Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 1 of 10
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` Exhibit 38
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 2 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`14 Civ. 2396 (PGG)
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`14 Civ. 9558 (PGG)
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`NETWORK-1 TECHNOLOGIES, INC.
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`Plaintiff,
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`- against -
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`GOOGLE LLC and YOUTUBE, LLC
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`Defendants.
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`DEFENDANTS’ FIFTH SUPPLEMENTAL RESPONSES AND
`OBJECTIONS TO PLAINTIFFS’ INTERROGATORY NOS. 3, 4, 7 & 24
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`Pursuant to Rules 26(e) and 33 of the Federal Rules of Civil Procedure, Google LLC
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`(“Google”) and YouTube, LLC (“YouTube”) (collectively “Defendants”) by and through their
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`undersigned counsel, hereby further respond and object to Interrogatory Nos. 3, 4, 7, & 24 (the
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`“Interrogatories”) of plaintiff Network-1 Technologies, Inc. (“Network-1” or “Plaintiff”).
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`Defendants’ investigation of the matters raised by Plaintiff's interrogatories is continuing and
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`pursuant to Fed. R. Civ. P. 26(e), Defendants expressly reserve the right to amend and/or
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`supplement their responses.
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`GENERAL RESPONSES & OBJECTIONS
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`Defendants incorporate by reference all general and specific responses and objections
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`previously made in Defendants’ original Responses and Objections to Plaintiff’s First, Second,
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`Third, and Fourth Sets of Interrogatories.
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`SPECIFIC RESPONSES & OBJECTIONS
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`Each of the General Responses and Objections are incorporated by reference into each and
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`every specific response set forth below. Notwithstanding the specific response to any
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 3 of 10
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`Interrogatory, Defendants do not waive any of their General Responses or Objections. Subject to
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`the General Responses and Objections, and without waiver, modification or limitation thereof,
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`Defendants’ supplemental responses and objections to the Interrogatories are set forth below.
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`INTERROGATORY NO. 3:
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`Identify and quantify on a quarterly basis all direct and indirect revenue received by You
`associated with media content identified or recognized by ContentID, or any other content
`identification system used by You, since 2011.
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`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3:
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`Defendants incorporate by reference each of their general objections above. Defendants
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`object to this Interrogatory to the extent that it seeks documents not relevant to the claims or
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`defenses of either party nor reasonably calculated to lead to the discovery of evidence relevant to
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`the subject matter involved in this Action. Defendants object to this Interrogatory as unduly broad
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`to the extent it seeks information regarding Defendants’ operations prior to August 30, 2011, the
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`date when the first patent-in-suit issued. Defendants object to this Interrogatory to the extent that
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`it contains discrete subparts within the meaning of FED. R. CIV. P. 33. Defendants object to this
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`Interrogatory to the extent it seeks information that could be more practically obtained by a request
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`for production, in violation of Local Civil Rule 33.3(b).
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`Subject to the foregoing, Defendants supplement their prior responses to this Interrogatory
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`as follows:
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`A more practical method of obtaining the information sought in this Interrogatory is
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`through a document request, and therefore, this Interrogatory is improper and violates Local Civil
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`Rule 33.3(b). Moreover, the information sought in Interrogatory No. 3 is duplicative of the
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`information sought in, at least, Plaintiff’s Document Request Nos. 28, 30, 31, 35, 36 and 41.
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`Subject to and without waiver of the General and Specific Objections made in Defendants’
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`2
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 4 of 10
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`Responses and Objections to Plaintiff’s First Set of Requests for Production of Documents and
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`Things (No. 1–47), and in accordance with the Stipulation and Order Regarding the Production of
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`Electronically Stored Information entered in this case, non-privileged documents relevant to a
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`reasonable interpretation of this Interrogatory that have been identified after a good faith,
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`reasonable search have been produced to the extent they exist. Defendants further respond that
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`they believe that an additional document relevant to this Interrogatory is: GOOG-NETWORK-
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`00803586.
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`Defendants have made a good faith effort to identify by Bates number documents relevant
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`to this Interrogatory; however, Defendants do not claim to have identified each and every
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`document that Plaintiff may consider relevant to Interrogatory No. 3. Identifying responsive
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`documents in Defendants’ production by Bates number is similarly burdensome and/or expensive
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`to both Defendants and Plaintiff, and to the extent Defendants have not identified any documents
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`in the production that Plaintiff deems relevant to Interrogatory No. 3, then Plaintiff is able to
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`identify such documents in Defendants’ production.
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`INTERROGATORY NO. 4:
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`Identify and quantify on a quarterly basis all direct and indirect revenue received by You
`from advertising on
`the YouTube video-sharing websites <www.youtube.com> and
`<m.youtube.com> since 2011.
