throbber
Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 1 of 150 PageID #: 13974
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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 15, 2010
`MENUSOFT SYSTEMS CORPORATION * 2:00 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:
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`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.)
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 1
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 22 of 150 PageID #: 13995
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`(Bench conference concluded.)
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`THE COURT: Ladies and Gentlemen, we are
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`at a milestone. And what that means is we've heard all
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`the evidence in the Plaintiff's case, and we are now
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`going to start hearing the evidence from what's called
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`the Defendants' case-in-chief.
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`Defendant -- Mr. Carroll, you may call
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`your first witness.
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`MR. CARROLL: Thank you, Your Honor.
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`We would call Brian Smith. And I believe
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`Mr. Smith has been sworn, Your Honor.
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`THE WITNESS: That's correct.
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`THE COURT: All right. Come around,
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`Mr. Smith. If you'll have a seat and talk into the
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`microphone. Try to keep your voice up, also.
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`Honor.
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`THE WITNESS: Yes, sir.
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`MR. CARROLL: May the Court, please, Your
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`THE COURT: Mr. Carroll.
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`BRIAN SMITH, DEFENDANTS' WITNESS, PREVIOUSLY SWORN
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`DIRECT EXAMINATION
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`BY MR. CARROLL:
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`Q.
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`Mr. Smith, are you Brian Smith, also known as
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`the DQ dude?
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`A.
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`Yes, sir, that would be me.
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 2
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 23 of 150 PageID #: 13996
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`Q.
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`Are you the fellow we saw in the video
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`yesterday?
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`A.
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`Q.
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`Yes, sir, that would be me.
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`Okay. And the jury likely heard a little bit
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`of your background in the video, but let's go over it
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`again since we've all slept.
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`Where do you live?
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`I live in Houston, Texas.
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`And how old a fellow are you?
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`Fifty-three.
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`Now, I think you told the jury in that video
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`A.
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`Q.
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`A.
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`Q.
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`yesterday that you were in business in Houston in a
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`family-owned business.
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`Would you tell them about that, please.
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`A.
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`I'm basically a second generation. My dad was
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`with NCR. After a successful career with NCR, he
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`started our company, and I went to work for him at the
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`age of 17, I believe.
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`Q.
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`Now, NCR, for those of us who may not be in
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`the business, is what?
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`A.
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`Q.
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`It stands for National Cash Register.
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`Now, was your daddy a bigshot with National
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`Cash Register?
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`A.
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`He was the -- he was -- he was very
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`successful. He started with NCR as the janitor. He
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 3
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 32 of 150 PageID #: 14005
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`32
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`felt certain that with Graham there, our representation
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`to the customer was solid.
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`He was the developer of the software. He was
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`there making the pitch with me, and we were successful.
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`And it's been a long ride, and they're still using the
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`product today.
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`Q.
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`A.
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`Now, when was that?
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`I believe we actually installed it maybe
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`around the very beginning of '93, maybe --
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`Q.
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`A.
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`Q.
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`A.
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`So somebody --
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`Maybe the end of '92.
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`Right after you hooked up with Menusoft?
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`Yes, sir. That was I think -- I believe our
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`very first sale.
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`Q.
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`And you said that the Greyhound Track, is that
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`between -- for those on the jury who might know that
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`area, is that between Houston and Galveston on 45?
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`A.
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`Yes, sir. I think it's considered the
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`La Marque area.
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`Q.
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`A.
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`Or Dickinson maybe?
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`Close to there, yes, sir. I think it is
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`actually considered La Marque.
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`Q.
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`A.
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`Q.
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`Okay. And it's still in business?
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`Still in business today.
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`Still running greyhounds?
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 4
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 33 of 150 PageID #: 14006
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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, sir.
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`Chasing rabbits?
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`Yes, sir.
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`And I think you told the jury they still use
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`the software that you sold them back in '93?
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`A.
