Now we come to day 5 of the trial in Novell v. Microsoft antitrust trial over WordPerfect, which ended in a mistrial. That means it's now Monday, October 24, 2011. Novell had just begun presenting its case, putting its first live witness on the stand the previous Thursday, Adam Harral. They took Friday off. Today, it's time to finish up his testimony, followed by cross examination by Microsoft's lead attorney David Tulchin. Mr. Harral's theme has been how back when Microsoft was getting ready to launch Windows 95, Microsoft first encouraged Novell to adopt its APIs and then snatched them away, de-documenting them. Today, he explains what Novell tried to do to recover from the blow. The first thing Novell tried, he relates, was to try to work with the premier support people at Microsoft, which they'd done successfully in the past. But Novell noted a change, and after about 3 months, they realized they were on their own. So finally in January of 1995, Novell decided they'd have to just recreate the functionality. Remember, when the switcheroo happened, Novell had already finished about 80% of the work reliant on the APIs that now were not available. It was slow going.
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Here's why it was so much slower than having the APIs available, as Mr. Harral testifies:
We were trying to -- actually it's like trying to reproduce a vintage car in its exact state. But the difficulty of this task is kind of hard. It's kind of -- we had to have, we had to know how the file system is going to work underneath. We had to know what were the new areas that the shell was going to present and if there were ways that we could access that. The -- and we had to do that in a way that, when we taught our applications, since we were the shared code
team, we are telegraphing the stems that Microsoft has to the applications that are built on top of us.
And we wanted to telegraph those relation -- those features in their purest form because we wanted to eventually get out of the way and let them talk more directly to the shell. For us to set up our own way to talk would have meant that we would have been in the way more for the life cycle of the application. And we felt that Microsoft had a very good architectural foundation for what they had decided to do and so when we had had the Microsoft representatives earlier on there, we had told them we were really buying into what they were doing for the shell. And so we were intent on undoing that because it would -- in the long run, it would give our application better access to new things that they had, and it would reduce the work that we had to do, which would make the product more stable.
But, in trying to reproduce it, it's kind of like -- I was thinking about this. It's kind of like a Sudoku puzzle. If you -- if you are the maker of a puzzle, you know, you look in the newspaper and you have a key there. You can reproduce the key very easily if you know the answer at the end, but if you're somebody who has to come along and solve it, a very hard Sudoku puzzle, you have to get one number before you can get the
next, before you can get the next, before you can get the next. And it takes a lot of time. You may go down a path and you may figure out that you've taken the wrong path, and you have to undo it and go back at it again.
And that's what trying to reproduce the shell was like. If we had had documentation, if we had had
even the premier support information trying to help us to
reproduce it so that we could solve -- they could help us
solve our problem, it would have gone faster. But,
because there really was no information forthcoming that
would help us with our fundamental problem, it really was
just trying to piece through it day-after-day,
month-after-month for that time.
And, at the same time, we also had the
applications that were trying to expose their
functionality, and we are supposed to help them as well.
So we are doing it internally, and we are trying to help
the rest of the company do it as well. And we would make
mistakes, and we would learn that something that we had
done inside or an assumption that we had made was
incorrect as we found evidence that stated otherwise and
we would have to go back and rework it.
And that's painful for the applications because
they are setting schedules and then we are telling them,
oh, you need another month here because there's this
whole new area that we were not aware of before, and
you've go to go in and change how it's written, and that
became very frustrating for the applications as time went
on. And what do you think? Did Microsoft realize that dedocumenting the APIs would cause this pain for Novell? There was another change, Harral mentions. Where before, their premier support person was the same each time, who over time knew their needs well, suddenly when they called for help, it would be just customer support people, a different one every time. The relationship had cooled, he says. And there was no help forthcoming. Mr. Harral no longer works for Novell, and yet he turned up willing to testify. Novell's lawyer asks him why:
Q: Mr. Harral, you've told the jury that you have
not worked for Novell for a number of years. Why are you
here testifying today?
A: Well, the first answer is, is that I -- I
believe in the court system because I don't -- I don't
want anybody to think I take it for granted. I like that
we can work out things in our country. And I can't like
that and not be willing to participate with that,
although my participation would be much smaller than the
people who are doing so here. At the same time, this was
a very hard time for the company, and there were a lot of
good people who worked in an extraordinary manner on
these technologies. They had -- this was a privately
held company, WordPerfect was at that time, when they
started doing these things, before the acquisition of
Novell.
And these people stayed with the company
because they believed in what they were doing. They were
very proud of the things that they were able to help
people solve. And this was a very difficult time for a
lot of these good people and lot of these families. And
I -- I think that it's nice that finally this subject can
be -- can be addressed and it can be looked at because I
would -- it would be nice to know what happened, because
it was very hard. It was very hard for a lot of people.
It was very hard for a lot of our customers, too. And
that was really our intention.
MR. JOHNSON: Thank you, Mr. Harral.
Isn't that sad? And touching. It's the same motivation that I feel, that makes it worthwhile to me to take the time and put forth the effort to chronicle this case. I don't care that it happened in the mid-1990s. I care that it happened at all and that Microsoft has never been held accountable. If what Mr. Harral has testified to is true -- and the first jury certainly believed that part -- then *something* should happen. At a bare minimum, there should be the process to determine where the line of legal behavior is, because otherwise, if might makes right, why even have a court system?
But we do have one, and it should be allowed to work its way through these events and come to a determination one way or another. It shouldn't be all right with the legal system that a victim gets no recourse, just gets left by the side of the road to bleed to death. It's what a legal system is for, to readjust the balance, when a more powerful entity takes advantage of power or tricks or whatever and mistreats someone. Conversely, it's also there to pull back an entity that thinks it was mistreated but actually was not. And when the parties don't see eye to eye, that's what the court process is for.
That's why Microsoft mocking Novell for still bothering with this case is troubling to me. It had a legal right to wait while the government's antitrust case was going forward and then there was a window for them to act, and they did.
I wanted to mention one other thing about judges. You just watched the judge in the Oracle v. Google trial bending over backwards to avoid tipping the jury in any particular direction. That's what a judge is supposed to do. When the jury isn't in the room, it's quite a bit more frank, as you saw. Remember when the judge told David Boies that his theory of infringer's profits was bordering on ridiculous and asked him how a lawyer of his caliber could even try to present it? He'd never say that in front of the jury, but with the lawyers, they speak forthrightly.
Protecting the jury from spitballs, so to speak, is also the judge's job. He is supposed to make sure neither party's lawyer goes too far in what he says to the jury or what evidence he presents. Lots of things a judge can handle, knowing all the picture legally, might throw the jury off, because they are not as familiar with the legal process.
So I thought you would be interested to know that Boies, in the Oracle v. SAP retrial, going on right now, tried for infringer's profits in much the same way, but in even more extreme stye. And once again, he got slapped down by the judge, in this case the Hon. Phyllis J. Hamilton. Here's the Final Pretrial Order [PDF] in the SAP case, as PDF, and I'd like to show you the part about infringer's profits, which came up in a ruling on the parties various motions in limine, and in this trial, Oracle is the plaintiff:
5. Plaintiff’s Motion in Limine No. 5 to exclude testimony by SAP’s expert Stephen Clarke regarding a calculation of infringer’s profits that includes a deduction of expenses from defendants’ revenues is DENIED. Plaintiff argues that because the infringement was willful, infringer’s profits should be equal to gross revenues, and that defendants should not be permitted to offset any of their gross revenues by subtracting expenses. However, the court finds no support for this proposition.
The language of 17 U.S.C. § 504(b) does not support a rule that overhead expenses cannot be deducted from gross revenues to arrive at profits where the infringement was deliberate or willful. Section 504(b) provides that “[i]n establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” There is no mention of willful infringement in § 504(b) – only in § 504(c) – which relates to statutory damages. The language of § 504(c) shows that where Congress intended to punish willful infringement by authorizing different remedies depending on the defendant’s culpability, it clearly knew how to do so. Section 504(b) makes no distinction between willful and innocent infringers. In addition, while the Ninth Circuit’s Model Instruction 17.27 may be considered a guide, the Ninth Circuit does not adopt the Model Instructions as authoritative statements of the law. Dang v. Cross 422 F.3d 800, 805 (9th Cir. 2005). Even less should a “Comment” to a Model Instruction be considered an authoritative statement of the law. Moreover, Model Instruction 17.27 is clearly labeled, “Copyright – Damages - Willful Infringement” under 17 U.S.C. § 504(c)(2), which relates to statutory damages which are not sought by plaintiff here. It is Model Instruction 17.24, “Copyright – Damages – Defendant’s Profits” which relates to the measure of damages under 17 U.S.C. § 504(b) which are sought by plaintiff here. Tellingly, there is no Model Instruction that sets forth the standard plaintiff urges the court to adopt. Nor does the Ninth Circuit’s decision in Kamar Int’l v. Russ Berrie and Co., 752 F.2d 13 1326, 1331-31 (9th Cir. 1984), which is cited in the Comment to Model Instruction 17.27, clearly support the statement in the Comment that defendants’ expenses are generally “denied where the defendant’s infringement is willful or deliberate,” since the court in Kamar had previously determined that the defendant was not a willful infringer. To the extent that the parties dispute which categories of expenses can be deducted (assuming defendants meet their burden of proof), that is a matter for the court, not the jury, to decide.
6. Defendants’ Motion in Limine No. 1 to exclude evidence and argument regarding new claims relating to lost profits and infringer’s profits is GRANTED in part and DENIED in part. The motion to preclude plaintiffs from reversing their approach to deductible expenses in connection with the infringer’s profits claim is GRANTED, for the reasons set forth above with regard to plaintiff’s Motion in Limine No. 5. The motion to exclude testimony and other evidence regarding the calculation of ongoing support/maintenance revenues (after 2008) up to the time of trial, and regarding the increased profit margin percentage applicable to the added revenue, is DENIED. The court is not persuaded that judicial estoppel applies under these facts; and finds further that the supplemental or updated report of Oracle’s expert Paul Meyer is not untimely given that the bulk of the claimed damages were not incurred until after the discovery deadlines preceding the first trial. Thus, it would be unfair to disallow this evidence, subject to plaintiff’s establishing that the claimed damages flow from the pre-2008 infringement. In addition, however, both sides shall make their experts available before trial for further short depositions on this issue and there shall be full disclosure of the claimed damages and any defense thereto.
7. Defendants’ Motion in Limine No. 2 to exclude evidence previously offered solely to support excluded damages theories is DENIED in part and DEFERRED in part. The question whether plaintiff may offer evidence to support the theory of hypothetical license damages (including up-sell and cross-sell and saved development costs) has been resolved by the court, most recently in the ruling on plaintiff’s motion for clarification. Defendants have provided examples of evidence relating to “license factors,” “risk acceptance,” “expected financial gains,” and the “risk to plaintiffs’ investment.” However, because defendants have not sufficiently identified the particular items of evidence they seek to have excluded, and because plaintiff argues that some of the evidence may well be relevant to causation, the court is unable to rule on this part of the motion, and defers further consideration until the further conference to be held on June 8, 2012.
8. Defendants’ Motion in Limine No. 3 to exclude evidence and argument regarding TomorrowNow’s criminal conviction is GRANTED. Any evidence of willfulness that would be reflected by the guilty plea or conviction is irrelevant to any issue being tried in the case in light of defendants’ stipulation to liability. In addition, this evidence may not be used for impeachment purposes pursuant to Federal Rule of Evidence 609 to impeach the testimony of defendants’ witnesses, as it was the corporation TomorrowNow that pled guilty, not any of the individual executives employed by defendants SAP AG, SAP America, Inc., or TomorrowNow. The corporate conviction has no bearing on the credibility of any individual witness who may be employed by a defendant and no individual witness has been him or herself convicted, such that their own conviction might be employed for impeachment. Moreover, unlike the situation in Hickson Corp. v. Norfolk S. Ry. Co., 227 F.Supp. 2d 903, 907 (E.D. Tenn. 2002), liability in this case has been conceded, and is therefore not an issue to be decided by the jury.
9. Defendants’ Motion in Limine No. 4 to prohibit plaintiff from referring during the trial to “theft” or “stealing” of software by defendants is GRANTED. Defendants have stipulated to liability for copyright infringement, and the jury will be so advised. Balancing the potential for prejudice and the value to plaintiff of characterizing defendants’ conduct as theft, the court concludes that the use of the words “theft” or “stealing” would be inflammatory and would likely be unduly prejudicial to defendants, and is furthermore unnecessary given defendants’ stipulation to liability. Moreover, the use of words associated with criminal conduct could potentially confuse the jury about the nature of this case and what they will be asked to find. Plaintiff may argue that defendants “copied,” “took,” or “used” the software “without authorization,” but may not characterize defendants’ conduct as “theft” or “stealing.” Do you see how the judge is trying to avoid prejudice to either party by being careful what the jury can hear them say? Also, you see she tells Boies that there's no case law or anything she can find that would support his theory, that if you are willful in copyright infringement, the plaintiff gets from you all your profits, and you can't deduct any of your overhead expenses. He claims to read 17 U.S.C. § 504(b) as saying that, but the judge corrects him. It's a very extreme position. Let's say I deliberately copy rangeCheck and it's in my software product, some new smartphone. I spent millions producing my phone, and happily it's a hit, so I get sued. Let's say it's proven that I used rangeCheck knowingly and on purpose. Although why I would is the mystery since it'd be easier to write such simple stuff myself. Anyway, should the plaintiff get *all* my profits in selling my phone? I mean, there are expenses to producing any product, and should I be left with absolutely nothing at all, even though I spent millions of dollars and quite a lot of effort and time into making a phone that surely wasn't purchased because of rangeCheck being used in some software. That's the theory, if I've understood it, that Mr. Boies was putting forth on behalf of Oracle. I mean, *really*? I put it as an update, update 9, to the day Boies got his wings clipped in Oracle v. Google, but I wanted to highlight it. As you can see, when he gets his wings clipped, he just keeps on flying. I've been puzzling over the why of it. Might he come up with these ideas because when there is no case law on a theme, it more or less guarantees at least one issue for appeal? Or maybe he just likes to gamble. Not being the gambler type, I don't know. Maybe he's working on a level so much higher than I can imagine, I'm not even close to guessing why he does it. It's definitely not what you see in most trials.
The PDFs that cover this day are: All the PDFs of the transcripts are found here and also are now added to our
NovellvMS Timeline page.
Here's the transcript of the day. Watch the judge's rulings when the jury is in the room and how he discusses the case with the attorneys when the jury has gone for the day or it out for a break, and make your comparisons. Note that it says it was October 18 at one place on the transcript, but it wasn't. Court reporters reuse headers just like I do, I deduce, and sometimes that leads to minor mistakes.
*********************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION
NOVELL, INC.,
Plaintiff,
vs.
MICROSOFT CORPORATION,
Defendant.
_____________
Case No.
2:04-CV-01045 JFM
_____________
BEFORE THE HONORABLE J. FREDERICK MOTZ
DATE: October 24, 2011
REPORTER'S TRANSCRIPT OF PROCEEDINGS
JURY TRIAL
VOLUME V
Reporter: REBECCA JANKE, CSR, RMR
LAURA ROBINSON, CSR, RPR
PATTI WALKER, CSR, RPR
360
A P P E A R A N C E S
FOR THE PLAINTIFF:
DICKSTEIN SHAPIRO
BY: PAUL R. TASKIER, ESQ.
JEFFREY M. JOHNSON, ESQ.
MIRIAM R. VISHIO
[address]
WILLIAMS & CONNOLLY
BY: JOHN E. SCHMIDTLEIN, ESQ.
[address]
SNOW, CHRISTENSEN & MARTINEAU
BY: MAX D. WHEELER, ESQ.
[address]
NOVELL
BY: JIM LUNDBERG, ESQ.
FOR THE DEFENDANT:
SULLIVAN & CROMWELL
BY: DAVID B. TULCHIN, ESQ.
STEVEN L. HOLLEY
SHARON L. NELLES
[address]
MICROSOFT CORPORATION
BY: STEVE AESCHBACHER, ESQ.
