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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`VERSATA SOFTWARE, INC.
`• Civil Docket No.
`* 2:07-CV-153
`* Marshall, Texas
`
`vs.
`
`*
`* August 18, 2009
`* 8:30A.M.
`SAP AMERICA INC., ET AL
`
`TRANSCRIPT OF TRIAL
`BEFORE THE HONORABLE CHAD EVERINGHAM
`UNITED STATES MAGISTRATE JUDGE
`ANDAJURY
`APPEARANCES:
`FOR THE PLAINTIFFS: MR. SAM BAXTER
`McKooi-Smith
`104 East Houston, Suite 300
`Marshall, TX 75670
`
`MR. THEODORE STEVENSON, Ill
`McKooi-Smith
`300 Crescent Court, Suite 1500
`Dallas, TX 75201
`MR. SCOTT COLE
`MR. STEVEN J. POLLINGER
`MS. LAURIE L. GALLUN
`MR. JOSH W. BUDWIN
`MR. KEVIN M. KNEUPPER
`McKooi-Smith
`300 West 6th Street, Suite 1700
`Austin, TX 787011
`
`19
`20 APPEARANCES CONTINUED ON NEXT PAGE:
`21
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`MS. SUSAN SIMMONS, CSR
`COURT REPORTERS:
`MS. JUDITH WERLINGER, CSR
`Official Court Reporters
`100 East Houston, Suite 125
`Marshall, TX 75670
`903/935-3868
`(Proceedings recorded by mechanical stenography,
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`VERSATA v. SAP
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`Page 1
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`VERSATA EXHIBIT 2011
`SAP v. VERSATA
`CASE CBM2012-00001
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`adjustments, condition tables, condition records. Those
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`things aren't very familiar to people who haven't spent
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`a long time studying pricing.
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`But, actually, it's very similar to the
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`process of fishing, and so we're going to use an analogy
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`where the old R/3 does fishing by casting a line and
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`trying to catch one fish at a time, and then we're going
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`to introduce a different analogy for the patented
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`technology.
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`Q. And this is with respect to the problem of too
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`11 many accesses?
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`A. Yes, sir. That's what this-- this
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`illustration focuses on; there are too many accesses.
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`Q. Well, let's turn to your animation, and I'll
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`let you explain it, if you could, while we watch it.
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`Let's watch the first part.
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`What do you show here, Dr. Nettles?
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`A. Well, this is the customer hierarchy that was
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`found in the patent, and we've seen this customer
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`hierarchy a number of times already in this case. And
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`21 we'll, I'm sure, see it a large number of times
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`subsequently.
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`So we thought it would be a good example of a
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`hierarchy to use as an illustration.
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`Q. Should we go to the next part?
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`A. We should.
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`Q. What are you showing here?
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`A. Well, it's a little bit easier to understand
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`the fishing analogy if the hierarchy, instead of going
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`from left to right, goes up and down, and so we rotate
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`it, and now next we're going to redraw it.
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`Q. Let's go to the next. What do you show here?
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`A. Well, this is the same hierarchy, but it's
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`been redrawn so it's a little bit easier to read. And
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`10 we added to it a number of price adjustments. So we've
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`been talking about retrieving price adjustments and
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`applying price adjustments, and we've used the analogy
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`that the price adjustments are fish.
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`And in the process of searching for a price
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`adjustment, it's-- the analogy is ifs going to be like
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`trying to catch a fish.
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`Q. So each of these fish is representing a price
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`adjustment?
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`A. That's correct. And one of the things that's
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`important to notice is that there's not a price
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`adjustment on every node of the tree. Some places there
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`aren't any fish; there aren't any price adjustments.
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`And so.you might not be able to catch a fish
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`in those locations.
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`Q. And by nodes, you mean every spot on the tree?
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`A. Yes, sir. All the different places inside the
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`tree, in computer science speak, we call them nodes.
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`Q. Should we go to the next part?
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`A. Yes, sir.
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`Q. What are we showing here?
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`A. Well, here we're going to try to calculate a
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`price for Frank, and so the first thing we're going to
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`do is we're going to go and look and see if there's a
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`price adjustment of fish on Frank.
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`Q. Frank is right here (indicates)?
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`A. That's right.
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`And what we see here is that we failed, and
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`so-- because there's no price adjustment there, and so
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`14 we've represented that with a try icon.
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`Q. We didn't find a price adjustment there?
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`A. That's right.
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`Q. Let's go to the next part. Now, what are you
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`showing?