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`Yes, sir. Just -- I think it kind of goes
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`without saying how reliable the product is. We're still
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`servicing it. We're still taking care of it. It was a
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`great product.
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`And it was probably a very key part of our
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`success to land that account and to open up that
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`business with that size of an installation. It was a
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`testimonial to the product and to our company. So it
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`really did help pioneer us and lead us down the road.
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`We would take customers there and show them the product,
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`and then we would more likely do our demonstrations
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`right there at that facility. So it was, by all means,
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`I think the start of a very good relationship.
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`Q.
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`And I've heard a fair amount of talk in the
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`case about that greyhound track.
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`In '92 or '3, when you made that sale, did you
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`sell them handhelds?
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`A.
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`No, sir, we didn't. I mean, they had an
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`interest. They were -- they were a MICROS user, and I
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`was a MICROS dealer actually in 1978. That's dating me
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 5
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`

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`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 34 of 150 PageID #: 14007
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`back there a little while.
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`But they were actually a MICROS user, and
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`their Tuscaloosa, Alabama, track facility, they had been
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`using the MICROS product, so they were our competitors.
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`I don't really think at that time anybody could afford
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`the price of what handheld technology would have cost,
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`because it would have been very expensive.
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`Q.
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`And at the time you made this big sale to the
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`greyhound track for Menusoft in '92 or '3, whenever it
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`was, were you still an authorized dealer for MICROS?
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`A.
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`Q.
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`A.
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`Q.
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`No, sir, I was not at that time. No, sir.
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`But you had been?
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`Yes, sir.
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`Now, you heard a lot of talk in the case about
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`this -- I think Mr. McNally called it the MICROS brick.
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`You've been sitting in the courtroom the whole
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`trial, right?
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`A.
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`Q.
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`Q.
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`Q.
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`Yes, sir.
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`Did any of that stuff look familiar to you?
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`Yes, sir.
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`Did you sell it?
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`No, sir.
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`Did you try?
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`No, sir.
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`Why not?
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 6
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`

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`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 35 of 150 PageID #: 14008
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`A.
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`I think, again, it was more of an
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`acceptability factor. A lot of people were -- it may
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`have had a new wow factor back then, but people weren't
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`really buying it, just like they're not really buying it
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`today.
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`Q.
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`Does the greyhound track in Dickinson or
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`La Marque, or wherever it is down there, use what I call
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`Handies, or handhelds today?
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`A.
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`Q.
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`No, sir.
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`So they don't even use what the lawsuit is
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`over?
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`A.
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`Q.
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`A.
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`No, sir.
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`Today?
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`No, sir.
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`MR. CARROLL: May I approach, Mr. Smith,
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`Your Honor?
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`THE COURT: Yes.
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`MR. CARROLL: I'm just going to get them
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`to identify that this is software.
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`Q.
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`(By Mr. Carroll) Let me show you what is in a
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`little plastic package that's called the Restaurant
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`Solution Digital Dining. Then under it in red it says
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`Professional, and there's a date, April 29th, '10, and
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`7.3.5.
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`Is that what you sell for Menusoft?
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 7
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 36 of 150 PageID #: 14009
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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, sir, it is.
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`Anything else?
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`As far as other products you mean or just --
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`Anything other than software that looks like
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`that disk?
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`A.
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`Q.
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`All we get from Menusoft is strictly software.
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`Okay.
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`MR. CARROLL: Your Honor, may we publish
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`that to the jury as a demonstrative?
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`THE COURT: Any objection?
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`MR. GOULD: No.
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`THE COURT: Yes.
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`MR. GOULD: How do you want me to do
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`that? Do you want me to --
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`MR. CARROLL: Pass it down the row.
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`MR. GOULD: Okay. Glad I asked.
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`Q.
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`(By Mr. Carroll) And it's a pretty standard
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`looking piece. I say piece; looks like a disk, 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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`Yes, sir.