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`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4:
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`Defendants incorporate by reference each of their general objections above. Defendants
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`object to this Interrogatory to the extent that it seeks documents not relevant to the claims or
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`defenses of either party nor reasonably calculated to lead to the discovery of evidence relevant to
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`the subject matter involved in this Action. Defendants object to this Interrogatory as unduly broad
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`to the extent it seeks information regarding Defendants’ operations prior to August 30, 2011, the
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`3
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 5 of 10
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`date when the first patent-in-suit issued. Defendants object to this Interrogatory to the extent that
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`it contains discrete subparts within the meaning of FED. R. CIV. P. 33. Defendants object to this
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`Interrogatory to the extent it seeks information that could be more practically obtained by a request
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`for production, in violation of Local Civil Rule 33.3(b).
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`Subject to the foregoing, Defendants supplement their prior responses to this Interrogatory
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`as follows:
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`A more practical method of obtaining the information sought in this Interrogatory is
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`through a document request, and therefore, this Interrogatory is improper and violates Local Civil
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`Rule 33.3(b). Moreover, the information sought in Interrogatory No. 3 is duplicative of the
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`information sought in, at least, Plaintiff’s Document Request Nos. 28, 30, 31, 35, 36 and 41.
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`Subject to and without waiver of the General and Specific Objections made in Defendants’
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`Responses and Objections to Plaintiff’s First Set of Requests for Production of Documents and
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`Things (No. 1–47), and in accordance with the Stipulation and Order Regarding the Production of
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`Electronically Stored Information entered in this case, non-privileged documents relevant to a
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`reasonable interpretation of this Interrogatory that have been identified after a good faith,
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`reasonable search have been produced to the extent they exist. Defendants further respond that
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`they believe that an additional document relevant to this Interrogatory is: GOOG-NETWORK-
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`00803585.
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`Defendants have made a good faith effort to identify by Bates number documents relevant
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`to this Interrogatory; however, Defendants do not claim to have identified each and every
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`document that Plaintiff may consider relevant to Interrogatory No. 4. Identifying responsive
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`documents in Defendants’ production by Bates number is similarly burdensome and/or expensive
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`to both Defendants and Plaintiff, and to the extent Defendants have not identified any documents
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`4
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 6 of 10
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`in the production that Plaintiff deems relevant to Interrogatory No. 4, then Plaintiff is able to
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`identify such documents in Defendants’ production.
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`INTERROGATORY NO. 7:
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`For each Accused Instrumentality, identify each and every basis for your claim that you
`have not infringed and do not infringe the claims of the Asserted Patents, including an
`identification of the claim elements that you contend that you do not practice, identification of all
`facts and documents that support or contradict your claim, and identification of all persons with
`knowledge of the same.
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`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7:
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`Defendants incorporate by reference each of their general objections above. Defendants
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`object to this Interrogatory to the extent that it contains discrete subparts within the meaning of
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`Fed. R. Civ. P. 33. Defendants object to this Interrogatory to the extent that it seeks information
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`protected by the attorney-client privilege and/or work product doctrine. Defendants object to this
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`Interrogatory to the extent that it seeks information that could be more practically obtained by an
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`expert deposition, in violation of Local Civil Rule 33.3(b). Defendants object to this Interrogatory
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`as overly broad and unduly burdensome to the extent that it seeks the Bates number of every
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`document that Google has produced relating to non-infringement. Defendants object to this
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`Interrogatory as overly broad and unduly burdensome to the extent that it seeks the name of every
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`person with knowledge of the facts and documents relating to non-infringement.
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`Subject to the foregoing, Defendants supplement their prior responses to this Interrogatory
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`as follows:
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`The Accused Instrumentalities do not “electronically determin[e] an identification” of an
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`“electronic work based on the extracted features, wherein the identification is based on a non-
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`5
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 7 of 10
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`exhaustive search identifying a neighbor” and “wherein the non-exhaustive search is sublinear.”1
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`To the extent that the Accused Instrumentalities ever “determin[e] an identification of” an
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`“electronic work,” the “identification is based on” a process of classification using decision trees
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`and/or neural networks, which is neither a “search,” nor a “non-exhaustive search,” nor a “non-
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`exhaustive search identifying a neighbor,” nor a “non-exhaustive search identifying a neighbor …
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`wherein the non-exhaustive search is sublinear.”
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`The Accused Instrumentalities do not “determin[e] … an identification of the media work
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`using the media work extracted features to perform a sublinear approximate nearest neighbor
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`search of reference extracted features of reference identified media works.” To the extent that the
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`Accused Instrumentalities ever “determin[e] … an identification of” a “media work,” the
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`“identification” is made through a process of classification using decision trees and/or neural
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`networks, which is neither a “search,” nor a “sublinear approximate nearest neighbor search,” nor
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`a “sublinear approximate nearest neighbor search of reference extracted features of reference
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`identified media works.”
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`The Accused Instrumentalities do not “correlat[e] … using a non-exhaustive, near neighbor
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`search, the first electronic media work with an electronic media work identifier.” To the extent
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`that the Accused Instrumentalities ever “correlat[e]” an “electronic media work” with an
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`“electronic media work identifier,” the “correlating” occurs through a process of classification
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`using decision trees and/or neural networks, which is neither a “search” nor a “non-exhaustive,
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`near neighbor search.”
