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    Apple Computer Inc. v. Burst - Com, Inc. - Document No. 151

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    Justia.com
    DECLARATION of Daniel J. Walker in Opposition to Apple Computer, Inc.'s Second Motion for Summary Judgment filed byBurst.com, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29)(Wecker, Bruce) (Filed on 8/28/2007) 3:2006cv00019 California Northern District Court

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    Apple Computer Inc. v. Burst - Com, Inc. - Document No. 151

    Uploaded by

    Justia.com
    46 views6 pages
    DECLARATION of Daniel J. Walker in Opposition to Apple Computer, Inc.'s Second Motion for Summary Judgment filed byBurst.com, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29)(Wecker, Bruce) (Filed on 8/28/2007) 3:2006cv00019 California Northern District Court

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    Apple Computer Inc. v. Burst.com, Inc. - Document No. 151

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    DECLARATION of Daniel J. Walker in Opposition to Apple Computer, Inc.'s Second Motion for Summary Judgment filed byBurst.com, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29)(Wecker, Bruce) (Filed on 8/28/2007) 3:2006cv00019 California Northern District Court

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    46 views6 pages

    Apple Computer Inc. v. Burst - Com, Inc. - Document No. 151

    Uploaded by

    Justia.com
    DECLARATION of Daniel J. Walker in Opposition to Apple Computer, Inc.'s Second Motion for Summary Judgment filed byBurst.com, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29)(Wecker, Bruce) (Filed on 8/28/2007) 3:2006cv00019 California Northern District Court

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    Apple Computer Inc. v. Burst.com, Inc. Doc.

    151
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 1 of 6

    1 PARKER C. FOLSE III (WA Bar No. 24895 – Pro Hac Vice)
    pfolse@susmangodfrey.com
    2
    IAN B. CROSBY (WA Bar No. 28461 – Pro Hac Vice)
    3 icrosby@susmangodfrey.com
    FLOYD G. SHORT (WA Bar No. 21632 – Pro Hac Vice)
    4 fshort@susmangodfrey.com
    DANIEL J. WALKER (WA Bar No. 38876 - Pro Hac Vice)
    5
    dwalker@susmangodfrey.com
    6 SUSMAN GODFREY, L.L.P.
    1201 Third Avenue, Suite 3800
    7 Seattle, Washington 98101-3000
    (206) 516-3880 Tel
    8
    (206) 516-3883 Fax
    9
    SPENCER HOSIE (CA Bar No. 101777)
    10 shosie@hosielaw.com
    BRUCE WECKER (CA Bar No. 078530)
    11
    bwecker@hosielaw.com
    12 HOSIE McARTHUR LLP
    One Market, 22nd Floor
    13 San Francisco, CA 94105
    (415) 247-6000 Tel.
    14
    (415) 247-6001 Fax
    15
    (additional attorneys listed on signature page)
    16
    Attorneys for Defendant/Counterclaimant
    17
    BURST.COM, INC.
    18

    19 UNITED STATES DISTRICT COURT


    NORTHERN DISTRICT OF CALIFORNIA
    20 SAN FRANCISCO DIVISION

    21
    APPLE COMPUTER, INC., §
    22 § CASE NO. C06-00019 MHP
    Plaintiff/Counterdefendant, §
    23 § DECLARATION OF DANIEL J. WALKER
    v. § IN SUPPORT OF BURST.COM INC.’S
    24 § OPPOSITION TO APPLE COMPUTER,
    BURST.COM, INC., § INC.’S SECOND MOTION FOR
    25 § SUMMARY JUDGMENT
    Defendant/Counterclaimant. §
    26 § TRIAL DATE: FEBRUARY 26, 2008
    27