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`Okay. But that's all you get?
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`Yes, sir.
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`Do they tell you how to use it or anything
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`like that?
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`A.
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`Well, we were schooled. We went to classes in
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`the early stage of becoming a dealer, but we pretty much
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 8
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 37 of 150 PageID #: 14010
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`know how to service it, install it, and sell it.
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`Q.
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`Okay. Now, over the years, the jury has heard
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`that there have been various versions or, I guess,
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`updates of the software that's on that disk or a disk
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`like it; is that true?
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`A.
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`Q.
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`A.
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`Yes, sir.
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`How many do you remember going back to '92?
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`I would assume there's quite a few. I don't
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`know how many it would be, but we had early versions
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`that were in DOS, and we had quite a few versions that
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`were in the Windows, which is on that disk that they're
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`holding right now.
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`Q.
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`Okay.
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`MR. CARROLL: And if the Court please, if
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`I can walk right over here.
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`Q.
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`(By Mr. Carroll) The jury has heard some talk
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`of the word called DOS. Is it two S's or just S?
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`A.
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`Q.
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`A.
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`Just one.
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`What is that?
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`DOS was the -- Microsoft DOS, it was an
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`operating system that was available back in that
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`timeframe.
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`Q.
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`When you -- back in the early '90s, when you
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`made your deal -- distributor deal with Menusoft?
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`A.
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`Yes, sir.
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 9
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 38 of 150 PageID #: 14011
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`Q.
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`A.
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`Is DOS still around today?
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`In the sense that it's still being used at
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`Gulf Greyhound, it is. But it's not sold today, no,
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`sir.
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`Q.
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`Okay. Well now -- so would you say it's
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`obsolete?
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`A.
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`Q.
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`changed?
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`I would say it's obsolete, yes, sir.
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`Well, why hasn't the folks at the race track
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`A.
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`It's basically due to the fact that they would
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`have to spend money. The product is working. Most of
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`my customers have this aspect of it ain't broke, I'm not
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`fixing it, you know, and they just don't want to spend
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`the money.
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`And I don't, quite frankly, blame them for not
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`spending the money. So they're still using the product,
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`and we're still servicing it, and they're very happy
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`with us.
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`Q.
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`Now, let me ask you this: I understand you're
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`not an engineer, correct?
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`A.
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`Q.
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`Yes, sir.
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`There aren't many of us in this courtroom, so
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`we need to stick together.
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`A.
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`Q.
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`I'm with you.
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`But based on what you understand, what's the
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 10
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 39 of 150 PageID #: 14012
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`difference between the software that you were selling
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`for Menusoft, say, after 2002 and before 2002, just
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`based on what you can tell?
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`A.
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`There's not -- I mean, there's not a lot of
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`difference. The product in the point-of-sale business
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`has pretty much covered the gamut. I mean, they all,
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`like I said, do 2 plus 2 is 4, and pop the drawer.
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`So, you know, the technology that's out there and what
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`we're using the point-of-sale for is serving the public
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`just like it was 20 years ago. And they're using it
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`today, and they're getting pretty much the same benefits
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`they were getting from us 20 years ago.
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`So in my opinion, we're doing exactly what
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`we've been doing all our life.
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`Q.
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`So when you go out into the countryside and
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`pitch the Menusoft product or any other point-of-sale
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`software -- well, let's stay on the Menusoft product.
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`Do you tell them that it's anything different than what
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`you were telling them back in '93, when you made the big
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`sale to the race track?
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`A.
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`No. It's kind of -- you know, think of the
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`restaurant industry. I mean, it has evolved some, but
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`primarily it's still the same thing. You place an
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`order. It prints to the kitchen printer or a screen in
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`the back. They make the food for you. They serve the
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`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 11
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`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 40 of 150 PageID #: 14013
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`40
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`food to you. They print a check. They hand you the
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`check. You pay the check.
