MS. CONLIN: What Mr. Alepin conceded 23 was that he could not do a but-for economic 24 world. 25 In his report, on page 156, he says, I 6483 1 believe as an industry participant and a 2 technologist there are several likely ways in 3 which PC software markets could have developed 4 in the absence of the many challenged 5 Microsoft's actions which occurred over many 6 years. 7 I described above several points in 8 the history of the PC where an alternative 9 partial or complete to Microsoft's dominant 10 position emerged. Microsoft's executives 11 recognized each and every one of these products 12 and technologies as threats. 13 At the moment when they posed the 14 threats, Microsoft reacted to them, expending 15 considerable energies and resources to 16 eliminate them. 17 What Mr. Alepin conceded, and what is 18 true and what we will not be asking him about, 19 are economic models of alternative worlds. 20 But in terms of the technology and 21 what -- and the effect of Microsoft's actions, 22 he's perfectly well-qualified to testify to 23 that from a technological standpoint, and 24 that's all we're offering him to do, Your 25 Honor, nothing about the economic but-for world 6484 1 that Mr. -- that Doctor Mackie-Mason will be 2 talking about. 3 So this is again a part of his report 4 and something that should have been brought up 5 before. 6 But certainly the Court should not 7 preclude the jury from having the benefit of 8 this expert witness' 30-plus years of 9 experience in the computer industry on this 10 made-up basis that Mr. Tulchin urges the Court 11 to adopt that he is somehow unqualified to do 12 what he has done many times before in many 13 other courts and in many other cases. 14 MR. TULCHIN: I didn't make it up. He 15 testified to it himself that he's not qualified 16 to do a but-for world, and it's just double 17 talk, Your Honor, to talk about a distinction 18 between a but-for economic world and a but-for 19 technological world. It's the same thing. 20 A professor of economics with the 21 proper qualifications can construct this 22 alternative universe in which he can 23 hypothesize the existence of alternative 24 products and technologies. 25 There just isn't any distinction 6485 1 between saying, well, I'm going to do it from 2 the standpoint of someone who's a technologist 3 and now I'm going to construct the same world 4 and come up with my ideas of what the world 5 would have -- what the world would have been 6 like, but I'm going do it from the standpoint 7 of technology. 8 It's doing the same thing and just 9 putting a different label on it. And that's 10 what Mr. Alepin himself testified. And we 11 quoted this in our brief, Your Honor, that I 12 handed up this morning. 13 He himself testified in 2003 he is not 14 qualified to do. He reaffirmed that, Your 15 Honor, today. 16 MR. WILLIAMS: Your Honor, can I speak 17 to that point? Specifically this is all -- I 18 just want to clarify the record. The quote -- 19 the quote that's attributed to Mr. Alepin was 20 actually a question that was posed to him, and 21 it was limited to are you qualified to 22 construct a but-for world for purposes of a 23 damages analysis, and that was built right into 24 the question, and he said no because he's not. 25 That is not at all what we are doing. 6486 1 This is not for a damages analysis. 2 As my co-counsel has stated 3 eloquently, this is not that at all. It's a 4 technological development, which is something 5 that he is qualified to do. 6 MR. LAMB: Frankly, Your Honor, what 7 you're going to see is if you were to grant 8 this, then, when the economist gets up there, 9 Mr. Tulchin will claim that there's a lack of 10 foundation because, Mr. Economist, you can't 11 technologically claim that this could have 12 happened. 13 This is a foundational thing. He 14 should be able to testify as to the technology. 15 That's all he's going to testify to. 16 THE COURT: Anything else? 17 MR. TULCHIN: No, Your Honor. 18 THE COURT: I'll take it under 19 advisement and I'll give you a ruling when we 20 reconvene. 21 (A recess was taken from 11:22 a.m. 22 to 12:02 p.m.) 23 (The following record was made out of 24 the presence of the jury.) 25 THE COURT: Court has reviewed the 6487 1 objection by the Defendant and the resistance 2 thereto. 3 Court has the following ruling: The 4 witness may not offer opinions on the 5 following: Legal opinions, including whether 6 conduct is or is not anticompetitive, whether 7 the Defendant has complied with decrees and 8 court orders and judgments, and any 9 interpretation by the Defendant of any decrees, 10 judgments, orders, conclusions of laws -- 11 conclusion of law or findings of fact. 12 He may not offer economic opinions. 13 He may not offer opinions on consumer behavior 14 or demand. 15 He may not give testimony on design of 16 PC operating systems. 17 He may testify as to how operating 18 systems in general are designed and developed 19 since I believe he does have some expertise in 20 that area. 21 He may also testify as to applications 22 systems; how in general they are designed and 23 developed, and may testify as to what impact 24 the conduct or acts of the Defendant has had on 25 competitors or developers and the computer 6488 1 industry from the standpoint of a person who 2 has expertise in the computer industry. 3 He's had quite a bit of service in 4 many aspects of it. I think he's qualified to 5 testify as to the impact of companies' 6 developments and activities and conduct in 7 regard to the technological aspect of the 8 industry itself, but not economic and legal 9 opinions. 10 Such opinions may include effects on 11 others in the industry, such as on technology 12 that was advanced or inhibited, but nothing 13 regarding economic success, opinions, or 14 consumer acceptance of things that may or may 15 not have been produced. He can't testify as to 16 what that would have been. He has no expertise 17 in that area. 18 He may state but for the alleged 19 conduct or acts of the Defendant that there may 20 have been or not have been advances in specific 21 computer technologies that he is an expert in 22 or knows of or has qualifications in or the 23 industry in general because I think he has 24 expertise in the industry in general to say 25 whether or not but for certain conduct, acts of 6489 1 the Defendant, there may have been advances in 2 technology. 3 Anything else? 4 MR. HOLLEY: Your Honor, I appreciate 5 the opinion. I was wondering if there's any 6 way that we could have that typed up so I can 7 look at it as I'm listening to his testimony 8 because I want to make sure that I don't step 9 outside what Your Honor says? 10 THE COURT: Okay. Should we take a 11 minute and have that done? 12 MR. HOLLEY: That would be wonderful, 13 Your Honor. 14 And one housekeeping point while we're 15 at it. 16 I appreciate that the Plaintiffs 17 brought this white board today, but I think it 18 would be preferable, both for them and for us 19 in the future, to use paper so that it can be 20 marked as an exhibit and so that it's part of 21 the record in the case. 22 Because otherwise it gets erased and 23 no one in any future proceeding is able to 24 refer back to it, and, you know, I don't expect 25 them to be able to magically produce paper 6490 1 right now, but I do think going forward the 2 Court should instruct the parties that if 3 things are going to be shown for the jury, they 4 should be in a form that can be maintained for 5 the record of the case. 6 MR. LAMB: Your Honor, maybe I'm old 7 school, but I've used chalkboards and white 8 boards for years. 9 This is not evidence. It's 10 demonstrative evidence. It's not going to be 11 admitted so it's not going to be able to be 12 used by the jury anyway. 13 If they wanted to recreate it or look 14 at anything, they're welcome to do it, but 15 that's just unduly burdensome. 16 I've already got this set up. It's 17 very typical for an expert to be able to get up 18 on a chalk board or a white board and just do 19 some diagrams to explain his testimony. 20 THE COURT: Is this for purposes of 21 objection or marking it? 22 MR. TULCHIN: Cross-examination, for 23 example, Your Honor. 24 Let's say Mr. Holley wanted to examine 25 on cross Mr. Alepin on the diagram that he 6491 1 drew. It's been erased. 2 We could ask him to draw one that by 3 his recollection was the same, but if we had it 4 on a piece of paper, that is, no objection to 5 having -- I forget what they call them 6 actually. It's escaped me. 7 THE COURT: Easel. 8 MR. TULCHIN: Big easel with a 9 flip-type chart, and that way you can 10 cross-examine him later on the next day or 11 whenever it is. 12 THE COURT: Anything else? 13 MR. HOLLEY: No, Your Honor. 14 MR. LAMB: No, Your Honor. 15 THE COURT: We'll try to find one. 16 See if you can locate one. Anything else? 17 MR. LAMB: No, sir. 18 MR. HOLLEY: No, Your Honor. 19 THE COURT: I'll have her type that 20 up. Is that okay? I'm sure she'll get it in 21 an hour or two. 22 (A recess was taken.) 23 (The following record was made out of 24 the presence of the jury.) 25 THE COURT: Mr. Lamb, there's 6492 1 something else you wanted to say? 2 MR. LAMB: Sorry. I keep wanting to 3 stand up. 4 I apologize, Your Honor. I'll get the 5 rules down. 6 Your order in the ruling says he may 7 not give testimony on design of PC operating 8 systems. 9 I'd like to clarify -- get some 10 clarification on that for my purposes because 11 what he testified to earlier was that in 12 relation to DOS and Windows, he had actually 13 taken it apart to try to do something -- and 14 that was the media player -- and then put it 15 back together, and testified that it ran with 16 it and it ran without it. 17 So he's not going to testify that he 18 designed any PC operating systems, but I 19 believe it's necessary for him to be able to 20 testify as to what he did in relation to the 21 operating systems, whether worked with it or 22 without it, but I don't want to run afoul -- 23 THE COURT: He actually worked with 24 one? 25 MR. LAMB: Yes, sir. 6493 1 MR. HOLLEY: Your Honor, may I address 2 this briefly because Mr. Lamb's representation 3 is not correct? 4 There is a product called Windows XP 5 embedded which is designed for use with 6 point-of-sale terminals and kiosks and things 7 like that, which permit developers of non-PC 8 devices to take certain pieces of Windows XP 9 and pull them out if they don't need them in 10 their device. 11 Mr. Alepin used that tool which 12 Microsoft markets, and it doesn't require any 13 particular expertise. I've used it myself. So 14 the notion that he tore Windows apart is wrong. 15 He doesn't have any expertise in the 16 way Windows was designed or developed. That's 17 his testimony, and he shouldn't be allowed to 18 talk about this subject. 19 THE COURT: Well, he can testify if he 20 actually took -- what he did. 21 MR. HOLLEY: Your Honor, I agree with 22 that he can testify that he took a tool called 23 Windows XP embedded and did certain things, but 24 I don't think that he should be -- 25 THE COURT: That's fine. I have no 6494 1 problem with that. 2 MR. LAMB: My only last comment is we 3 wouldn't have any objection if the Court wants 4 to read this to the jury -- they've been 5 waiting awhile -- so that they'll know what the 6 Court's order is. It doesn't matter to us. 7 THE COURT: No, I don't think I'm 8 going to read it to the jury. 9 I'll just say that the objection has 10 been sustained in part and denied in part. I 11 think that would cover it, wouldn't it? 12 MR. LAMB: Yes, Your Honor. 13 MR. TULCHIN: Yes, it will, Your 14 Honor. Thank you. 15 THE COURT: Very well. Let's bring 16 them in. 17 (The following record was made in 18 the presence of the jury.) 19 THE COURT: Everyone else may be 20 seated. 21 Excuse the delay. We had an issue of 22 law which the Court had to take up with the 23 attorneys and the parties only. 24 There is an objection as to 25 Mr. Alepin's offering opinions. The Court has 6495 1 sustained it in part and denied it in part, so 2 it's half and half. You'll find out. 3 Go ahead, Mr. Lamb. 4 MR. LAMB: Thank you, Your Honor. 5 DIRECT EXAMINATION (CONT'D) 6 BY MR. LAMB: 7 Q. When we took a break, Mr. Alepin, you 8 were reviewing summary of opinions. So could 9 you just summarize your opinions for the jury? 10 A. The bottom line, really, is that 11 certain Microsoft conduct, certain actions that 12 it takes handicap other companies in the IT 13 industry. And that handicap slows down their 14 ability to introduce new products and new 15 technologies other than at a rate that they 16 would have preferred. 17 Q. We're going to break that down further 18 as we go over your testimony over the next 19 period of time, but what does that mean? 20 I mean, just in general, what does 21 that mean in terms of technological? 22 MR. LAMB: Could we have the next 23 slide, please? 24 A. Well, what that means is that there 25 are companies with new technology that they 6496 1 would like to get into the market; can't do it 2 in the time frame that they'd like to do it. 3 They need to wait, or they're 4 prevented from doing it. And this means that 5 if you have less products from third-party 6 vendors, you have inevitably less choice. 7 MR. HOLLEY: Your Honor, I object. I 8 believe this is directly contrary to the 9 Court's ruling. 10 THE COURT: Overruled. You may 11 answer. 12 A. And what that means is that you'll 13 have fewer applications from independent 14 software vendors and fewer operating systems 15 that these applications can work with. 16 Q. What I'd like to do now, sir, is we're 17 going to go back to the white board -- not we, 18 you are going to diagram some things, some just 19 general concepts in the computer industry so 20 we're all on the same page. 21 What I'd like you to do first is, 22 you'd talked earlier this morning about a 23 supercomputer. Okay. Can you just describe 24 for the jury what a supercomputer is, how it 25 operates, so they have a sense of it? 6497 1 A. A supercomputer is a very big 2 computer, as the name might suggest. 3 And a supercomputer when it was first 4 conceived was to solve some really, really big 5 problems like weather prediction, and a company 6 that first -- one of the first companies to 7 introduce the supercomputers was a company 8 called Cray, and they developed a computer. It 9 was a very large computer, and it was so big, 10 in fact, that it had benches around it that you 11 could sit on in these computer rooms. 12 THE COURT: Could you spell that for 13 the court reporter, please? 14 THE WITNESS: Cray, C-r-a-y. 15 THE COURT: Thank you. 16 A. Seymour Cray. It was named after 17 Seymour Cray. 18 And basically a supercomputer is 19 designed to have a number of processing 20 elements so that there's one main control 21 processor and a number of special processors 22 here, each of which is responsible for dividing 23 a portion of the problem and handling the 24 problem. 