    28

    1
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP

    Dockets.Justia.com
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 2 of 6

    1 DECLARATION OF DANIEL J. WALKER IN SUPPORT OF DEFENDANT


    BURST.COM, INC.’S OPPOSITION TO PLAINTIFF APPLE COMPUTER, INC.’S
    2
    SECOND MOTION FOR SUMMARY JUDGMENT
    3
    I, Daniel J. Walker, declare as follows:
    4
    1. I am an associate in the Seattle office of Susman Godfrey L.L.P. I represent defendant
    5

    6
    Burst.com, Inc. (“Burst”) in the above captioned matter. I make this declaration based upon

    7 personal knowledge and, if called upon to do so, could testify competently to the facts set forth
    8 herein.
    9
    2. Attached hereto as Exhibit 1 is a true and correct copy of an article published in the
    10
    April 24, 2006 issue of BusinessWeek.
    11

    12
    3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts of the transcript of

    13 the deposition of Burst’s Chief Executive Officer, Richard Lang, taken on January 8, 2007.

    14 (FILED UNDER SEAL)


    15
    4. Attached hereto as Exhibit 3 is a true and correct copy of “Your movie may come to
    16
    you over the phone and ‘compressed,’” published in the January 20, 1991 issue of The
    17

    18
    Philadelphia Inquirer.

    19 5. Attached hereto as Exhibit 4 is a true and correct copy of Univercell Holdings, Inc.’s

    20 10K for fiscal year 1997, filed on March 27, 1998.


    21
    6. Attached hereto as Exhibit 5 is a true and correct copy of “More Bang For Your
    22
    Bandwidth,” published in the September 1999 issue of NewMedia.
    23

    24
    7. Attached hereto as Exhibit 6 is a true and correct copy of Apple’s Supplemental

    25 Response to Burst’s Interrogatory No. 21. (FILED UNDER SEAL)

    26 8. Attached hereto as Exhibit 7 is a true and correct copy of Apple’s “Power Mac G5:
    27
    Buyer Profile Study,” dated March 2004. (FILED UNDER SEAL)
    28

    2
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 3 of 6

    1 9. Attached hereto as Exhibit 8 is a true and correct copy of an Apple Press Release, dated
    2
    April 9, 2007, titled “100 Million iPods Sold.”
    3
    10. Attached hereto as Exhibit 9 is a true and correct copy of “IPod, TheyPod: Rivals
    4
    Imitate Apple’s Success,” published in the September 18, 2006 issue of The Wall Street Journal.
    5

    6 11. Attached hereto as Exhibit 10 is a true and correct copy of “Macs Power Up Earnings at

    7 Apple,” published in the July 26, 2007 issue of The Los Angeles Times.
    8
    12. Attached hereto as Exhibit 11 is a true and correct copy of an Apple Press Release,
    9
    dated July 31, 2007, titled “iTunes Store Tops Three Billion Songs.”
    10
    13. Attached hereto as Exhibit 12 is a true and correct copy of “Apple unveils digital music
    11

    12 device,” published by BBC News, dated October 24, 2001.

    13 14. Attached hereto as Exhibit 13 is a true and correct copy of an Apple Press Release,
    14
    dated October 23, 2001, titled “Apple Presents iPod.”
    15
    15. Attached hereto as Exhibit 14 is a true and correct copy of an Apple Press Release,
    16
    dated October 30, 2002, titled “Apple’s iPod Now Available at All Target Stores.”
    17

    18 16. Attached hereto as Exhibit 15 is a true and correct copy of a marketing document for

    19 Apple’s project “Jupiter.” (FILED UNDER SEAL)


    20
    17. Attached hereto as Exhibit 16 is a true and correct copy of a market research study,
    21
    dated March 30, 2001, conducted for the original iPod, which was codenamed “Dulcimer.”
    22
    (FILED UNDER SEAL)
    23

    24 18. Attached hereto as Exhibit 17 is a true and correct copy of excerpts of the transcript of

    25 the deposition of Apple employee Max Muller, taken on July 20, 2007, pursuant to F.R.C.P.
    26
    30(b)(6). (FILED UNDER SEAL)
    27