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`The methodology in which restaurants run their
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`business has really -- is constant. It's pretty much
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`the same. I promise you, if you go into a Dairy Queen
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`today, it's going to be run pretty much the same way it
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`was run when I was in a Dairy Queen.
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`Q.
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`You were in the courtroom, I think it was
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`yesterday, when Dr. Shamos was testifying to
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`Mr. Osborne. And I didn't write it down, but I think I
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`remember it.
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`He talked about that if -- if we want to do
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`something different, it would be a step back to the time
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`that waiters rolled around on roller skates and wrote
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`down orders on pads.
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`Do waiters still write down orders on pads in
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`your business?
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`A.
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`I would much prefer a waiter writing things
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`down with a pad in my business. I mean, the ones that
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`come to my table thinking they can remember everything
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`usually forget to put the extra onions on the enchiladas
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`and stuff. So the pen and pad I don't think is ever
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`going to go away. I think it's here forever.
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`24
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`Q.
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`You told me yesterday -- or this morning that
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`25
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`you-all in the business have a word for that?
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 12
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 41 of 150 PageID #: 14014
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`A.
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`We call it sneaker-ware. Basically, you take
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`the order on a pencil and pad, and you run it back to
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`the kitchen, or you run it back to the terminal.
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`Q.
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`A.
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`Q.
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`Sneaker-ware as opposed to software?
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`Yes, sir.
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`Now, is that -- I mean, no foolin'. I mean,
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`all of us know that that's still around. Is that still
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`around in your customers?
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`A.
`
`Q.
`
`Most definitely.
`
`Okay. So let's talk -- well, let me ask you
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`this before I forget it: Do you sell other dealers'
`
`12
`
`software which competes with Mr. Granger's software?
`
`13
`
`A.
`
`We do sell other competing software packages,
`
`14
`
`yes.
`
`15
`
`16
`
`Q.
`
`A.
`
`Can you give us a for instance?
`
`Well, in the retail world, we sell a product
`
`17
`
`called InfoTouch, which is a software package, and it's
`
`18
`
`used in the retail environment where they do the
`
`19
`
`scanning, like in a grocery store, convenience store, or
`
`20
`
`in the clothing store.
`
`21
`
`We also sell a very low-end restaurant
`
`22
`
`solution for customers who want to spend even less
`
`23
`
`money, because I think today, again, in the economy,
`
`24
`
`you're not going to find people wanting to reach out and
`
`25
`
`spend a whole lot of money on the point-of-sale systems.
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 13
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 42 of 150 PageID #: 14015
`
`42
`
`So we have another package that's very inexpensive, very
`
`simple to use, and it's just -- it pretty much does the
`
`exact same thing as a cash register does.
`
`Q.
`
`A.
`
`Does that low-end product work on a Handy?
`
`I think just about anything out there could
`
`work on a Handy, if it wanted to.
`
`Q.
`
`When did you first hear the name Ameranth, the
`
`Plaintiff in this lawsuit?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`When we got sued.
`
`When you -- when your company got sued?
`
`Yes, sir, when we were sued.
`
`I think Mr. McNally conceded to the jury that
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`he didn't give you any advance warning before he pulled
`
`14
`
`the trigger on you; is that true?
`
`15
`
`16
`
`A.
`
`Q.
`
`I believe that would be a true statement, yes.
`
`Before he sued you or his company sued you,
`
`17
`
`had you ever heard of Mr. McNally?
`
`18
`
`19
`
`A.
`
`Q.
`
`No, sir, not at all.
`
`Have you ever heard -- had you ever heard of
`
`20
`
`his revolutionary new invention in the -- in the world
`
`21
`
`of hospitality?
`
`22
`
`23
`
`24
`
`25
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No, sir, not at all.
`
`Had you ever heard of his Software Wizard?
`
`Never heard of the Software Wizard.
`
`Now, you were in the courtroom when the jury
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 14
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 43 of 150 PageID #: 14016
`
`43
`
`heard a lot of testimony about trade shows, and you
`
`talked about a trade show.