25 Today, rather than making 6498 1 supercomputers out of specialized technology, 2 we make them out of chips from Intel, for 3 example, and what that means is you have 4 supercomputers that are comprised of thousands 5 and thousands of chips from Intel, very large 6 personal computer if you want to think about it 7 that way. 8 You may have heard of supercomputers. 9 When a computer finally beat the best chess 10 player in the world, it was a supercomputer 11 developed by IBM. It was called Deep Blue. 12 And what it could do was basically 13 assign looking forward in the chess game to the 14 next move and getting each one of these 15 computational elements to think about what the 16 next move is for this piece, this piece, and 17 this piece. 18 Those are very large and expensive 19 computers. There aren't that many sold, and 20 there's a race in our industry typically to get 21 the fastest machine because it carries with it 22 a certain amount of pride by the engineering 23 groups who develop it. 24 Q. Now, could you go on to mainframes and 25 explain to the jury what a mainframe is? 6499 1 A. A mainframe computer is a large 2 specialized -- large computer that came into 3 being in the 1950s. In fact, in 1956 or 4 thereabouts it was expected, and IBM was the 5 leading vendor. 6 IBM said, you know, we think that 7 there's a market for 100 computers, k100 8 mainframe computers in the United States. 9 We sell 100 computers probably in the 10 time that I've described the supercomputers, or 11 probably more than that. 12 Mainframe computers have -- as I 13 indicated before, they cost millions of 14 dollars. They have lots of capacity in terms 15 of disk space and tape drives and specialized 16 peripheral equipment. 17 But every day personal computers are 18 now rivaling the capacity and the processing 19 power of mainframe computers of a few years 20 back. Not in terms of the liability, not in 21 terms of security, but certainly in terms of 22 the processing power. 23 So today I can buy on a desktop what I 24 used to spend millions of dollars for when I 25 was at Amdahl. 6500 1 Q. And mainframes use operating systems? 2 A. Mainframes use operating systems. 3 Q. Next concept, if you could diagram 4 this, could you explain to the jury the concept 5 of servers or a server? 6 A. So what mainframes used to work with 7 what we called dumb terminals. 8 Mainframes were computers that had 9 connected to them terminals that -- like you 10 might remember from an airline check-in 11 terminal. Not a very smart computer at all. 12 It was just a graphical display 13 terminal. And it was connected to the 14 mainframe computer and there was a transaction 15 processing airlines reservation system, for 16 example, that was what was running on mainframe 17 computers. 18 As personal computers became the -- 19 became popular and prevalent, what companies 20 realized was it would be a good idea if within 21 their businesses they could connect these 22 personal computers together in a network for 23 people to be able to share files, to be able to 24 share printers, to be able to move from 25 computer to computer. 6501 1 And when they were in Des Moines or 2 when they were in Minneapolis, they'd be able 3 to move around and access their files. 4 To do that, we needed server 5 computers, and server computers connect 6 personal computers together in networks to 7 enable users to share information and to use 8 information. 9 There were different kinds of servers 10 just to fill -- a web server, for example, is a 11 server computer that has a specialized purpose. 12 It enables users of the Worldwide Web 13 to connect to a web server and access 14 information that's stored on that website. 15 That's a server computer. 16 Q. And then lastly, personal computers? 17 MR. LAMB: Need the next slide up, 18 Darin. 19 A. So I think we're all familiar with a 20 PC. 21 A PC is a computer that was first 22 introduced in 1981 by IBM, and it has now come 23 -- there weren't personal computers before. 24 There were computers that you could buy as an 25 individual. 6502 1 You could go to a Radio Shack or you 2 could get it from Heath, Heath kits at the 3 electronic store. 4 And you would get those PCs -- those 5 computers, it would cost about 4- or $5,000 in 6 kit form. It wasn't very much. 7 IBM came in, introduced a computer 8 based on an Intel microprocessor. And it had a 9 main board, a motherboard, the Intel chip, and 10 you may remember the floppy diskette that -- 11 floppy diskette drive, and it had a monitor and 12 a keyboard. And that was the personal 13 computer. 14 In 1981 it cost about $5,000. 15 You could buy it without an operating 16 system; you could buy it with an operating 17 system. 18 MR. LAMB: Could I get the next slide, 19 Darin? 20 Q. Now, what I'd like you to do, sir, is 21 diagram for the jury software. 22 You've gone through the hardware. I'd 23 like you to diagram the software so they have 24 an understanding of the software that's 25 involved. 6503 1 A. All right. We like to draw these 2 things in stacks. 3 And as a stack here, beginning with 4 the hardware, which I just briefly touched on. 5 So the hardware -- and on top of that it begins 6 our software stack. 7 The first layer is the BIOS, the Basic 8 Input/Output System. 9 When you turn on your computer, the 10 first thing that happened is the software 11 program is started. It's called the BIOS. And 12 it begins by doing what we call power on self 13 test. 14 That's where you see the screen and it 15 says testing your memory or telling you what 16 version of the software is as it starts up. 17 After it's determined that all the 18 parts are present and ready to go, the next 19 thing that it does is it loads the operating 20 system, the operating system that you've chosen 21 to launch. 22 And so we have here the next layer, 23 which is operating system. 24 This operating system is whichever 25 operating system you have on your computer or 6504 1 your personal computer vendor has installed for 2 you. 3 After that -- and here the operating 4 system is what remains in the system and ready 5 to do whatever -- to launch whatever 6 applications you want to do because, after all, 7 that's why you turn the computer on. 8 You have middleware. And middleware's 9 job is to provide you with certain other 10 services that are not part of the operating 11 system as I described, but -- and not a 12 particular application. Not a business use 13 that you had or a play or a game use that you 14 might have if you're one of my kids. 15 And on top of this layer here, we have 16 your applications. 17 And back when I started computing or 18 using computers in programming, we had the 19 ability in the mainframe operating system to 20 use multiple applications at the same time. 21 When DOS and personal computers were 22 first introduced, they had the ability to run 23 one program at a time. You'd have to exit the 24 program and launch the next program. 25 With mainframe computers back in the 6505 1 1960s, we were able to do that as a routine 2 matter so you could do two things, three 3 things, four things at a time. 4 And the operating system at the time 5 would allocate the resources of the computer as 6 a function of what the applications needed. So 7 it would give some time to your payroll 8 program, give some time to the inventory 9 control program as they were operating. 10 Q. And then the last concept up there is 11 dynamic link libraries. Could you explain that 12 to the jury, Mr. Alepin? 13 A. Dynamic link libraries are the 14 software that can be in part of the middleware 15 part of the operating system or even part of an 16 application, and they are the equivalent of -- 17 and this is a concept that I have to produce 18 here to get this. 19 This is a subroutines. So a function 20 -- for example, to compute or to perform a 21 particular function like a square root 22 function, I could write that software code and 23 put it into each one of my programs that need 24 to compute square roots. 25 Or I could take it and make it into a 6506 1 subroutine, a set of code that I could give to 2 each one of the programs that needed it. That 3 would be one way of making subroutines and 4 eliminating the need to have to rewrite the 5 subroutine function for every program that 6 needed to compute the subroutine, the square 7 root. 8 Finally, what I can do is instead of 9 making it a part of my application and in 10 memory at the same time, I can take it and make 11 it dynamically available so that inside my 12 application here -- so I've got the code that's 13 computing -- that's doing whatever it's 14 supposed to do as part of my application. 15 It can call a subroutine like the 16 square root function, and that would be inside 17 my program. And I would also have a copy of it 18 in another application of computing square 19 root. 20 Or with dynamic link libraries, what I 21 can do is I can simply take the square root 22 function, put it in its own dynamic link 23 library, and whenever some application needs 24 the square root function, they can ask the 25 system to make the square root function 6507 1 available to them. 2 This turns out is a good idea because 3 it produces memory. It eliminates the fact 4 that the subroutines have to be in every 5 program. 6 Q. Why don't you go ahead and take your 7 seat, Mr. Alepin. 8 A. Thank you. 9 Q. Mr. Alepin, you spoke about the types 10 of software and you spoke about applications. 11 Can you in a little bit more detail 12 tell the jury what an application is? 13 A. Well, an application is really, as I 14 said, it's what you buy a computer for. It's 15 something that does -- or accomplishes a 16 business purpose. 17 So perhaps the easiest way to describe 18 applications or to describe the business 19 purposes that they fulfill; for example, an 20 application that will balance your checkbook, 21 an application that would perform word 22 processing for you, an application that would 23 compute a spreadsheet. 24 Those are types of applications, and 25 they are the same, really, but on a smaller 6508 1 scale, the applications that large businesses 2 use, enterprise applications. 3 Like the management of payroll for a 4 large company is a different program from the 5 one that manages a small business, but they're, 6 nevertheless, applications and they're, 7 nevertheless, the business purpose for which we 8 buy the computer. 9 Q. Now, if you could, sir, could you 10 describe some of the applications that 11 Microsoft has to familiarize the jury with 12 those so we're all on the same page 13 essentially? 14 A. Microsoft has a number of 15 applications. The most widely used, I believe, 16 are the Office suite of applications. This is 17 sometimes referred to as a personal 18 productivity suite. 19 It includes Microsoft Word, Microsoft 20 Excel, and Microsoft PowerPoint. That's the 21 application that was used to create these 22 slides here for the purposes of the 23 demonstratives. 24 At various times in the history of the 25 Microsoft Office Suite -- called a suite 6509 1 because it's a collection of these programs -- 2 it has contained a web page authoring software 3 so you could write web pages, a publisher 4 program which would enable you to publish 5 newsletters and the like, and an E-mail 6 program, Microsoft Outlook, perhaps you've 7 heard of that, and that's the Microsoft Office 8 suite, the most widely used. 9 Q. Now, if you could, sir, could you 10 identify a few other applications that the jury 11 might be familiar with that they do that are 12 non-Microsoft applications? 13 A. Sure. I mentioned the checkbook 14 balancing that's made by a company I referred 15 to earlier, Intuit. 16 Intuit has also got a Turbo Tax 17 program that can help you compute your tax 18 returns and actually file it electronically 19 with the IRS. 20 A company I mentioned earlier, Novell 21 had WordPerfect, which is a word processing 22 software product. 23 And I'll use this term again, I'm 24 sure. A killer application for the IBM 25 personal computer, which was Lotus 1-2-3. That 6510 1 was a spreadsheet application introduced by 2 Lotus Development Corporation in 1983, I 3 believe, that was very popular application. 4 Novell has a Groupwise application, 5 which is a collaboration suite. It includes 6 E-mail software and calendaring so you can 7 organize meetings and that kind of stuff. 8 MR. LAMB: Could I get the next slide, 9 Darin? 10 Q. You also reference middleware, sir. 11 A. I did. 12 Q. Can you explain again what middleware 13 is and give some examples, both Microsoft and 14 non-Microsoft? 15 A. Well, middleware is a software that I 16 said sits in the middle. So sometimes we don't 17 have a good imagination, but -- when we name 18 things, but middleware is middleware because 19 it's in the middle. 20 It both uses the application -- the 21 application programming interfaces of the 22 operating system, but it also makes available 23 programming interfaces connection points for 24 other applications to sit on top of the 25 middleware. 6511 1 So thinking back to the diagram, you 2 can see that I've positioned the applications 3 as over the middleware or the middleware 4 between some of the applications, but not all 5 of them. 6 And that was intended to convey the 7 sense that middleware can provide connectivity 8 for applications above the operating system 9 layer. 10 Middleware as a category includes the 11 Internet Explorer browser from Microsoft. It 12 includes a media player, the Windows media 13 player from Microsoft and Messenger, Instant 14 Messenger or chat program, as well as an E-mail 15 program called Outlook Express. 16 Other middleware examples include 17 applications servers, which are transaction 18 processors I mentioned, that handle high volume 19 of reservation systems. 20 They're not the reservation system, 21 they just enable multiple users to access the 22 database simultaneously. 23 Q. Okay. Now, could you identify some 24 other middleware products that the jury may or 25 may not be familiar with that we'll be talking 6512 1 about during this period of time? 2 A. Another browser besides Microsoft's 3 browser is Netscape Navigator, the first really 4 popular browser for personal computers and 5 other computers. 6 Today Netscape Navigator has been 7 transformed, if you will, into what is now 8 called Mozilla Firefox. 9 Mozilla Firefox is a browser that is a 10 descendent, a great grandchild, perhaps, of 11 Netscape's original browser introduced in 1994. 