[address]
RAY, QUINNEY & NEBEKER
BY: JAMES S. JARDINE, ESQ.
[address]
INDEX
ADAM HARRAL - Cross by Mr. Tulchin - 375
361
OCTOBER 18, 2011 SALT LAKE CITY, UTAH
PROCEEDINGS
* * *
* * *
THE COURT: Good morning, everybody. The jury
is here. Terrific. Let's get started.
MR. JOHNSON: May I bring Mr. Harral up, Your
Honor?
MR. JOHNSON: Thank you.
THE COURT: Good morning, Mr. Harral.
THE WITNESS: Good morning.
(Jury brought into the courtroom.)
THE COURT: Good morning, everybody. You all
are terrific. I wish everybody involved would be --
Mr. Johnson.
MR. JOHNSON: Thank you very much, Your Honor.
DIRECT EXAMINATION
BY MR. JOHNSON:
Q: Good morning, Mr. Harral.
A: Good morning.
Q: On Thursday last, you testified that you became
aware that Microsoft had de-documented the NameSpace
extension functionality in the October time frame, and
you further testified that, faced with this Microsoft
decision, you had three options for continuing to develop
362
your products for the Windows 95 operating system. We've
made a slide --
Mr. Goldberg.
-- containing, directly from your testimony,
the three options you mentioned. Could you just review
those for yourself and tell us whether that accurately
reflects the three options that you had.
MR. TULCHIN: Your Honor, sorry to interrupt.
I wonder if I could get a copy of that.
THE COURT: You've got it right now.
MR. TULCHIN: Thank you.
THE WITNESS: Yes. These are the options that
I outlined.
Q: Now, you further testified that the third
option was Novell's least favorite choice, and you told
the jury that you started the effort -- that third option
in January. Can you please explain to the jury what
Novell did, if anything, between October of 1994, when
you found out that Microsoft had decided to de-document
the NameSpace extension functionality, and January of
1995, when Novell turned to option 3?
A: Okay. When we found out about the option or
the de-documentation, the first thing that we tried
was -- by de-documenting the API's, there are
different -- there are different things that can happen.
363
Certainly what -- what we felt Microsoft was saying is,
you can't count on these things that we are, of course,
saying that that can't be used.
That didn't mean that they ceased to exist. It
just meant that, in one regard, we would be at risk,
which would be the least of the three. We would be at
risk if we used them because if they decided that they
needed to change them in the future, they could, and we
would have more work to do in order to be able to later
on, when those changes were made public. That could go
all the way to the point of, we really don't want you to
use these, and there would be no support whatsoever.
So, we had -- in the past, when I had dealt
with Microsoft on -- because I worked on, many years, the
presentation of the commands in the application in the
past, and there were things that were not documented,
but, working with Microsoft, we would find ways that we
could get information that would help us to finish what
we were doing.
So in -- so the first option we took, which is
the first option in this list, was continuing to work
with Microsoft's premier support and making queries as
to -- as to what we would be able to do or what would
be -- what they would help us with. And we -- we spent
those three months basically trying to do that, but, over
364
those three months, it became apparent that there
would -- there was not a -- that this wasn't about that
things were busy, there was just no -- for every query
that we made, there was just information not forthcoming.
And so -- from the support. And so, this was a
different kind of of handling of the relationship, from
the premier support perspective, than we had had in the
past. We were -- basically we were on our own is how we
interpreted their -- their response to our queries. And
then that, basically -- because we would -- we would ask
questions, try to probe, okay, we're looking at this
recycle bin, you know. How is it supposed to behave.
How do we -- you know, I'm trying to open the
file, and it's -- you know, somebody else is doing work
there, or I've got a briefcase here, and I want to open
the file, but it's synchronizing at the same time so I
can't open it. How do I figure it out that it's doing
that so that I don't tell the user, you know, yeah, open
the file and then it comes on and says, no, I can't do
this. It's not letting you open it. Those are -- can be
very disconcerting to the customer of the product.
But we just were not getting any of the help
that we needed to be able to -- to overcome this problem.
Q: Did Novell ever consider the second option on
the list some?
365
A: Yes. As I stated before, we did many times.
Every time that we went -- we had to -- every time we had
to consider an option, this is the option that came back
on the table because it would have been an easier option
than the third, and it would -- it would -- it would be
more supportable going forward. It would be less risky
for us. It would be less work for us to take it, and
what we hoped -- it was not an option until October. We
revisited it in January because, as we had tried to work
out on the one side, we were also looking for, you know,
the documentation or other information.
It's not just that Microsoft documents
information, but there are also -- there were other
sources of Windows information, what other companies
might learn or be told about them, so we would look for
that information to see if we could piece together a
picture that would give us a path to be able do it.
But, even in January, we could see that there
really was no more information about taking option two
and making it viable. So, yes, every time that we
considered an option, we would look back at number 2
because we had hoped that there would be some opportunity
there, but there wasn't in January.
Q: So, now, moving to option 3, you had testified
that Novell had decided, in January of 1995, to take the
366
option 3 and that it took Novell almost a year to
recreate the functionality offered by the NameSpace
extensions. Can you explain to the jury, generally, why
recreating this functionality, option 3, took so long?
A: We were -- we were basically trying to recreate
the underpinnings of the Microsoft Windows 95 shell. In
trying to -- when faced with the problem of trying to
recreate something that looks like somebody else's work,
there's -- there are different levels of doing that. One
is, you can say, I can do the same thing that you -- that
somebody else does. Two different cars operate more or
less the same way, but if one of them is for racing and
one of them is for four-wheel fun, there are still some
fundamental differences. You can see that they are
similar, but they are not really for the same purpose.
We are, in this -- we had to have a higher
level of reproduction. We were trying to -- actually
it's like trying to reproduce a vintage car in its exact
state. But the difficulty of this task is kind of hard.
It's kind of -- we had to have, we had to know how the
file system is going to work underneath. We had to know
what were the new areas that the shell was going to
present and if there were ways that we could access that.
The -- and we had to do that in a way that, when we
taught our applications, since we were the shared code
367
team, we are telegraphing the stems that Microsoft has to
the applications that are built on top of us.
And we wanted to telegraph those relation --
those features in their purest form because we wanted to
eventually get out of the way and let them talk more
directly to the shell. For us to set up our own way to
talk would have meant that we would have been in the way
more for the life cycle of the application. And we felt
that Microsoft had a very good architectural foundation
for what they had decided to do and so when we had had
the Microsoft representatives earlier on there, we had
told them we were really buying into what they were doing
for the shell. And so we were intent on undoing that
because it would -- in the long run, it would give our
application better access to new things that they had,
and it would reduce the work that we had to do, which
would make the product more stable.
But, in trying to reproduce it, it's kind of
like -- I was thinking about this. It's kind of like a
Sudoku puzzle. If you -- if you are the maker of a
puzzle, you know, you look in the newspaper and you have
a key there. You can reproduce the key very easily if
you know the answer at the end, but if you're somebody
who has to come along and solve it, a very hard Sudoku
puzzle, you have to get one number before you can get the
368
next, before you can get the next, before you can get the
next. And it takes a lot of time. You may go down a
path and you may figure out that you've taken the wrong
path, and you have to undo it and go back at it again.
And that's what trying to reproduce the shell
was like. If we had had documentation, if we had had
even the premier support information trying to help us to
reproduce it so that we could solve -- they could help us
solve our problem, it would have gone faster. But,
because there really was no information forthcoming that
would help us with our fundamental problem, it really was
just trying to piece through it day-after-day,
month-after-month for that time.
And, at the same time, we also had the
applications that were trying to expose their
functionality, and we are supposed to help them as well.
So we are doing it internally, and we are trying to help
the rest of the company do it as well. And we would make
mistakes, and we would learn that something that we had
done inside or an assumption that we had made was
incorrect as we found evidence that stated otherwise and
we would have to go back and rework it.
And that's painful for the applications because
they are setting schedules and then we are telling them,
oh, you need another month here because there's this
369
whole new area that we were not aware of before, and
you've go to go in and change how it's written, and that
became very frustrating for the applications as time went
on.
Q: Based on your personal experience, did
Microsoft's attitude change at all towards WordPerfect
after it merged with Novell?
A: The relationship was cooler.
Q: And why do you say that?
A: About the time of that -- of the Acquisition of
WordPerfect Corporation by Novell, there was a change in
the premier support that we had. We used to have a
person that was assigned specifically to WordPerfect that
we would deal with. Every time we called we got that
person. They knew the problems that we had, the issues
that we were facing, and there were many times where, at
WordPerfect, we would end up talking with technical
people at Microsoft, even the developers of Windows
itself, who had worked on specific features that we had
concerns about.
And it was a very, very effective relationship
from WordPerfect's perspective. It was very helpful in
us meeting our deadlines and promoting Windows as the --
as the operating system that we would have going forward.
After the -- after the acquisition, our premier support
370
was changed, and we were -- then, every time that we
would call, we would end up at a, like, a customer
service group, wherever person that we got was different
every time. And so they would -- they would have to keep
track of the things that we were doing like they did
before, but each person would have to come up to speed on
what we were asking for.
And so it seemed like we just didn't have
access to the same level of support. There wasn't the
technical resources brought on board on our conversations
as often as they were before, so, it just kind of cooled
down.
Q: On Thursday, you talked about the fact take
WordPerfect historically had been written for multiple
operating systems. Did Novell plan to continue to make
PerfectOffice for Windows' 95 cross platform?
A: Yes, it did. We were concentrating on Windows
because that was in front of us, but WordPerfect had had
a history of working on multiple platforms, and we had --
when you -- when you do new revisions of your product,
you're not just doing changes for that operating system,
you're also looking at the industry of, how are people
working now? And what are the problems they are facing?
So, there's also an evolution of the product and its
features.
371
And those -- the features that were inside of
PerfectOffice were some of the foremost in the company,
and they were looking at moving those features, some of
them, back into DOS, over to Os2, into the Macintosh.
They were looking at -- at Unix and Linux. All of those
were plans that they had after the -- the Windows 95
release.
Q: Mr. Harral, had Microsoft not pulled these
extensions, what was WordPerfect's plan with respect to
these NameSpace extensions?
A: So, I can -- as the architect, actually, I had
quite a big view in what were our plans technologically.
WordPerfect had tried, in the past, to be what our
business customers needed in an application, and when
they were printing documents. We have lots of different
applications in the industry today. We have things that
present graphics. We have things -- you know, we write
letters. We -- we manage financial information.
Back at this time, when we're talking about
'94, '95, the -- those applications were less pervasive.
And then, back to when WordPerfect was written
originally, they were almost nonexistent. WordPerfect
saw the demise of the -- the loss of the typewriter pool
in a company, where you were allowing, now, people to use
the computer themselves and use their own skills to do it
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instead of having to delegate it to somebody else.
So, WordPerfect had grown up from a history of
trying to provide people all the tools that they needed
so that they were comfortable doing their work. Windows
95 was bringing a lot of thinking in the industry
together in, how do people want to see their computer?
How do they want to see their information? How do they
want to act with it? Dragging and dropping, we talked
about how that was very common for lots of PC users,
personal computer users.
So, then the question was, what were we going
to put into that environment? What we were we going to
add to it so that we could once again create this
environment and make our customers comfortable? So we
knew that we weren't the only application anymore out
there. There were applications that were better at doing
financials than we were. And so now the question is, can
we take things that we have -- we had a stand-alone spell
checker we had a stand-alone thesaurus.
So, you know, we would be looking at tasks
like, could you be helping people spell check things
while they were inside of their financial application,
doing notes, or in their e-mail, in their presentations?
Those are things that we were looking at. Could we put
their graphics in a place, their pictures, that they use
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for building their business documents? Could we put them
somewhere where every one of their business applications
could use? Could we help manage not only WordPerfect
documents but all of the documents so that they could
find them easily, so that they could get to the changes
that had happened inside of them and get their work done,
and not just WordPerfect products, but any product on
that platform.
That's traditionally what WordPerfect had done,
and that's what it intended to do here. So, basically,
we were -- we were thinking that WordPerfect could make
Windows the best version of Windows that it could be.
Q: Mr. Harral, you've told the jury that you have
not worked for Novell for a number of years. Why are you
here testifying today?
A: Well, the first answer is, is that I -- I
believe in the court system because I don't -- I don't
want anybody to think I take it for granted. I like that
we can work out things in our country. And I can't like
that and not be willing to participate with that,
although my participation would be much smaller than the
people who are doing so here. At the same time, this was
a very hard time for the company, and there were a lot of
good people who worked in an extraordinary manner on
these technologies. They had -- this was a privately
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held company, WordPerfect was at that time, when they
started doing these things, before the acquisition of
Novell.
And these people stayed with the company
because they believed in what they were doing. They were
very proud of the things that they were able to help
people solve. And this was a very difficult time for a
lot of these good people and lot of these families. And
I -- I think that it's nice that finally this subject can
be -- can be addressed and it can be looked at because I
would -- it would be nice to know what happened, because
it was very hard. It was very hard for a lot of people.
It was very hard for a lot of our customers, too. And
that was really our intention.
MR. JOHNSON: Thank you, Mr. Harral.
Pass the witness.
CROSS EXAMINATION
BY MR. TULCHIN
Q: Mr. Harral, good morning.
A: Good morning.
Q: My name is David Tulchin, and as, of course,
you know, I represent Microsoft. Mr. Harral, just some
introductory questions, if I could, about your position
at Novell during the period in question, let's say 1994
and 1995. You certainly weren't trying last Thursday or
375
this morning to give the jury or the Court the impression
that you were in charge of making strategic decisions
for the company, for Novell. Correct?
A: No. I was the -- I was somebody that those
people, who would make those decisions, would come to
often to ask about -- counsel about direction before they
would make it.
Q: Well let me just see if we can get, you know, a
straight answer, if I could. You weren't in charge of--
MR. JOHNSON: Objection, Your Honor.
Q: -- strategy.
MR. JOHNSON: There is no reason for him to say
he didn't get a straight answer.
THE COURT: The objection is overruled. Just
don't argue with the witness. Unless you have to --
MR. TULCHIN: Thank you, Your Honor.
Q: BY MR. TULCHIN: You weren't in charge of
strategy for the company, correct?
A: No. I was not in charge of strategy for the
company.
Q: Okay. And you weren't in charge of any of the
business units that the company had?
A: That is correct. I was not.
Q: You also weren't the chief architect, software
architect, for any of the Novell products, correct?
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A: That's correct.
Q: And I looked at the transcript of last
Thursday, and I think when you were asked questions about
Novell, or you you were asked questions about your own
thoughts or reactions or what happened, you said several
hundred times -- you used the word "we" in your answer?
A: Uh-huh.
Q: Does that seem right to you?
A: Talking about Novell and WordPerfect, yes. I
recall that.
Q: Right. You weren't trying to imply to the jury
or to the Court in this case that you were speaking for
Novell, correct? You were speaking for yourself?
A: I was speaking for the division for which I was
the architect.
Q: Okay. Let's come to that in a moment. It's
true, is it not, Mr. Harral, that you were not making
product decisions for the company; is that right?
A: Architecture makes product decisions for the
company.
Q: Well, what I mean by product decisions is, you
weren't the person deciding on the strategy of when
products would be released or exactly what functionality
the overall product would have, correct?
A: I would make decisions about what the overall
377
product would have. Novell relied heavily upon its
architects to make that decision. I would not decide on
the timing. That is true. But I would help them decide
what would be the features that were viable and what we
would be giving our users. I had direct access to the
usability information of the company, and the architects
would talk amongst each other, and we would be the ones
that the business people would rely upon about what was
possible and feasible for the next versions. We would
help chart the road map for the company for our
division.
Q: I see in your last answer, just this moment,
that you used the word "architects," plural, correct?
A: Yes.
Q: And last Thursday you used the word
"architect," singular; is that right?
A: I may have, at times, used both. Yes.
Q: Okay. Am I right, Mr. Harral, that -- and I
think you testified to this last Thursday -- that, during
this period of 1994, all the way until 1996, your
position at the company never changed?
A: That is correct.
Q: And your title didn't change?