`
`To your knowledge, have you ever been to a
`
`trade show where Ameranth was displaying anything?
`
`A.
`
`Q.
`
`A.
`
`No, sir.
`
`Are there a few or a lot of trade shows?
`
`There's a lot -- for our industry, there's a
`
`lot. And the one in Texas is usually between Houston
`
`and Dallas. It's what they call the Texas Restaurant
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Show. And I've been in that show for probably the
`
`11
`
`better part of 25 years and never seen an Ameranth ever
`
`12
`
`at any one of those shows.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`18
`
`booth?
`
`Has Menusoft had a booth in that Texas show?
`
`Yes, definitely.
`
`Have you had a booth in that Texas show?
`
`We worked that booth together, yes, sir.
`
`Okay. How about MICROS? Have they had a
`
`19
`
`A.
`
`Yes, sir. Every competitor that's in my
`
`20
`
`industry.
`
`21
`
`22
`
`Q.
`
`A.
`
`How about the Squirrel?
`
`Every competitor. Squirrel, POSI, Aldelo,
`
`23
`
`RMS. Every competitor that sells hospitality was in
`
`24
`
`that show pretty much.
`
`25
`
`Q.
`
`When did you first hear, see, or learn in your
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 15
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 44 of 150 PageID #: 14017
`
`44
`
`business that somebody was promoting or selling wireless
`
`point-of-sale devices?
`
`A.
`
`Basically, MICROS. I mean, I saw handheld
`
`devices myself at the Astrodome. There was a company
`
`called POSitouch, which used a SACO handheld device.
`
`Q.
`
`Are you talking about the Eighth Wonder of the
`
`World?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes, sir, I am.
`
`Those of us who remember that.
`
`I'm hoping it still stays there.
`
`Yeah. So the Astrodome opened in, what, '62?
`
`I'm not sure when it opened.
`
`Because the Houston Astros started in '62, and
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`then they played there right after they started.
`
`15
`
`But I interrupted you. Finish your thought.
`
`16
`
`A.
`
`The Astrodome skyboxes, POSI was in there, and
`
`17
`
`they had the SACO handhelds, which I know from personal
`
`18
`
`experience. They brought them to my office to see if we
`
`19
`
`could service them, which we could not at the time.
`
`20
`
`We also know that MICROS, their 8700 or how somebody
`
`21
`
`referred to it as a brick, that handheld technology was
`
`22
`
`out.
`
`23
`
`People who were in the point-of-sale business
`
`24
`
`and in our industry were introducing handhelds as early
`
`25
`
`as -- I think y'all saw '94 up on the screen.
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 16
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 45 of 150 PageID #: 14018
`
`45
`
`So, I mean, it's not like there was no
`
`handhelds out there, and these guys pioneered it.
`
`Q.
`
`All right.
`
`MR. CARROLL: Your Honor, may I approach
`
`the witness?
`
`THE COURT: Yes. You can also retrieve
`
`your exhibit that you published to the jury.
`
`MR. CARROLL: Thank you, Your Honor.
`
`This is 98.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`(By Mr. Carroll) Let me show you what's been
`
`11
`
`received into evidence as Defendants' Exhibit 98, and it
`
`12
`
`says: 8700 HMS, Version 2.10 User's Manual. And I
`
`13
`
`think that's the --
`
`14
`
`15
`
`MR. CARROLL: Thank you.
`
`Q.
`
`(By Mr. Carroll) -- the MICROS user's manual
`
`16
`
`that the jury has heard a fair amount about?
`
`17
`
`18
`
`A.
`
`Q.
`
`Yes, sir.
`
`When you were a MICROS dealer, were user
`
`19
`
`manuals, such as the one in front of you, available to
`
`20
`
`you as a dealer?
`
`21
`
`22
`
`A.
`
`Q.