12 Java -- Java's middleware -- Java is a 13 software package that was developed by Sun 14 Microsystems that enables applications that you 15 could download to run on your PC. 16 So you could download an application 17 from the Internet and it can run on your PC. 18 And it wouldn't care what PC you had; what 19 version of the system you had. 20 It was a very important point for 21 Java, and I'll talk about that later. 22 And I mentioned Windows Messenger, 23 which is part of Microsoft's middleware package 24 -- software. 25 AOL has an instant messenger, which -- 6513 1 called the AOL Instant Messenger, AIM, and it 2 enables you to chat realtime with friends and 3 family. 4 MR. LAMB: Okay. Next slide please, 5 Darin. 6 Q. And then on the bottom level you 7 talked about operating systems, and again can 8 you explain to the jury what an operating 9 system does? 10 A. An operating system, it manages -- 11 sometimes it's called the control program. 12 It manages access to the resources of 13 the computer and makes applications available 14 pursuant to user requests. 15 Q. Now, you've talked about operating 16 systems on supercomputers. You've talked about 17 them on mainframes. You've talked about them 18 on servers. You've talked about them on 19 personal computers. 20 Are there similarities between the 21 operating systems of those different types of 22 computers? 23 A. There are, yes. There's a great deal 24 of similarities. 25 Q. Can you just describe some of them for 6514 1 the jury? 2 A. Well, the first is that the operating 3 system has to manage memory. 4 So all operating systems have memory 5 management software in it that will give an 6 application memory in which to operate. 7 They include a dispatcher. A 8 dispatcher is, as the name suggests, a portion 9 of the operating system whose job it is to give 10 control to an application that needs to use the 11 CPU. 12 So if you have an application that 13 says I need to compute something now, it's the 14 dispatcher's job to stop whatever else it's 15 doing and give control to the application that 16 needs the CPU. 17 Application -- operating systems 18 sometimes have file systems associated with 19 them. File systems is a way that the data is 20 organized on a disk drive or on some other 21 medium, and the operating system specifies 22 mainframe operating systems, server-based 23 operating systems. 24 PC operating systems specify formats 25 for the way the data is stored on those -- on 6515 1 that media. 2 Those are all common functions. There 3 are many, many, many more functions that all 4 operating systems essentially share in common. 5 Q. Now, sir, if you could, could you 6 identify and describe for the jury some of the 7 Microsoft operating systems that they may or 8 may not be familiar with? 9 A. The first Microsoft operating system 10 was called DOS, later MS-DOS. 11 It stood for -- the letters DOS stood 12 for disk operating system, and it was 13 introduced in 1981 to work with the IBM PC. 14 That went through a number of 15 successive versions. We have used -- 16 oftentimes we use numbers. So IBM DOS Version 17 1.1, Version 2, Version 3, 4, and so on. 18 That -- another operating system was 19 Windows 95. That was the combination of 20 Microsoft's MS-DOS and Microsoft's Windows 21 graphical operating environment software, and 22 that was not the 95th version of Windows, but, 23 in fact, released in 1995. 24 It has been succeeded in market by 25 Microsoft Windows 98, Windows ME, Windows XP, 6516 1 and last month, six weeks ago, I think Windows 2 Vista. 3 Microsoft also sells server operating 4 systems that are called Windows NT Server, 5 Windows 2000 Server, Windows Server 2003, and a 6 code name server coming out, which is called 7 Longhorn. 8 Q. And can you identify for the jury some 9 operating systems that are not Microsoft 10 operating systems? 11 A. Non-Microsoft operating systems for 12 computers that we can buy -- I say we can buy, 13 we can buy that don't cost thousands of dollars 14 -- would include the Mac OS, Linux -- Mac OS is 15 made by Apple. Linux is made by the open 16 source community. Be, which is now a part of 17 Palm, if you buy Palm Pilots. Same company 18 that makes Palm Pilots bought Be's operating 19 system. And in the mid -- or the late 1980s 20 and the early 1990s, IBM and Microsoft 21 initially developed an operating system called 22 OS/2 for personal computers. 23 Q. Now, you mentioned that Linux was an 24 open source code. What does that mean? 25 A. What that means is that the source 6517 1 code for the operating system, the actual 2 statements that are in the operating system are 3 available for anyone and everyone to download 4 off the Internet, or you can buy them inside 5 books. 6 You can buy the source code for the 7 book -- you can buy the book and you get the 8 source code as part of the book for the 9 operating system. 10 Q. Now, these different operating 11 systems, whether they be Microsoft or, for 12 example, Mac OS, they run on chips; is that 13 right, on computer chips? 14 A. They do. They run on specific 15 microprocessor chips. 16 Q. The Mac OS, can it operate on 17 different chips? 18 A. Only recently it gained that ability. 19 Just last February, perhaps. 20 Q. And from a technological perspective, 21 is that important? 22 A. From a -- yes, it's very important. 23 Q. Why is that, and explain that to the 24 jury. 25 A. Well, the operating system is tied to 6518 1 the chip -- the architecture of the 2 microprocessor. So Windows, for example, can 3 only run on Intel or Intel-compatible chips. 4 The Mac can run now on 5 Intel-compatible chips, but previously it could 6 only run on a special microprocessor that was 7 made by a telephone company, Motorola, and IBM. 8 So they were called power PC chips. 9 So your operating system is linked 10 very much to the architecture of the 11 microprocessor that is inside your computer. 12 Q. Okay. 13 MR. LAMB: Can I get the next slide, 14 Darin? 15 If I could approach, Your Honor, I'd 16 like to give the witness a pointer. There's 17 some visual displays that you can click through 18 that really relate to the testimony that he 19 just gave. 20 THE COURT: You may. 21 MR. LAMB: Why don't you go past the 22 next slide to the next slide. 23 A. This one? 24 Q. I think you already talked about 25 applications. You're welcome to discuss it 6519 1 again. 2 But applications is why people buy 3 computers? 4 A. Right. 5 Q. Why don't you go to the next slide. 6 It's going to start with computer software, and 7 it's going to give you some displays that I 8 believe then you can identify and explain to 9 the jury. 10 A. Let me see if I can operate this from 11 a distance. 12 This is a window, and on the window is 13 an application for Quicken. As you can see, 14 it's Quicken 2005. 15 This is the application that I spoke 16 of before that enables you to balance your 17 checkbook. And you can see that it's organized 18 in a way that would facilitate your management 19 of your personal finances. 20 And what you're looking at here is the 21 graphical user interface for that application. 22 So that GUI, sometimes we refer to it. G-U-I. 23 Q. Why don't you take a minute and 24 explain what a GUI is. 25 A. Okay. A GUI is, as I said, it stands 6520 1 for graphical user interface. It's another one 2 of our three-letter acronyms. 3 And it represents the graphical or 4 visual way of presenting the interface for the 5 application, the control mechanisms for how you 6 can interact with the software. 7 So typically you can see icons on a 8 desktop. So the metaphor that computer 9 designers have used since Xerox first 10 introduced this idea back in the late 1970s was 11 a desktop. 12 And just like the desktop at your 13 office, and you would arrange things on your 14 desktop, and you would pick up your calendar or 15 you would pick up other objects, a pen or an 16 application in computer speak, and you would be 17 able to do things with it metaphorically. You 18 could drag it into the wastebasket, like 19 throwing it away. 20 And to do that, you were given a mouse 21 to help you navigate on your desktop. That 22 would be your virtual hand which you could use 23 to grab it. 24 And that is the metaphor that survives 25 today, is a desktop on which your -- the 6521 1 objects you would normally find on your desk 2 would be located, but advanced to the idea of 3 having a computer do things for you. 4 Q. Can you switch slides from there or 5 not? 6 A. I think I can. Yes, there. 7 Q. Okay. 8 A. And here are complimentary products, 9 products that work with or separately from 10 Quicken, including the Turbo Tax. 11 So if you keep your finances in 12 Quicken, you can use Turbo Tax and 13 automatically generate the information from 14 your Quicken files, or you can keep the 15 information with Turbo Tax alone. 16 QuickBooks manages a small business, 17 manages your payroll. Other kinds of small 18 business types of services. 19 Q. Go ahead. 20 A. Okay. I mentioned earlier word 21 processor. What I've done is just taken a 22 screen shot. 23 A screen shot is a picture of what was 24 on a computer screen at a point in time. 25 And here I've captured a word 6522 1 processing screen shot here, and this one from 2 Microsoft Word. 3 You can see in the top of the screen 4 -- you know, I'm not very good at pointing. 5 Q. I don't think that pointer is coming 6 up. 7 A. Well, the screen is divided into the 8 workspace where you're actually writing your 9 document. That's where you can say this is -- 10 this text is in the top element. 11 And on top of the text area, you can 12 see that there are buttons that you can push 13 that perform certain functions for you, and 14 that's part of the user interface for the word 15 processing program, Microsoft Word. 16 Here is another screen shot taken of 17 another Microsoft application called Microsoft 18 Outlook. And it's the in box for the E-mail 19 application. It includes, on the left-hand 20 pane you can see the folders where you store 21 your E-mails. 22 You can see the individual E-mails 23 that are in the folders. So it's just like 24 again the metaphor. We really think of these 25 things in terms of that metaphor. 6523 1 You can take stuff and put it into 2 folders, much like you would organize a 3 business folder, and the individual documents 4 that are in that folder appear in the middle 5 frame under in box. 6 And, finally, you can read the 7 contents of a particular E-mail in the 8 right-hand frame where you see Q4 highlights on 9 the screen. 10 A third example here is one of 11 spreadsheets. 12 Spreadsheets were sort of the first 13 application that made sense to people to buy a 14 personal computer for. It was kind of the 15 quintessential idea here. You can see, my 16 goodness, I can take a personal computer and 17 actually do business things with it. This is 18 back in 1979-1980 time frame. 19 Here, you can see spreadsheet 20 Microsoft Excel. It divides the screen into 21 rows and columns in a grid format. Those are 22 the -- I'm not very good at naming colors here. 23 But you can see some green and orange and 24 yellow cells that are part of the grid. 25 And in here you can enter data, you 6524 1 can enter sales results, and you can enter 2 formula that would operate on the individual 3 cells to produce additional results. 4 And every time you change something in 5 one of the cells, you can have the spreadsheet 6 recompute the totals; for example, the sum of 7 all of a particular column, and that is a very 8 useful and widely used application. 9 We're now into the other application 10 that has emerged in the past -- let's say past 11 decade that caught people's attention and 12 really the compelling reason for you to buy a 13 computer, and that's the ability to go out onto 14 the Worldwide Web. 15 One of the applications -- one of the 16 websites that's very popular is ebay. You can 17 go and sell stuff, buy stuff through auctions 18 that are conducted at the ebay website. And 19 the way you get to the website is through a 20 browser. 21 So the browser is your -- now the 22 application you navigate to get to the 23 individual websites to view the contact and to 24 interact with the programs that are available 25 at the website or the content that's available 6525 1 at the website. 2 MR. LAMB: Next screen, please, Darin. 3 Q. Sir, could you explain to the jury 4 what the phrase or term killer apps or killer 5 applications means? 6 A. Killer application is a phrase that 7 came out after we knew that something was a 8 killer application. By that, it was a reason 9 for you to buy a computer. 10 So not everyone wanted a spreadsheet 11 in 1981, but for those people who thought that 12 they really -- that they needed to have a 13 spreadsheet, VisiCalc was a killer application. 14 It was something that changed the way you 15 thought about computers and how it applied to 16 you. That's what I mean by a killer 17 application. 18 Q. What were the first killer 19 applications? 20 A. VisiCalc for spreadsheets. WordStar 21 and later WordPerfect for word processing 22 software. Lotus 1-2-3 for IBM personal 23 computers. Previously VisiCalc was available 24 on an Apple II, I believe Apple II computer, 25 but -- and WordStar was available also on an 6526 1 Apple II, as well as on a Radio Shack computer. 2 In those days Radio Shack made computers called 3 the TRS-80s. 4 Q. During this time frame when WordStar, 5 Lotus 1-2-3, and WordPerfect came out and were 6 killer applications, did Microsoft have any 7 killer applications? 8 A. No. Excuse me. It didn't have any. 9 Q. What time period are we talking about 10 here? What time period? 11 A. We're talking from 1979 probably 12 through the late 1980s. 13 Q. Late '80s, okay. Thank you. 14 MR. LAMB: Can I get the next screen, 15 please? 16 Q. This shows a couple operating system 17 decals or insignias that the jury may or may 18 not have seen, and if you could go through and 19 identify these and whose they are and what 20 companies they are. 21 A. Starting from the upper left-hand 22 side -- I'm going to not trust my pointing 23 skills on the upper left-hand side -- that is a 24 Windows logo. 25 Q. Microsoft? 6527 1 A. Microsoft Windows logo. 2 Q. Okay. 3 A. Individual colored panes on the 4 window. 5 That first came into being in 1985. 6 Preceding that, and on the right-hand side, is 7 an operating system called UNIX developed 8 originally by Kernighan and Richie at Bell Labs 9 in the late 1970s. 10 Q. Could you spell that for Tammy so she 11 doesn't beat me up at the break? 12 A. Yes. There could be some unfortunate 13 confusion there. 14 UNIX, U-N-I-X. 15 Q. No, I meant the person who developed 16 it. 17 A. Oh, Kernighan, okay. 18 Q. Even I can do UNIX, okay. 19 A. Excuse me. Ooh. 20 Q. Give it your best shot. 21 A. Okay. Kernighan, K-e-r-n-i-g-n-a-n. 22 No, just g-a-n. Sorry. And Richie, 23 R-i-t-c-h-i-e. 24 Q. Thank you, sir. 25 The Mac OS symbol, what's that? 6528 1 A. Mac OS is the bottom left-hand corner. 