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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`WAPP TECH LIMITED PARTNERSHIP
`AND WAPP TECH CORP.
`VS.
`SEATTLE SPINCO, INC., ET AL
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`DOCKET 4:18CV469
`MARCH 5, 2021
`8:32 A.M.
`SHERMAN, TEXAS
`-----------------------------------------------------------
`VOLUME 5 OF 5, PAGES 1198 THROUGH 1380
`REPORTER
`'S TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE AMOS L. MAZZANT, III
`UNITED STATES DISTRICT JUDGE, AND A JURY
`-----------------------------------------------------------
`APPEARANCES :
`FOR THE PLAINTIFFS :
`DERON R. DACUS
`THE DACUS FIRM
`821 ESE LOOP 323, SUITE 430
`TYLER, TEXAS 75701
`ROBERT F. KRAMER
`MARGARET ELIZABETH DAY
`DAVID L. ALBERTI
`SAL LIM
`RUSSELL STEVEN TONKOVICH
`MARC C. BELLOLI
`SVEN RAZ
`ANDREW GRANT HAMILL
`ROBERT Y. XIE
` FEINBERG DAY KRAMER ALBERTI LIM
`TONKOVICH & BELLOLI
`577 AIRPORT BOULEVARD , SUITE 250
`BIRLINGAME , CALIFORNIA 94010
`
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`FOR THE DEFENDANTS :
`HARRY LEE GILLAM, JR.
`ANDREW THOMPSON "TOM" GORHAM
`GILLAM & SMITH
`303 SOUTH WASHINGTON AVENUE
`MARSHALL, TEXAS 75670
`L. REX SEARS
`ALEXIS K. JUERGENS
` MASCHOFF BRENNAN - SALT LAKE CITY
`111 SOUTH MAIN STREET, SUITE 600
`SALT LAKE CITY, UTAH 84111
`BARRY KENNETH SHELTON
`BRADLEY DALTON COBURN
`SHELTON COBURN LLP
`311 RR 620 SOUTH, SUITE 205
`AUSTIN, TEXAS 78734-4775
`COURT REPORTER : CHRISTINA L. BICKHAM, CRR, RDR
`FEDERAL OFFICIAL REPORTER
`101 EAST PECAN
`SHERMAN, TEXAS 75090
`PROCEEDINGS RECORDED USING MECHANICAL STENOGRAPHY ;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION .
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`(Open court, all parties present, jury not
`present.)
`THE COURT: Are we ready to begin?
`Let's go ahead and bring the jury in, then.
`(The jury enters the courtroom , 8:35 a.m.)
`THE COURT: Please be seated.
`Welcome back, ladies and gentlemen .
`Mr. Dacus, if you want to continue.
`MR. DACUS: Thank you, your Honor.
`THE COURT: Oh, yes, sorry. Let's make sure the
`witness is in the box. I forgot that one minor detail.
`You understand you're still under oath?
`THE WITNESS: Yes, sir.
`THE COURT: Okay. Just pull the mic down.
`Go ahead, Mr. Dacus.
`MR. DACUS: Thank you, your Honor.
`CONTINUED RECROSS-EXAMINATION OF CLARKE NELSON
`BY MR. DACUS:
`Q. Good morning, Mr. Nelson.
`A. Good morning, Mr. Dacus.
`Q. Just a few topics to finish up here and a few
`questions , if that's okay.
`A. Sure.
`Q. In the course of your work, sir, that you've done, are
`you or are you not aware that Micro Focus increased the
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`price of LoadRunner in 2018?
`A. I've heard some assertions to that. I don't recall
`looking at the pricing guides to ascertain one way or the
`other.
`What I did observe is the total revenue for
`LoadRunner from year over year between those two time
`periods. There's a slight bump. I don't recall it being
`significant .
`Q. So if, indeed, Micro Focus increased the price of
`LoadRunner in 2018, that's not something that you've looked
`at in detail; is that fair?