    28

    3
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 4 of 6

    1 19. Attached hereto as Exhibit 18 is a true and correct copy of excerpts of the transcript of
    2
    the deposition of Apple employee Frank Casanova, taken on September 22, 2006, both in his
    3
    individual capacity and on behalf of Apple pursuant to F.R.C.P. 30(b)(6). (FILED UNDER
    4
    SEAL)
    5

    6 20. Attached hereto as Exhibit 19 is a true and correct copy of a customers survey

    7 conducted by Apple. (FILED UNDER SEAL)


    8
    21. Attached hereto as Exhibit 20 is a true and correct copy of a product user manual from
    9
    CompuSonics Corp.
    10
    22. Attached hereto as Exhibit 21 is a true and correct copy of excerpts of the transcript of
    11

    12 the deposition of David Schwartz, a former employee of CompuSonics Corp., dated August 4,

    13 2007. (FILED UNDER SEAL)


    14
    23. Attached hereto as Exhibit 22 is a true and correct copy of United States Patent No.
    15
    4,963,995.
    16
    24. Attached hereto as Exhibit 23 is a true and correct copy of United States Patent No.
    17

    18 5,057,932.

    19 25. Attached hereto as Exhibit 24 is a true and correct copy of United States Patent No.
    20
    5,164,839.
    21
    26. Attached hereto as Exhibit 25 is a true and correct copy of United States Patent No.
    22
    5,995,705.
    23

    24 27. Attached hereto as Exhibit 26 is a true and correct copy of an Information Disclosure

    25 Statement, filed with the Patent & Trademark Office, showing that the Walter patent was
    26
    disclosed during prosecution of Patent No. 5,995,705.
    27

    28

    4
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 5 of 6

    1 28. Attached hereto as Exhibit 27 is a true and correct copy of an Information Disclosure
    2
    Statement, filed with the Patent & Trademark Office, showing that the Walter patent was
    3
    disclosed during prosecution of Patent No. 5,057,932.
    4
    29. Attached hereto as Exhibit 28 is a true and correct copy of an Information Disclosure
    5

    6 Statement, filed with the Patent & Trademark Office, showing that the Walter patent was

    7 disclosed during prosecution of Patent No. 5,164,839.


    8
    30. Attached hereto as Exhibit 29 is a true and correct copy of an excerpt from the Manual
    9
    of Patent Examining Procedure.
    10
    I declare under penalty of perjury under the laws of the United States that the foregoing is
    11

    12 true and correct.

    13 DATED this 28th day of August, 2007.


    14

    15
    /s/ Daniel J. Walker
    16 Daniel J. Walker
    17

    18 Additional Counsel:
    19
    MICHAEL F. HEIM (TX Bar No. 9380923-
    20 Pro Hac Vice)
    LESLIE V. PAYNE (TX Bar No. 0784736-
    21 Pro Hac Vice)
    22 ERIC ENGER (TX Bar No. 24045833-
    Pro Hac Vice)
    23 HEIM, PAYNE & CHORUSH, L.L.P.
    600 Travis Street, Suite 6710
    24 Houston, TX 77002
    25 (713) 221-2000 Tel.
    (713) 221.2021 Fax
    26
    ROBERT J. YORIO (CA Bar No. 93178)
    27 V. RANDALL GARD (CA Bar No. 151677)
    28 COLBY B. SPRINGER (CA Bar No. 214868)
    CARR & FERRELL LLP
    5
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP
    Case 3:06-cv-00019-MHP Document 151 Filed 08/28/2007 Page 6 of 6

    1 2200 Geng Road


    Palo Alto, CA 94303
    2
    (650) 812-3400 Tel.
    3 (650) 812-3444

    4 Attorneys for Defendant/Counterclaimant Burst.com, Inc.


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    6
    ___________________________________________________________________________________________________________________
    DECLARATION OF DANIEL J. WALKER
    Case No. C06-00019 MHP

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