Google, Inc. v. Affinity Engines, Inc. Doc.

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Case 5:05-cv-00598-JW Document 17 Filed 04/18/2005 Page 1 of 3

1 JAMES A. DIBOISE, State Bar No. 83296 (jdiboise@wsgr.com)

DAVID H. KRAMER, State Bar No. 168452 (dkramer@wsgr.com)
2 COLLEEN BAL, State Bar No. 167637 (cbal@wsgr.com)
WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation
650 Page Mill Road
4 Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100

6 Attorneys for Plaintiff

GOOGLE INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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GOOGLE INC., a Delaware corporation, ) CASE NO.: C-05-00598 JW (HRL)
13 )
Plaintiff, )
14 ) DECLARATION OF DAVID H.
v. ) KRAMER IN SUPPORT OF
15 ) PLAINTIFF GOOGLE INC.’S
AFFINITY ENGINES, INC., a Delaware ) OPPOSITION TO DEFENDANT
16 corporation, ) AFFINITY ENGINES, INC.’S
) MOTION TO DISMISS AND/OR
17 Defendant. ) STAY PROCEEDINGS
)
18 ) Date: May 9, 2005
) Time: 9:00 a.m.
19 ) Judge: Honorable James Ware
) Courtroom: 8, 4th Floor
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KRAMER DECL. ISO GOOGLE’S OPPOSITION TO AEI’S 2632655_1.DOC

MOTION TO DISMISS AND/OR STAY PROCEEDINGS
CASE NO.: C-05-00598 JW (HRL)
Dockets.Justia.com
 Case 5:05-cv-00598-JW Document 17 Filed 04/18/2005 Page 2 of 3

1 I, David H. Kramer, declare as follows:

2 1. I am an attorney at law duly licensed to practice in the State of California and

3 before this Court. I am a member of Wilson Sonsini Goodrich & Rosati, counsel for Plaintiff

4 Google Inc. (“Google”). I have personal knowledge of the facts set forth herein and, if called as

5 a witness, could and would testify competently thereto.

6 2. Attached hereto as Exhibit A is a true and correct copy of the August 5, 2002

7 Employment, Confidential Information and Inventions Assignment Agreement between Orkut

8 Buyukkokten and Google.

9 3. Attached hereto as Exhibit B is a true and correct copy of a May 9, 2002 offer

10 letter and employment packet sent by Sergey Brin of Google to Orkut Buyukkokten.

11 4. In March 2004, counsel for AEI wrote to Google claiming that AEI owned the

12 inCircle code and that Buyukkokten had copied unspecified inCircle code into the code

13 implementing the Orkut.com service. Attached hereto as Exhibit C is a true and correct copy of

14 a letter (without attachments) from G. Hopkins Guy, III, counsel for AEI, to Orkut Buyukkokten

15 and David Drummond, General Counsel of Google, dated March 8, 2004. Counsel for the

16 parties met twice (in March and April 2004) to discuss AEI’s concerns. At the very first

17 meeting, I specifically informed both Brian Samuels, then CEO of AEI, and Hopkins Guy, AEI’s

18 counsel, that “there were serious ownership issues” surrounding AEI’s claim to own Mr.

19 Buyukkokten’s work. I further stated at that meeting that this case was a Sagent v. Acta

20 situation, referring to a case Mr. Guy had handled against our firm. In that case, Mr. Guy

21 represented a defendant accused of trade secret misappropriation, and claimed that the defendant

22 actually owned the intellectual property at issue. My point in expressly referencing the case was

23 to make clear that Google, not AEI, owned the rights to the code at issue in this case. Ownership

24 aside, Google repeatedly offered to permit a neutral expert to compare the two programs and

25 show that no code copying had occurred. AEI rejected all such offers.

26 5. Attached hereto as Exhibit D is a true and correct copy of Affinity Engines, Inc.’s

27 Responses and Objections to Google Inc.’s First Set of Requests for Admissions, Request No.

28 28, served on March 4, 2005.

KRAMER DECL. ISO GOOGLE’S OPPOSITION TO AEI’S 2632655_1.DOC

-1-
MOTION TO DISMISS AND/OR STAY PROCEEDINGS
CASE NO.: C-05-00598 JW (HRL)
 Case 5:05-cv-00598-JW Document 17 Filed 04/18/2005 Page 3 of 3

1 6. As of the date of this motion, only one deposition has been taken (a deposition of

2 AEI). Although Google originally noticed that deposition in July 2004, because of the AEI’s

3 witness’s conduct, Google brought a motion to recommence the deposition in the presence of a

4 discovery referee. The court granted Google’s motion. Attached hereto as Exhibit E is a true

5 and correct copy of the Order, dated December 25, 2004, granting Google’s Motion to Compel

6 Responsive Deposition Witness and to Appoint a Discovery Referee, in the matter Affinity

7 Engines, Inc. v. Google Inc. et al., Superior Court of Santa Clara County, Case No.

8 104CV020368. The resumed deposition took place on March 24, 2005.

9 7. Attached hereto as Exhibit F is a true and correct copy of the Answer to

10 Complaint of Defendants Google Inc. and Orkut.com LLC, filed on June 28, 2004, in the matter

11 Affinity Engines, Inc. v. Google Inc. et al., Superior Court of Santa Clara County, Case No.

12 104CV020368.

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14 I declare under penalty of perjury under the laws of the State of California that the

15 foregoing is true and correct. Executed on April 18, 2005 at Palo Alto, California.

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___/s/ David H. Kramer_______________
18 David H. Kramer
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GOOGLE’S OPPOSITION TO AEI’S MOTION TO DISMISS 2632655_1.DOC

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AND/OR STAY PROCEEDINGS
CASE NO.: C-05-00598 JW (HRL)