`A. Like I said, I'm aware of some of that discussion .
`Probably not aware of it in great detail, other than I've
`looked at the aggregate revenues and did not observe a
`significant bump.
`Q. Understood .
`Because you understand , sir, that part of the
`dispute here is that Micro Focus says we started giving
`away Network Virtualization for free in November of 2018.
`That's their position, correct?
`A. I understand it was included in a bundle, in effect,
`yes.
`Q. Right. And you understand we say no, although you say
`you included it in a bundle and you gave it away for free,
`that's really a little deceptive -- or a lot deceptive ,
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`from our perspective .
`You understand that's our position, correct?
`A. I understand you just stated that.
`Q. Okay.
`MR. DACUS: Can we pull up D-82, please.
`BY MR. DACUS:
`Q. D-82 is this document that we were starting to look at
`late yesterday . Do you remember that, Mr. Nelson?
`A. I recall looking at a document that had the same, once
`again, blue background with Micro Focus logo. If this is
`the same one, I accept your representation .
`MR. DACUS: Can you show the entirety of the front
`page, please, Tom.
`BY MR. DACUS:
`Q. You remember , sir, that this is a document that comes
`from Micro Focus' internal files. You remember that?
`A. I don't know if it's from their internal files or where
`it was obtained. It does have a Micro Focus Bates number
`on there.
`Q. And when you say "a Micro Focus Bates number," that's a
`document that Micro Focus produced, according to this
`Court's orders, in this case, correct? You know enough to
`know that.
`A. That would be my understanding of the procedural
`logistics of the document coming to light.
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`Q. And you know this is a document -- or maybe you don't
`know. You can confirm it or not -- that this is an
`internal document that Micro Focus circulated among it and
`its management team within Micro Focus.
`Do you know that?
`A. I'd have to look more into the following pages to see
`if that's confirmed , that it was something that was
`circulated within internal management and who it was
`circulated among.
`Q. Okay.
`MR. DACUS: Can you go to the Bates number ending
`in 29994, please, Tom.
`And can you blow up that box so we can read it
`better, please, sir.
`BY MR. DACUS:
`Q. You see this pricing proposal within this Micro Focus
`memo, and I want to focus you on the fourth bullet point
`there. It says, "In order to justify the price increase to
`existing customers , Network Virtualization will be provided
`by default."
`Do you see that?
`A. I do see those words.
`Q. So the way I read that is, although Micro Focus has
`been here telling this jury that Network Virtualization has
`no value, what they were saying internally to themselves
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`is, hey, we can increase the price of our LoadRunner
`product and the justification is Network Virtualization .
`Is that how you read that?
`A. I'm not sure. You know, I can't necessarily interpret
`what that group of individuals that you suggest may have
`been involved in writing these words.
`The top of the page does say "pricing proposal."
`I'm not aware that it was implemented .
`And, like I said, in the actual accounting data, I
`don't see a measurable increase in the revenue from
`LoadRunner .
`Q. We can at least agree that what somebody at Micro Focus
`said is we're going to justify increasing the price of
`LoadRunner , and we're going to use Network Virtualization
`as the justification .
`A. I think we can agree that the words say what they say.
`If we interpret that as a hope or as a proposal or
`something they considered , those are all, I think,
`questions that remain.
`Q. And I guess it begs the question -- since Micro Focus
`has told this jury repeatedly that Network Virtualization
`has no value -- it begs the question of how much of a price
`increase would it warrant, doesn't it?
`A. I don't know. Like I said, I can't observe an actual
`increase in revenue, and that would be a direct
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`relationship if -- if there were a price increase, I would
`expect to see some kind of measurable increase in the
`revenues to coincide with that.
`MR. DACUS: Can you turn to the next page, Tom.
`And can you blow up the top half of that box,
`please.
`BY MR. DACUS:
`Q. So this is the very next page of that document, where
`they talk about the price increase for the LoadRunner
`product.