`
`Yes, sir, they were.
`
`Were manuals, such as the one in front of you,
`
`23
`
`available to your customers?
`
`24
`
`25
`
`A.
`
`Q.
`
`Most definitely.
`
`Were manuals, such as the one in front of you,
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 17
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 46 of 150 PageID #: 14019
`
`46
`
`available to your prospective customers, somebody who
`
`might want to think about buying the MICROS system?
`
`A.
`
`I think pretty much back in those days,
`
`everybody would get a manual.
`
`I mean, if you were looking to buy a system,
`
`brochures were one piece of the marketing material you
`
`would get, but an owner's manual or some type of like
`
`request for information or request for proposal, a lot
`
`of the companies would send those out.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`They would want documents like this before you
`
`11
`
`could even consider -- be considered a bidder on the
`
`12
`
`actual project.
`
`13
`
`Q.
`
`Before Ameranth, Mr. McNally's company, sued
`
`14
`
`you, had you ever heard of the Amer -- or the McNally
`
`15
`
`patent?
`
`16
`
`17
`
`18
`
`19
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No, sir.
`
`Have you read that patent today?
`
`No, sir.
`
`Would you know what you were reading if you
`
`20
`
`were to read it?
`
`21
`
`A.
`
`No, sir. I wouldn't know what I was reading
`
`22
`
`today.
`
`23
`
`Q.
`
`You've heard a lot of testimony, along with
`
`24
`
`the jury, by technical folks and by Mr. McNally about
`
`25
`
`what he invented. Today, do you understand what it is
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 18
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 47 of 150 PageID #: 14020
`
`47
`
`that he claims he invented?
`
`A.
`
`I do not, and I can tell you, it sure isn't
`
`anything we do.
`
`Q.
`
`Well, if you don't understand, why do you
`
`think it's something you don't do?
`
`A.
`
`I've never seen it. I mean, it's like, you
`
`know, we're looking at something that I don't even know
`
`if it ever existed.
`
`Q.
`
`Well, you heard a lot of descriptions about
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`what he says his invention solved problem-wise. Did any
`
`11
`
`of those problems sound familiar to you based on what
`
`12
`
`you had heard from your customers?
`
`13
`
`A.
`
`I think the problems in the hospitality
`
`14
`
`industry have been prevalent forever. They're out
`
`15
`
`there. I mean, you know, getting orders faster, using
`
`16
`
`more reliable hardware.
`
`17
`
`So solving problems in the restaurant is what
`
`18
`
`our industry has always been about. We invented the
`
`19
`
`first cash register. You know, we invented basically --
`
`20
`
`or the industry invented, you know, the first POS
`
`21
`
`systems to take care of customers' problems.
`
`22
`
`These -- these tools have been out there for a
`
`23
`
`long time solving problems within restaurants and many
`
`24
`
`types of retail business forever.
`
`25
`
`MR. CARROLL: Do you have the last page
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 19
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 48 of 150 PageID #: 14021
`
`48
`
`in Dr. Kennedy's report?
`
`Q.
`
`(By Mr. Carroll) You were in Court when the --
`
`Ameranth's damage man, Dr. Kennedy, showed this tote-up
`
`slide, were you not, Mr. Smith?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Do you know today how much Ameranth is going
`
`to ask this jury to give them because of whatever they
`
`claim you did wrong?
`
`A.
`
`You're looking at a total, looks like in the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`4-million-dollar price range.
`
`11
`
`Q.
`
`Do you know how much of it they're going to
`
`12
`
`say was yours as opposed to any one of the other or all
`
`13
`
`of the other 59 dealers or Menusoft?
`
`14
`
`15
`
`16
`
`17
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No. No, sir. No, sir.
`
`Have they ever told you that?
`
`No, sir.
`
`And from this column, I guess you fall under
`
`18
`
`the 33 percent column. Is that what you understood?
`
`19
`
`20
`
`A.