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`A. Well, the way that these pricing systems work
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`is if they don't find a price at one level of the
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`hierarchy, they move up the hierarchy. And so we see
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`here we've moved up to Texas, because Frank lives in
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`Texas. And, again, we've tried to catch a. fish, but we
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`haven't succeeded.
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`MR. POLLINGER: Let's go to the next
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`part.
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`Q.
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`(By Mr. Pollinger) 'Mlat are you showing here;
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`another try?
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`A. Now we're trying with states; again, we fail.
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`Q. And then this next part?
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`A. We tried for the U.S., and we fail.
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`Q. And this next part?
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`A. So now we try for geography, and we actually
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`get a fish.
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`Q. We got a price adjustment?
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`A. That's right. We got a price adjustment.
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`12 And so what we've done in this particular example is we
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`try, try, try again, and finally, we've been successful.
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`14 And then finally--
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`Q.
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`'Mlat happens next?
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`A. We stop. Once we've caught a fish, there's no
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`reason to keep going up the hierarchy and looking for
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`18 more fish, because, as we talked about yesterday, we
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`19 want the most specific adjustment. And that's going to
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`be the deepest adjustment in the tree.
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`And in our analogy, it's going to be the
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`biggest fish. So we want to catch the biggest fish we
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`can that's along the hierarchical path from where we
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`started.
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`Q. So the hierarchical path from Frank would have
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`taken us all the way up the chain to world?
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`A. That's righ~.
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`Q. But we didn't get all the way to world. We
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`stopped after we found a price adjustment here at
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`geography?
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`A. No reason to keep fishing once you have the
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`price adjustment that you want in this approach.
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`Q. Now, this is an old R/3 where you try, try,
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`try, find one and then stop? Is that-- is that how it
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`10 works?
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`A. Yes, sir. This is basically one of the main
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`algorithm aspects of the old condition technique.
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`Q . And is this illustrating the problem of too
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`14 many accesses in the old R/3 products?
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`A. Yes, sir, it is.
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`MR. POLLINGER: Let's go to the next
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`slide here.
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`Q .
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`(By Mr. Pollinger) Do you next explain the
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`problem in the old product, old R/3, of too many tables?
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`A. Yes, sir.
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`Q. And do you have an animation to illustrate
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`this as well?
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`A.
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`I do.
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`Q. Let's step through it. Let's go to the first
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`part.
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`What do we see here?
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`A. Well, these are the two hierarchies from the
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`patent. And the documentation we saw earlier said that
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`you had to -- if you wanted to completely represent the
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`price adjustments, you had to -- you had to make all the
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`different combinations between the two hierarchies, and
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`each of those needed to be a table.
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`And so we're going to take the patent's
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`example, and we're going to show all of the tables that
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`you would have to create and then potentially access in
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`the old technique.
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`MR. POLLINGER: Let's go to the next
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`part.
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`A. So the first thing we see is we see we're
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`going to create a table where the indices are customer
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`size, customer type, and product ID.
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`Q.
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`(By Mr. Pollinger) So is this a table- a
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`combination of one of these spots in the customer
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`hierarchy and one of these spots in the product
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`hierarchy?
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`A. Actually, two in the customer hierarchy and
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`one in the product hierarchy.
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`Q. Okay.
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`MR. POLLINGER: Let's go to the next
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`part.
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`Q. (By Mr. Pollinger) What are you illustrating
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`here?
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`A. Well, two things. First, we're illustrating
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`that if that table didn't have a price adjustment, that
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`would be a place where you would have to fish and
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`potentially miss.
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`And then we're also illustrating the next
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`table, which is one that involves state and customer
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`size, customer type, and, again, product I D.
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`Q. So if you miss, you go look in the next table?
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`A. That's right.
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`MR. POLLINGER: Let's go ahead.
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`Q.
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`(By Mr. Pollinger) What are you showing here
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`now?
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`A. Well, now we're showing all of the other
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`tables that had to be created first and then later
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`accessed. And as you can see, there is-- there's a
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`large number of them.
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`Eventually, you will get to a table that has a
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`pricing adjustment, if there is a pricing adjustment for
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`that particular operation in this -- in this tree. So
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`eventually you will catch one.
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`Q. And this, again, is illustrating -- are we
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`done?
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`A.
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`I think we're done with that one.
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`But there are a few more tables that would get
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`created, and those are ones that you wouldn't access.
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`So eventually, you'd catch a· fish and then you stop.
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`But all total, there are 136 tables here.
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`Q. Again, is this illustrating the problem in
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`SAP's old product of too many tables?
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`A. Exactly that problem.
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`MR. POLLINGER: If we can go back to
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`Slide 4 for a timeline.