`On the left column there, sir, is the original
`price. Let's just take the top line. $2.46, do you see
`that?
`A. I do.
`Q. And the new proposed price is $4.92.
`Do you see that?
`A. That isn't -- there isn't a header that says that, but
`I guess we can deduce that. I'm not sure.
`Q. The next line says the old price was 5, and they're
`going to raise it to 10.
`Do you see that?
`A. I see those numbers.
`Q. I'm not the smartest guy in this courtroom , as I've
`already proven, but that looks like they're doubling the
`price to me.
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`Is that what it looks like to you?
`A. Well, again, it says "proposed." It doesn't say that
`they did.
`And, again, what I observe in the historical
`accounting records is consistent revenue year over year.
`Q. So, in this courtroom , Micro Focus has said to this
`jury Network Virtualization is worthless ; but to
`themselves , in private documents that they never thought
`would see the light of day in this courtroom , what they
`were saying to themselves is if we include Network
`Virtualization that justifies doubling the price of
`LoadRunner .
`Isn't that where we wind up, sir?
`A. Those words you just spoke don't appear on this page.
`I see "current and proposed price." That's what I see.
`Q. Beyond that, you just don't know one way or the other;
`is that fair?
`A. No. I don't think it's entirely fair. As I said, I've
`looked at the actual total revenues, and I don't see an
`increase from year over year.
`MR. DACUS: That's all I have, your Honor. I pass
`the witness.
`THE COURT: Okay. Thank you.
`Additional questions ?
`MR. SEARS: No, your Honor. Thank you.
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`THE COURT: Okay.
`Okay. Ladies and gentlemen , if you have a
`question, or not, please fold a piece of paper and pass it
`over to the court security officer.
`Can I have counsel approach?
`(Bench conference , off the record.)
`THE COURT: Okay. The jurors' questions have
`already been asked, so I don't need to ask it again.
`So -- the juror noticed that.
`So you can step down.
`THE WITNESS: Thank you.
`THE COURT: Okay. What's next for the defense?
`MR. SEARS: Defense rests, your Honor.
`THE COURT: Very good.
`What's next for the plaintiffs ?
`MR. ALBERTI: Your Honor, plaintiffs call Dr. Sam
`Malek for rebuttal testimony .
`THE COURT: Sir, you understand you're still under
`oath that you took the other day?
`THE WITNESS: Sorry?
`THE COURT: You understand you're still under oath
`from the other day?
`THE WITNESS: Yes, your Honor.
`THE COURT: Okay. Go ahead.
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`DIRECT EXAMINATION OF SAM MALEK
`CALLED ON BEHALF OF THE PLAINTIFF
`BY MR. ALBERTI:
`Q. Good morning, Dr. Malek. I know it's been a long week,
`and we'll try to keep this as brief as possible.
`But do you understand we're allowed to present
`some response to some of the arguments we've been hearing
`from Micro Focus over the course of this trial at this
`time?
`A. Yes, sir.
`Q. Are you prepared to do that today?
`A. I am.
`Q. I'd like to just start out by, at the very beginning ,
`how you performed your analysis.
`I found it very interesting , yesterday , when I was
`questioning Micro Focus' expert, and I asked why didn't he
`look at source code, why didn't he do independent testing.
`And his answer was that he was hired to, quote, look for
`errors in your report.
`What were you hired to do in this case?
`A. I was hired as an independent expert to determine
`whether the three patents that we've been talking have been
`infringed by Micro Focus and its products, and also opine
`on the validity of the patents.
`Q. Were you asked to come up with a predetermined result
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`when you were hired?
`A. No, sir.
`Q. We've heard a lot, again, about how Micro Focus'
`products operate, whether they can test applications ,
`whether they can emulate. Were you able to investigate all
`of those issues in this case?
`A. Yes, sir.
`Q. And what sort of evidence did you consider when you did
`this investigation ?