`
`Q.
`
`Well, I would say a lot less, but --
`
`But, I mean, that -- based on what you
`
`21
`
`under -- what you heard?
`
`22
`
`23
`
`A.
`
`Q.
`
`From what I heard, yes, sir.
`
`And you heard Dr. Kennedy admit to
`
`24
`
`Mr. Delflache here that that's all the distributors.
`
`25
`
`A.
`
`Yes, sir.
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 20
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 49 of 150 PageID #: 14022
`
`49
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`So you're one of, what, 60?
`
`I believe that was correct, yes, sir.
`
`And I think we heard you're not the biggest.
`
`That's correct, sir.
`
`So do you know today -- has anybody told you
`
`how much you're going to have to pay of that based on
`
`whatever it is they say you did wrong?
`
`A.
`
`Q.
`
`No, sir.
`
`Let's talk a little bit about --
`
`(Sotto voce discussion.)
`
`MR. CARROLL: May I approach again, Your
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`Honor?
`
`13
`
`14
`
`THE COURT: Yes, sir.
`
`Q.
`
`(By Mr. Carroll) This is another MICROS
`
`15
`
`document that's been accepted into evidence as No. 194.
`
`16
`
`And this is another variation of that 8700 manual.
`
`17
`
`Same questions as before. Is this the kind of document
`
`18
`
`that would be available to you as a dealer of MICROS?
`
`19
`
`20
`
`21
`
`22
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes, sir.
`
`As me as a customer of MICROS?
`
`Yes, sir.
`
`As me as somebody who might be interested in
`
`23
`
`MICROS products?
`
`24
`
`25
`
`A.
`
`Q.
`
`Yes, sir.
`
`And if I were to read that magazine article
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 21
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 50 of 150 PageID #: 14023
`
`50
`
`that Mr. McNally and I talked about that was published
`
`back in the early '90s talking about MICROS' product, if
`
`I were interested, are you telling the jury I could have
`
`gotten a copy of that manual?
`
`A.
`
`Q.
`
`Yes, sir.
`
`When you sell the -- when you sell this
`
`(indicates) to your customers, when you go to Shepherd,
`
`to the hospital and sell them this, do you sell them
`
`typically anything else to go along with it?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`Yes, sir. We sell the entire system. So we
`
`11
`
`sell the hardware and the printers and computers and
`
`12
`
`cash drawers and everything that goes with it.
`
`13
`
`14
`
`15
`
`Q.
`
`A.
`
`Q.
`
`If you're lucky.
`
`If I'm lucky, yes, sir.
`
`Okay. But nothing but this (indicates) comes
`
`16
`
`from Menusoft?
`
`17
`
`18
`
`A.
`
`Q.
`
`That is correct.
`
`So let's suppose -- and by the way, do the --
`
`19
`
`and you may have already told me this, but do the --
`
`20
`
`does the Shepherd hospital have Handies?
`
`21
`
`22
`
`A.
`
`Q.
`
`No, sir, they do not.
`
`Do you have any retail establishments in East
`
`23
`
`Texas or Western Louisiana which have Handies?
`
`24
`
`25
`
`A.
`
`Q.
`
`I do not believe so.
`
`Tell the jury where you do have customers who
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 22
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 51 of 150 PageID #: 14024
`
`51
`
`buy handheld wireless -- what do you call them?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Handheld terminals.
`
`Handheld terminals.
`
`Yes, sir.
`
`HHTs?
`
`That would be -- yes, sir.
`
`Okay. Where -- where do you have customers
`
`that have HHTs that we can talk about?
`
`A.
`
`Q.
`
`A.
`
`As far as the city location, you mean?
`
`Yeah, the name of the place.
`
`Okay. In -- in the San Antonio market, we
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`have Bill Miller Bar-B-Q.
`
`13
`
`Q.