A: My manager let me have whatever title I wanted,
and he told me that a number of times, so -- he -- I
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guess that makes it non sequitur in that regard because I
could have had whatever title I wanted. That's what he
told me.
Q: Well, let me be clear about something,
Mr. Harral. Regardless of what he told you, your title
didn't change, correct?
A: Between -- in our division, my title, my
responsibility did not change.
Q: Okay. Fair enough.
A: Okay.
Q: And I think you also said that, after you went
to work for Corel in 1996, your position didn't change
then either, correct?
A: That's correct.
Q: And would it be fair to say, Mr. Harral, that
throughout this whole period, the same two-year period,
you never worked in marketing?
A: No. I never did.
Q: And you never worked in sales?
A: Nope. I never did.
Q: And you you were never in charge of any of the
business units of Novell?
A: Nope. Never was.
Q: You were a software engineer?
A: Nope, I wasn't just a software engineer.
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Q: Well, let me see if I can try that. You were a
software engineer. That's what you were?
A: Yes, I was, I was a software engineer. That
was one of my responsibilities.
Q: Okay. Fair enough. And is it also fair to
say, Mr. Harral, that throughout this period, you did not
rub shoulders with upper management?
A: No. That is not true.
Q: Well, you do remember giving a deposition in
this -- sorry, it wasn't in this case. It was in another
case. Do you remember that?
A: I do.
Q: You had no deposition in this case, correct?
A: That's correct.
Q: Okay. So, this is the deposition -- may I
approach the witness, Your Honor?
THE COURT: Yes.
Q: BY MR. TULCHIN: Let me hand you a transcript.
This is a deposition taken of you on December 12, 2001.
Do you need a copy, Mr. Johnson?
MR. JOHNSON: No, I have one, if you'll just
give me your page references.
MR. TULCHIN: I certainly will.
Q: BY MR. TULCHIN: And if I could ask you, sir,
to turn to page 177. Sorry. It's the -- I have to give
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you the second day. My apologies. This was the next
day, Mr. Harral, December 13.
A: I didn't even remember there being two days.
Q: Well, I obviously didn't either because I gave
you the wrong day.
A: Okay.
Q: So now we have the second day. It's page 177.
A: Okay.
Q: Just let me know when you've found the right
page.
A: Let me see here. I'm on the page. Go ahead
and ask the question. I'll follow along as best I can.
Q: Are you with me?
A: I think so.
Q: Okay. And the question was -- and I'm going to
ask you whether you recall this question and your answer.
"Did you gain any understanding, while you worked at
WordPerfect, during 1989, first part of '90, about
whether the company felt that a character based was
better."
And you answered: "I didn't have -- when you
say 'the company,' I would assume you mean the upper
management in WordPerfect that would make the decisions,
and I did not rub shoulders with upper management in the
company, so I couldn't say what -- what they felt was
381
the -- I only knew the product that I was working on and
asked to work on."
A: In 1989 and -- okay. Go ahead. I'm sorry.
Q: Okay. Yes. Just give me a chance to ask the
question.
A: Yeah. Sorry.
Q: Do you recall being asked that question and
then giving that answer?
A: I do vaguely recall that question, yes.
Q: Okay. And that was true when you spoke it?
A: Uh-huh.
Q: Okay. Now I wonder if you could look at
exhibit 372. I'll be happy to give you a copy, if we
can -- Plaintiff's Exhibit 372 -- Mr. Johnson?
MR. JOHNSON: Thanks.
MR. TULCHIN: There's a copy for you.
Your Honor, would you like a copy?
THE COURT: No. I'm fine.
Q: BY MR. TULCHIN: Mr. Harral, if you need paper
copy, hard copy, let me know. I'd be happy to give it to
you. Is it on the screen in front of you, sir?
A: I can almost read it on the screen.
MR. TULCHIN: If I may, Your Honor --
THE COURT: That's better. That's fine.
A: That would be great. Thank you.
382
Q: BY MR. TULCHIN: You're very welcome. This is
one of Novell's exhibits in the case. And it's an
organization chart, correct?
A: Yes. It appears to be.
Q: All right. And on the first page, you'll see
in the upper right, just under the Exhibit Number, the
date February 16, 1995. You have that sir?
A: I do.
Q: So, this is an organization chart for the
business applications development organization?
A: Uh-huh.
Q: As of February of '95, correct?
A: That's correct.
Q: And, as far as your position was concerned, it
would have been the same in '94 or '95. I thought you
just said that, correct?
A: I do not know what my upper management was
representing me as being. I knew, like I said, my
responsibilities had not changed. I do not know what
they presented at any time as what my position was to the
other people.
Q: Well, do you remember seeing organization
charts, such as this one, during the period we're talking
about, 1994 to '6?
A: Actually, I saw one when we first were acquired
383
by Novell, and they would come out infrequently, every
three months or four months.
Q: Okay. And just so that we're clear here, the
gentleman who was the vice-president of the business
applications business unit was Bruce Brereton. Do you
see that, sir?
A: Okay. I do see that.
Q: And do you recall, going back to '94 or '95,
who Mr. Brereton reported to, who was directly above him?
A: I do not.
Q: And does the name David Moon?
A: I do know --
Q: Is that a familiar name?
A: I do know Dave Moon.
Q: Do you recall that Mr. Brereton reported to
David Moon?
A: I do not recall that, but I believe you.
Q: Okay. Do you recall that Mr. Moon was a senior
vice-president?
A: I do recall that.
Q: All right. And do you remember who Mr. Moon
reported to?
A: No, I do not.
Q: Let's say in '94?
A: I do not recall. I'm sorry. I was kind of
384
focused on what I was doing at the time, I guess.
Q: All right. And Mr. Moon actually reported to
someone named Ad Rietveld in 1994.
A: Okay.
Q: It's R-i-e-t-v-e-l-d?
A: Okay.
Q: Do you remember Mr. Rietveld?
A: I don't.
Q: And then Mr. Rietveld reported to
Mr. Frankenberg, right, the --
THE COURT: He doesn't recall Mr. Rietveld, so
he can't --
MR. TULCHIN: All right. Thank you.
Q: BY MR. TULCHIN: Mr. Frankenberg was the boss.
He was the chief executive officer.
A: Okay.
Q: Correct?
A: Yes. I do recall that.
Q: All right. And do you recall that, in 1994 and
1995, Novell had somewhere between 7,000 and 8,000
employees?
A: I didn't know that. So...
Q: Does that sound about right to you?
A: It sounds about like where the company was,
yeah.
385
Q: And this unit, the one that Mr. Brereton was in
charge of, the business applications business unit --
A: Uh-huh.
Q: -- at least on Exhibit 372, it seems to show
that there are 364 people?
A: Uh-huh.
Q: Is that right?
THE COURT: He doesn't know that. If you
represent that, that's fine.
Q: BY MR. TULCHIN: I do.
A: I see that.
Q: Okay.
A: I see that.
Q: Okay. And, Mr. Harral, how many software
engineers were there among the 364, if you know, roughly
speaking?
A: I don't know.
Q: Okay.
A: I think there was maybe, oh, at this time -- I
don't know. I recall at some time there being
approximately 120 software engineers.
Q: And I think you said last week that, at least
at one time, there was something like 12 hundred, do I
remember that right, software engineers at the company?
A: No. There were 12 hundred employees at the
386
company. In fact there were over -- almost 2,000
at one time in the company.
Q: I'm sorry. 2,000 software engineers?
A: No, employees.
Q: Well, I thought we just agreed that there were
between 7,000 and 8,000 altogether?
A: I said at one time. That was before the
acquisition of Novell.
Q: I see. Okay. Fair enough. And then going
down, looking again at Exhibit 372, there are ten people,
according to the chart, who report directly to
Mr. Brereton. Mr. Brereton, again, was the
vice-president. You see number 1 is Ed Moss. Then right
below him there's Dave Payne, and we won't go through all
of them, but, on the next page, the second page, number 9
of the ten is Toom Creighton. Do you see that, sir?
A: I do.
Q: And Mr. Creighton was one of ten who reported
to Mr. Brereton, the vice-president of this unit,
right?
A: Uh-huh. Yes.
Q: And working for Mr. Creighton, reporting
directly to Mr. Creighton, were actually two people. One
was Jim Johnson?
A: Uh-huh.
387
Q: Manager of PF Core Services, and PF stands for
Perfectfit, right?
A: Uh-huh, it does.
Q: If you go down the page a little further you'll
see the other person reporting is Chuck Middleton?
A: Uh-huh.
Q: I'm sorry.
Could we take that whole chunk? There we go.
So, reporting to Mr. Creighton is Jim Johnson
and Chuck Middleton. And then there were five people
reporting to Mr. Johnson. Do you see that, sir?
A: Yes, I do.
Q: And you were one of them. You were one of the
five?
A: That is correct.
Q: The other four, who were at the same level you
were, Whitney, Cannon -- I hope I pronounce this right --
Mashayekhi and Spencer, those other four?
A: Uh-huh.
Q: Were on the same general level as you were?
A: In the organizational hierarchy of the company,
that's true.
Q: Right. And your title at the time, according
to this org chart, was Lead Developer Of Core Services?
A: That's correct.
388
Q: Do we have that right?
A: Uh-huh.
Q: And you had a total of three people who
reported to you?
A: Uh-huh.
Q: Is that right, sir?
A: Yeah.
Q: Okay. Just need a verbal answer.
A: Yes. Sorry.
Q: The uh-huh is hard for the court reporter to
get.
A: Sorry.
Q: Thank you, Mr. Harral. And that was true, that
there were three people reporting to you, throughout this
whole period that we've been talking about, 1994 to '96?
A: Okay.
Q: Is that right?
A: Those are my direct reports, yes.
Q: Okay. So, you didn't mean to give the
impression to the jury on Thursday or earlier this
morning that, when you said you were the architect, that
you were somehow the lead architect for the whole
company?
A: No. I was the lead architect for shared
code.
389
Q: Okay. Shared code?
A: All of Tom Creighton's division.
Q: Tom Creighton, who is the director of
Perfectfit technology, correct?
A: That's correct.
Q: And, as we've said, he had 45 people in his
unit. Do you see that?
A: That's correct.
Q: One plus 44?
A: Uh-huh.
Q: There were two people who reported to him,
Johnson and Middleton?
A: Yeah.
Q: And you were one of five who reported to
Johnson?
A: That's correct.
Q: Now, am I right in thinking, Mr. Harral, that,
in your testimony last Thursday, you indicated that,
during this same period, 1994 to 1996, you didn't work
directly -- you weren't directly involved in the
WordPerfect product?
A: No. I was not involved in the WordPerfect
product.
Q: And you weren't directly involved with the
PerfectOffice product?
390
A: Shared code code was a part of PerfectOffice,
so, yes, we were directly involved in PerfectOffice.
Q: Well, let's go back to Exhibit 372. If you
look on the first page again, you'll see that reporting
to Mr. Brereton are a number of people who were
working -- their titles, at least, are Director of POWin
number -- sorry, POWin 95. That would be PerfectOffice
for Win 95, correct?
A: Thank you for that.
Q: Am I right about that?
A: Your person on the screen is helping me find it
faster than I can find it. So, yes, Gary Gibb was in
charge of PerfectOffice Win 95.
Q: And below him there is Eric Meyers?
A: Uh-huh.
Q: Who is the Director of PerfectOffice Win 94.
Do you see that?
A: I do.
Q: And then, below him, these are, again, people
reporting to Mr. Brereton?
A: They are.
Q: Who was Mr. Creighton's boss, right?
A: Uh-huh.
Q: And Johnson reported to Creighton, and you
reported to Johnson, right?
391
A: Uh-huh.
Q: Okay. And below that there is Steve Weitzeil,
who was the Director of WordPerfect for Windows?
A: Yes.
Q: Correct?
A: Uh-huh.
Q: So, again, you didn't directly work on those
products, correct, shared code?
A: On PerfectOffice?
Q: Well, let me back up for a second and see if I
can finish my question?
A: Okay.
Q: Sorry if it was confusing.
A: I was confused.
Q: I apologize. The WordPerfect product for
Windows 95 was a product that you weren't directly
involved in?
A: WordPerfect, the word processor for Windows 95,
I was not directly involved.
Q: Right. And would the same be true for Quattro
Pro, the spreadsheet?
A: I did not work as a developer on the Quattro
Pro team.
Q: Okay. And throughout the same two-year period,
you had no direct involvement in any of the strategic
392
decisions about those two products, correct?
A: That would not be true. Let me explain my
answer. Even though we have an org chart here, now,
I know for a fact that -- because I spoke with people at
Microsoft -- that their architects would have direct
access to managers that they did not report to, and, in
fact, that Bill Gates would sometimes meet with certain
people that were technologic, and they would bypass the
lines of command inside of the organization. We had a
similar setup at Novell, where you have the chain of
command that assimilates the customer needs and the
business requirements that come down, but there was also
an ancillary access point that the architects had where
they could bypass all of the hierarchy here.
And, for example, you mentioned Eric Meyers. I
would talk with Eric Meyers often, even though I was
not -- I did not report to him, and the only place in
which we commonly reported was way up the chain. But we
would talk often about what was possible because most of
the -- most of the direction of where the platform was
potentially going to go was embodied in the shared code,
and so the shared code team was an ancillary point that
the business managers would come to, and they would ask,
where should the products be going?
And the -- the point is, is that there are
393
not -- if you were to go through here, I think you could
notice that there are almost no architects specified in
this organization. The architects sit independent of
this organization and have access to outside of it, even
though they are not inside, so they are not bound by this
organization as to who they talk to or what they have
influence over. And the architects were consulted. One
of them is Glen Monson, and I don't know where he sits
down inside of the chart, but he was one of the main
architects as well outside of shared code.
So that's why it might be confusing about my
answer about, do I have influence over these people?
Yes, they were talking to us, and they were using our
input as to what -- it's not what the business decisions
they can make, but it's about the feasibility of those
decisions and so we were helping them decide what
features would go into the products just from an
architectural perspective.
So, yes, I could see how that could be
confusing because this chart does not represent the
architects in the process of doing that.
Q: Mr. Harral, there were a lot of documents
produced in this case by both sides, but I don't recall
ever seeing a document that was produced by Novell that
shows an org chart of architects.
394
A: That's right.
Q: Do you recall any such document?
A: I don't think one was ever made.
Q: Okay. And in an answer you gave just a moment
ago, again, you said something like, we were helping them
decide what features would go into particular products.
Did I get that about right?
A: The architects were helping the product
managers decide.
Q: Well, that's what I was going to ask you next.
A: Okay.
Q: "Them," there, refers to the product
managers?
A: That's correct.
Q: Okay. And the individual product managers,
some of the names were on that org chart that we just
looked at, Exhibit 372, they reported to more senior
business people?
A: They did.
Q: Like vice-president Bruce Brereton?
A: Yes.
Q: Right? Am I right that the ultimate decision
about strategic options for the company was a decision
that would be made by upper management?
A: Uh-huh.
395
Q: Is that a "yes," sir?
A: It's a yes.
Q: Okay. Sorry to bother you. Just to be
clear --
A: No. I'm not using -- I'm sorry.
Q: The "uh-huh" is hard for the court reporter to
take down.
A: I understand.
Q: Thank you, sir. And when you spoke about the
three options -- and I think we'll come back to them
later -- but last Thursday you spoke about the three
options, and Mr. Johnson put a demonstrative exhibit on
the screen this morning?
A: Yes.
Q: With the three options. Those were strategic
options for senior business people to consider and
decide, correct?
A: In the end, yes.
Q: Now, Mr. Harral, you've testified that it
was -- I think I have your words, in around the October
time frame?
A: Okay.
Q: That you heard from premier support, someone at
Microsoft working at premier support, that Microsoft
would be withdrawing support for the NameSpace extension
396
API's, correct?
A: What I said was that they would not talk about
the question that I had because they were not allowed to
talk about it. That they were withdrawing it was not
said.
Q: Mr. Harral, you say they were not allowed to
talk about it?
A: That's what they said.
Q: Who is the "they"?
A: That the premier support people that I was
talking to were not allowed to talk about these API's
that I was asking them about.
Q: But my question was, who is the "they"?
A: Microsoft premier support.