`A. So, first and foremost, I reviewed the source code of
`the products that were made available to me. So this was
`basically the source code of the accused products, all
`versions of the products , during the infringement period.
`They were provided on a computer by Micro Focus to me.
`They were also provided to the opposing expert,
`Dr. Shoemake. I understand he didn't review those. I
`reviewed all the source code.
`I reviewed the documents , all the documents
`produced in the case. I reviewed the datasheets , the user
`guide.
`I confirmed the information in those documents are
`accurate based on my analysis of the source code. So I
`corroborated the data, different inputs to my analysis .
`I reviewed various deposition testimonies .
`I used the product myself. As you know, I created
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`videos, and I showed the jury that I used and tested the
`products myself.
`You know, and I also did my own research on
`websites. Tried to find publicly available information
`about the products.
`So the data points that went into my analysis were
`multifaceted . I looked at various data points, tried to
`correlate source code with the document information .
`And, yes, so that's an overview of the work that
`I've done.
`Q. And now that we've gotten, I guess, a little more
`information about these products and how they work, I'd
`like to kind of, I guess, go back to the beginning and
`maybe you can just step the jury again through some
`screenshots of one of your tests to just kind of hit some
`key points that you noticed when you were testing these
`products. Is that fair?
`A. Yes.
`Q. Can you explain to the jury again what this test was
`and how you began.
`A. Sure. So these are basically slides that I showed
`earlier. The first -- I guess it was on Tuesday was when I
`first testified . This is actually screenshots of the tests
`that I've done. So these are my tests using the products .
`These are not coming from documents .
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`And in the first step of the test when I used the
`product, what I did here is I chose a device for testing.
`So, in this case, I chose a Nexus 6 device. And you can
`tell that that is the device that I've chosen because there
`is a green highlighted lock at the bottom, so that's the
`device that I've locked for my testing.
`Q. And we heard a lot about the need to show resources of
`the device. During your test, were you able to select
`resources ; and, if so, what did you select?
`A. Yes, sir. So this is the second step that I performed
`with the accused product. You can see on the right-hand
`side there is a panel, collect data on.
`So, here, you can go choose the resources of the
`mobile device. In this case, CPU, memory, free memory or
`consumed memory. These are the resources that you choose
`to collect data so you can emulate them and display them
`during the execution of the test.
`Q. What did you do after you selected the device to test?
`A. Sure. So the third step is I basically go to that
`Network Virtualization panel that you see on the right-hand
`side. I enable it by clicking the check box, and I choose
`the specific network profile -- network characteristic that
`I would like to simulate.
`And as you can see there are various options
`available . In this case I chose a 4G typical connection
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`for simulation .
`Q. And, finally, when you run the test, what do you
`ultimately see?
`A. So this is ultimately -- after you have set this up,
`this is where I am executing the test as the application is
`running. So the application is running, as you can see on
`the right-hand side. You see the phone with the number 2
`in it, that's one of the screens of the application .
`You can see, as the application is running, I'm
`able to -- the product displays these resources of the
`mobile device that are being simulated ; in other words,
`being emulated . You can see the word "simulation " in the
`panel itself, in the control panel next to the phone.
`You can see the device metrics, CPU, central
`processing unit, memory. These are resources of the mobile
`device that are being emulated and being displayed as
`required by the invention .
`On the left-hand side, we are looking at another
`type of resource . This is the throughput of the device.
`We know it is the throughput of the mobile device because
`it says client, client. And client is basically , in the
`client server model that we've been talking about, client
`is always the mobile device. So whenever you see the word
`"client," that's mobile device, and server is the back end.
`So, in this case, you can see that, as I'm
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`executing the test, we are able to see various resources of
`the mobile device being simulated and being displayed .
`Q. Now I'd like to talk about some of the specific errors
`that Dr. Shoemake says that he found in your analysis. If
`we could go over each one so you could respond to the jury
`and let them know your position on those.
`A. Yes.