`
`Okay. And Bill Miller -- and I talked to the
`
`14
`
`jury panel about that a couple of weeks ago, and the
`
`15
`
`lady up in the right-hand corner had been to Bill
`
`16
`
`Miller's. Got a lot of locations in San Antonio, right?
`
`17
`
`18
`
`A.
`
`Q.
`
`Yes, sir.
`
`How did it come to pass that you were able to
`
`19
`
`sell Bill Miller a Handy?
`
`20
`
`A.
`
`Their IT guy, who actually used to be an
`
`21
`
`ex-employee of ours, went to work for them, and as he
`
`22
`
`did more research and was looking to, basically, get
`
`23
`
`into the handheld department more or less for terminals,
`
`24
`
`he approached us on adding it.
`
`25
`
`Q.
`
`Did you sell them a system that involved the
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 23
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 52 of 150 PageID #: 14025
`
`52
`
`Menusoft software?
`
`A.
`
`They had the Digital Dining software in their
`
`business, yes.
`
`Q.
`
`Now, you heard testimony in this case today
`
`that Dr. Kennedy, the damage man for Ameranth, says that
`
`there's no way to know whether one of these disks is
`
`installed in a -- in a Handy, in an HHT -- what do you
`
`call the non-Handies?
`
`A.
`
`Q.
`
`Fixed terminals.
`
`Okay. I'm going to put FT.
`
`And I bet the jury knows this already, but
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`just so it's clear, a fixed terminal would be like
`
`13
`
`Ms. Lockhart's computer. It has wires coming out of it,
`
`14
`
`right?
`
`15
`
`16
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay. So Mr. -- Dr. Kennedy says one of the
`
`17
`
`reasons he went the route he went in coming up with his
`
`18
`
`number that we looked at, or numbers, is because nobody
`
`19
`
`can know how many of these disks for any one of your
`
`20
`
`customers goes into an HHT, a Handy, or a fixed
`
`21
`
`terminal.
`
`22
`
`23
`
`24
`
`25
`
`A.
`
`Q.
`
`A.
`
`Is that a true fact?
`
`No. That would be very much incorrect.
`
`Why?
`
`It would be nice if all we had to do is hand
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 24
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 53 of 150 PageID #: 14026
`
`53
`
`them the disk, but we have to install the system. We
`
`have to set it up, and we have to basically hook up the
`
`access points and the routers.
`
`So we're doing the actual installation work.
`
`It's not like we're just handing somebody a disk, and we
`
`don't know what they're going to do with it thereafter.
`
`Q.
`
`Now, you said access points, and I think
`
`Dr. Shamos said that they were in the ceiling or
`
`somewhere near the ceiling where the transmission can
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`occur, and I bet there's some in this courtroom. I
`
`11
`
`don't see any.
`
`12
`
`Can you see any access points in the
`
`13
`
`courtroom?
`
`14
`
`15
`
`A.
`
`Q.
`
`No, sir.
`
`I mean, it's a job, isn't it? You got to have
`
`16
`
`a ladder.
`
`A.
`
`Q.
`
`17
`
`18
`
`19
`
`Got to run cable.
`
`Got to have all that stuff.
`
`So do you today know when any of your clients,
`
`20
`
`any of your customers, want this software to go handy as
`
`21
`
`opposed to going fixed?
`
`22
`
`23
`
`24
`
`A.
`
`Q.
`
`A.
`
`Yes, sir.
`
`Each and every time?
`
`I can only say that the only exception would
`
`25
`
`be if somebody actually just bought the disk from us,
`
`My Agency Name
`(999) 999-9999
`My Third Line
`
`Apple, Exhibit 1064, Page 25
`
`

`

`Case 2:07-cv-00271-RSP Document 271 Filed 09/27/10 Page 54 of 150 PageID #: 14027
`
`54
`
`and that's all we did. And that doesn't happen.
`
`Q.
`
`A.
`
`Has it ever happened?
`
`I don't believe we've e

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