Q: I know. Maybe I should be more specific. I'm
trying to find out a name or some names of people.
A: It was different every time I called. That's
the way Microsoft set it up.
Q: But didn't you say, Mr. Harral, last
Thursday -- and we'll get the testimony later. I don't
have it at my fingertips -- but that you recalled three
telephone calls, after October, to premier support?
A: Uh-huh.
Q: Is that right?
A: I have recollection of at least three telephone
397
calls that we made.
Q: Now you are saying at least. I think last week
you said --
A: Because I was --
Q: -- three?
A: Okay. If -- what do you want from that, I
guess is the question because, yes, there were three, and
I can give -- I was asked to give examples and I gave
examples. If I had a question or not, or if I sat in
with some other architect because they had a question,
the number of calls that we might have or that I might
have sat on in, I would need more time than just sitting
down for an hour or five hours, and probably with other
people, to be able to reconstruct those events. So I
gave some useful information. It was there. Whether it
was complete or not, I'm sure somebody else could remind
me. I know that premier support --
Q: Sorry?
A: -- kept track of that information, so they --
that would probably be the best record is that Microsoft
could produce the premier support records and tell me how
many calls I have.
Q: Mr. Harral, I'm now trying to get your
recollection.
A: I can recall -- I can recall three discussions
398
that we had.
Q: Okay. And if I could just ask this question?
A: Okay.
Q: This is where I was trying to go.
A: Okay.
Q: You've testified that you can recall three
discussions.
A: Uh-huh.
Q: Can you give us the name or names of any of the
people at premier support with whom you had those
discussions?
A: During that time, no. They did not offer
them.
Q: Well, in an answer a moment ago, you said
something about records. And I want to ask you about
Novell's records.
A: Okay.
Q: During the period that you were having these
discussions with premier support, let's say in late 1994,
or even into 1995 --
A: Uh-huh.
Q: -- did you make any written record of what
transpired during those discussions?
A: The only records that I know of would be the
e-mails that would go back and forth between the
399
developers and the management about the result of those
conversations.
Q: Now, in this case, Novell has produced no such
e-mails that you wrote --
A: Okay.
Q: -- to management or your boss or Mr. Creighton
or Mr. Brereton.
A: Okay.
Q: Is it your testimony that you did write those
e-mails?
A: We used e-mails to communicate those things
both with Microsoft and within the management, yes.
Q: Well, in your answer, Mr. Harral, again you
used the word "we." It was the first word. I asked you,
did you write such e-mails?
A: I wrote e-mails to people about these events.
Q: Did you write e-mails to people about these
phone calls with premier support?
A: Yes.
Q: And we have no such e-mails.
A: I don't know. I don't have access to
Novell's -- Novell's e-mails servers. I couldn't do
that.
Q: I wasn't asking if you did, sir.
A: Okay.
400
Q: I was just representing to you that, as far as
I know, we have no e-mails that you ever wrote to anyone
at Novell about any conversations you ever had with
anyone from premier support, and I'm just asking, in
light of that --
A: Uh-huh.
Q: -- are you sure that you wrote such e-mails?
A: Yes.
Q: And I think you said, in an answer about five
or so minutes ago, that the ultimate decision about what
strategic path to take, such as the decision about the
three options that you spoke about this morning and also
last Thursday, those type of decisions would be for
senior management, correct?
A: That responsibility would fall to them.
Q: Somebody at the level of Mr. Frankenberg, who
was the CEO or maybe just below him, correct?
A: Mr. Moon or somebody like that.
Q: And they may have had input from you about that
decision?
A: That's correct.
Q: Now, did you provide any input to those people
at any time in some writing, an e-mail, a memorandum,
something in writing?
A: That kind of information would have been
401
provided through Tom Creighton, up to the management,
because it was not my responsibility to formulate my
opinion, but it was the architects' responsibility to
formulate a concerted response, and that would have gone
up through Mr. Creighton.
Q: So, if I understand you correctly, Mr. Harral,
you would have given information to Mr. Creighton,
correct, and he would have communicated directly to
senior management?
A: That's what we understood as architects.
Q: And with respect to the three options you
talked about, the demonstrative that was on the screen
this morning, do you have a specific memory of providing
your input to Mr. Creighton about which of those three
options to take or what the consequences would be of
taking option 1 or 2 or 3?
A: We had -- we had long discussions about those
options.
Q: Did you provide anything in writing to
Mr. Creighton about the options?
A: No. I don't recall that I did. We would get
together, and I do not know who he had tasked as
recording that information.
Q: And then, it would be your understanding that,
at the time, let's say in 1994 or '5, when you're
402
choosing among the options, it would be your
understanding that Mr. Creighton would then be tasked
with the job of talking to people senior to him?
A: Yes.
Q: Do you ever recall seeing anything in writing,
a memorandum, an e-mail, anything at all, from
Mr. Creighton to any of these more senior people?
A: We did see -- he -- quote, carbon copy. He
would forward to us some of the e-mails that he would
send up. I don't know where it would go from there. So
we did see such e-mails, but I don't know who they went
to.
THE COURT: I assume you don't mean carbon
copies?
THE WITNESS: When I say carbon -- it's a term
in -- sorry. Yeah. That's a term in e-mails about
sending out a copy of something to somebody else that's
not intended for you. I apologize.
THE COURT: No, I just wanted to make sure.
MR. TULCHIN: That goes back a long way, the
actual carbon copies.
THE COURT: Not that long.
MR. TULCHIN: Sorry, Your Honor.
THE COURT: Not that long.
MR. TULCHIN: It depends on our perspective,
403
Your Honor.
THE COURT: Absolutely.
MR. TULCHIN: It seems like a long time ago to
me.
THE COURT: Papyrus was a very good thing.
Q: BY MR. TULCHIN: Mr. Harral, again, we don't
have anything in writing from Mr. Creighton to any of the
senior business people --
A: I wouldn't know.
Q: -- about any these three options.
A: Uh-huh. Okay.
Q: Do you remember seeing any such document,
e-mail or memo or anything else?
A: There were -- okay. So the ones that he
forwarded to, that he gave us, we would see what would
have been the culmination of those discussions, but who
they went to, I do not know, but, yes, we did see them.
Q: All right. And when you were telling the jury
on Thursday, and also early this morning, I think before
8:30, about the decision about which option to take,
those decisions were actually made by people way senior
to you in upper management?
A: I hope so.
Q: All right. And, Mr. Harral, something else
last Thursday. I'm changing subjects now, just to let
404
you know.
A: Okay.
Q: You spoke a number of times about things that
customers wanted. You remember that?
A: Yes.
Q: And you testified last week that customers may
have wanted certain features or may have anticipated
certain features in products, correct?
A: Yes.
Q: And I think you also testified that there were
customers of the shared code team; is that right?
A: Yes.
Q: The shared code team was licensing particular
products to customers during this period, right?
A: There were Perfectfit licensed -- being
marketed to people, and it was essentially the shared
code being marketed to people outside of the company.
Q: Okay, so when I said shared code in my
question, is that the same thing for this purpose as
Perfectfit?
A: Yes. Shared code is Perfectfit branded for
people to use.
Q: Right. And in your testimony last Thursday,
when you were talking about things that customers wanted
or anticipated, you were referring to customers of
405
Perfectfit; is that fair?
A: For -- I'm sorry. Say that again. I was
trying get around this. I'm sorry.
Q: Sure. Sorry. I know there's a screen between
the two of us. If I can move to make a more direct view,
let me know.
A: Thank you.
THE COURT: Actually, let's take a short break.
I've got to make one call.
MR. TULCHIN: Certainly, Your Honor.
THE COURT: I'll be back in about five minutes.
(Short break.)
THE COURT: Sorry. Let's get started. I've
just got to keep things going back home.
(Jury brought into the courtroom.)
THE COURT: Sorry for the delay. I'm trying to
juggle two schedules.
Mr. Tulchin.
MR. TULCHIN: Shall I proceed, Your Honor?
THE COURT: Yes, sir.
Q: BY MR. TULCHIN: Mr. Harral, just trying to
pickup where we last were. The customers of the shared
code teams -- the shared code team, sorry -- were
customers who were licensing Perfectfit; is that right?
A: The customers of the shared code team were all
406
of the applications in the company and those who licensed
Perfectfit.
Q: Okay. Now, when you spoke last Thursday about
customers, you actually weren't speaking directly to
customers for WordPerfect, were you?
A: Well, yes, because WordPerfect was a platform
in which people were solving their business problems on.
And these companies had IT departments. They deployed
solutions inside of their companies to solve problems
that may even be unrelated to or likely were unrelated to
WordPerfect, but WordPerfect Corporation and Novell had a
technology where they could leverage more than
WordPerfect, the word processor, they could -- because
once people had used WordPerfect, they had a look and a
feel or a way in which the product acted. There were
behaviors and features that they had there.
If they could leverage those features into
products that they were writing for their own consumption
or for their own sale to other place, that would be to
their advantage, so that their users would not have to be
retrained in that, and so they would have the opportunity
to write applications internally that would be congruent
with the way WordPerfect was using its interface. So,
yes, these were customers of WordPerfect. They weren't
constrained to that, but they definitely were that as
407
well.
Q: Well, my question, Mr. Harral, was this. In
this period of late 1994, after you say you found out
that Microsoft was going to withdraw support for the
fourth NameSpace extension API's and into 1995, do you
remember speaking to any particular specific customers?
A: Those requests came through the support
organization to us, so that we would be able to finish
our work. Just like we had premier support at Microsoft,
WordPerfect had support that they would field those
questions with, and then, as those escalated, if they
needed to talk to us, then they would come to us as
well.
Q: Right, but the customers would be talking to
other people, ordinarily, within Novell. They would be
talking to the support group at Novell?
A: Yes.
Q: Correct?
A: Unless they needed to talk to somebody on our
team.
Q: And my question was, do you recall any
conversations with a specific customer, from the period
October, '94 and into 1995, about what customers wanted
or anticipated from WordPerfect or PerfectOffice or
Quattro Pro?
408
A: I was not part of the conversations for those
customers.
Q: All right. So, when you testified last
Thursday that you had some understanding about what the
customers wanted --
A: Uh-huh.
Q: -- that understanding was gained as a result of
discussions you had with other people at Novell?
A: Yeah, the developers on my team who had talked
to those people, yes.
Q: Right. You, yourself did not talk to them?
A: Nope.
Q: All right. I just wanted to be clear about
that. Now, I also just wanted to ask about meetings,
face-to-face meetings which you had with people from
Microsoft.
A: Okay.
Q: On Thursday -- Thursday you testified about one
meeting in 1993. Do you remember your testimony?
A: Uh-huh.
Q: Is that a "yes," sir?
A: Which is -- okay there was a meeting in 1993
that we had with Microsoft at the WordPerfect campus.
Q: I'll show you the document --
A: Thank you.
409
Q: -- in just a moment.
A: Okay. Thank you.
Q: Sure. Sure. It was Plaintiff's Exhibit 105.
But I wasn't entirely clear. I thought you said last
week that you remembered no other face-to-face meetings
that you, personally, ever had with anyone from Microsoft
Corporation. Am I right?
A: No. I think I said that I don't remember a
face-to-face meeting discussing the API's.
Q: All right.
A: Because I did have a meeting -- for example, we
were licensing the True Type technology, and I did have a
meeting with Microsoft about that. So, there were
meetings with Microsoft, but not about those API's after
they were not available.
Q: Okay. Let me see if I get this one right. I'm
going to try. In the period from, let's say, June 9 or
10 of 1994, which is when I think you said you received
the documentation for the NameSpace extension API's in
the first Beta, remember that? So, from June of 1994,
until the time you went to Corel, in 1996, am I correct
that you don't remember any face-to-face meetings with
Microsoft about Windows 95 or the API's in Windows 95?
A: I did not have a face-to-face meeting. That's
the reason I don't remember. I did not have a
410
face-to-face meeting with them about these API's.
Q: I'm sorry. I may not have heard that
correctly?
A: I did not have a face-to-face meeting with them
about these API's after we learned about that in
October.
Q: Okay. There were no meetings?
A: None that --
Q: Am I right? No meetings that you participated
in?
A: There were none that I participated in.
Q: Okay. Just wanted to be clear about that. And
let's go back and look just briefly, if we can, at
Plaintiff's Exhibit 105. This was the document that you
were shown in your direct examination last Thursday
morning. Do you remember this, Mr. Harral?
A: Uh-huh.
Q: Is that a "yes," sir? Again --
A: I'm sorry. Yes, I do.
Q: And I'm sorry to pester you. I just wanted the
record to be clear.
A: No. That's fine.
Q: Okay. Now, this is an e-mail written by
someone at Microsoft in November, 1993, correct?
A: Yes.
411
Q: And it reports on a meeting -- well, sorry.
Let me back up for a second. The e-mail that I'm
referring to is from David C-O-L, and then on the two
line, there are five or six e-mail aliases. Do you see
that, sir?
A: Yes.
Q: Okay. And, right at the beginning it says,
Jeff T, Brad S-T-R and I went to WordPerfect last
Thursday?
A: Okay.
Q: Do you see that, sir?
A: Uh-huh. Yes.
THE COURT: Yes?
A: I'm sorry. Yes, I do. Sorry.
Q: I'll try --
A: You'll teach me eventually.
THE COURT: As far as I'm concerned "uh-huh"
was okay. I just didn't want Mr. Tulchin to --
THE WITNESS: Okay.
MR. TULCHIN: I was trying to help the court
reporter, Your Honor.
THE COURT: I know. I appreciate that.
Q: BY MR. TULCHIN: Mr. Harral, my question to you
is, do you remember this meeting specifically?
A: I do remember this meeting.
412
Q: Above and beyond the notes in the e-mail?
A: Yes.
Q: And did you speak to anyone named Brad Struss
from Microsoft during that meeting?
A: I did.
MR. WHEELER: Your Honor --
JUROR: We can't hear.
THE WITNESS: Hello. Okay.
THE COURT: Thank you.
THE WITNESS: I do not remember the names of
the people that were in this meeting.
Q: BY MR. TULCHIN: All right. Subsequent to
November, 1993, to the best of your memory, did you ever
have any conversations about any topic whatsoever with
Brad Struss, S-t-r-u-s-s, of Microsoft?
A: The answer is I don't -- I don't know if I ever
talked to him again.
Q: You have no recollection of doing so?
A: No. I don't -- that doesn't mean that I had
the names of the people that I talked to at Microsoft. I
do not know if any of the people that I talked to was
this person.
Q: All right. Were you aware, in the period of
1994 to 1996, as best as you can remember, were you aware
what Mr. Struss' job was or what his responsibilities
413
were?
A: No.
Q: And how about David Cole? Do you remember what
he did at Microsoft?
A: I don't. I don't know.
Q: Do you remember ever talking to Mr. Cole about
the NameSpace extension API's or anything else subsequent
to November of 1993?
A: I don't know if any of the people that I talked
to was a Mr. Cole.
Q: All right. And to be clear, again, the only
people you talked to from Microsoft were people from
premier support who answered your calls, correct?
A: Except for when we would attend, like, the
developer conference at Microsoft, yes. Any of the other
interactions we had were with premier support or people
that they would bring to the calls that we would be on.
Q: Right. And in these calls with premier support
about the development of Windows 95 and the API and the
name space extension API's, you don't remember the names
of any of the people at Microsoft with whom you spoke?
A: No.
Q: Okay. Now, I want to look briefly, if we can,
as well, at Plaintiff's Exhibit 113, which you were also
shown last week. This is the first page.
414
A: All right.
Q: Do you remember this, sir?
A: I remember seeing this -- these pages.
Q: Last Thursday?
A: Yes.
Q: Okay. If you need a hard copy, just let me
know, and I'll bring it to you.
A: It will be okay.
Q: And I think you testified that you were aware,
at the time, that there had been such a meeting?
A: Yes.
Q: Correct?
A: That is correct.
Q: But you said you didn't attend the meeting?
A: I did not attend the meeting.
Q: Is it correct, Mr. Harral, that you weren't
invited to attend that meeting?
A: That is not correct.
Q: I see.
A: I had -- I had responsibilities at that time
for a product that was shipping out and so I was unable
to attend.