`Q. We'll start with the first one. Dr. Shoemake said that
`the accused products don't, quote, emulate -- or, I'm
`sorry -- don't have a application for a mobile device.
`Starting with the actual language of the claim,
`why is Dr. Shoemake wrong?
`A. Well, he's not reading the preamble of the claim
`correctly . The preamble of the claim is the first bullet
`here. It says: "A system for developing an application
`for a mobile device." The preamble -- that's the preamble
`of '192.
`The other ones -- the other two says: "A system
`for testing an application for a mobile device."
`So what is claimed is a system for developing an
`application , not an application for a mobile device. He's
`taking a portion of the preamble for his analysis; he's not
`taking the entirety of the preamble for his analysis.
`Q. We also heard from Mr. Bachar.
`Do you recall that?
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`A. Yes, sir.
`Q. And he was discussing the types of applications that
`their products test, and he was asked, "How many different
`types of mobile applications are there?"
`And he responded , "There are mainly three." And
`then he discusses those three.
`Can you explain to the jury what the differences
`are between these three and how they work with the accused
`products.
`A. Sure. So we heard testimony from Mr. Bachar. That's
`one of Micro Focus' engineers . He provided testimony
`through video.
`And the question was asked from him: How many
`different types of mobile applications are there?
`And he said, "There are mainly three. The first
`one will be a native application . The second one will be a
`Mobile Web application . And the third one will be
`hybrid-based application ."
`And so the difference between these is that a
`native application is an application that is native to the
`device. So, for example, an iOS application only executes
`on iOS, versus an Android application only executes on a
`Android device. That's a native application .
`Then you have a second category of mobile
`applications , which are called Mobile Web applications .
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`These are applications that can execute on different kinds
`of devices. They use Web technology .
`And the third category is a hybrid, where it is
`basically combination of native and Web technology for
`constructing apps.
`Now, the importance of this is that one of the
`questions that may have come up is why there are two mobile
`testing protocols in the case that I've pointed to, because
`different protocols of the Micro Focus product is used for
`testing different kinds of application .
`So there is the native mobile testing protocol ,
`which is used for testing a native and hybrid-based
`applications , and there is the mobile TruClient protocol
`that is used for testing of Mobile Web applications .
`Q. I believe Dr. Shoemake specifically took issue with
`whether or not, in that second case, the Mobile Web
`application , whether you actually tested a mobile
`application or whether -- I think he called it a Firefox
`browser.
`How do you respond to that?
`A. Again, you know, with all due respect to Dr. Shoemake,
`he misrepresented my infringement analysis here.
`My infringement analysis is not that I'm testing
`the browser; I'm testing the Bank of America application
`that is shown here. So this is a Mobile Web application .
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`As Mr. Bachar testified , this is one category, one
`important category of mobile applications . It's a Mobile
`Web application where the implementation of the application
`is through Web technology .
`He misrepresented my opinion that I'm opining that
`I'm testing the browser. I'm testing the Bank of America
`application in this experiment that I've done here.
`Q. And how do you know that by looking at this picture?
`A. Well, you can see Bank of America in the right-hand
`side. That's the -- and I think the test that I actually
`did was to put in a ZIP code. In the Bank of America
`application , there is a place where you can search for your
`local bank branch. And I put in a ZIP code and I searched .
`And we have a video of that, but we didn't have
`time to show it to the jury. But I've actually recorded
`another video for that.
`Q. There was also some question about whether Micro Focus'
`products could be used to develop applications . How do you
`respond to that?
`A. Well, my opinions are that the products are used for
`development . Development , as I've testified , involves
`writing of the source code and testing of the source code.
`And Micro Focus' own documents agree with my
`understanding of software development . Here, you can see
`on the right-hand side, they say, "...integrations to
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`support end-to-end mobile app development ."
`And if you look below that, the first bullet, it
`says, "...to record and run load and performance tests for
`mobile apps."
