Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 1 of 135 PageID #: 13390
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AMERANTH, INC. * Civil Docket No.
` * 2:07-CV-271
`VS. * Marshall, Texas
` *
` * September 13, 2010
`MENUSOFT SYSTEMS CORPORATION * 1:20 P.M.
`
`TRANSCRIPT OF TRIAL
`BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM
`UNITED STATES MAGISTRATE JUDGE
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`APPEARANCES:
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`FOR THE PLAINTIFFS:
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`MR. JOHN W. OSBORNE
`MR. JAMES W. GOULD
`MR. PETER N. FILL
`MR. STEVEN M. PURDY
`MR. PETER H. NOH
`Locke Lord Bissell & Liddell
`3 World Financial Center
`New York, New York 10281
`
`MR. MICHAEL C. SMITH
`Siebman Burg Phillips & Smith
`113 East Austin Street
`Marshall, TX 75670
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`APPEARANCES CONTINUED ON NEXT PAGE:
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`COURT REPORTERS:
`
`MS. SUSAN SIMMONS, CSR
`MS. JUDITH WERLINGER, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868
`
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
`
`Apple, Exhibit 1062, Page 1
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AMERANTH, INC. * Civil Docket No.
` * 2:07-CV-271
`VS. * Marshall, Texas
` *
` * September 13, 2010
`MENUSOFT SYSTEMS CORPORATION * 1:20 P.M.
`
`TRANSCRIPT OF TRIAL
`BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM
`UNITED STATES MAGISTRATE JUDGE
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
`
`APPEARANCES:
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`12
`
`FOR THE PLAINTIFFS:
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`13
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`14
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`15
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`16
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`MR. JOHN W. OSBORNE
`MR. JAMES W. GOULD
`MR. PETER N. FILL
`MR. STEVEN M. PURDY
`MR. PETER H. NOH
`Locke Lord Bissell & Liddell
`3 World Financial Center
`New York, New York 10281
`
`MR. MICHAEL C. SMITH
`Siebman Burg Phillips & Smith
`113 East Austin Street
`Marshall, TX 75670
`
`20
`
`APPEARANCES CONTINUED ON NEXT PAGE:
`
`21
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`22
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`23
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`24
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`25
`
`COURT REPORTERS:
`
`MS. SUSAN SIMMONS, CSR
`MS. JUDITH WERLINGER, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868
`
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
`
`Apple, Exhibit 1062, Page 1
`
`
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 2 of 135 PageID #: 13391
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`2
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`APPEARANCES CONTINUED:
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`FOR THE DEFENDANTS:
`
`MR. MARC L. DELFLACHE
`MR. DUSTIN MAUCK
`Fulbright & Jaworski
`2200 Ross Avenue, Suite 2800
`Dallas, TX 75201
`
`MR. RICHARD S. ZEMBEK
`Fulbright & Jaworski
`1301 McKinney, Suite 5100
`Houston, TX 77010
`
`MR. OTIS CARROLL
`Ireland Carroll & Kelley
`6101 South Broadway, Suite 500
`Tyler, TX 75703
`
`* * * * * * *
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` P R O C E E D I N G S
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`LAW CLERK: All rise.
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`(Jury in.)
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`THE COURT: All right. Please be seated.
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`You may continue your direct examination.
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`KATHIE SANDERS, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
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`DIRECT EXAMINATION (CONTINUED)
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`BY MR. GOULD:
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`Q.
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`Mrs. Sanders, there's one thing I forgot to
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`ask about your background this morning.
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`Did you ever work in a restaurant?
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`A.
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`Yes, I did.
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`Apple, Exhibit 1062, Page 2
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 23 of 135 PageID #: 13412
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`with an integrated credit card-capability.
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`He's trying to sell this to McDonald's in
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`January of 1997, right?
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`A.
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`Yes.
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`MR. ZEMBEK: Jim, can you go to the next
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`page of this exhibit, please.
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`If you could pull out that first
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`paragraph.
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`Q.
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`(By Mr. Zembek) And one of the things that
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`Mr. McNally told McDonald's Restaurant is that the
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`TransPad could accomplish the same basic functions of a
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`POS application itself, right?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`I don't know. I haven't read this.
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`I've highlighted it for you.
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`Oh, thank you.
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`By running your POS application.
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`Right.
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`Someone else's, right.
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`So he was trying to get McDonald's to run a
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`POS application on the TransPad?
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`A.
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`Q.
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`That's correct.
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`And he wanted to have that wirelessly
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`integrated into their Back Office?
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`A.
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`Right.
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`MR. ZEMBEK: Jim, could you pull up
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`Apple, Exhibit 1062, Page 3
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 24 of 135 PageID #: 13413
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`Exhibit 489B, please.
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`Q.
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`(By Mr. Zembek) Are you familiar with the
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`Hospitality Technology magazine?
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`A.
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`Q.
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`correct?
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`A.
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`Q.
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`Yes, I am.
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`And that was being published in January 1997,
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`Correct.
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`And if we look on the first page, the mailing
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`label --
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`MR. ZEMBEK: If we could call that out,
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`please, Jim.
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`Q.
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`(By Mr. Zembek) -- Ameranth received copies of
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`this magazine and specifically Keith McNally back in
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`January of 1997, right?