2 That's the operating system that was developed 3 by Apple Computer Company and introduced in 4 1984. 5 Q. And then finally, the one on the lower 6 right, what's that? 7 A. That is -- that logo is the UNIX -- 8 I'm sorry, the Linux, L-i-n-u-x, logo named 9 after, depending on which continent you're on, 10 either Linus or Linus Torvalds. Linus or Linus 11 is spelled the same way as the character in 12 Peanuts, but he's actually a person, Linus. 13 Linus Torvalds, T-o-r-v-a-l-d-s. 14 Q. Which of these came first, these 15 operating systems that's up here? 16 A. UNIX came first. 17 Q. And then? 18 A. Mac OS. 19 Q. And then? 20 A. Windows. 21 Q. And then, obviously, Linux? 22 A. That's correct, although Windows was 23 not quite an operating system when Linux was 24 first introduced. So it would be depending on 25 whether you were talking about Windows the 6529 1 product or Windows the operating system, Linux 2 would come first. 3 Q. What do you mean Windows the product 4 or Windows the operating system? 5 A. Excuse me. 6 When Windows was first introduced and 7 for a decade following its introduction or 8 almost a decade, nine years and seven months, 9 Windows needed an operating system in order to 10 function. So Windows needed DOS to operate. 11 You could buy Windows, but you 12 wouldn't be able to run it unless you bought 13 DOS, and that's -- 14 Q. What was Windows then? 15 A. It was called a graphical -- a 16 graphical -- I think a graphical user 17 environment or -- I'm sorry, I've forgotten. 18 But it was a graphical desktop environment or 19 graphical user environment. 20 Q. And what function did it apply to the 21 operating system that it laid over or used? 22 A. Well, the Windows was a GUI, a 23 graphical user interface that was laid over the 24 MS-DOS desktop -- I'm sorry, MS-DOS operating 25 system or another operating system like OS/2 or 6530 1 Digital Research DOS, and it allowed 2 Windows-based applications to run on that -- 3 within the Windows desktop environment. 4 Q. Could I get the next slide, please? 5 I want you to talk now about the 6 evolution of the modern operating systems. How 7 that transpired. What were the key focal 8 points or concepts that happened? 9 A. Well, in the beginning, and this is in 10 the very, very beginning, maybe now 50-plus 11 years ago, if you were writing an application 12 to run on a computer, you had the 13 responsibility of writing everything, 14 absolutely everything, from the software that I 15 mentioned, the BIOS software that checked the 16 system and booted up the computer, to the 17 software that controlled the tape drives or the 18 card readers because we used punch cards in 19 those days, to the line printer. 20 So your application consisted of 21 absolutely all of the software. That was the 22 first way in which people developed 23 applications, and there was no operating 24 system. 25 We then introduced this idea of 6531 1 subroutines into application programs, but you 2 were still responsible for doing all of the 3 work to get the computer up and to control the 4 peripheral devices and the memory. 5 MR. LAMB: May I approach to pick up 6 his glasses? 7 THE COURT: You may as long as you 8 don't step on them. 9 MR. LAMB: I appreciate your 10 confidence, Your Honor. 11 Q. Let's talk about the concepts 12 multiprogramming, multiuser, multiprocessor. 13 What does that mean? 14 A. These computers are very expensive. 15 It was desirable, mainframe computers at the 16 time, so this is 30-plus years ago, they were 17 very expensive. Wanted to be able to do 18 multiple things at the same time, to run 19 multiple programs at the same time. 20 One program might be printing, another 21 program would be reading cards, and to do that, 22 we created something called multiprogramming. 23 And an operating system became responsible for 24 managing who has what when and being able to 25 keep both programs in memory or multiple 6532 1 programs in memory at the same time. 2 Later on it became desirable to let 3 users at the end of these terminals use the 4 resources on the computer in a time-sharing way 5 or to be simultaneously connected for the 6 purposes of entering transactions. 7 That became known as a multiuser 8 computer to -- the personal computer is 9 distinct from that as a concept in that 10 personal computer is only used by one person 11 typically at a time. 12 These mainframe computers are used by 13 multiple users at the same time. 14 That's more difficult from an 15 operating system design perspective to 16 accomplish, but it's, nevertheless, something 17 that we can imagine will happen going forward; 18 that there will be multiple users connected to 19 personal computers. 20 And multiprocessors is the -- you can 21 have one chip in a computer, and that would be 22 a uniprocessor. One Intel CPU, for example, is 23 a uniprocessor. 24 If you can put multiples of these CPUs 25 in the same machine and control them by -- with 6533 1 the operating system, then you have a 2 multiprocessor operating system. 3 We had multiprocessor operating 4 systems in the 1960s on mainframe computers. 5 The personal computers really like Windows and 6 -- I mean, DOS never supported multiprocessing, 7 but -- at least not from Microsoft. But 8 Windows only gained the ability to run multiple 9 processors 20, 25 years after we had done it on 10 mainframe computers. 11 But those kinds of evolutionary steps 12 in the creation of operating system software 13 from mainframes are being duplicated now on 14 personal computers, including, as I mentioned, 15 the software that I worked on in the late 16 1970s, the VM software, that allows you to run 17 multiple operating systems simultaneously on 18 the same personal computer. 19 MR. LAMB: With the Court's 20 indulgence, I'd like Mr. Alepin to get up and 21 draw another diagram. This time with the 22 concept of the kernel just so the jury has an 23 understanding of what that is and what that 24 does. 25 Q. Now, if you could, sir, describe for 6534 1 the jury what a kernel is. 2 A. A kernel, spelled k-e-r-n-e-l, is the 3 core of -- in operating system terms, the 4 kernel is the core of the operating system, the 5 core functionality that controls the resources 6 of the computer. 7 Q. And how does the kernel relate to the 8 middleware and the applications? 9 A. For purposes of the design of 10 operating systems, it's nice to think of the 11 kernel as being at the center of concentric 12 circles, each of which is less -- is 13 potentially -- it's not a design mold, but less 14 reliable and less trusted than the other -- 15 than the inner more kernel or circle. 16 So over here in the center, the kernel 17 is the piece of software that must be protected 18 at all cost and can't trust anybody, any other 19 components or outer circle portions of the 20 software that's running on it because if the 21 kernel's -- the kernel's functionality is 22 comprised, the system fails. 23 So it's -- you're always trying to put 24 as much functionality outside of the kernel to 25 make the smallest kernel because it's at that 6535 1 level that if you -- if that fails, the system 2 is going to fail. 3 So you go out from the kernel and you 4 include other components. I mentioned earlier 5 a file system, for example. 6 Well, a file system is not essential 7 to the functioning of the system. You can 8 still say please insert a floppy diskette in 9 the drive if the file system is not working, 10 and that would be -- it's not functionality 11 that is essential to continuing the operation 12 of the computer. 13 After these other components, you have 14 middleware software and you have application 15 software. 16 So you have the notion of an operating 17 system as a set of concentric circles, each of 18 which is more trusted at the center or less 19 trusted and less of a problem if something goes 20 wrong. 21 Q. Mr. Alepin, you seem to be drawing 22 some separation between middleware and the 23 application and the kernel from a technological 24 perspective. Is that important? 25 A. It is important. The application 6536 1 software -- some applications software can run 2 without middleware and some -- other 3 application software requires middleware in 4 order to operate. 5 Q. Okay. Is there any technological 6 reason or requirement where one vendor would 7 have to provide all those, the kernel, the 8 middleware, and the application? 9 A. No, there's no technological reason 10 why a single vendor would have to provide any 11 of these -- all of these layers. 12 Q. Okay. Go ahead and take your -- 13 A. I'm sorry. 14 I meant to include the graphical user 15 interface as an element outside of the kernel 16 of the operating system. Like the file system, 17 for example. The graphical user interface is 18 not essential to the continued operation of the 19 system. 20 Q. Were you done? 21 A. I'm sorry. Yes. 22 Q. That's fine. Go ahead and take your 23 seat again, sir. 24 MR. LAMB: If we could get the next 25 slide, please. 6537 1 Q. Mr. Alepin, we had just talked about 2 vendors, and there's a couple of the terms that 3 you wanted to go over with the jury to include 4 independent software developers or ISVs, and 5 they probably heard that in the course of the 6 trial, but I think there's been a big break, so 7 if you could explain that for the jury, that 8 would be great. 9 A. Sure. And I apologize. On the screen 10 I noticed that there's an inconsistency, and 11 I'm trying -- I'm -- independent software 12 vendors are called ISVs. So I apologize for 13 the confusion there. 14 But an independent software vendor or 15 an ISV is a company that develops software but 16 is independent from the owner of the platform. 17 That is to say, independent from the owner of 18 the operating system or the owner of the 19 hardware that -- the developer of the hardware. 20 Q. Separate from the kernel? 21 A. Separate from the kernel. 22 Q. Okay. Could you give the jury some 23 examples of some ISVs that they might have 24 heard of and explain what products they sell? 25 A. Sure. I think I've probably mentioned 6538 1 Intuit enough by way of publicity here that I 2 don't need to say any more about them. They 3 are an independent software vendor. Lotus 4 1-2-3, independent software vendor. 5 Q. What did Lotus 1-2-3 do? What's its 6 functionality? 7 A. Lotus is a spreadsheet product. The 8 killer app for IBM PCs. 9 Q. And then the last one you've got 10 listed is Symantec or McAfee. What do they 11 make? 12 A. They make very necessary software for 13 protecting you when you get -- if you get 14 viruses or spam or what is now known as 15 phishing, spelled p-h-i-s-h-i-n-g. 16 That's when your website is trying to 17 pass themselves off as your -- as your bank, 18 sending you an urgent notice that you've got to 19 supply your account information and correct 20 some accounting information. That's known as 21 phishing. Where they're trying to get some 22 information from you by pretending to be 23 somebody else. 24 So the McAfee company and Trend Micro 25 and Symantec, they make antivirus and antispam 6539 1 and antiphishing software that is very, very 2 valuable for you. 3 Q. Next concept is OEM or original 4 equipment manufacturers. 5 A. Yes. 6 Q. This term may exist -- it exists in 7 other industries, but in our business, in the 8 IT industry, OEMs are the original equipment 9 manufacturers who make the personal computers 10 that you buy. 11 So Dell is an OEM. HP is an OEM. 12 Compaq, which HP acquired, is an OEM. Toshiba 13 I mentioned, OEM. Fujitsu, OEM. When they are 14 making and manufacturing personal computers, 15 they're called OEMs in our business. 16 MR. LAMB: Next slide, please. 17 Q. Excuse me. 18 A. They're independent hardware vendors. 19 Sometimes they're referred to as independent 20 hardware vendors, IHVs. 21 Q. And then just a brief description of 22 the PC business, how it flows. 23 A. This is not -- this is just sort of to 24 give you an idea of who's supplying what. 25 The chip maker of the microprocessors, 6540 1 the semiconductor manufacturer and designer of 2 the microprocessor chip, the brains of the CPU, 3 there are two principal vendors, Intel and AMD. 4 There have been others over time, and 5 there still are others, but the two principal 6 ones that are inside the computers that you're 7 going to buy at -- from Dell or Gateway or at 8 Best Buy are Intel and AMD. 9 Inside your computer you're going to 10 get a disk drive. Capacity of the disk drive 11 now is now hundreds of gigabytes. 12 Different companies supply the disk 13 drives. Some of them are popular -- well, 14 they're popular to me. Names like Seagate or 15 Western Digital. But Toshiba makes disk 16 drives. Hitachi makes disk drives. They also 17 make television sets. 18 Other hardware. You can get a 19 graphics chip. Some -- if you've got an 20 interest in playing games or graphics design, 21 then you're going to want to buy a graphics 22 chip from a company that's called like ATI or 23 Nvidia. Those are inside the PC. 24 And all of that stuff is assembled 25 together by the OEMs; the graphics chip, 6541 1 memory, the CPU, motherboard. And that becomes 2 the PC that you can purchase. And they're 3 available to you through direct sales channels. 4 What we mean is when you go into a 5 store and you buy it or on the Internet or by 6 telephone, call up Dell and order a computer. 7 And that's also called -- very popular way for 8 acquiring computers now. 9 Q. Okay. 10 MR. LAMB: Your Honor, it's almost 11 1:30. Is it an appropriate time for a 12 mid-afternoon break? 13 THE COURT: Sure. Take a ten-minute 14 recess. 15 Remember the admonition previously 16 given. We'll be in recess for ten minutes. 17 Leave your notebooks there. 18 (A recess was taken from 1:24 p.m. to 19 1:37 p.m.) 20 (The following record was made out of 21 the presence of the jury.) 22 MR. HOLLEY: A number of the slides 23 that have gone up on the screen are different 24 from the slides that were disclosed to us in 25 advance, and I appreciate that it was the 6542 1 holidays and that things happen, but it does 2 make it difficult to object to these if the 3 ones that we see in advance are not the ones 4 that go up on the screen. 5 THE COURT: Do you have another set? 6 MR. LAMB: We've deleted some and 7 we've taken some things off slides based on -- 8 THE COURT: Can you give them another 9 set? 10 MR. LAMB: I can give them another set 11 tonight. I don't have another set now. 12 MR. HOLLEY: Your Honor, I'm not 13 suggesting that Microsoft has been prejudiced 14 at the moment, but it would be nice tonight to 15 get a new set of slides. 16 MR. LAMB: We have the technology to 17 do that, Your Honor. We can make it happen. 18 MR. AESCHBACHER: It was inexpensive 19 too. 20 (The following record was made in 21 the presence of the jury.) 22 THE COURT: You may continue. Sir, 23 you're still under oath. 24 MR. LAMB: Can I get the next slide, 25 Darin? 