Q: All right. Do you recall seeing any e-mails or
memos or other documents written by any of the Novell
people -- I'm sorry -- I should say WordPerfect people.
415
A: Uh-huh.
Q: This was before --
A: It was.
Q: -- Novell acquired WordPerfect. Let me back up
and do it again.
A: That's fine.
Q: My error.
A: Okay.
Q: Do you remember any e-mails or memos or other
documents written by anyone at WordPerfect, who actually
attended this meeting, reporting on anything that
Mr. Belfiore of Microsoft had said?
A: Glen Monson did. He was the main person who
wrote the summaries for people to consume afterwards, and
so he was the one that I recall wrote the summary about
this, which sparked the discussions that I had with other
people about these topics.
Q: Do you know what happened to that report that
he wrote?
A: As I said, I do not have access to the e-mal
system for the corporation, so, no, I don't know what
happened to it.
Q: And, again, at least as far as I'm aware, we
have never received any such report of that meeting. Do
you know what might have become of it?
416
A: It's probably in the place where the lost socks
go.
Q: Somehow in the dryer?
A: Uh-huh.
Q: Maybe the memos are there. Okay. And just to
be clear about premier support for a minute, premier
support was a hotline that Microsoft set up for
developers, correct?
A: Yes.
Q: Outside developers, what we sometimes call
ISV's?
A: That was my understanding.
Q: And an ISV had to pay some fee, an annual fee
to get access to this hotline?
A: Yes, it did.
Q: And the people at Microsoft who answered the
hot hotline were software engineers, correct?
A: That was my understanding.
Q: All right.
THE COURT: To remind the jury, I'm sure they
remember what an ISV was, what, an independent software
vendor?
MR. TULCHIN: Yes, sir. Thank you, Your Honor.
Appreciate that. There are a lot of acronyms.
Q: BY MR. TULCHIN: And, Mr. Harral, there was
417
also something called the systems group at Microsoft,
correct?
A: I don't recall that. Do you have more about
what you're talking about?
Q: All right. Well, regardless of what it was
called, there was an entire group of Microsoft employees
whose job it was to develop operating systems for the
company, operating systems like Windows 3.1?
A: Uh-huh.
Q: And Windows 95, correct?
A: Yes.
Q: And my question to you, sir, is, I gather, from
your testimony, that you never spoke to any of the people
in the systems group, the people who were actually
designing and developing new versions of Windows?
A: No. I actually had opportunity on two
occasions to speak to people in the systems group.
Q: My question maybe should have been clearer.
You never spoke to people in the systems group about the
NameSpace extension API's?
A: That is correct.
Q: Okay. My fault.
A: No.
Q: It was a tail end to the question which I just
forgot.
418
A: Okay.
Q: And is it your understanding, Mr. Harral, that
there were people at Novell, again in the period, '94 to
'96 --
A: Did you say "were" or "weren't"? I'm sorry.
Q: There were.
A: Okay.
Q: There were. There actually were people at
Novell, during this same period, two-year period, '94 to
'96, who, from-time-to-time, had occasion to talk to the
systems group at Microsoft?
A: I don't know.
Q: And were you aware, sir, that during that same
two-year period, Mr. Frankenberg, the CEO of Novell,
from-time-to-time communicated with Bill Gates, who was
then the CEO of Microsoft?
A: I do not know that.
Q: That was certainly sort of way above your pay
grade? Is that the way to say it?
A: Mr. Creighton may have been aware of that, but
I was not.
Q: Okay. Fair enough.
May I approach the witness, Your Honor?
THE COURT: Yes. You all can always approach
witnesses without having -- without asking my approval.
419
If I think you are harassing a witness, I will be the
first to tell you.
MR. TULCHIN: Thank you, Your Honor.
Q: BY MR. TULCHIN: Mr. Harral, I've handed you a
copy of what's been marked as Defendant's Exhibit 172.
Do you see this, sir?
A: I do.
Q: And this is an e-mail from someone named Scott
Nelson. Do you remember Mr. Nelson?
A: I do not.
Q: Mr. Nelson worked at Novell in 1995, am I
right?
A: I as I said, I don't know Mr. Nelson.
Q: Do you know whether Mr. Nelson was a software
engineer at Novell?
THE COURT: He doesn't know Mr. Nelson.
THE WITNESS: I don't.
Q: BY MR. TULCHIN: Okay. Fair enough. So, it
would be fair to say, as well, that you don't know about
the contacts that Mr. Nelson was having with people at
the systems group in Microsoft?
A: That's correct.
Q: Okay. Well, let me just ask you to look at
Exhibit 172, in the third paragraph. And first, just to
point out, this is an e-mail from April 7, 1995.
420
A: Uh-huh.
Q: And among the people copied there are Glen
Mella, Glen M at Novell. Do you see that?
A: Yes, I do.
Q: Do you remember Mr. Mella?
A: I know of him.
Q: All right. And then there was Todd -- was that
Todd Titensor of Novell?
A: I don't know.
Q: All right. In any event, if you look the third
paragraph. Mr. Nelson writes this e-mail in April, 1995,
and he says, "Second, we are now at a point where Win 95
development is our highest priority."
Do you see that, sir?
A: I do see that paragraph.
Q: And, Mr. Harral, does that refresh your memory
that it wasn't until about April of 1995 that Novell made
development for the Windows 1995 platform a high
priority?
MR. JOHNSON: Your Honor, objection. He
doesn't even -- hasn't even established that he knows
anything about this e-mail.
THE COURT: I know that, but he's just using
the document as -- if it refreshes his recollection, it
does. If it doesn't, it doesn't. By whatever source.
421
THE WITNESS: Okay. Please restate the
question.
Q: BY MR. TULCHIN: Sorry. Mr. Harral, does this
refresh your recollection that it wasn't until about
April of 1995, that Novell made Win 95 development its
highest priority?
A: That's not true. It does say here that, at
this point, it is our highest priority, but it doesn't
say that it begins to be our highest priority. In the
shared code group, we -- as I said before, we would be
six months to a year in advance of the applications. The
Novell had visibility into what -- what shared code did
through the applications. The applications were the
things that drove what was being marketed outside for the
business.
Now -- and so, many times, the communication to
upper management about what was happening in shared code
would come through the lens of the applications. Down
inside of -- as I said before, shared code had to be
there long before the other applications could move onto
the platform. So, for us -- I do note that Tom Creighton
his raised the issue with -- and that information did
make its way to Microsoft, that I think the quote that he
had is there would be hell to pay if these application
API's were removed.
422
And he did show me that, his survey, when he
forwarded that because we knew, at that time, that that
was going to be a big deal, and our management knew that
that was a big deal. So, within shared code -- I can't
speak for the other applications, but within shared code,
this was an issue of the highest priority back in
October. And it -- as the critical path raised to
surface that it would impact the applications, it would
become more and more prominent with them as well.
So it is true here that he says that it is at
this time our highest priority, but it doesn't say that
it begins to be our highest priority on this date.
Q: Okay. And, Mr. Harral, I want to just point
out the next couple of sentences, just skipping one
sentence. You're free to read it, of course.
A: Uh-huh.
Q: But Mr. Nelson goes on to say, "We have
discovered many problems. Many of them are system
problems. The good news is that the cooperation between
Microsoft and Novell has been very good."
A: Okay.
Q: Do you see that, sir?
A: I do.
Q: And my question here is, just so that we're
clear about something --
423
A: Uh-huh.
Q: -- there may have been other people at Novell,
people other than yourself --
A: Uh-huh.
Q: -- who were dealing with Microsoft, maybe
dealing with the systems group at Microsoft?
A: Uh-huh.
Q: And getting very good cooperation from
Microsoft, correct?
A: Yeah. If they weren't asking about the shell
API's, I'm sure they were.
Q: All right. And if they were getting good
cooperation, that's something you're not aware of?
A: That's right.
Q: And you didn't talk to the systems group people
at Microsoft?
A: Nope, was never given an opportunity to do so
by the premier support people, unlike in the past.
Q: Well, Mr. Harral, there's always a telephone
number to call, for instance, Mr. Struss who visited you
in 1993?
A: I do not know his name.
Q: Well, you were at the meeting when he
was there?
A: I said, I knew that I was in a meeting with
424
people, and we had a discussion.
Q: And Mr. Cole was there?
A: Uh-huh.
Q: And you could certainly have reached out and
made a telephone call to either one of them at any time
during this two-year period?
MR. JOHNSON: Objection, Your Honor.
Argumentative.
THE WITNESS: No, I could not.
THE COURT: Sustained.
Q: BY MR. TULCHIN: Okay. Mr. Harral, am I right
that, on the occasions where there were business issues
between Novell and Microsoft, that, very often, senior
people of the two companies would meet or talk or
correspond to try to work out those issues?
A: I heard people speak of such things. I'm not
aware of them actually happening.
Q: Okay. And let's look at Exhibit 105 a minute.
I just want to -- you said a moment ago that, at
a certain period, you were busy. This was the at the
Belfiore meeting. You were busy trying to get out some
product?
A: Uh-huh.
Q: And just to try to set the time -- I'm sorry --
just to set the time period again, the meeting that you
425
did attend was in November of 1993?
A: That's correct.
Q: And when was that meeting that Mr. Belfiore
had, where that material was presented, the meeting that
you did not attend?
A: I'm unaware of exactly when it was.
Q: Do you know if it was before or after this
meeting?
A: It would have been before this, I think. I'm
not certain of that, but I think it would have been
before.
Q: Now, around the end of 1993, WordPerfect, which
had not yet been acquired by Novell, was very busy
working on other products, correct?
A: Products other than what?
Q: Well, products other than the one that you were
planning to run on Windows 95?
A: Yes.
Q: And WordPerfect 6.0 for Windows had come out in
October, 1993; is that right?
A: I -- that sounds correct, about that time
frame.
Q: And that was a product that people at Novell
often recognized was not received well in the market,
correct?
426
A: I don't know what the Novell people felt about
it.
Q: Do you remember documents at Novell -- I'm
sorry. At WordPerfect. I made the same mistake --
saying that WordPerfect 6.0 for Windows was slow and
buggy?
A: I remember some people, some trade magazines
saying that they felt that way.
Q: And how about internal documents at
WordPerfect?
A: I don't recall there being any comments about
6.0 over, I guess, any other initial release that we
would do. But, yes, there were comments like that.
There were comments like that for, I think, each of the
releases that we did in working with customers going
through the release process
Q: All right. Let's look just very quickly, if we
could, at Defendant's Exhibit 259. This is a document
entitled WordPerfect For Windows Eliot. And it's just
after the meeting which was in November, 1993. It's
December, '93.
A: Okay.
Q: Do you remember this, Mr. Harral?
A: I don't. I didn't work -- I was in the shared
code team. I didn't work for the WordPerfect for Windows
427
product team.
Q: And looking at the third page of the document,
the page that says page 2 at the bottom. You'll see at
the top there is a bullet point that says improved speed
and reliability.
A: Okay.
Q: And if you need a hard copy, just let me know.
A: Okay.
Q: Do you see that?
A: I do see that.
Q: Does this refresh your recollection that people
at WordPerfect were recognizing, at the time, in late
1993, that WordPerfect 6.0 for Windows was considered by
the press and many users as too slow, as compared to the
competition, and containing too many bugs to be
considered sufficiently stable?
A: I don't -- like I said, I didn't work on the
WordPerfect team for the product, so I -- whoever wrote
this, I believe that they -- that that's true, that they
felt that way.
Q: All right. And do you recall that, in 1994,
Steve Weitzel -- Steve Weitzel was the guy working on
WordPerfect for Windows, correct?
A: He was the WordPerfect for Windows word
processor manager.
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Q: Did you attend a meeting that was held outside
in early 1994, that Mr. Weitzel convened, to talk about
the problems of WordPerfect for Windows?
THE COURT: Wait a second.
MR. JOHNSON: I didn't get a copy of that
Exhibit.
MR. TULCHIN: That is an oversight, Your Honor.
I beg your pardon.
MR. JOHNSON: Sorry.
THE COURT: That's okay.
MR. TULCHIN: You are absolutely right. My
apologies.
MR. JOHNSON: Thank you.
Q: BY MR. TULCHIN: Mr. Harral, just to go back --
A: Yes.
Q: -- WordPerfect 6.0 for Windows had come out in
October, 1993, and we just looked at a document about the
product.
A: Okay.
Q: And my question now is, do you remember a
meeting that Mr. Weitzel held outside, maybe in the
parking lot, in early 1994, to talk with developers about
the problems in making a good word processor that would
run on Windows?
A: I don't recall that.
429
Q: All right. And do you recall that, in this
same period of late 1993, into early 1994, WordPerfect
was scrambling to try to fix these problems, the fact
that the product was considered slow and too buggy to be
sufficiently stable?
A: I wouldn't know that because that would be the
product team, and I wasn't a part of the product team.
Q: All right. Do you remember a product called
WordPerfect 6.0A?
A: Yes. I think there was a release of
WordPerfect called 6.0A.
Q: And that was around April of '94?
A: I wouldn't know.
Q: Okay. Do you recall that that was an effort to
sort of patch WordPerfect 6.0 to try to fix some of the
bugs?
A: I wouldn't know.
Q: Okay. Fair enough. Do you recall that, until
around May of 1993, WordPerfect had no suite that it had
marketed?
A: 1993. I don't know when they looked at that.
Q: All right. And do you recall that, when
WordPerfect first developed a suite, I think it was
called Borland Office 1.0. Do you remember that?
A: I do remember Borland Office.
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Q: And do you recall that that was a suite that
was marketed in collaboration with Borland, the company
in California?
A: I do.
Q: And it was before Novell or WordPerfect had
acquired Quattro Pro?
A: Yes. I think it was.
Q: And do you recall, as well, that, in 1993, when
that first suite came out, Borland Office 1.0, people at
Novell recognized that that product wasn't --
THE COURT: Do you mean Novell?
MR. TULCHIN: Sorry. WordPerfect. Thank you,
Your Honor, I did it again.
Q: BY MR. TULCHIN: -- people at WordPerfect
recognized that that product was not well received
either?
A: I am unaware of that. I don't recall any
consternation about the Borland Suite while I was at
WordPerfect.
Q: You do recall, do you not, Mr. Harral, that,
last Thursday, Mr. Johnson showed you, at the back of
Exhibit 390, Plaintiff's Exhibit 390, some excerpts from
some reviews that were appended to that document. Do you
remember that?
A: I remember reviewing things for PerfectOffice
431
30. I don't remember any reviews about the Borland
Office.
Q: I'm just asking about Exhibit 390. You looked
at that last Thursday?
A: Can we -- which?
THE COURT: Show him again.
THE WITNESS: Can you show me again? I'm
sorry.
MR. TULCHIN: Can you just put the 390 on the
board?
Q: BY MR. TULCHIN: Do you remember this document?
It was PerfectOffice 3.0. And that product actually was
released to the market at the very end of 1994, correct,
December?
A: Yes. PerfectOffice was released then.
Q: Okay. Good. And am I right, Mr. Harral, that
throughout 1994, WordPerfect, and then Novell when it
took over in June of 1994, were working fast and furious
to try to get out on the market some products that would
live up to the WordPerfect standards to run on Windows
3.1, WordPerfect and PerfectOffice 3.0 and Quattro Pro?
A: I recall that the applications divisions were
working very hard to produce products for that platform.
That's about all that I understand about that. I wasn't
on those teams.
432
Q: All right. So, during the calendar year 1994,
while WordPerfect and then Novell were working on these
new products, and PerfectOffice 3.0 came out in December
of that year, you don't remember specifically what they
were doing, but you do remember that they were working
very hard to come out with new versions of this software
to run on Windows 3.1; is that right? They were working
very hard to produce versions of software for Windows.
Q: And, all through that year, that was the period
when the NameSpace extension API's were first documented
in June in the beta release, and then when, in October,
Microsoft said that it would withdraw support for them,
correct?
A: June of '93 versus?
Q: '4.
A: No. We had the information in June of '93,
because then they told us in June of '93 about -- that's
June of 93 to October of '94. That's the year, as I
recall.