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`A.
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`That's what it looks like.
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`MR. ZEMBEK: Jim, could you go to Page 7
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`of this article.
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`Q.
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`(By Mr. Zembek) So this is 1997, and this is
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`an article about the MICROS handheld device in 1997,
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`correct?
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`A.
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`I don't know. I -- I have not seen this
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`before.
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`Q.
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`So you were in charge of marketing. Were you
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`aware of the fact that in 1997, MICROS had a handheld?
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`A.
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`I know they told me that they had something
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`Apple, Exhibit 1062, Page 4
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 25 of 135 PageID #: 13414
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`that was a bust, and it's called a brick or something
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`like that I remember, and that it didn't go anywhere and
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`it didn't do anything, and that it was a complete
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`disaster, because I just -- but I don't know more than
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`that. Even they told me that it -- nothing happened
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`with it.
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`Q.
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`So it's your testimony that nothing happened
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`with the --
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`A.
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`With the brick -- with the brick at that time;
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`that happened before; that's correct.
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`Q.
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`Would you say the sale of 3000 handhelds is
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`nothing happening?
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`A.
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`They told me that they had -- that it was not
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`an efficient unit, that it didn't --
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`Q.
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`A.
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`Q.
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`failure?
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`A.
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`Q.
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`Could you answer my question, please?
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`I'm sorry. What was your question?
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`Would you say the sale of 3000 handhelds was a
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`I wouldn't know.
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`Would you say that the installation at over
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`300 sites of this MICROS device would be a failure?
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`A.
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`Was it an installation or was it a
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`demonstrate -- that they were just demoing this?
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`MR. ZEMBEK: Jim, could we please go
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`forward two pages.
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`Apple, Exhibit 1062, Page 5
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`
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 26 of 135 PageID #: 13415
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`26
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`And call that out, please.
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`Q.
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`(By Mr. Zembek) This article is telling us
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`that MICROS had over 300 sites, right?
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`This is telling us that MICROS had over 300
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`sites, correct?
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`A.
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`Q.
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`A.
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`Q.
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`It says at 300.
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`It had 300 sites, correct?
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`That's what this says.
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`And they had some 3000 handheld terminals at
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`those 300 sites, right?
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`A.
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`Q.
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`that.
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`It says they had some 3000.
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`Some 3000. Thank you for correcting me on
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`And this handheld device, this MICROS brick,
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`if you want to call it, could be used to place orders
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`with the MICROS 8700, right?
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`A.
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`I'm not familiar with the article. If that's
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`what it says.
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`Q.
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`You don't have any reason to disagree with
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`that?
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`MR. ZEMBEK: Can you go back a page,
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`please, Jim.
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`One more, please. There you go.
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`And if you could call out the second
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`paragraph, please. Both paragraphs on the left-hand
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`Apple, Exhibit 1062, Page 6
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 27 of 135 PageID #: 13416
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`side.
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`Q.
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`(By Mr. Zembek) This is telling us that MICROS
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`was able to sell into Walt Disney World, right?
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`A.
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`It says that they have them at World -- at
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`Walt Disney World, that they had been using them.
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`Q.
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`And that's where Ameranth was trying to sell
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`its TransPad, its wireless handheld device as part of
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`this 21st Century Restaurant System, right?
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`A.
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`Q.
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`A.
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`Q.
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`At Walt Disney World?
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`Yes.
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`It could be that we reached out to them.
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`You reached out to a lot of people in '97 and
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`'98 to try to sell the Ameranth 21st Century Restaurant
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`System, right?
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`A.
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`We reached out to many POS companies and
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`hospitality industry companies at that time.
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`Q.
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`And MICROS was a hospitality POS company at
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`that time, correct?
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`A.
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`Q.
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`A.
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`Q.
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`That's correct.
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`And MICROS had hardware?
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`They might have, yes.
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`Well, they had a brick that you've testified
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`about --
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`A.
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`Q.
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`Yes.
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`-- already, right?
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`Apple, Exhibit 1062, Page 7
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`Case 2:07-cv-00271-RSP Document 267 Filed 09/27/10 Page 28 of 135 PageID #: 13417
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`28
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`A.
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`Q.
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`A.
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`Q.
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`Yes.
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`MICROS had hardware?
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`Uh-huh.
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`They had a handheld device; that handheld
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`device communicated with the MICROS POS system, right?
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`A.
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`Q.
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`that?
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`A.
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`Q.
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`I assume so.
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`You don't have any reason to disagree with
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`No.
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`And you don't have any reason to disagree with
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`the fact that the MICROS 8700 Hospitality System was
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`being used more than a year before Ameranth filed for
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`its patent?
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`A.
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`I have no reason to not agree with the
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`article. I don't know.
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`Q.
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`A.
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`Q.
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`And this is a 1997 article, correct?
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`Yes, it is.
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`And this is describing a system and not just
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`software, like Digital Dining sells, right?
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`A.
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`This is -- this has something to do with
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`equipment as well.
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`MR. ZEMBEK: I'll pass the witness, Your
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`Honor.
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`THE COURT: Thank you.
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`Redirect?
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`Apple, Exhibit 1062, Page 8
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`
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