6543 1 DIRECT EXAMINATION (CONT'D) 2 BY MR. LAMB: 3 Q. A few other general concepts here. 4 Could you describe what the industry 5 participants are? Sometimes we use different 6 terminology, so could you describe that for the 7 jury and the differences, if there are any? 8 A. Sure. 9 The first is consumers, and we use 10 different words to refer to consumers. 11 Customers, obviously. End users, people who 12 actually use the computers that we buy. 13 Enterprises, which is -- I mentioned that I was 14 a part of Fujitsu's enterprise software 15 division. 16 Enterprises are businesses, large 17 businesses typically, and they include 18 educational institutions and governmental 19 organizations. So a focus of some software is 20 to the enterprise market. 21 SMORGs are small and medium 22 organizations. So they can be small companies 23 with a few employees or a couple of hundred 24 employees. But then they would include small 25 government organizations or small educational 6544 1 institutions. But typically more than one or 2 two users of computing technology inside the 3 organization. 4 The other side of SMORGs is LORGs, 5 which stands for large organizations, large 6 companies, large government, large educational 7 institutions. 8 They, too, are customers or users of 9 computing technologies. So I put them all kind 10 of together on this page. 11 Finally, in the category of customers 12 are SOHO customers, small office/home office 13 users. Where it's not just a personal 14 computer, it's used to run part of your 15 business. If you're a contractor or private 16 practice kind of person, you're a SOHO. You 17 may use your home as an office or you may have 18 a small office. 19 Q. You are a SOHO; right? 20 A. I am a SOHO indeed. 21 Q. Just out of curiosity, how many 22 computers do you have in your -- 23 A. I have more than a hundred computers 24 in my office, but only 20 or 25 of them are on 25 at any point in time. 6545 1 Q. That's comforting, Mr. Alepin. 2 Why all the others? 3 A. Well, in my practice, I've been 4 engaged to evaluate computers, computer design, 5 hardware design, hardware failures, analyze how 6 a computer performs, whether it performs 7 according to specifications, whether there are 8 any problems with it. 9 And typically, I'll ask for a dozen or 10 so of them so that I can look at them and make 11 sure that I'm not -- I just don't have outliers 12 in the pool of machines that have been given to 13 me, and so I work with them. 14 And by the time I'm done with them, 15 nobody wants them, so they just accumulate 16 space in the back of my office, but I've got 17 lots and lots of these computers. 18 Q. But you don't throw them away; right? 19 A. You know, it's kind of hard to -- old 20 computers are still computers and you hate to 21 part with them. 22 Q. Okay. 23 A. I hate to part with them. 24 Q. And then the last item you've got here 25 is developers. Can you describe what a 6546 1 developer is? 2 A. They're a different customer for 3 computing technology. Of course, they buy 4 computers to use. And what I mean by 5 developers here are software developers. 6 They buy computers to use, but they 7 also buy computers and development tools to 8 build software that they're going to sell or to 9 build software that their company is going to 10 use as an application. 11 So developers are customers, but 12 they're also a special kind of group of users, 13 and they're a lot more computer savvy than some 14 of the other people or types of consumers that 15 I've put up there. 16 Q. When you testified earlier about 17 applications, you reference them as having a 18 business purpose. 19 Are there applications that are 20 useful, but don't have a business purpose? 21 A. That would be all the software my kids 22 use, which would be games, for example. 23 Q. Okay. 24 A. As well as software that helps you to 25 maintain your computer. There's system utility 6547 1 software that you use to defragment your disk. 2 Defragment your disk means to pick up 3 and remove all the dead space in between the 4 different files as they are on your disk to get 5 rid of old files that have been lying around, 6 get rid of duplicate files. And there's all 7 this system utility software that helps you 8 manage your computer. 9 Q. Okay. 10 MR. LAMB: Can I get the next slide, 11 please? 12 Q. A couple remaining concepts. 13 Platform. 14 What's a platform, Mr. Alepin? 15 A. Platform in our business is a very 16 important concept, but let me start with a 17 platform has the same fundamental meaning as 18 you would use it in the construction business 19 or in some other normal use of the term. It's 20 a foundation on which stuff is built. 21 So a platform is a piece of software 22 that serves as the foundation for or the 23 support for other software on a higher level. 24 I mentioned middleware. The operating 25 system provides a platform for middleware and 6548 1 for some applications. That is, it provides 2 services through interfaces to the middleware 3 software and applications. And middleware also 4 can serve as platform for applications on top 5 of it and provides those services through 6 interfaces. 7 Q. How about APIs? 8 A. APIs, again a key concept in our 9 industry, application programming interfaces. 10 They are the interfaces that allow an 11 application to request and receive the services 12 of the middleware or the operating system. 13 They set the rules for how you ask for a 14 service. 15 Perhaps I could draw it on the -- 16 Q. Sure. 17 MR. LAMB: With your permission, Your 18 Honor. 19 THE COURT: Yes. 20 A. So the basic idea of an application 21 programming interface is to provide a means to 22 request or receive a service. 23 So a simple example is I want the 24 graphical user interface to draw a circle for 25 me in the window that is my application. I 6549 1 showed you that Quicken window there. But now 2 I want to draw a circle in there. And if the 3 graphical user interface provides a means, an 4 application programming interface, to draw the 5 circle, it's probably going to say where would 6 you like the circle. 7 So you draw a circle. It's where is 8 the center of the circle, what's the diameter 9 of the circle, and what color would you like 10 the circle to be, the outside line and would 11 you like it to be filled? Would you like it to 12 be shaded? Those kinds of questions. 13 That's -- those are the specifications 14 that go with the application programming 15 interface. 16 So I would say to draw a circle, it's 17 a circle with the center, and I would then say 18 here's the diameter and here is the border 19 color and here's the fill color, and that would 20 be something that the graphical user interface 21 would specify. 22 It would tell me as a developer if you 23 want me to draw a circle for you, you have to 24 write in your software a statement that asks -- 25 that uses this application programming 6550 1 interface in precisely this way. 2 First center, first diameter -- first 3 center, next diameter, next color, next fill. 4 And so those are the rules that are a 5 part of the application programming interface 6 to get a circle drawn. 7 They're different from system to 8 system. They can be different. 9 Q. And how does a developer know the way 10 to use these APIs in terms of the documentation 11 and developing software? 12 A. The platform owner, so people can own 13 a platform, companies can own a platform, 14 describe in specifications that they disclose 15 to the development community the specifications 16 for using the interface. 17 So Microsoft in Windows would, if it 18 wanted to have developers develop, it would 19 have to disclose the function -- the existence 20 of the circle function and the specific details 21 of the center diameter color and fill and the 22 order in which they could be and could the 23 diameter be in decimal point notation or could 24 it just -- could you only specify a whole 25 number like 7 or 12 or could you specify 13.7? 6551 1 That would be an additional rule as part of the 2 programming interface. 3 Q. What's the concept of developer 4 lock-in? 5 A. Well, once I develop an application 6 using the specifications like this, I program 7 -- my program is now dependent on the platform 8 that provides the service according to the 9 center, diameter, color, and fill. 10 If I want to take my application 11 program to another platform, does it have a 12 circle function and are the parameters in the 13 same way -- in the same order with the same 14 meaning, and if they're not, my application is 15 locked in to that platform. 16 Q. And what are the consequences of that? 17 A. Consequences are that I will have to 18 spend time -- I as a developer now will have to 19 spend time to redevelop and retest the -- 20 assuming that the specifications and the 21 function is available on another platform, I 22 will have to recode and retest my application 23 to run on the other platform. 24 Q. How important is it to the developer 25 that the owner of the platform, as you put it, 6552 1 disclose the APIs? 2 A. It's essential. It's essential. 3 Q. Next concept, porting. 4 A. Porting. That's what I just described 5 basically, and that is to say to get an 6 application that was developed to use a 7 specific platform, let's say Windows, to run to 8 the Mac, or vice versa, I'd have to port that 9 application from the Windows platform to the 10 Mac platform. 11 I couldn't just take the disk out that 12 I purchased at the store and plug it into 13 another computer. If I was a consumer of that, 14 I would have to buy the Mac version of that 15 software. And the way the Mac version of the 16 software is made available is the vendor, the 17 independent software vendor, Quicken, for 18 example, has ported its application from one 19 platform to the other. 20 MR. LAMB: If we could have the next 21 slide, Darin. 22 Q. Let's go back to your opinions. 23 Mr. Alepin, this is the summary of 24 your opinions. 25 Could you describe for the jury how it 6553 1 is in your opinion technologically that 2 Microsoft's conduct has handicapped 3 non-Microsoft development? 4 A. Microsoft has not disclosed interface 5 information in the form of these application 6 programming interfaces that would have 7 permitted independent software vendors that 8 developed products that competed with some of 9 Microsoft's application products to develop 10 programs that were as good in quality as 11 Microsoft's. 12 So Microsoft didn't disclose the 13 interface information to a word processing 14 vendor while it disclosed or made available 15 that same information to its own word 16 processor. 17 It has combined products together, 18 which made it difficult for those vendors to 19 sell their own product as a separate product, 20 stand-alone product. 21 Q. When you say that Microsoft has 22 combined products together, do you have an 23 example that you can give us? 24 A. Well, the most -- one of the most 25 significant is the combining of the browser in 6554 1 the same box as the Windows operating system. 2 Q. What do you mean by that? 3 A. Well, the browser Internet Explorer, 4 which is the name of Microsoft's browser, was 5 available separately and not part of the 6 operating system package, but it was 7 subsequently Microsoft made it available with 8 the operating system in the same box, and 9 that's an example of Microsoft combining the 10 two products together. 11 Q. So initially it was available 12 separately? 13 A. That's correct. 14 Q. And then later it wasn't? 15 A. That's correct. 16 Q. And is there another product that this 17 applies to that Microsoft has? 18 A. The Windows media player is another 19 example of a product that was available 20 separately that Microsoft combined together 21 into the operating system product package. 22 Q. Okay. 23 MR. LAMB: Can I have the next slide, 24 please? 25 MR. HOLLEY: Your Honor, I object to 6555 1 this slide and ask that it be taken down, 2 please. 3 May we approach? 4 THE COURT: Yes, you may. 5 (The following record was made out of 6 the presence of the jury at 1:57 p.m.) 7 MR. HOLLEY: Your Honor, I'm trying 8 not to interfere with this examination, but the 9 concept of tying is a legal concept. And Your 10 Honor's rulings said that this man is not 11 qualified to testify about anything other than 12 technology. He's now going to offer an opinion 13 that Microsoft is engaged in tying. That's 14 clearly offering a legal opinion. 15 THE COURT: He's not using the 16 industry. 17 MR. LAMB: That's bundling the tying 18 technologically. It's bundling the tying 19 together. 20 MR. HOLLEY: The concept of 21 technological tying is an issue that has been 22 addressed in numerous cases including Telex 23 against IBM, Calcom against IBM. It isn't a 24 word of art in the industry. It's a legal 25 concept. 6556 1 MR. LAMB: He used it repeatedly in 2 his report in terms of technologically bundling 3 or tying over and over again. 4 MR. HOLLEY: We never accepted his 5 ability to offer legal opinions. 6 THE COURT: Well, is it the same as 7 bundling? 8 MR. HOLLEY: I don't believe so, Your 9 Honor. It's one thing to say that two software 10 products are bundled together and then you can 11 argue about whether or not that constitutes 12 tying as a legal matter, but having this 13 witness use that word given the instructions 14 that the Court has already provided I think is 15 exactly what Your Honor said he couldn't do. 16 He's offering a legal opinion. He's saying 17 it's tying. 18 MR. LAMB: I just asked him from a 19 legal -- not from a legal, but from a 20 technological perspective. And that's what his 21 report is, and that's what he said. They're 22 tied together. They are linked together. 23 MR. HOLLEY: Well, Your Honor, I was 24 sort of intending to object earlier because 25 what Mr. -- what the plaintiffs are trying to 6557 1 do is get Mr. Alepin to testify that Microsoft 2 engaged in anticompetitive conduct by adding 3 new functionality to Windows. He's not 4 equipped to make that judgment. 5 He is not an expert in the law of 6 operating system design, so maybe I should have 7 stood up earlier, but this, to me, goes far 8 beyond what he said earlier. Arguably what he 9 said earlier had some technological basis. Now 10 he's offering an opinion that what Microsoft 11 did is a violation of the Section 1 equivalent 12 of the Iowa Competition Law, and that should 13 not be allowed. 14 THE COURT: Well, does the jury know 15 at this time that tying is a legal term? 16 MR. HOLLEY: I do think they do, Your 17 Honor. I think they heard references to tying 18 already in opening, and I can't quote you the 19 preliminary jury instruction, but I think 20 they've already heard of this concept. 