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`Q.
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`(By Mr. Pollinger) Have you now described to
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`us with your fishing illustration the problem in SAP's
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`old product?
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`A. Yes, sir, I have.
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`Q. Those products are not accused of
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`infringement, are they?
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`A. No, sir, they are not.
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`Q. Let's turn now to the next part.
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`THE COURT: Mr. Pollinger, let's avoid
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`repetition, please, sir.
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`MR. POLLINGER: Thank you, Your Honor.
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`Q.
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`(By Mr. Pollinger) Let's now turn to the next
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`part of the timeline, the solution with Mr. Carter's
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`invention, his patent filed in 1996.
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`Do you have an illustration to describe that
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`aswell?
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`A. Yes, sir. Again, using the analogy of
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`Trial: Day 02 Vol. A Nettles direct 8/18/2009 8:30:00 AM
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`fishing.
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`please.
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`MR. POLLINGER: Let's go to Slide 34,
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`Q . (By Mr. Pollinger) And could you introduce to
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`us the -- the analogy?
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`A. Well, in this case, we're going to-- instead
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`of fishing with a pole and trying to catch a pricing
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`adjustment one at a time, we're going to fish with a
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`net. And so we're going to gather up all the potential
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`pricing adjustments at one time.
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`Q. Do you have an animation with this as well?
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`A.
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`I do.
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`MR. POLLINGER: Let's go to that. I
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`believe it's--
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`Q. (By Mr. Pollinger) L~t's step through it.
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`Could you explain to us what we see here in
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`the first part?
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`A. Well, again, it's the same hierarchy with the
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`same adjustments, but this time we're going to try to do
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`a price adjustment for the Charlie customer.
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`And the first thing we see is that we're going
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`to retrieve all the price adjustments going l!P the
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`hierarchy to the root, to the world node, starting at
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`25 Charlie. And so that's the fishing with the net or
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`retrieving step of the patented invention.
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`Q. Now, do we go all the way up from Frank all
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`the way to world?
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`A. We did. So we actually gathered more data
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`than would have been gathered by the old condition
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`technique.
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`MR. POLLINGER: Let's go to the next
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`part.
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`Q.
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`(By Mr. Pollinger) What are you showing here,
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`10 Dr. Nettles?
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`A. Well, the thing is, since we've gotten a lot
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`of pricing adjustments, we actually have to figure out
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`13 which one we want, and we want the one which is most
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`specific. We want the biggest fish.
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`And so we have to sort them from least
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`specific to most specific to find out that Charlie is
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`actually the fish that we want.
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`MR. POLLINGER: Let's go to the next
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`part.
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`Q.
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`(By Mr. Pollinger) What are you showing here?
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`A. Well, now we eliminate the pricing adjustments
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`that are less specific than Charlie and that we don't
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`need to use, and we throw them back.
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`MR. POLLINGER: Let's go to the next
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`part.
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`A. And then finally, we apply the Charlie
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`adjustment to calculate the price; in this case, $10 at
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`Charlie's warehouse.
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`Q.
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`(By Mr. Pollinger) This is in the Trilogy
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`patents?
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`A. Yes, sir. This is exactly the algorithm and
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`approach that the Trilogy patents describe for making
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`these calculations.
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`MR. POLLINGER: Let's go to Slide 41,
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`please.
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`Q.
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`(By Mr. Pollinger) 'Mlat do you show here, Dr.
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`12 Nettles, from the patent?
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`A. Well, this is Claim 26, which we'll talk about
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`at length later. But what we see here is that Claim 26
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`requires that we do a retrieve, a sort, an eliminate,
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`and then finally a determine or apply step.
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`Q. How does this relate to the illustration you
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`just gave us?
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`A. Well, those are the same steps and are
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`performed in an analogous way to the illustration.
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`Q. Let's go to your next slide.
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`What do you show here from the patents?
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`A. Well, this is Figures 15-B and 15-C of the
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`patent, and it's a flowchart. So, basically, it's a way
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`that the computer scientists actually would describe the
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`flow of information and their algorithm.
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`And so what it says is, what's the basic
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`process that my patent claims.
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`0. Let's go to your next slide.
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`VVhat do you show here?
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`A. That particular step describes the retrieve
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`step, the fishing with the net part.
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`0. And the next slide?
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`A. This describes the sorting, the arranging the
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`price adjustments in order so that we can pick the most
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`specific.
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`0. The next slide?
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`A. This is the eliminate step where we throw back
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`the price adjustments that we don't need.
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`0. The next slide?