Q: Well, actually, not, Mr. Harral. My question
was, the first documentation you received, in the first
Beta for Windows 95, came to Novell or WordPerfect --
A: Okay. That would -- okay. I thought you said
when we knew about --
Q: In June --
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A: I'm sorry. I misunderstood. We knew about
when they came and visited us, and we had information at
that point, which is November.
Q: That was November?
A: of '93. Okay. They didn't withdraw until
October of '94. We've got almost a year there from that
time.
Q: Well, but, Mr. Harral, you didn't have any
documentation about these API's until June 9 or 10 --
A: That's correct.
Q: -- right, of '94?
A: But that does mean we weren't working on it.
Q: Well, you certainly couldn't be working to
write code to run on those API's when you didn't know
anything about the API's, correct?
A: That's not true. That's not true.
Q: That's your testimony?
A: Right. My testimony is -- my testimony is,
that I've talked before about how WordPerfect had a long
history of working on engines and code that would tie
into certain things. We still had already been working,
like for WordPerfect, they had been working on 32 bit
applications in Next, in Os2, and they had years of
experience already working in those areas. We had years
of experience already working on our -- on our image
434
browsing because we had already done that. We had
already done viewers. This was code that was an engine
that, in fact, you would show where Chuck Middleton was
the head of the -- all of the things that were exterior
for shared code, he was tasked with having all of these
things that were outside of shared code coming into it.
And these were things this had been worked on for a long
time.
The only part that we are talking about, then,
is, how do we tie this working system into these API's,
which should be a small amount of work. So, yes -- so,
to characterize the effort, if we are talking about, had
we worked on anything? Yes. These things were solid and
working in other platforms and were already running in
those platforms, and we were going to move them like we
had, for almost a decade before, about engine versus
libraries. And so we had a lot that was already working
and going to run.
Q: And I think you just said in your answers that,
until you got the first Beta in June of '94, and the
documentation, you couldn't do anything, write any code
to tie into --
A: To the libraries.
Q: -- those API's.
A: -- that is correct.
435
Q: Okay. Thank you, Mr. Harral. Maybe my
question hadn't been phrased properly. Thank you for
your answer. And am I also right, Mr. Harral, that, in
your prior answer, just a minute ago, you said that doing
that work, to tie into the NameSpace extension API's, was
something you could do very quickly?
A: From the representation that we had from the
Microsoft representatives, it should not take us a long
time to be able to move that code to tie into what they
had described would be available to us.
Q: Okay. So, actually writing code to tie into
these NameSpace extension API's was something you could
have done in, what, a day or two?
A: No, but I would anticipate that a developer,
given a month, should be able to work out the issues of
tying in their feature to leverage all of the code that
had already been written inside of the Windows 95
shell.
Q: And did that happen? Did Novell, in 1994,
write all the code necessary to leverage all the features
that Microsoft was providing in the Beta?
A: I did not work on each of those. We had --
I know of problems with us not having -- okay. So, did
we tie into them? Yes. Then there's the question of
testing it through to see if everything works right, and
436
so, to my knowledge, they had been tied in, and they were
being used before October of '94.
Q: Okay.
Let's look, if we could, at Plaintiff's Exhibit
181.
This is a document that you were shown last
week. And I think you pointed out, Mr. Harral, that at
the very top, you'll see the numbers 06/09/94. Right?
A: Yes.
Q: And that's meant to stand for the date June 9,
1994, correct?
A: Yes. That's the release of this file, that
build.
Q: Am I right, Mr. Harral, that Plaintiff's
Exhibit 181 is a printout of what would have been given
to WordPerfect or Novell on a disk?
A: Yes. It's the computer description of trying
to tie into the API's, not the documentation for
people.
Q: Right. And the disk itself would have
contained the entire Beta, what's called the M6 Beta?
A: Yes.
Q: And the disk itself would have contained some
other information as well, like the reviewers' guide. Is
that right?
437
A: I'm not familiar if that, there was other
information on that disk as well. There were some
samples for different pieces, but the -- what we would
consider the API documentation was not there yet.
Q: Mr. Harral, we'll put the first page on the
screen, but --
A: Okay.
Q: I'm handing you Plaintiff's Exhibit 388. This
is a Novell exhibit in the case.
And, Mr. Johnson, here's one for you. Sorry I
forgot the last time.
And just take a minute to look at this. The
document itself is quite thick, but, just for the moment,
I want to focus on the very first page.
A: Okay.
Q: Plaintiffs Exhibit 388. Do you remember that
this came on the same disk that you were provided in June
of '94? By "you," I should say WordPerfect and Novell
was provided in '94, June of 1994?
A: I did not see this guide.
Q: All right. Do you know whether or not the
Windows Chicago reviewers' guide -- and then beneath that
it says Beta 1 --
A: Yes.
Q: -- came to Novell and WordPerfect along with
438
the disk that we talked about earlier, the same disk that
had Plaintiff's Exhibit 181 on it, that we -- that you
printed out?
A: As I said, I have not seen this guide before,
so I don't know. I don't know if it was there or not.
Q: Okay. And if I could draw your attention just
to the first page -- well, let me stop for a minute.
This is clearly something that Microsoft wrote. Do you
agree with that?
A: Yes. It says at the bottom -- okay. I see
Microsoft on it. Yes.
Q: And it was something given to ISV's,
independent software vendors?
A: Yes.
Q: With the Beta release, is that your
understanding?
A: From what you said, yeah, this looks like it
would be intended for them.
Q: I just want to direct your attention, if I
could, to the paragraph just under Beta-1.
A: Yes.
Q: And it says there, "The information discussed
in this guide is based on features and functionality
present either in the Beta-1 release of Chicago or
planned for a future release."
439
A: Yes.
Q: "The discussion of Chicago herein does not
represent a commitment on the part of Microsoft for
providing or shipping the features and functionality
discussed in the final retail product offerings of
Chicago." Do you see that?
A: I do see that paragraph.
Q: And was it not your understanding, in 1994,
that this was exactly the case, that the Beta was being
provided to ISV's under these terms, that there was no
commitment by Microsoft to provide any particular
features or functionality included in that Beta?
A: Okay. So, that is an interpretation that could
be given to this paragraph. The way that the software
industry works is that you get your partners on board,
and you help them build their products. If you're of the
habit, which Microsoft was not, of removing API's, then
you're not going to have a very successful launch of your
operating system if those partners are not able to be
there.
And so, my understanding here, with this
language, is that they are stating more along the line
of, if there's a behavior and it's a recycle bin that we
are going to do something else, you better be aware that
you may have to change.
440
We have never had an instance before, where a
feature was removed. It is more a language of, these
things may still change. And that's how we interpret
this kind of language, as developers.
Q: Well, when you say "we" in your answer, you
used the word "we" --
A: The shared code group.
Q: -- several times. You are referring to
yourself. You are not testifying --
A: And the shared code group.
Q: Mr. Harral, I mean, clearly, you're not here to
testify for other members of the shared code group,
right, you're testifying for yourself?
A: I am testifying as the architect of what we
acted upon in the shared code group, being the Architect
of the group.
Q: Well, let me go back to my question, then, if I
can. In your last answer, when you said "we" understood
certain things, are you speaking, then, for you and the
three people who worked for you, the three software
engineers who we saw in Exhibit 372?
A: I am speaking for the people that worked under
Tom Creighton, as the architect for that entire group.
Q: And it's your testimony here today, in 2011,
Mr. Harral, that you can speak for all those people and
441
what they thought and understood back in June of 1994?
A: My understanding of what we discussed is what I
have represented.
Q: And, Mr. Harral, in the answer you gave a
couple of moments ago, I think you said that, as far as
you knew, Microsoft had never removed a feature in an
operating system before?
A: To my knowledge.
Q: To your knowledge.
A: That's correct.
Q: But, didn't you tell us a few minutes ago that
you hadn't worked on the products that WordPerfect wrote
for Windows, including WordPerfect 6.0, which was
released in 1993?
A: Uh-huh.
Q: Right?
A: Yes.
Q: You didn't work on that?
A: I did not work on that.
Q: And you didn't work on Borland Office 1.0 that
came out in May of '93?
A: That's correct.
Q: And you didn't work on any of those products
that were written to run on Windows 3.0 or Windows 3.1?
A: I did not write any of the code for those
442
products. I was an architect for, and a consultant
because that was one of the roles I had, so -- and I said
that the shared code team did maintain most of the
linkages from the engines, which those are engines, into
the Windows platform. And so, if a Windows API had been
removed, I would probably know about it because we were
the ones that brokered those engines into the platform.
So, no, I did not write the code on those
products, but if something would have moved in the
operating system, I would have known about it.
Q: Well, I think you said "probably" in your
answer, and I just want to be very clear.
A: Okay. So, I said --
Q: Could I ask the question?
A: Sorry.
Q: Thank you. Sorry. Didn't mean to interrupt,
but just trying to go one at a time.
A: I understand.
Q: Sitting here today, you don't know whether or
not Microsoft may have made changes between Beta versions
of Windows 3.0 and the final product or Beta versions of
Windows 3.1 and the final product. Am I right? You
don't know?
A: I don't know if there were changes that were
made that they removed functionality. I never came
443
across an instance of that.
Q: So, it's certainly not your testimony that it
never happened, it's your testimony that you never came
across it?
A: It's my testimony that it never happened in the
shared code group.
Q: Well, again --
A: That I would have known. I would have known if
it was the shared code group.
Q: Yes, but you weren't working on the products
themselves that were written to those operating systems.
MR. JOHNSON: Objection, Your Honor.
Cumulative. Argumentative. We've been through this.
THE COURT: I think he's finished. Go on to
something else.
Q: Mr. Harral, last week you talked a little bit
about critical path, and you said that the work of the
shared code team, the work you were doing, you and
others, was a critical path, in order to get out products
for Windows 95, right?
A: Yes.
Q: Now, for PerfectOffice, the suite, it was also
critical path that Quattro Pro be ready; is that right?
A: No. I don't know if it was or not. I know
that it needed to be ready, but whether it was critical
444
path, I don't know that.
Q: Well, let me ask the question this way, then,
Mr. Harral. A suite, like PerfectOffice, always included
a spreadsheet, right?
A: I can't think of one than didn't.
Q: All right. That would -- that would include
Office always had Excel in it, right? And Borland Office
or PerfectOffice always had spreadsheet functionality
that was provided by Quattro Pro, true?
A: I think so. I'm not familiar with the history
of the evolution of what they had done with the suites,
but, yeah, let's say that there's always been a
spreadsheet there.
Q: All right.
A: All right.
Q: Do you know what the status of development
was -- well, let me back up for a minute. The Quattro
Pro product was purchased by Novell in June of 1994 from
Borland, right?
A: Right.
Q: And Borland was located in California?
A: Uh-huh.
Q: Somewhere in Silicon Valley, not too far from
Palo Alto or San Jose, right?
A: Yes.
445
Q: And when Novell purchased the Quattro Pro
product, the software engineers, who were working for
Quattro Pro, stayed there in California, right?
A: Yes. Novell had -- Novell had a campus there,
and they were comfortable having Quattro Pro people
remain in California.
Q: Right. As of late 1994, or 1995, did you have
any understanding of how the Quattro Pro people were
progressing in trying to write a version of Quattro Pro
for Windows 95?
A: I don't.
Q: Did you have any understanding of what problems
they were trying to confront?
A: No. The Novell wanted Quattro Pro -- just as
they wanted with WordPerfect when they acquired
WordPerfect, they wanted WordPerfect to not be interfered
with the process of trying to get the suite out and
integrating it, you know, with the company and with other
people. So, it was my understanding that we were kind of
a little bit removed so that we could concentrate on the
task at hand.
My understanding of Quattro Pro was that they
would have some autonomy that they could also concentrate
on getting their product out and not be interfered with
from outside influences for awhile from Novell. That was
446
my understanding.
Q: And, Mr. Harral, just so that I understand
this, and I hope this isn't repeating what you just said,
but in late 1994 and 1995, there was no way to get a
suite out onto the market, a suite for Windows 95, until
you had something ready to go from Quattro Pro?
A: I wouldn't think so. I don't make those
decisions, as you have pointed out, so I don't -- I would
assume that they needed to have a product ready. All of
us have to have a product ready.
Q: I wonder if I could show you Exhibit --
THE COURT: Okay. Go ahead. If the court
reporter needs a short break again, that's fine. Or
somebody. In any event, it doesn't matter. We'll take
a -- we'll take a short break. And I'm ready any time, I
can go.
(Short break.)
447
(10:10 a.m.)
THE COURT: Please be seated.
THE CLERK: Are we ready?
THE COURT: Absolutely.
(Whereupon, the jury returned to the courtroom.)
THE COURT: Sorry to bother you with a scheduling
issue which really wasn't ripe yet, but a break for
everybody doesn't hurt anybody.
Mr. Tulchin?
MR. TULCHIN: Thank you, Your Honor.
Q: (By Mr. Tulchin) Mr. Harrol, I am going to hand
you Defendant's Exhibit 98?
A: Thank you.
Q: Um, which I have given to Mr. Johnson. And just
ask you for the moment to look at the first page. Do you
recall in 1995 seeing this document or documents like it?
A: Let me have a second here. I recall some
documents like this.
Q: And this particular document says product
Thunder. Do you see that, sir, on the first page?
A: I do see that.
Q: That was a code name used at Novell at the time,
correct?
A: I don't recall that but, um, possibly called
Lightening. It is very possible that they called it that.
448
Q: Mr. Harrol, do you recall that the code name
Thunder was used to describe the WordPerfect product that
was under development?
THE COURT: It is fine to represent that but that is
true.
MR. TULCHIN: I do represent that Thunder was used to
refer to WordPerfect.
THE WITNESS: Okay.
Q: (By Mr. Tulchin) The product that was being
under -- that was under development at the time. And Sid
Cragun, do you remember him, he was a software developer?
A: I remember Sid Cragun. He was the developer on
the WordPerfect team for shell integration.
Q: Okay. And he is writing a document talking about
shell integration on the Thunder product the WordPerfect
product for Windows 95?
A: WordPerfect word processor for Windows 95.
Q: Right. And this concept design specification
document was a document that was written and modified from
time to time to describe where in the development process
Novell was, am I right?
A: I don't -- I don't know with -- I don't know what
WordPerfect did for the documentation of their -- of their
process.
Q: I see. I guess I should ask you then, in the
449
shared code group did you or any of the three people who
worked for you from time to time prepare similar documents
perhaps with the same type of title concept design
specification for what you were working on?
A: I don't know. That would have been at Tom
Creighton's level, and I don't know who he had prepare
documentation for these things.
Q: Okay. Do you remember seeing concept design
specifications prepared in the shared code group, someone
working for Tom Creighton in '94 or '95?
A: I recall that the file open systems had concept
design documents.
Q: Do you know what became of those?
A: I don't.
Q: Um, in connection with --
MR. JOHNSON: Your Honor, objection. Those are
exhibits in this case. What became of those as though they
disappeared.
THE COURT: Well, we'll take that up when it comes up.
But right now the objection is overruled. Go ahead.
Q: (By Mr. Tulchin) Mr. Harrol, just --
THE COURT: Obviously something that is an exhibit in
this case or was kept and given to Mr. Tulchin, a design
exhibit maybe it isn't, so we'll find out.
Q: (By Mr. Tulchin) Maybe I should be more precise
450
in my question. Do you know how often the concept design
specification that was written in the shared code group was
modified or amended?
A: I don't know.
Q: Um, do you recall seeing any such documents in
connection with your preparation that you did for your
testimony here?
A: A concept design document for shared code?
Q: Yes.
A: I don't recall one. Do you have one?
Q: Well, Mr. Harrol, um, this document --
THE COURT: I'm going strike that answer.
THE WITNESS: Okay, I sorry.
Q: (By Mr. Tulchin) Let me ask my question if I
could, Mr. Harrol. This document, Exhibit 98, apparently
written by Mr. Cragun in February of 1995?
A: Yes.
Q: Was this something that you think you saw in
1995?
A: I don't know if I saw the document. I know that
there was discussions that we had with Sid Cragun that could
have led to documents like this.