21 THE COURT: Well, bundling was also 22 used in the preliminary jury instructions. 23 MR. HOLLEY: That's correct. That's 24 correct, but bundling, to me, is a more neutral 25 term. You know, one can say that bundling 6558 1 somehow falls within the purview of his 2 expertise such as it is, but tying is allowing 3 him to be a lawyer standing up there. 4 THE COURT: Okay. What is your 5 definition of tying just to get it -- 6 MR. HOLLEY: Tying? Tying. The 7 elements of tying under Section 1 of the 8 Sherman Act -- well, under U.S. v. Microsoft, 9 there's a different rule for tying under -- 10 when you're dealing with platform software, 11 which is what we are dealing with. So if you 12 look at what Judge Ginsberg says there, he says 13 it's a balancing of the effect of adding a new 14 feature to Windows on competing of people who 15 offer similar functionality and separate 16 products against the pro-competitive benefits 17 of adding the new feature to the system. So 18 it's a balance. 19 And you have to show that you have 20 market power in the tying product. That, 21 obviously, we're not going to fight about 22 because Windows has a very high market share, 23 and you have to show that the other product is 24 separate and we do have a large dispute on that 25 subject. So it's a legal concept. 6559 1 THE COURT: So you're saying it's 2 strictly a legal concept? 3 MR. GREEN: Yes. 4 MS. CONLIN: Your Honor, absolutely 5 not. 6 MR. GREEN: I think it's some of the 7 findings of the facts. I mean, the references 8 to it. So the jury will know it's a legal 9 concept. 10 MS. CONLIN: Except the findings of 11 fact are fact and that's the problem with Mr. 12 Green's argument. 13 MR. GREEN: Yeah, but they don't 14 define tying. They refer to it only. 15 MS. CONLIN: Let me give you a couple 16 of examples of technological tying. That's 17 what he's going to talk here about. The 18 intermingling of the code, making an API 19 undocumented. So those can only be used 20 technologically by another Microsoft product. 21 There are numerous examples of that, 22 Your Honor. It would be -- the only analogy I 23 can think of right now is where we have a 24 sexual harassment case, a sociologist that 25 talks about harassment, sexual harassment in 6560 1 the concept of sociology, not as a legal 2 matter, but as what sociologists say about 3 sexual harassment, what causes it, how to fix 4 it, that kind of thing. And that is perfectly 5 permissible and always done, and in this case 6 it's technological tying that he knows about 7 and that you've already said he's qualified to 8 testify about it. 9 MR. GREEN: The words -- 10 THE COURT: What he's going to say -- 11 I'm sorry. Go ahead, Mr. Green. 12 MR. GREEN: The words bundling versus 13 tying. I mean, they're different words. 14 Bundling just means you put them together. 15 Tying means you hold them together. That's the 16 legal concept, and that's what he shouldn't be 17 getting into. 18 MR. LAMB: No. That's a 19 technological -- 20 THE COURT: What's he going to say? 21 MR. LAMB: He's going to say that they 22 are bundled together, and that they're tied 23 together. They're linked together. And, Your 24 Honor -- 25 THE COURT: Linked how? In what 6561 1 sense? Tell me how. 2 MR. LAMB: In the sense that one code 3 is embedded in another code. They are tied 4 together. They can't be broken apart. There's 5 a difference between bundling when they're put 6 together and they can be taken apart and tied 7 where they can't be taken apart. This can 8 easily be remedied if this is really a 9 legitimate concern. We would have no objection 10 to Your Honor simply saying there's going to be 11 a lot of terms used. I just want to caution 12 the jury that Mr. Alepin is testifying from a 13 technological and not a legal perspective. 14 It's fine. 15 MR. HOLLEY: Okay. But it's not fine 16 because these jurors are smart people and they 17 know that the word tying -- I think they 18 already know this, Your Honor, is a legal 19 concept. And they're going to think that this 20 man is telling them that Microsoft has violated 21 the law. It's done something called tying. 22 And I just think that's very prejudicial to 23 Microsoft. It's precisely the sort of thing 24 that we were worried about with Mr. Alepin. 25 Technological tying, you know, we can go look 6562 1 right now at Your Honor's copy of the ABA model 2 jury instruction. It is a well-known concept 3 in antitrust law. 4 People bring technological tying 5 claims, and there are elements of those claims. 6 And Mr. Alepin shouldn't be saying that we are 7 guilty of technological tying. That's not 8 within his expertise. 9 MR. LAMB: Your Honor, tying is an 10 antitrust concept. It has nothing to do with 11 technology. It's not dependent upon 12 technology. You can have tying in the oil 13 industry. There are classic tying cases where 14 what happened was Amoco tied its product to the 15 gas station meaning if you have an Amoco 16 franchise you can only sell Amoco. You can't 17 sell Castro. That is tying from a legal 18 perspective. The judge decides that. There's 19 all kinds of -- tie is not a legal term. 20 MR. HOLLEY: I beg to differ, Mr. 21 Lamb. 22 THE COURT: Can it be both a legal 23 term and -- 24 MR. LAMB: Absolutely. Many terms can 25 be both. And if there's any confusion, any 6563 1 view of confusion, we would have no objection 2 to Your Honor telling the jury that he's here 3 to testify in terms of technology, not as a 4 lawyer and not in relation to legal terms. 5 MR. HOLLEY: To the extent, Your 6 Honor, that what they're trying to do is have 7 him testify about legal conclusions and to 8 testify that what Microsoft did including media 9 playback software and Web browsing software 10 Windows was anticompetitive which is the clear 11 goal here, that's outside the scope of what 12 Your Honor said he can testify about. He's not 13 equipped to testify about whether what 14 Microsoft did is anticompetitive. That's a 15 legal judgment. 16 MR. LAMB: He's not going to say that. 17 MS. CONLIN: We're not going to offer 18 that kind of testimony, Your Honor. We never 19 were going to offer that kind of testimony. 20 This guy is a technological expert, and he's 21 going to talk about how they got stuff stuck 22 together. 23 MR. HOLLEY: Let's be direct about 24 what this guy is. This guy works for a law 25 firm. He works for Morrison and Foerster, and 6564 1 he's made a cottage industry of traveling 2 around the world testifying against Microsoft 3 and pretending that he's a lawyer. He does it 4 all the time. I watched him do it in 5 Luxembourg as recently as March. And unless he 6 is controlled, that is exactly what he will do. 7 I have watched him do it. And because he 8 doesn't in his mind see a distinction between 9 his rule as a technologist, which is what he 10 calls himself, and his armchair lawyering. And 11 this is an exact example, Your Honor, of what 12 it is he wants to do. 13 MR. LAMB: Your Honor, that's -- 14 frankly, if that is his line of impeachment, 15 then he should do that. 16 MR. HOLLEY: I intend to, Mr. Lamb, 17 but I also don't think that given the Court's 18 ruling of earlier today you should be entitled 19 to ignore the notion that Mr. Alepin's 20 testimony is now limited. He's not entitled to 21 testify about legal conclusions like what he's 22 tying and he's not entitled to testify that 23 Microsoft's acts are or are not anticompetitive 24 in a legal sense. 25 MR. LAMB: For the record, just 6565 1 because counsel includes some categories of 2 testimony that we never intended to offer in 3 the first place, I did not accept that as 4 limiting his testimony. His testimony is his 5 testimony and it relates to technology. We 6 have never -- they just stood up a number of 7 times and said he's going to say this, he's 8 going to say that, he's going to talk about the 9 Sherman Act. He's not. 10 MR. HOLLEY: Well, Mr. Lamb, if you 11 look at the -- if you look at both his expert 12 report and at the demonstratives, he says that 13 things were anticompetitive and that's exactly 14 what the judge has now ruled he's not allowed 15 to do that. 16 THE COURT: You don't have any 17 exhibits as to anticompetitive, do you? 18 MR. LAMB: Where does it say 19 anticompetitive? 20 THE COURT: Do you have any exhibits 21 that say that? Are we going to get into more 22 of this? What I'm saying, are there more 23 demonstrative down the line? 24 MR. LAMB: If you're asking me if Mr. 25 Holley is going to drag us back here, I could 6566 1 not possibly endeavor to say no. I would like 2 to but I won't. 3 THE COURT: I just want to know if 4 there is going to have more demonstratives that 5 are going to have legal terms. 6 MR. LAMB: Other than bundling and 7 tying, I don't believe so. I don't think these 8 are at issue, but, frankly, we don't have 9 objections by slides. We have kind of this 10 amorphous we don't like anything you're doing, 11 which I appreciate. 12 MR. HOLLEY: We will have, and I think 13 they're actually in the courthouse. We did -- 14 in accordance with the judge's order, we have 15 now given you on a slide-by-slide basis our 16 objections. So I appreciate your comment, but 17 I think that's been solved. 18 I just think, Your Honor, that in 19 light of what's already been told to the jury, 20 that having him stand up and characterize what 21 we think is perfectly permissible integration 22 as tying is very -- is very bad for Microsoft, 23 very prejudicial, not fair. 24 MR. LAMB: A lot of bad evidence is 25 prejudicial. 6567 1 THE COURT: What are you going to ask 2 about tying from a technological standpoint? 3 MR. LAMB: Absolutely. 4 THE COURT: I want you to clarify 5 whether when he's talking about tying he's 6 talking about -- 7 MR. LAMB: I'll do that right now. 8 Technology. 9 THE COURT: -- with the code or 10 whatever, and not -- make it clear it's not a 11 legal term, not using any legal sense. 12 MR. HOLLEY: That's -- 13 MR. LAMB: I'll purpose it that way. 14 MR. HOLLEY: I'm sorry. I didn't mean 15 to interrupt you, Mr. Lamb. If that's where 16 he's headed, then I have a collateral estoppel 17 objection because we have a collaterally 18 estopped finding of fact about commingling 19 Internet Explorer code into Windows. And why 20 should Mr. Alepin be entitled to offer his 21 views on that finding of fact. That is a 22 finding. That's -- as Mr. Lamb would say, 23 that's a bad fact for us. 24 THE COURT: This is not limited to any 25 time periods. 6568 1 MR. LAMB: Yes, that's the problem. 2 MR. HOLLEY: I just want to make it 3 clear that we should not be talking about the 4 collaterally estopped time period, right? I 5 mean, he shouldn't be talking -- he shouldn't 6 be bolstering the findings of fact. 7 THE COURT: Bolstering would be 8 talking about the underlying evidence. 9 MR. HOLLEY: Presumably, he's going to 10 offer some view about why he says they're 11 technologically tied. 12 THE COURT: It's cumulative then. 13 MR. HOLLEY: I agree with that, and I 14 also just don't think -- I mean, it's one 15 thing -- 16 THE COURT: Who's to say it's not 17 continuing. They may prove it is continuing. 18 It may go to intent. 19 MR. HOLLEY: Well, okay. If that's 20 what they're going to say. 21 THE COURT: The objection is 22 overruled, but I want -- I'm instructing the 23 plaintiffs to question the witness and make 24 sure that he understands and is using the term 25 tying and not offering any legal opinion 6569 1 whatsoever, merely a technological term of 2 mingling code or whatever, tying code together, 3 right. 4 MR. GREEN: So you'll say overruled 5 with conditions? 6 THE COURT: With conditions. 7 MR. HOLLEY: Thank you, Your Honor. 8 (The following record was made in 9 the presence of the jury at 2:07 p.m.) 10 THE COURT: Sorry about that. 11 Objection is overruled. However, 12 there are certain conditions which, Counsel, 13 you may inquire into. 14 MR. LAMB: Thank you, Your Honor. 15 Could you put the last slide back up 16 there? 17 DIRECT EXAMINATION (CONT'D) 18 BY MR. LAMB: 19 Q. Mr. Alepin, purely from a 20 technological perspective, not in relation to a 21 legal analysis or legal opinion, but purely 22 from a technological perspective, how is it 23 that Microsoft restricts access by bundling? 24 What do you mean by that technologically? 25 A. Technologically, that's very quite 6570 1 simple. The two separate products are combined 2 on the same disk or in the same computer. 3 Q. Okay. 4 A. That's bundling. 5 Q. Same question regarding tying. Not 6 from a legal analysis or a legal opinion, but 7 purely from a technological perspective, what 8 do you mean by tying in relation to this issue? 9 A. As a technical matter, what I mean is 10 that one product makes use of the services of 11 another product in that they cannot be 12 separated easily. The technical tying involves 13 making one product require the other product to 14 work. 15 Q. Okay. 16 MR. LAMB: If we could -- if he could 17 approach again, I'd like him to draw this, Your 18 Honor. 19 THE COURT: Very well. 20 Make sure you talk loud. 21 Q. In relation to Internet Explorer, can 22 you graphically draw for the jury what you mean 23 technologically by bundling or tying? 24 A. Well, let me separate them out first. 25 Q. Sure. 6571 1 A. Bundling is -- this would be bundling, 2 and here we have -- this would be browser 3 application. In this case here Internet 4 Explorer. And you can buy that on its own -- 5 buy that on its own CD or obtain it from the 6 Internet and -- 7 Q. And I think you described that earlier 8 as middleware; right? 9 A. As middleware. And there's a part of 10 it that's purely an application. 11 And here is the Windows -- in some 12 cases the Windows graphical environment, 13 software package, or in other cases the Windows 14 95 operating system, these two are available 15 separately in the market -- were available in 16 the market. And what happened was Microsoft 17 put the two of them together in the same -- on 18 the same disk and in the same -- installed the 19 two of them together or caused the two of them 20 to be installed together on the system even 21 though they were separate pieces of software, 22 separate packages of software, the operating 23 system separate from the -- the browser 24 separate from the operating system. 25 When they were combined together and 6572 1 installed on the same PC OEM computer from Dell 2 or from HP, they were bundled together. 3 Q. Okay. Let's go back in time. When 4 did it first come out where they were separate, 5 approximately when? 6 A. Well, Microsoft made Windows 95 7 available in late August of 1995, and a version 8 of Windows was provided without the Internet 9 Explorer in it, and so that would be late 10 August of 1995. 11 Q. So the consumer or the customer would 12 actually have to load Internet Explorer onto 13 the computer; right? 