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`1 Defendants contend that the phrase “non-exhaustive search” is indefinite. However, for purposes
`of this interrogatory response, Defendants assume that “non-exhaustive search” is found not
`indefinite and is construed as proposed by Network-1.
`6
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 8 of 10
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`INTERROGATORY NO. 24:
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`State the number of queries (i.e., matches to unknown media content with reference media
`content (or numerical representations, feature vectors, extracted features, or digital fingerprints
`thereof)) performed by the Accused Instrumentalities on an hourly, daily, weekly, and/or monthly
`basis, from 2011 to present, (1) within the United States and (2) outside the United States.
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`SUPPLEMETNAL RESPONSE TO INTERROGATORY NO. 24:
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`Defendants incorporate by reference each of their general objections above. Defendants
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`object to this Interrogatory to the extent that it contains discrete subparts within the meaning of
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`FED. R. CIV. P. 33. Defendants object to the use of the term “Accused Instrumentalities” to the
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`extent that it purports to encompass products or services that are not accused of infringement in
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`the above-referenced actions and will construe the term “Accused Instrumentalities” as referring
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`to “the Content ID system as implemented and operated in connection with Defendants’ Internet
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`sites www.youtube.com and m.youtube.com and any related mobile applications.” Defendants
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`object to this interrogatory as overly broad and unduly burdensome to the extent that it seeks the
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`number of queries performed at any particular point(s) in time from 2011 to the present, as opposed
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`to the number performed at representative point(s) in time or the number generally performed
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`throughout that period. Defendants object to this interrogatory as overly broad and unduly
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`burdensome to the extent that it seeks the number of queries performed during any particular
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`interval of time (such as “hourly, daily, weekly and/or monthly”), as opposed to the number
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`performed during representative interval(s) of time or the number generally performed.
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`Defendants incorporate by reference each of their general objections above. Defendants
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`object to this Interrogatory to the extent that it seeks documents not relevant to the claims or
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`defenses of either party nor reasonably calculated to lead to the discovery of evidence relevant to
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`the subject matter involved in this Action. Defendants object to this Interrogatory as unduly broad
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`to the extent it seeks information regarding Defendants’ operations prior to August 30, 2011, the
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`7
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 9 of 10
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`date when the first patent-in-suit issued. Defendants object to this Interrogatory to the extent that
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`it contains discrete subparts within the meaning of FED. R. CIV. P. 33. Defendants object to this
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`Interrogatory to the extent it seeks information that could be more practically obtained by a request
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`for production, in violation of Local Civil Rule 33.3(b)
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`
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`Subject to the foregoing, Defendants supplement their prior responses to this Interrogatory
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`as follows:
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`
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`A more practical method of obtaining the information sought in this Interrogatory is
`
`through a document request, and therefore, this Interrogatory is improper and violates Local Civil
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`Rule 33.3(b). Moreover, the information sought in Interrogatory No. 24 is duplicative of the
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`information sought in, at least, Plaintiff’s Document Request No. 96. Subject to and without
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`waiver of the General and Specific Objections made in Defendants’ Responses and Objections to
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`Plaintiff’s Fourth Set of Requests for Production of Documents and Things (No. 88–109), and in
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`accordance with the Stipulation and Order Regarding the Production of Electronically Stored
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`Information entered in this case, non-privileged documents relevant to a reasonable interpretation
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`of this Interrogatory that have been identified after a good faith, reasonable search have been
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`produced to the extent they exist. Defendants further respond that they believe that the following
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`document is relevant to this Interrogatory: GOOG-NETWORK-00803587.
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`Defendants have made a good faith effort to identify by Bates number documents relevant
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`to this Interrogatory; however, Defendants do not claim to have identified each and every
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`document that Plaintiff may consider relevant to Interrogatory No. 24. Identifying responsive
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`documents in Defendants’ production by Bates number is similarly burdensome and/or expensive
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`to both Defendants and Plaintiff, and to the extent Defendants have not identified any documents
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`8
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`Case 1:14-cv-02396-PGG-SN Document 241-13 Filed 11/12/20 Page 10 of 10
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`in the production that Plaintiff deems relevant to Interrogatory No. 24, then Plaintiff is able to
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`identify such documents in Defendants’ production.
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`Dated: October 18, 2019
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` /s/ Kevin Hardy
`Kevin Hardy (pro hac vice)
`Samuel Bryant Davidoff
`Andrew V. Trask
`Graham W. Safty (pro hac vice)
`Sumeet P. Dang (pro hac vice)
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street N.W.
`Washington, DC 20005
`(202) 434-5000
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`For Matters in New York:
`WILLIAMS & CONNOLLY LLP
`650 Fifth Avenue, Suite 1500
`New York, NY 10019
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`Attorneys for Defendants Google LLC and
`YouTube, LLC
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`9
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