`So Micro Focus' own documentation confirms my
`opinion that testing is part of software development .
`Q. Another theme that we've heard from some of Micro
`Focus' witnesses are, well, this is just a datasheet . It's
`a marketing document. We just give these two to our
`customers .
`How do you respond to that?
`A. Yes. So I've heard testimony that these are marketing
`documents , but you have to -- well, first of all, I have
`not only relied on marketing documents , I've also relied
`on -- in addition to source code, I've also reviewed user
`guide, which is a technical document.
`But some of the material that I've relied on, some
`of it is marketing documents. There are two points to be
`made about this.
`One is that a marketing team is not going to
`create a document without consulting the engineers in the
`company, because marketing folks are going to have to know
`what the product does. They talk to engineers , they figure
`that out, and they write it. So there is a collaborative
`effort that goes into producing marketing documents .
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`The second point to be made here is that you have
`to consider who are the customers of LoadRunner ? Who are
`the customers of Micro Focus products? They are engineers ,
`right?
`So the person that is going to go and look at
`these marketing documents to determine if they actually
`want to purchase that product is an engineer, is a software
`engineer.
`So these marketing products are written in a
`technical way. They are technical documents because they
`are intended for consumption by software engineers .
`Q. So, with respect to Dr. Shoemake's first issue
`regarding the application and ability to develop it with
`Micro Focus' products , did you determine that limitation in
`the preamble is infringed ; and if so, for which products ?
`A. Yes. I determined that it's infringed , and it's
`infringed by all the products.
`Q. I'd like to move on to the next issue he raised with
`your analysis. And I believe he said that the accused
`products are not, quote, a software authoring interface .
`How do you respond to that?
`A. Well, I disagree with him.
`Q. And why do you disagree with him?
`A. I think we have -- yes. So a software authoring
`interface basically means a software development
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`environment , which involves writing source code and testing
`the source code.
`And I've showed lots of evidence to the jury as to
`Micro Focus' own documents that describe their tools as
`tools for software development and for testing.
`Q. We see an excerpt from a LoadRunner User Guide. Can
`you explain how this supports your determination that Micro
`Focus' products do include a software authoring interface .
`A. Right. So this is LoadRunner User Guide that talks
`about VuGen. VuGen is a virtual user generator . It's the
`tool that you use to create the test script. You saw that
`in my video, but you also saw that in Mr. Staten's video
`that he had prepared.
`So, as you may recall, in VuGen, that's where you
`actually create the script, the test script. And so it
`satisfies the notion of a software authoring interface
`because you are developing the test script for software
`development .
`Q. And, for the record, I believe you are reading from
`PX-40. That's at dash 42; is that right?
`A. Yes, sir.
`MR. ALBERTI: Tom, can we get the next slide?
`BY MR. ALBERTI:
`Q. I think we've got another document. Again, this is
`from the LoadRunner User Guide, PX-40. It's at dash 55.
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`Can you explain how this shows that the accused
`products do, in fact, include a software authoring
`interface .
`A. Yes. So, again, in addition to the videos that I
`showed to the jury, and also Mr. Staten himself showed
`videos of using VuGen to edit and create test scripts, here
`is explicit statement from LoadRunner User Guide that says:
`VuGen's editor enables you to edit recorded scripts.
`So if you are editing these scripts, you are
`obviously authoring the -- it meets the limitation of a
`software authoring interface .
`MR. ALBERTI: Can I get the next slide, Tom.
`BY MR. ALBERTI:
`Q. So, based on your analysis, were you able to determine
`that the accused products infringe this limitation ; and, if
`so, which products ?
`A. Yes. They infringe, and all of the products infringe .
`MR. ALBERTI: Next slide.
`BY MR. ALBERTI:
`Q. The next issue that Dr. Shoemake took with your
`analysis was that he claims the accused products do not
`meet the, quote, one or more profile display windows
`limitation .
`Do you agree with that?
`A. I don't agree with his opinion, no.
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