14 A. You could buy it as part of the plus 15 package, yes. 16 Q. Okay. 17 A. Which is called -- 18 Q. Were they also available together as 19 you say bundled through OEMs? 20 A. It was bundled together through OEMs, 21 even though you could uninstall it. 22 Q. You could uninstall it? 23 A. Uh-huh, yes. 24 Q. How about now, today, can you 25 uninstall Internet Explorer? 6573 1 A. You cannot uninstall Internet Explorer 2 today, no. 3 Q. What do you mean by that? 4 A. It means that Microsoft does not 5 provide a means to add -- to remove the 6 software, the Internet Explorer from the 7 operating system that you have installed on 8 your computer. 9 Q. Can you get another browser to run? 10 A. You can. 11 You can get another browser to run 12 with the Windows operating system product. 13 Q. Okay. If you get another browser to 14 run, then where is Internet Explorer? 15 A. It's still there. 16 Q. Where? 17 A. It's waiting. 18 Q. Where? 19 A. It's on the disk installed in your 20 computer. 21 Q. Is it in part of the operating system? 22 A. It's not -- as a technical matter, 23 it's not in part of the operating system, but 24 as a practical matter, it is. 25 Q. Is that -- 6574 1 A. Because the operating system just gets 2 to the second part of it because it's part of 3 the tying, the technical tying of the two 4 products together. 5 Q. So technically it's tied together and 6 it can't be separated? 7 A. That's correct, yes. 8 Q. How about Windows media player? How 9 is that bundled or tied, if it is? 10 A. Microsoft -- in the mid-1990s, 11 Microsoft supplied its Windows operating system 12 together with some software from RealNetworks, 13 the Real player software, and the two of them 14 were available to users who would purchase the 15 computer or purchase the operating system. 16 In 1998, I believe or 1999, Microsoft 17 installed and -- installed Windows media player 18 and removed the means by which you could remove 19 the Windows media player from the system. 20 Q. What do you mean removed the means by 21 which you could remove media player? 22 A. Well, the Windows operating system 23 provides some support software called 24 add/remove programs. So if you go to the start 25 menu and then to the control panel, and then in 6575 1 there there's an add new hardware and then 2 there's a add/remove program button, and if you 3 push that, you navigate to a screen that says 4 would you like to add programs or remove 5 programs. 6 Previously, earlier versions of 7 Windows, you could remove the Windows media 8 player, so you had the means to remove the 9 media player. 10 Subsequently, beginning in I think 11 it's 1999, the means to remove it, the remove 12 portion of the add/remove program that touched 13 the media player was removed. I'm sorry if 14 that's too many removes, but the remove 15 mechanism was removed. 16 Q. Let me try it this way. You can't get 17 rid of it; right? 18 A. Yes, you couldn't get rid of it. 19 Q. All right. And is that the case 20 today? 21 A. It is still the case today, yes. 22 Q. And is that what you mean 23 technologically speaking by bundling or tying? 24 A. The recent means is by tying it and by 25 bundling it. It's together in the same box or 6576 1 on the same disk, yes. 2 Q. Okay. Thank you, Mr. Alepin. You can 3 take your seat again. 4 Mr. Alepin, from a technological 5 standpoint, if someone were to claim to you 6 that it was necessary for Windows to either 7 bundle or tie Internet Explorer in order to get 8 technological advancements, what would your 9 response to that statement be? 10 A. I would say no, I would disagree with 11 it. 12 Q. Can you explain to the jury why? 13 A. Because it's not necessary to include 14 the browser as part of the operating system in 15 order to achieve any important or any benefit 16 at all. You can provide them separately and 17 combine them as needed. 18 Q. And they could do that today; right? 19 A. They could do that today. 20 Q. If someone were to make a claim to you 21 that it was necessary from a technological 22 standpoint to bundle or tie media player to 23 Windows, would you agree or disagree with that 24 statement? 25 A. I would disagree with that also. 6577 1 Q. Again, why, sir? 2 A. Because there's no reason why -- no 3 technical reason why media player, the Windows 4 media player needs to be a part of the Windows 5 operating system. 6 It can be combined afterwards -- after 7 the operating system was developed and 8 installed on a user's computer, for example. 9 Q. Okay. From a technological point of 10 view, are there any negative aspects to this 11 bundling or tying? 12 A. There are a couple of negative 13 technical problems that arise, the first of 14 which is that it makes the resulting 15 combination big, bigger, and unwieldy. 16 I mentioned earlier that testing of 17 software is an important part of the software 18 development process. 19 The more stuff you have to test, the 20 longer it takes to get rid of the bugs. 21 So making products bigger and 22 installing more stuff on it and in it increases 23 the time that it takes to develop and test and 24 get a product to market. And I think that 25 we've seen that with the five years that have 6578 1 taken -- that have elapsed since Microsoft last 2 released an operating system product. That's 3 one. 4 Q. From a technological point of view, 5 this bundling or tying, how does it impact 6 third-party vendors, independent software 7 vendors as they're trying to develop onto for 8 example the Windows platform? 9 A. Well, it makes -- this impacts the 10 independent software vendors in a couple ways. 11 First, if you're an independent 12 software vendor that's making a media player or 13 a browser, it makes it very difficult to 14 compete with Microsoft. 15 MR. HOLLEY: Your Honor, I object. 16 THE COURT: Sustained. 17 Q. In relation to technology, how does it 18 impact the ISV in terms of trying to make a 19 product that will cooperate and coordinate with 20 that platform? 21 A. As a technical matter, it makes it 22 difficult because not the -- all of the 23 interfaces that Microsoft may use between its 24 browser application, for example, and its 25 operating system may not be disclosed to 6579 1 vendors of other browsers. 2 So there is a gap in the information 3 that's available to companies that want to make 4 media players or browsers, for example. 5 That's one way in which there's a -- 6 that there's a technical difficulty by bundling 7 and tying. 8 Q. And would that make it more 9 time-consuming for an ISV? 10 A. It can make it anywhere from 11 impossible to more time-consuming. 12 Q. Okay. 13 MR. LAMB: Give me the next slide, 14 please. 15 Q. There are a couple of the concepts 16 that I want to explore with you. 17 It's our belief that Microsoft has 18 made a number of claims and will make a number 19 of claims in this case that Windows and DOS 20 were bundled or tied in this technological 21 manner in order to create revolutionary and 22 innovative things, products, systems. 23 I want to talk about a few of those 24 and get your opinion about those. 25 The first thing I want to do is talk 6580 1 about long file names. And when we do that, if 2 you would, please, explain to the jury what 3 exactly a long file name is. 4 A. A long file name is a file name that 5 has more than eight numbers and letters and 6 special characters, like dollar signs in it, to 7 the left of the period and three letters to the 8 -- three letters or numbers to the right. So 9 11 total letters and numbers, but eight to the 10 left of the period. 11 A long file name has or can have many 12 characters. It's not limited. 13 Q. Did Microsoft -- 14 A. Practically, sorry. It's not limited 15 practically. 16 Q. Did Microsoft invent the long file 17 name? 18 A. No. 19 MR. LAMB: Can we see the next screen, 20 please? 21 Q. If you would, explain to the jury kind 22 of the development historically and the use by 23 the various operating systems of the concept or 24 practice of a long file name. 25 A. Well, long file names were -- I mean, 6581 1 it's obvious that you want to be able to 2 describe the contents of a file with more than 3 just eight letters. 4 And so other systems -- other 5 operating systems describe -- provided the 6 means to describe a file -- to provide a file 7 name that had a long character string for both 8 users and applications program vendors. 9 And indeed, Linux, an operating system 10 that I mentioned that was open source, provided 11 the ability to have long file names, and what 12 you see there is kind of a long file name. And 13 you notice that it's got blanks in it, and this 14 is a very long file name. 15 And the Macintosh had long file names 16 available to it as well before Microsoft 17 introduced the long file name for its users. 18 Q. Okay. So just so I'm clear here, 19 basically in '93, Linux, Mac, and Lotus had 20 long file names; right? 21 A. Their users could manipulate files by 22 long file names, that's correct. 23 Q. So if I were a user, I could do that; 24 right? 25 A. Uh-huh. 6582 1 Q. But on Windows, MS-DOS and Windows 2 prior to July 1995, I was limited to this 3 eight-character file name; right? 4 A. Yes, and -- 5 Q. With the extension? 6 A. With the extension. You can see this 7 is a very long file name at the bottom. 8 MR. LAMB: Okay. Next slide, please. 9 Q. So the long file name for Microsoft, 10 is this innovation or catch-up? 11 A. I think it's catch-up. It was 12 something that other operating systems had that 13 was very desirable for -- 14 Q. And -- 15 A. For use. 16 Q. And in your opinion, technologically 17 speaking, was it necessary to tie or bundle in 18 any way to accomplish the creation of long file 19 names? 20 A. No. 21 MR. LAMB: Next slide, please. 22 Q. The next concept -- I believe you 23 mentioned it earlier in the day with the jury 24 -- was the concept of drag and drop. And if 25 you would, just go over that again so 6583 1 everybody's on the same page. 2 A. The graphical user interface, the desk 3 -- is the desktop metaphor with the icons on 4 it, and you can place files or applications on 5 your desktop that you'll frequently use, and 6 you can grab them and move them around, and we 7 call that idea dragging and dropping, actually 8 is the -- 9 Q. And when did Windows first have drag 10 and drop? 11 A. I believe in 1995 in the Windows 12 operating. 13 Q. And Mac operating system, did it have 14 drag and drop before that? 15 A. The metaphor for dragging something 16 and dropping it into the trash can was 17 something that came with the original Mac. It 18 was a -- 19 Q. That was created by Mac? 20 A. That was created by Mac, and I believe 21 if memory serves, it was something that was 22 part of Lisa before that, which was Mac's 23 earlier operating system, although I'm -- may 24 be -- I'm a little uncertain about that. 25 Q. So did Microsoft invent drag and drop? 6584 1 A. No. 2 Q. In your opinion, from a technological 3 point of view, is it necessary to tie and 4 bundle in order to be able to effect drag and 5 drop? 6 A. No. 7 Q. The next thing I want to look at is 8 the web browser concept. 9 MR. LAMB: Can I get the next slide, 10 please. 11 Q. If you would for the jury, give them a 12 brief history of the creation of the web, how 13 it started. 14 A. A brief history. 15 Q. A brief history. 16 And if you could, I know it's getting 17 a little bit late in the day and you're 18 soft-spoken, but if you could speak up a little 19 bit, I would appreciate it. 20 A. All right. 21 Q. Thank you, sir. 22 A. Thank you. 23 Q. I'm loud, you're not. It's just the 24 way it is. 25 A. The idea of the Worldwide Web was a 6585 1 concept that began with some research that had 2 taken place with the federal government in 3 particular, the defense department, and it had 4 spread over to Europe, and researchers were 5 interested in being able to share information 6 and make available that information regardless 7 of the kind of computer you were connected to 8 and as long as you could speak this rather 9 simple communications protocol. 10 It would be a good -- it would be 11 possible for us to be able to view the contents 12 of research available at various institutions 13 and companies that were part of this network. 14 That basic idea represented a great 15 business opportunity and compared to the model 16 that existed for online services at the time. 17 So in 1994, the dominant model of 18 online services for people other than the 19 researchers and the research community was 20 America Online or CompuServe or Prodigy, where 21 you would pay a monthly fee, and that would get 22 you connected to the particular service, the 23 Prodigy service, for example, and you would be 24 able to see the content that Prodigy had 25 available for you. 6586 1 You wouldn't be able to see the AOL 2 content, but you'd be able to see the content 3 that Prodigy had negotiated to provide to its 4 users. So maybe Time magazine was available, 5 maybe it wasn't. But that was the way it 6 worked. The online services providers were 7 organized around these proprietary worlds with 8 proprietary content available to subscribers. 9 The Internet model, the one that we 10 now know, is just entirely different from that. 11 You get onto the Internet and you can 12 view content that is authored in a common 13 nonproprietary standard, and it's not available 14 to you if you -- only if you're an AOL 15 subscriber, you can go and visit the content of 16 any other content owner, any other company. If 17 Time magazine wants the content available to 18 you, you don't have to be an AOL subscriber to 19 see it. You can see it just by surfing on the 20 Internet. 21 Q. You have up here on the slide Mosaic. 22 What was Mosaic's involvement in regard to the 23 Internet or in regard to the web browser? 24 A. Well, the first effort to 25 commercialize browsers; that is, to take them 6587 1 outside of the research community and to make 2 them available as part of computer software 3 that you could acquire in the form of a package 4 was through Mosaic. 5 And Spyglass was the company that 6 presented the first commercialized version of 7 the browser, the browser being the application 8 software that could navigate you to these 9 various and different websites. 10 Q. So did Microsoft invent the web 11 browser? 12 A. No, it did not. 13 Q. All right. 14 What was Microsoft's early vision for 15 the Internet as you understood it? 16 A. Well, actually, Microsoft's early idea 17 here, which was called the Microsoft Network or 18 MSN, was really a proprietary service in the 19 same mold as AOL and Prodigy and CompuServe. 20 It was very much a closed environment 21 where content owners would author -- would 22 author their content for use on the MSN 23 Network. 