Q: Could I ask you to look at the very last page of
Exhibit 98. And at the top there is the word "procedures"
and then underneath it says, "filing instructions". "A
451
printed copy should be signed, witnessed and filed with the
project director. An electronic copy should be placed in
the product directory on the network at a particular
address." Do you see that?
A: I see that.
Q: Was the same requirement in effect for any
concept design specifications or similar documents that were
prepared in the shared code group?
A: I don't know.
Q: And you don't remember writing any yourself?
A: No, I did not. It would have been the purpose,
it would have been the responsibility of the developers,
which Mr. Cragun is. It would have been the responsibility
of them to produce one for each of the areas that they had
responsibility because the architect I would not have enough
depth in their individual features to be able to -- I'm fine
to consult with them, but I would not have been the one to
produce the documentation.
Q: All right. And Mr. Harrol, thinking about the
period let's say from October 1994 and going forward let's
say about six months, so I am just directing you to October,
November, December 1994 into the first three months of '95,
let's say to April 1st, '95?
A: Okay.
Q: In that period, do you recall writing any e-mails
452
or memos to any of your superiors at the company in which
you lay out what the impact might be on the shared code
group or any of the work you were doing of Microsoft's
decision to withdraw support for the namespace extension
APIs?
A: I'm trying to think because I -- I didn't find
out that they were withdrawing them. I didn't talk about
them. Um, the -- they never told me they were withdrawing
them. But as far as laying out the consequences of not
being able to use them, those are discussions that I had
with Tom Creighton and we transacted e-mails about that, we
had discussions in his office, we had discussions with other
people outside of our group about those impacts.
Q: Well again, Mr. Harrol, um, as far as I know, we
don't have any such e-mails?
A: Okay.
Q: So let me try this question, I hope my last one
was clear. In this same six-month period, October '94 until
about April 1st, '95 --
A: Uh-huh (affirmative).
Q: -- do you remember writing any documents to
anyone else at the company about the impact that the
namespace extension issue, let's say your inability if you
want to call it that to use them, had on any of the work you
were doing?
453
A: I think I said that I wrote e-mails and those are
the documents. So yes, I wrote e-mails to Tom Creighton.
Q: Anything else?
A: Not that I recall.
Q: Um, according to your testimony here in the
courtroom, this was an event that was important; correct?
A: Uh-huh (affirmative).
Q: Um, you said last week that around the October
timeframe you learned something about the namespace
extension APIs. I thought you said that Microsoft was
withdrawing support for them, but maybe it was something
else. I don't remember exactly what you said about what you
learned then.
A: Okay.
Q: But whatever it was, um, according to your
testimony this had a big impact on you and the work you were
doing?
A: Uh-huh (affirmative).
Q: Is that a yes, sir?
A: Yes. Yes, sorry. Yes.
Q: Thank you. Um, did you personally convey that
information to Bruce Brereton, who we saw in Exhibit 372,
was the head of the group, the business applications
business unit?
A: No, that was Tom Creighton's responsibility.
454
Q: Okay. Um, and did you convey it to anyone above
Mr. Brereton like David Moon or Ad Rietveld or Bob
Frankenberg?
A: No. I never had occasion to do so.
Q: And in the period after April 1st, 1995, let's
say for the rest of that whole year, calendar year 1995, do
you -- do you recall writing anything, other than the
e-mails that you talked about to Mr. Creighton, that sets
out the impact on the shared code group or on PerfectFit or
on any of the work that you were doing of the namespace
extension API issue?
A: Other than the e-mails, there were no documents
that I produced.
Q: Am I correct, Mr. Harrol, that when we talk about
the namespace extension APIs we're talking about four APIs?
A: No, I thought that I -- I thought that I
mentioned that, that there is a difference between -- are we
talking about our use of them or are we talking about the
documentation of them?
Q: Well, let me back up for a second. The beta
version of Windows 95 that came to Novell in WordPerfect in
June of '94, had thousands of APIs that were documented?
A: I believe you. I never counted them. I don't
know.
Q: You didn't count them. That sounds about right,
455
thousands?
A: Okay.
Q: You agree?
A: I would agree that there is probably more than a
thousand and probably more than two, so yes, I would agree.
Q: All right. Um, am I right that the namespace
extension APIs that were in the subject as far as you knew
of Microsoft's decision in October '94 to withdraw support
for them, that those were four?
A: No, it wasn't four it was the whole set. They --
I believe they withdraw any because if I am not able to get
information from the contacts at Microsoft regarding the
other APIs, effectively for me they had to withdraw it as
well. And so -- but it still we're still talking about what
may be a dozen, maybe two dozen, um, which is still a small
set compared to the 2000 plus that you're mentioning.
Q: Well, um, let me just make sure I understand one
thing, um, and I will go back and show you the e-mail that
you looked at on direct examination. But you spoke last
week of the fact that Microsoft and Windows 95 was providing
functionality to Novell and other ISVs that allowed you to
extend the shell, correct?
A: To interact and extend it, yes.
Q: And the shell extensions were a group of APIs
that included much, much more than just the namespace
456
extensions, correct?
A: Yes.
Q: Um, so -- just so, and I am happy to show you
some documents if you want, but let me see if we can agree
on a couple of these. And actually, Mr. Harrol, do you
remember in 1995 looking at this book, Programmer's Guide to
Microsoft Windows 95?
A: I don't remember that.
Q: This was a book that was published by Microsoft?
A: Uh-huh (affirmative).
Q: Is that right?
THE COURT: Show it to him.
MR. TULCHIN: I would be happy to show it to you.
THE WITNESS: Thank you. That monitor is in the way.
Thank you.
Q: (By Mr. Tulchin) This has been marked as
Exhibit 559, Your Honor.
A: So it is from Microsoft Press so it looks like
Microsoft.
THE COURT: For the record, plaintiff's or
defendant's?
MR. TULCHIN: Defendant's, Your Honor, my apologies.
THE COURT: Okay.
Q: (By Mr. Tulchin) And this was a book that was
made available to any developer, any ISV, who wanted to get
457
it, correct?
MR. JOHNSON: Your Honor, we do have an objection to
this exhibit.
THE COURT: As of now, it is just marked for
identification.
MR. JOHNSON: Thank you, Your Honor.
THE WITNESS: Okay, I'm sorry. Say it again.
Q: (By Mr. Tulchin) The point is that in 1995
Microsoft published this book, the book that is in front of
you, and anyone who wanted it could have obtained a copy?
A: Do you know when in '95 it was published? If it
was December, that was a little late. But if it was
January, it might be pertinent.
Q: My memory is that it was sometime around the
middle of the year, but I can't say that I can remember
exactly when.
A: Okay.
Q: And I may be wrong.
A: That would make sense because you would want it
to be out about the time that Windows came out which is in
the middle. Well it was going to be the middle of '95.
Q: Right. Yes and it came out in August ultimately?
A: Okay.
Q: All right. You don't remember seeing the book
yourself?
458
A: No.
Q: Other people at Novell had copies of this;
correct?
A: I don't know.
Q: Do you know if this was something published by
Microsoft to assist the developers in trying to write their
applications for Windows 95?
A: I would presume that that is why they wrote it.
Q: All right. Um, could I ask you to turn to
Page 219 of this book. And Your Honor, I am giving
Mr. Johnson a copy of the chapter to which I am now
referring. This is article 12. We have marked this as
559-A.
Mr. Harrol, do you see that?
A: I do see that chapter.
MR. JOHNSON: Your Honor, if they're going to publish
this, we would like to have our objections.
THE COURT: Okay. Approach the bench and tell me what
the objection is.
(Whereupon, a bench conference was held.)
MR. JOHNSON: Hi, Your Honor. This is hearsay and
irrelevant. I don't believe this discusses the namespace
extensions --
MR. TULCHIN: The purpose of this --
MR. JOHNSON: -- we're talking about.
459
THE COURT: Just speak.
MR. TULCHIN: The purpose of this, Your Honor, is to
show the witness the shell extensions that were made
available in Windows 95 and to see if I can get him to
agree. It is a shorthand way, instead of going through
these in great depth. All of these shell extensions were
made available by Microsoft. Um, the namespace extension
APIs were a small subset of the shell extensions as a whole.
I don't think that the jury understood that from the
testimony last week where he talked generally of shell
extensions and at least to my ear made it sound as if the
namespace extensions were the shell extensions. It was
much, much more functionality that Microsoft made available.
MR. JOHNSON: And Your Honor, this is a frolic and a
detour. We have -- yes there were other things that allowed
certain amount.
THE COURT: You can cover that on redirect. The
objection is overruled. I think there -- I think the jury
is being asked to absorb a lot of information and if they --
they may think somehow the API namespace extensions
completely affect the shell and it may or may not but you're
free to ask on redirect.
MR. JOHNSON: Your Honor, so you're sustaining the
objection?
THE COURT: No, I'm overruling the objection.
460
MR. JOHNSON: Talking about redirect that would be me.
THE COURT: Yes, you can ask questions. If you want
to clarify something you can. But as far as I'm concerned,
there could be jury confusion so Mr. Tulchin can do what he
wants to do.
MR. TULCHIN: Thank you.
(Whereupon, the bench conference concluded.)
THE COURT: I am going to overrule the objection. You
all can ask questions on redirect. Mr. Johnson can try to
clarify what is going on. But basically, we're just trying
to find out the relationship between namespace extensions
and the shell. I think it would be helpful to ask the
question.
Q: (By Mr. Tulchin) Mr. Harrol, we're looking at
Page 219.
THE COURT: I guess the whole exhibit -- well, I'm not
going to allow the whole exhibit but I'm just going to allow
this page right now to be displayed to the jury.
MR. TULCHIN: Thank you, Your Honor.
Q: (By Mr. Tulchin) This is Exhibit 559- A: It is
one chapter or article from the larger book that I gave you.
THE COURT: Ladies and gentlemen, frankly what is most
important here is the testimony. By showing this to the
witness, Mr. Harrol, it helps the testimony go along. The
testimony is really what we are mostly interested in.
461
Q: (By Mr. Tulchin) And here are my questions,
Mr. Harrol. In the final version of Windows 95, there were
a number of shell extensions that Microsoft made available
for ISVs; correct?
A: Um, yes, that I recall.
Q: These were all shell extensions that were in the
first beta from June of '94; correct?
A: Yes.
Q: And as far as you know they were never modified?
A: As far as I know.
Q: All right. So one of the shell extensions was
context menu handlers, do you see that?
A: Yes.
Q: And those add items to the context menu for a
particular file object?
A: Yes.
Q: Correct?
A: Yes.
Q: Next there were icon handlers?
A: Yes.
Q: We won't go through these in any --
THE COURT: Well, the bottom line is that the
withdrawal of support for namespace extension APIs did not
constitute -- well, I'll ask you because I understand your
point is it did not affect all shell extensions, there is
462
still access to some shell extensions is that --
THE WITNESS: Is that the question you're asking?
Q: (By Mr. Tulchin) Yes.
A: And the answer to that is that back in M6 when we
first got the extensions, um, see this is -- I am going to
go home and get a copy of this actually but --
THE COURT: Right now I'm going it take it home and
read it during halftime.
THE WITNESS: Sleeping is not something I think you
want.
MR. TULCHIN: This is not a quick read, Your Honor.
THE COURT: No.
THE WITNESS: No. But the point is that back in June
when we got these extensions we were told about getting
documentation later on.
In October, we were told that there were things that
would be unavailable. The problem, one of the big problems
that we were having is that what you are looking at right
now is what we expected in October. And so, um, and in fact
the namespace extensions were not documented until 1996,
sometime later on. And the documentation that was available
then is pursuant to this. And because I have read that and
I was just looking through it while you were talking. And
this information is what I would have loved to have had back
in October of 1994 and I expected to have. But if it is
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coming out in the middle of '95, that does me no good.
Q: Mr. Harrol, I am right, am I not, that in the M6
beta that you got in June of '94, you had --
A: Uh-huh (affirmative).
Q: -- all of the documentation that you needed for
the context menu handlers, the icon handlers, the data
handlers?
A: No.
Q: That is the next one the drop --
A: No. This is -- this is documentation for people.
I have the machine description of those things. I did not
have the people descriptions of what was the behaviors and
what are the recommendations. That is what is sitting here.
This is what I wanted back when I had those shell extensions
back in 1994. And I did not have this in 1994.
MR. JOHNSON: Your Honor, may the record reflect that
he is talking about 559? Exhibit 559, Defendant's?
THE COURT: Sure.
Q: (By Mr. Tulchin) Is it your testimony,
Mr. Harrol, that in '94 you did not have documentation for
these shell extensions: The context menu handlers, the icon
handlers, the data handlers, the drop handlers, the property
sheet handlers, the copy hook handlers, and the drag and
drop handlers?
A: I did not have the documentation that we have
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come to expect from Microsoft for these things for people.
I did have them for the machines which is not sufficient.
Q: When you say you had them for the machines, you
had M6 beta in June, um, the APIs were sent out there for
the machines?
A: The header files were there. Header files is
what the machine reads to be able to tie into the libraries
that are provided.
Q: Okay.
A: And there was some -- there was some rudimentary
documentation, for example, that were provided in the M6
beta as well, but it is not to the level of what you have
presented right here (indicating).
Q: Could you go back and look at Exhibit -- I'm
sorry, I'm sorry, um, it is Plaintiff's Exhibit 394 which
was shown to you last week. Just give me a minute,
Mr. Harrol, I'm confused about an exhibit number.
A: That is fine, I can't find it either so --
Q: Well, let me hand you exhibit -- Defendant's
Exhibit 8?
A: Okay.
Q: Which I believe is an identical copy --
A: Okay.
Q: -- of a document that you were given last week
and somehow I'm not pulling up out of my mind the proper
465
exhibit number for it.
A: 369.
Q: 369?
A: Yes.
Q: I think I said 394. I was a little bit off.
A: I think that is the same one we're looking for.
Q: Right. And I just want to be clear about
something. On Defendant's Exhibit 8, you looked at this
document last Thursday; correct?
A: Yes, I did.
Q: And if you look at the second page, just look at
the top above the word "requirements"?
A: Yes.
Q: Um, this was a document written in 1994; correct?
A: Yes.
Q: And does this not indicate to you, Mr. Harrol,
that everything you needed to use the shell extensions was
given to you in the June 1994 beta; correct?
A: No.
Q: I mean the book wasn't published until '95, but
the book is just a compilation of information that Microsoft
had given ISVs earlier?
A: I don't know that.
Q: Correct?
A: I don't know that.
466
Q: You don't know that?
A: No, because, for example, um, when I was working
on Windows 3.1, um, I had a discussion with a Microsoft
systems engineer about menus. And the person who was
working with me, the premier support individual, um, was
there listening to my questions with them. That individual
later wrote an article for Microsoft Systems Journal based
upon our conversation that was published to everybody else
in the industry.
And so the information can be compiled here, but it
doesn't mean it was generally available to everybody. They
-- they discovered these things as they go through the
process of the beta and eventually it becomes generally
available in the form of like a book like this, but it
doesn't mean that everybody had that same information
individually before the publishing of that book.
Q: Well, maybe it doesn't. But in this case am I
right that the information in the book, Exhibit 559, was a
compilation of things that Microsoft had made available to
ISVs earlier?
A: I don't know. If you'll give me some time to
read the book and to go through it and compare it, I might
be able to say that. But from my knowledge right now, no, I
don't know that.
Q: Could we look at Defendant's Exhibit 8, which is
467
also the same thing as Plaintiff's Exhibit 369, Page 9?
A: Okay.
Q: Now, at the top under the word extension
handlers, and again this was written in -- sorry, in 1994 by
Sid Cragun; correct?
A: Yes, that is correct.
Q: All right. And Mr. Cragun, in 1994, is writing
about five shell extension handlers?
A: Yes, that is correct.
Q: Including the five that I mentioned in my
question to you a few minutes ago?
A: That is correct, yes.
Q: Correct?
A: Yes.
Q: Does this not indicate to you that um, at that
time Novell had from Microsoft all of the documentation it
needed to use these shell extensions?