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`A. And then this is the apply step where we use
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`the pricing adjustment that we caught, that we actually
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`18 want.
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`0. Is this similar to the illustration you gave
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`us?
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`A.
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`It's the-- it's the same process, and each of
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`these steps are analogous.
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`MR. POLLINGER: Let's go to the next
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`slide.
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`0. (By Mr. Pollinger} Dr. Nettles, what do you
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`show on this slide here?
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`A Well, this is just a little pictorial summary
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`that shows that the old R/3 uses the try, try, try
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`again, finally eventually catching one, stopping
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`approach.
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`And the patented technology solves the problem
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`in a very different way. It first fishes with a net,
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`and then it sorts, then it eliminates, and then,
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`finally, it applies.
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`MR. POLLINGER: Let's go to Slide 4 of
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`the timeline.
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`Q.
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`(By Mr. Pollinger) So what parts of this
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`timeline have we now discussed?
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`A. We've talked about before the patents, and
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`15 we've talked about the patent itself.
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`Q. What do we have left to talk about?
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`A. The accused products.
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`Q. After the patents were filed?
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`A Yes, sir, after the patents were filed.
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`MR. POLLINGER: Let's go, if we could, to
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`Slide 48, Mr. Diaz.
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`Q.
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`(By Mr. Pollinger) Dr. Nettles, let's turn now
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`to the SAP products that are accused of infringement in
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`this case.
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`Those are the products that include the
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`hierarchical access feature?
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`A. Yes, sir.
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`MR. POLLINGER: Go to Slide 50.
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`Well, let's hold on for a second. Let me
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`ask a question.
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`Q. (By Mr. Pollinger) The hierarchical access
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`feature again, that was added in 1998, two years after
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`the patents were filed?
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`A. Yes, sir, it was.
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`Q.
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`It wasn't in the old R/3 product?
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`A. No, sir.
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`Q.
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`Is there some deposition testimony from an SAP
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`13 witness confirming that?
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`A. Yes, sir, there is.
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`Q. Let's look at that.
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`MR. POLLINGER: Slide 50.
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`Q. (By Mr. Pollinger) What do we have here?
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`A. Well, this is deposition testimony from
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`19 Dr. Nieswand --he's an SAP engineer-- about the
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`hierarchical access feature.
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`Q. And what did he say?
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`A. Well, I'll read it for you.
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`QUESTIQN: R/3 2.2 did not include
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`hierarchical accesses, correct?
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`ANSWER: That's correct.
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`did not have the hierarchical access feature?
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`A. That's correct.
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`MR. POLLINGER: Let's go to Slide 49,
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`please.
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`Q.
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`(By Mr. Pollinger) This is Exhibit PX145 at
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`Page 15.
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`This is an SAP document, correct?
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`A. Yes, sir. This is a presentation by SAP.
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`Q. Describing its hierarchical access feature?
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`A. Exactly.
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`Q. Does this describe what you can do with
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`hierarchica.l access?
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`A. Yes, sir. It explains that with hierarchical
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`access, you only need a single table and one access to
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`solve the same problem that we were seeing solved in
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`17 many tables before.
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`Q.
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`If I read correctly here, does it say that the
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`functions in the hierarchical access enable you to solve
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`these problems?
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`A. Yes, sir.
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`Q.
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`Is that the problems we've been talking about?
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`A. Of too many tables and too many accesses, yes.
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`MR. POLLINGER: Let's go to Slide 51.
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`Q.
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`(By Mr. Pollinger) What do you show on this
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`slide here, Dr. Nettles?
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`A yYell, this is a screen shot of my actual usage
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`of the SAP product And we see on the -- on the
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`right-hand side, we see that this particular access that
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`we're doing is a hierarchical one.
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`Q. And this is from Exhibit PX1390 at Page 9?
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`A. Yes, sir.
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`Q . Does this relate at all -- well, what is this
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`icon down here, this picture?
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`A.
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`It says that we're illustrating the retrieve,
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`the fishing-with-the-net step. And we see that over
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`here on the left-hand side where we see a number of
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`different price adjustments, all of which have been
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`retrieved in the same access.
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`Q. Let's go to your next slide here.
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`'M1at do you show here?
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`A. Well, this illustrates that after the
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`retrieval has been done, that SAP's going to sort
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`these-- these pricing adjustments from least specific
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`to most specific to get the order that we see here. So
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`that illustrates the sorting step.
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`Q. And the next slide, what do you show here?
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`A Well, the fact that SAP has put these red dots
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`on the side of these four pricing adjustments indicate
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`that those pricing adjustments aren't going to be used,
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