24 Microsoft would provide the dial tone, 25 that is a telephone number that you would dial 6588 1 up to go visit. You could only use the Windows 2 operating system to get to the MSN content and 3 to view the content that was on the MSN 4 website. It was very closed. 5 Q. And there was a term called Blackbird 6 that was associated with Microsoft early on. 7 What does that mean? What does that refer to, 8 Blackbird? 9 A. Well, we use -- in our industry, we 10 use code names for products before they're 11 released. Sometimes we use code names for 12 technologies. But Blackbird was a code name 13 that Microsoft was using internally to describe 14 its content authoring software package that it 15 was going to make available to content owners 16 to author content. 17 Q. What does that mean, content authoring 18 software? 19 A. If you want to make a -- let's take a 20 simple example. 21 If you want to make a web page 22 available for people to visit, you have to 23 decide what you want to put in the web page and 24 then you have to mark up the content, what 25 you're going to say, using a specific set of 6589 1 editor notes, such as make this bold, make this 2 italic, change the background color, include a 3 picture. 4 That's called a markup language and 5 that's -- so that's a language in which you 6 author the content. You've got the actual 7 stuff that you want to write, and then you've 8 got the markup language that tells the browser 9 how to format that information. 10 That's tedious. It would be nice if 11 you could just say bold this instead of having 12 to remember the exact way that you have to mark 13 up the text. 14 So the process of authoring is 15 applying the markup language to your content, 16 and software that automates that process or 17 facilitates that process is called content 18 authoring software. 19 Q. Okay. Now Blackbird, was it ever 20 offered commercially? 21 A. Not to my knowledge, no. 22 Q. Now, what was the relationship between 23 Microsoft in terms of a browser and Netscape in 24 terms of its browser in terms of time? 25 A. In terms of time, Netscape released 6590 1 its browser -- its first commercial browser in 2 December of 1994, and Microsoft's first browser 3 was released with Windows 95 in August of 1995. 4 MR. LAMB: Can we have Plaintiffs' 5 Exhibit 5735? 6 Can you highlight the to and from so 7 we can get a context? 8 Q. Do you recognize this exhibit, sir? 9 A. Yes, I do. 10 Q. And do you recognize who it's from or 11 who it's to? 12 A. Both. 13 Q. Okay. Can you explain to the jury who 14 some of these people are that you know whom 15 they are? 16 A. Well, on the to line, Brad Silverberg 17 was the head of the Windows platform group, I 18 believe, at the time. 19 This may have -- this was just, I 20 believe, before he was put in charge of the 21 Internet group inside Microsoft, but John 22 Ludwig, Chris Jones are people within Microsoft 23 in the -- I believe in the Windows 24 organization. 25 Paul Maritz was the head of that 6591 1 group. He was a superior, I believe, to the 2 three gentlemen listed. 3 Thomas Reardon is another Microsoft 4 employee who provided -- who worked in the 5 development area. He was a technical person. 6 Q. This E-mail has got a subject no half 7 measures, how we should meet the Netscape 8 challenge. Do you see that? 9 A. I do. 10 Q. And it's dated Tuesday, October 24, 11 1995. 12 For the jury, give us a context of 13 what exists in terms of web browsers at this 14 time in relation to Netscape versus what 15 technologically Microsoft has. 16 A. Well, Netscape is the most popular 17 browser in the market at the time and it is 18 exploding in use. It's very popular. 19 Microsoft's product Internet Explorer 20 1.0, which I mentioned under certain conditions 21 was bundled with Windows 95, was really -- it 22 was based on technology that had been licensed 23 from Mosaic. So it was not particularly 24 different from anything that was in the market 25 and not competitive with in terms of feature 6592 1 and function to the Netscape browser. 2 Q. When you say competitive, you mean 3 technologically? 4 A. Absolutely. 5 Q. I just want to be clear on that. 6 A. Yes. 7 Q. Okay. 8 A. Netscape had attracted a following -- 9 a strong following under -- from software 10 developers who had built plug-ins. Plug-ins 11 are little applications that would fit inside 12 the browser and enable you to view, for 13 example, an acrobat, an Adobe acrobat browser. 14 So Netscape had published some 15 specifications, disclosed the interface 16 specifications, and developers were jumping on 17 the bandwagon, if you will, to develop plug-ins 18 that would work using the Netscape API. 19 By September of 1995, Netscape had 20 announced its next version of the Navigator and 21 its vision for the Internet, and it was a very 22 compelling vision, at least at the time, and 23 viewed in the trade press and what have you. 24 Q. Okay. 25 MR. LAMB: Now, Darin, could you pull 6593 1 up the highlighted portion? 2 Q. Okay. This says how Microsoft should 3 respond. 4 One, clone their client technology 5 early and often, paren, full embrace strategy, 6 closed paren. Do you see that? 7 A. I do. 8 Q. Okay. And this is a document that you 9 relied upon in developing your opinions; right? 10 A. Among many others, yes. 11 Q. How many others, do you think? 12 A. Oh, relied upon, thousands. I mean, 13 I've reviewed thousands -- tens of thousands, 14 hundreds of thousands of documents. 15 Q. You don't catalog them in your mind so 16 that you can recall them all individually, do 17 you? 18 A. No, I don't, not all of them, indeed, 19 no. 20 Q. Now, when it says there clone their 21 client technology, what is your understanding 22 of the term clone mean? 23 A. Well, clone has kind of a spectrum of 24 meaning whether -- sometimes it's pejorative, 25 sometimes it's a not very nice connotation. 6594 1 But, really, as a practical matter, it means to 2 copy or duplicate or emulate or work alike or 3 do the same thing, so make software that looks 4 the same, does the same thing, that's cloning. 5 Q. Okay. The phrase their client 6 technology, what does that mean to you, sir? 7 A. Well, their is referring to Netscape. 8 Q. Their is Netscape? 9 A. Their is Netscape. 10 Q. How about the term client technology, 11 what does that mean? 12 A. Well, I mentioned the older online 13 services paradigm or way of thinking, and that 14 way of thinking involved having -- thinking 15 about the browser as being a client of your 16 proprietary server. 17 So in this context here, we're -- the 18 client technology is referring to the Netscape 19 Navigator using the concept, the old concept of 20 a client, of a proprietary online service 21 provider. 22 You used to have to get -- it wasn't 23 hard to get, but you used to get a client from 24 a company, and you would get that -- you would 25 get the diskette from AOL and install it on 6595 1 your software system, and that would be your 2 client technology. 3 And the idea here was to -- client 4 technology refers to Netscape's browser, which, 5 of course, is a different model. 6 Q. Okay. Now the phrase full embrace 7 strategy, does that have any particular meaning 8 to you either in the IT community or in 9 relation to Microsoft in particular? 10 A. Yes, it does. 11 Q. What does it mean to you? 12 A. Well, it's part of a -- an expression, 13 but the embrace means to adopt all of the 14 standards, all of the interfaces, all of the 15 specifications that Netscape is adopting and to 16 embrace those, not to differ from them, not to 17 vary from them, not to propose countervailing 18 or countervailing standards. So if Netscape 19 supports this, we support this. If Netscape 20 does this, we agree to do that. 21 Q. Now, you mentioned that this was part 22 of an expression. What's the full expression 23 as you understand it, sir? 24 A. The full expression goes like this, 25 it's embrace, extend and extinguish. 6596 1 Q. What do you mean embrace, extend, 2 extinguish? 3 A. Well, the first in this sort of 4 strategy is to embrace a rival, a competitive 5 product's standards and technology and other 6 elements. 7 Q. Before you go on, when you say 8 embrace, are these open standards? Is this 9 something that other people can get? 10 A. In this particular case, yes, they 11 were open or publicly available standards. 12 Q. Okay. And what does that mean? Tell 13 the jury what that means, open or publicly 14 available standards. 15 A. Well, it means that the standards -- 16 standards are -- I talked before about 17 specifications and interface specifications, 18 including application programming interfaces or 19 communications protocols as examples of 20 interfaces. 21 When those interfaces are agreed to in 22 -- within our industry, they become standards. 23 Sometimes they're official standards blessed by 24 an organization like the IETF, the Internet 25 Engineering Task Force, and sometimes they're 6597 1 just kind of draft standards or proposals, or a 2 company will say here is what we think should 3 be the specification, they're publicly 4 available, you can use them, another company 5 can use them. 6 Q. Okay. Now, the next concept was 7 extend. It was embrace, extend. What do you 8 mean by that, extend, sir? 9 A. After the standards have been embraced 10 and adopted, the next step in Microsoft's 11 strategy -- 12 MR. HOLLEY: Your Honor, I object. 13 This is pure speculation. The document says 14 nothing about embrace, extend, extinguish, and 15 he is just making this up. 16 THE COURT: Sustained. 17 Q. Mr. Alepin, have you heard the phrase 18 embrace, extend, extinguish before? 19 A. Several times, yes. 20 Q. In what context, sir? 21 A. With reference to Microsoft's 22 strategies. 23 Q. And was this expression used by people 24 from Microsoft? 25 MR. HOLLEY: Your Honor, I object. If 6598 1 Mr. Alepin is testifying about anything that he 2 has read in any judicial decision or any 3 judicial proceeding involving Microsoft, he is 4 not entitled to testify about that. 5 THE COURT: You may ask him where he 6 got this from. 7 MR. LAMB: I believe that's what I 8 just -- I'll try and ask it again -- 9 THE COURT: Overruled. Ask him where 10 he got it. 11 Q. Where did you get this information 12 from? 13 A. It's public in our industry. It's a 14 well-known phrase in our business. 15 Q. But have you read documents authored 16 by Microsoft that use that phrase? 17 A. Not the third element of it. 18 Q. Okay. So you've heard the first 19 element and the second element, and the second 20 element to the extend, and with the Court's 21 permission, I'd like you to describe extend. 22 A. Extend is where Microsoft then adds 23 its own extensions to existing standards or 24 variations on these existing standards that are 25 proprietary to it or will work only with its 6599 1 other software. 2 Q. And then the third element was 3 extinguish. Where did you hear that phrase? 4 A. Extinguish came about because that's 5 the result of the two, embrace and extend. 6 Q. So the result -- 7 A. Prongs. 8 Q. The result of embrace and extend is to 9 extinguish. 10 Is that a term that's used in your 11 industry as it relates to Microsoft? 12 A. Yes. 13 Q. And then explain to the jury what you 14 mean by extinguish. 15 MR. HOLLEY: Your Honor, if he's about 16 to testify about some anticompetitive effect of 17 what he says is a Microsoft strategy, I object. 18 THE COURT: Overruled. 19 A. I'm sorry, it's late. I lost the 20 question. 21 Q. I apologize. We're almost done for 22 the day. Just hang with us. 23 Just explain extinguish, and then 24 we'll let you go for the day. 25 A. What happens is once the embrace and 6600 1 extend has worked is that the competitive 2 products, the rival's products -- 3 Q. Technologically? 4 A. -- technologically have been 5 extinguished. They're not able to match 6 feature functionality and other attributes of 7 the products. 8 MR. LAMB: Okay. Thank you, Mr. 9 Alepin. 10 Would it be a good time to stop today, 11 Your Honor? 12 THE COURT: Very well. 13 Ladies and Gentlemen of the jury, 14 we'll stop for the day. 15 Please remember the admonition that I 16 have previously given to you. 17 We'll reconvene at 8:30 tomorrow 18 morning. Please drive safely. Leave your 19 notebooks here. 20 (A recess was taken.) 21 (The following record was made out of 22 the presence of the jury at 2:53 p.m.) 23 MS. CONLIN: We were going to discuss 24 further the website. If you'll recall at the 25 conclusion -- 6601 1 THE COURT: I talked to the Court 2 administrator about it. The best they could 3 offer was -- which didn't help you at all was 4 to -- they were going to give you the name of 5 an independent contractor to do it. So I told 6 them that you guys were thinking about doing 7 your own anyhow, so they said if you want to do 8 that, go ahead. 9 MS. CONLIN: All right, Your Honor. 10 Then, what I indicated to the Court 11 that we wanted to do on whenever it was, many 12 weeks ago, many days ago, our position is that 13 whatever happens in Court is a matter of public 14 record so we would be posting the transcripts, 15 admitted exhibits, and other Court-related 16 material. 17 THE COURT: As long as it doesn't 18 violate a protective order and the exhibits 19 have been admitted. 20 MS. CONLIN: Once something has been 21 admitted in Court, Your Honor, it would seem to 22 me as though whatever protective order was in 23 force would be no longer in force because it is 24 a matter of public record. 25 THE COURT: Correct. 6602 1 MS. CONLIN: Okay. Well, I just 2 wanted to clarify that, Your Honor. 3 THE COURT: Anything else? 4 MS. CONLIN: Not from us, but I 5 thought, Your Honor, that you were going to 6 take up some matters with Mr. Tuggy and 7 Mr. Gralewski, but I don't see them. 8 I think we had a couple like -- some 9 depositions and the like, but if they come 10 over, they can find you. 11 THE COURT: Sure. I'll be here. 12 MR. TULCHIN: See you tomorrow, Your 13 Honor. Thank you very much. 14 (Proceedings adjourned at 2:56 p.m.) 15 16 17 18 19 20 21 22 23 24 25 6603 1 CERTIFICATE TO TRANSCRIPT 2 The undersigned, Official Court 3 Reporters in and for the Fifth Judicial 4 District of Iowa, which embraces the County of 5 Polk, hereby certifies: 6 That she acted as such reporter in the 7 above-entitled cause in the District Court of 8 Iowa, for Polk County, before the Judge stated 9 in the title page attached to this transcript, 10 and took down in shorthand the proceedings had 11 at said time and place. 12 That the foregoing pages of typed 13 written matter is a full, true and complete 14 transcript of said shorthand notes so taken by 15 her in said cause, and that said transcript 16 contains all of the proceedings had at the 17 times therein shown. 18 Dated at Des Moines, Iowa, this 4th 19 day of January, 2007. 20 21 22 ______________________________ Certified Shorthand Reporter(s) 23 24 25