A: No, because I -- in fact if you -- there was
another exhibit that I was shown of the header file. In
fact you showed it to me. The information that Mr. Cragun
was able to derive is inside of that machine file. But that
doesn't tell me the behaviors of how that API is supposed to
work. It doesn't tell me if I go in and I -- it is talking
in here about context menu handlers, for example. It
doesn't tell me what the different context menu items on the
468
-- on the recycle bin are going to do or when you can or
cannot use them or when they may or may not be available.
Those -- those semantic behaviors, the way that the system
behaves, are what we expect in people documentation that we
don't get from machine documentation, can I lift out of the
machine documentation a one paragraph summary about what
these things do? Yes. Will I be able to do a month's worth
of development based just on that? No way.
Q: Well, Mr. Harrol, Microsoft, in fact, provided
all of this functionality to Novell, for example, these five
extensions; correct?
A: Provided --
Q: In Windows 95, all five of these extensions?
A: Are there.
Q: Yes.
A: Yes. Yes, they are.
Q: They were. And, of course, Microsoft is
developing that functionality, those extensions?
A: Uh-huh (affirmative).
Q: Through the efforts of Microsoft's software
engineers, correct?
A: I presume so.
Q: And Novell or WordPerfect before that of course
needed to use its own efforts to be able to tie into the
APIs that Microsoft was providing to Novell?
469
A: Uh-huh (affirmative).
Q: Is that a yes?
A: Sorry. Yes. Thank you.
Q: So it is not your testimony that it was
Microsoft's obligation to do all of the work for Novell, was
it?
A: It never was.
Q: Okay. Novell certainly had to do some of the
work itself to figure out how to tie into the APIs and how
best to use them for Novell's own products?
A: That is correct.
Q: And that was partly your job and the job of Sid
Cragun and the WordPerfect team and other engineers?
A: That is correct.
Q: Okay. And again looking at Exhibit 8?
A: Uh-huh (affirmative).
Q: A copy of PX-369. Could I ask you to turn to
Page 3. If you need a hard copy let me know.
A: I actually have one. I am trying to be --
Q: 369?
A: Okay.
Q: Good. My apologies earlier for getting the
number wrong. Too many numbers.
A: Yes. I agree.
Q: Um, on Page 3 of the very bottom you will see
470
Mr. Cragun writes, "functional requirements". Do you see
that?
A: I do at the bottom of the page.
Q: Right, the very bottom. And then he has some --
a list of features currently provided by WordPerfect at the
shell level. And it goes on to the next page. Um, you will
see at the top continued list of features currently provided
by WordPerfect at the shell level; right?
A: Yes.
Q: Drag and drop printing support. Drag and drop
opening of documents. Support for OLE drag. Do you see
that?
A: Yes, the one with a D there?
Q: Yes. And then below that Mr. Cragun writes,
features that should be implemented using shell extensions?
A: Yes.
Q: Do you see that, sir, next to the number two?
A: Yes, number two.
Q: And this was a list of features that Mr. Cragun
thought at the time, in October of 1994, WordPerfect might
want to use features in Windows 95?
A: That WordPerfect the word processor might want to
use.
Q: Correct?
A: Uh-huh (affirmative).
471
Q: And he starts with A, and then there is a B and a
C and a D. And then if you look at the next page, Page 5,
right in the middle it says, um, "the following option will
not be implemented" and he says "a detailed view menu item
will not be implemented," right? Page 5, next to the item
three?
A: I'm reading through it so --
Q: Towards the top.
A: Just let me read through. Okay. Okay, I see. I
have read through that.
Q: And then we go through the rest of page 5 on to
Page 6. These are again items that Mr. Cragun is saying
might be put into WordPerfect, the word processor; correct?
A: Right.
Q: And when we get to K, at the bottom of Page 6,
and K, I think, is the eleventh item, I think K is the
eleventh later, we see A through K there, he says
registration of custom folders which function as object
containers with the same behavior as a folder.
A: Yes.
Q: Do you see that?
A: Uh-huh.
Q: And that was the functionality that the namespace
extension APIs would have provided to WordPerfect?
A: I think they would have needed that to do that
472
feature that he is outlining here.
Q: Right. You see the very next sentence he says
this type of shell extension is referred to as a namespace
browser. Do you see that?
A: I do see what he wrote.
Q: And then it is bolded in what Mr. Cragun wrote he
says, last sentence, "we will not take advantage of this
feature since Microsoft has discontinued support of the
required API since this document was originally written."
A: Okay.
Q: Do you have that?
A: I see that there.
Q: Now, is it fair to conclude from what Mr. Cragun
wrote in October of 1994?
MR. JOHNSON: Objection, where did that date come
from?
THE COURT: I thought the witness testified it was a
date that came on the first page of the document I thought
but I --
THE WITNESS: Well is that -- so well, it is easier to
go back to the revision history and see what is the latest
one here. So the latest revision we have is September 30th.
So October, I guess that should be okay because the last
time he says he updated was the 30th of September, 1994.
Q: (By Mr. Tulchin) Right. And um, let's just
473
spend a couple of minutes on this. The first page this is
just a document that Mr. Cragun wrote; correct?
A: Uh-huh (affirmative).
Q: Okay. And the first page says revision history,
most recent first?
A: Okay.
Q: And the most recent then says 30 September '94?
A: Uh-huh.
Q: Correct?
A: Uh-huh (affirmative).
Q: But we know this had to be in October, right,
because --
A: Or later.
Q: -- or later because in item K that we just looked
at and we'll go back to, on Page 6?
A: Uh-huh.
Q: There is reference to this decision to
discontinue support for the namespace extension APIs?
A: We really can't tell when this was written, in
fact, because there is no revision history. This could have
been just an intermediary revision that Mr. Cragun was even
doing. So we really don't know when this was written.
Q: Well, Mr. Harrol, we can agree, can we not
that --
A: It should be after the time that the
474
documentation of the -- the documentation of the APIs
happened.
Q: Let me just finish my sentence.
A: Sorry.
Q: Sorry. This was written after the namespace
extension APIs were de-documented?
A: Yeah, that is what -- that is yeah -- that is
what I'm saying.
Q: So it couldn't have been earlier than October
of '94?
A: I don't think so.
Q: All right. And, um, to go back to where we --
THE COURT: Just for the sake of the jury, there is a
date at the top, I think you covered it before much later,
but that is immaterial, correct? Isn't there a
November 15th, 2000 --
MR. TULCHIN: Yes, Your Honor.
THE COURT: That is just irrelevant. Everybody agrees
that is irrelevant.
MR. TULCHIN: Yes, sir.
THE COURT: I just wanted to point that out.
Q: (By Mr. Tulchin) Okay. Mr. Harrol, my question
about this item K?
A: Uh-huh.
Q: Is that what Mr. Cragun is indicating is that for
475
Thunder, that is the project to develop a version of
WordPerfect for Windows 95, there wasn't going to be any
need to take advantage of the namespace extensions?
A: That is --
Q: Right?
A: That is a leap. Um, what he is saying is that
WordPerfect doesn't need to commit any resources to do this.
They're not going to write any and they didn't need to any
way. Um, the only thing that WordPerfect was looking at was
maybe most recently used file view inside of their product.
The shared code would have a different perspective. The
mail product would have a different perspective. But for
Sid Cragun and the people that he was talking to to gather
information, um, it would be reasonable to say that a most
recent files view though would being useful would not be
impactful enough for them to take that effort to do that.
And so, yes, from his perspective with the product, they
would not need to have that to release their product.
Q: Right. And you testified last Thursday, and here
are your words, quote, "I don't know anything that
WordPerfect word processor needed to do for a namespace
extension," unquote?
A: That is what I just said here. I don't think he
needed to do that for his product. That is correct.
Q: Okay. So I hope this isn't repetitive, just to
476
be clear. As far as you know now, and you knew in 1994 and
1995, WordPerfect, the word processor, had no need for the
namespace extension APIs?
A: To ship their product.
Q: Correct.
A: But they were dependent upon our product.
Q: Okay. Um, in your testimony last week when you
were talking about customers of the shared code group and I
think we said today that is the same thing as PerfectFit,
correct? PerfectFit product was what the --
A: PerfectFit product was an incarnation of the
shared code.
Q: Okay. Um, did those customers pay to use the
PerfectFit product that they licensed from Novell?
A: I don't know.
Q: Um, is it correct, Mr. Harrol, that Novell gave
PerfectFit to other ISVs without any fee or charge?
A: I actually don't know what their licensing model
was.
Q: In that last sentence when you said their, their
licensing model who are you referring to?
A: I do not know what Novell's licensing model was
for PerfectFit.
Q: So PerfectFit, which was the product of the
shared code team, right?
477
A: Uh-huh (affirmative).
Q: Was a product that Novell was licensing to
customers?
A: Uh-huh (affirmative).
Q: Is that a yes?
A: Yes.
Q: Thank you.
A: Thank you.
Q: Sorry to keep doing that.
A: No, keep going. That is fine.
Q: And as far as you know, Novell wasn't charging
for it?
A: I do not know whether or not they were charging
for it.
Q: Are you aware one way or another, Mr. Harrol,
that in October 1994 Mr. Struss of Microsoft --
THE COURT: You better say someone at Microsoft
because he doesn't know Mr. Struss.
THE WITNESS: I don't know Mr. Struss.
MR. TULCHIN: Okay. Thank you, Your Honor.
Q: (By Mr. Tulchin) Someone at Microsoft told
Mr. Creighton, who was running the shared code group, right?
A: Yes.
Q: Someone at Microsoft told Mr. Creighton that
Microsoft had decided to withdraw support for the namespace
478
extension APIs?
A: No, I'm not aware of -- the conversation was that
he, Mr. Creighton, had told me that they were considering
it. I don't -- he did not convey to me that there was a
decision. So that is all I know.
Q: Do you know whether or not Mr. Creighton, who was
your boss's boss, right, you reported to Johnson, Johnson
reported to Creighton?
A: Yes.
Q: Do you know whether Mr. Creighton ever indicated
to Microsoft in October of '94 that Novell and WordPerfect
were okay with the withdrawal of support for those APIs?
A: I have been made aware in the -- through the
course of this whole thing that Mr. Creighton did convey to
Microsoft that he was not okay with the removal of the
namespace extensions.
Q: Is that something that you were made aware of in
preparation for your testimony?
A: It was something that -- um, yes.
Q: Well, let me go back now to the period in
question. Let's say 1994.
A: Uh-huh.
Q: Last three months of the year. Did you become
aware at that time that Mr. Creighton, your boss's boss at
Novell, had indicated to Microsoft that Novell was okay with
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the decision to withdraw support for the APIs?
MR. JOHNSON: Objection, asked and answered.
THE COURT: Well, it was asked but not answered. Go
ahead.
THE WITNESS: Okay. He had indicated to me, um, okay
so I'm sorry, say it again so I can get the right answer.
Sorry.
Q: (By Mr. Tulchin) I'm sorry, sir, do you want me
to ask the question again?
A: Please, again. Thank you.
Q: At any time in the last three months of 1994, did
you become aware that Mr. Creighton had told someone at
Microsoft that Novell was okay with the decision to withdraw
support for the namespace extension?
A: I was never made aware of the time that
Mr. Creighton had conveyed to Microsoft that it was okay to
withdraw the namespace extension.
Q: Have you talked to Mr. Creighton about this
recently?
A: No, I have not actually.
Q: So the information that you have came from the
lawyers for Novell?
A: No.
MR. JOHNSON: Objection.
THE WITNESS: No, that is not.
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THE COURT: We are so -- we are so in the realm of
hearsay right now just move on.
MR. TULCHIN: Thank you, Your Honor.
Q: (By Mr. Tulchin) You mentioned last week of a
product called Quickfinder. Do you remember that?
A: I do remember that product.
Q: And I think you said, tell me if I have this
right, that Quickfinder was a product that the shared code
group was working on?
A: No, they were brokering it. We had a division at
WordPerfect. I didn't mean to mischaracterize that if I
did. Um, there were many efforts in many technologies that
WordPerfect would work on. The -- what we called the word
tools. Word tools, sorry, the speller, Thesaurus, the
Quickfinders search technology, grammar checker, Wonderware
was another one that they had internally. These were all
produced by the languages division. And normally these
would be -- they would evangelize these products to the
products at WordPerfect. But when the share code group came
into being, because we already had a good rapport with the
other divisions, the languages division then worked through
us to be able to deliver their product and so we could -- we
could help evangelize their products along with the other
things that we did.
So we did not write the Quickfinder, but we did
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distribute it to the other applications that we were aware
-- that we were aware of.
Q: Okay. Maybe I will get it right this time. Let
me try. I hope I understand this.
A: Okay.
Q: Was it the case that the Quickfinder product was
being included in what the shared code group was making
available for the other products?
A: Yes.
Q: And that was what you were doing in 1995 in part
was putting Quickfinder into the PerfectFit product that was
going to run with WordPerfect and PerfectOffice?
A: We did distribute Quickfinder was one of the
things that we had with the products.
Q: All right. Just a couple of things about
Quickfinder and let me see if I get this right. Quickfinder
was something that could run by itself?
A: It could also do that. There was a -- there was
an application that was written that would use the
Quickfinder technology and present it as an application of
its own. That was one of the things that there was with it.
Q: When this suite was actually released by Corel in
1996 um, the suite that you were working on, right, that
Novell was working on in 1995?
A: Uh-huh.
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Q: That was released in 1996 by Corel?
A: Okay.
Q: Right?
A: I think so.
Q: Okay. When the product was released, is it
correct that there was an option given to the user on
whether or not you wanted to include Quickfinder?
A: Um, I don't know. That would have been a call of
the install team.
Q: Well was it right that --
A: There may -- there could have been.
Q: Was it correct that WordPerfect could run without
it? The WordPerfect that came out from Windows 95?
A: With the Quickfinder inside WordPerfect or with
the separate product outside of the WordPerfect. Which one
are you referring to?
Q: Either?
A: Um, I think that both were an option. You could,
just like in Word, whether I could include language
dictionaries or not I can also include in WordPerfect I
would assume that they had the ability to say whether or not
you wanted the Quickfinder as part of the application or
whether you wanted it in or not in the shell.
Q: Okay. And am I right that Quickfinder was
something very difficult to write?
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A: I don't know that. I didn't work on it.
Q: All right. Do you know how much time it took to
write the Quickfinder product?
A: I do not. I do not.
Q: And am I right that Quickfinder itself has
nothing to do with the namespace extension APIs?
A: I don't know what they intended to do with it. I
don't know.
Q: All right. Well, let me ask you it this way. As
far as you know, the Quickfinder product used none of the
functionality that the namespace APIs provided and never
intended to?
A: Okay. I know that we had discussions with them.
That they never intended to, that would not be true.
Because if I wanted to, um, if I wanted to show a list of
documents that had the -- the results of the search, then
that would have been a namespace because it would have been
on the desktop, it would have been on the list of folders
and it qualifies as a namespace at that point. If I wanted
to go further and maybe show a little highlight of what was
the text that I found inside of those documents, then that
would have actually been a -- that would have required
IShell browser, IShell View to do, to be able to change the
view to do that. Whether they intended to do that or not,
um, I don't know what their -- what their milestone
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documents were for what they intended to do, but I do know
that we had discussions about how they could use the
namespaces in the product. But I did not control their -- I
did not control their releases and I can't speak to what
they intended to do.
Q: One thing I am hoping we can clear up and that is
whether or not, um, the Windows common file open dialog in
Windows 95 allowed a user to browse through the Windows
namespace including network neighborhood and my briefcase.
A: In the versions that we looked at for Windows, we
could browse into the briefcase, we could browse in the
recycle bin, we could browse through the network
neighborhood.
Q: Okay. So am I right then that in the beta
version of Windows 95, and in the final product that came
out in August of 1995, Windows 95, a user using the Windows
common file open dialog could get to and browse network
neighborhood, my briefcase, the Windows namespace?
A: Uh-huh (affirmative). From what we could tell,
they could browse all of the namespaces.
Q: And that was functionality that Microsoft put
into Windows 95 that was available for Novell to use if it
had chosen to go that route?
A: If -- okay. All right. Could Novell have chosen
to use the common dialog and they would have had the ability
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to browse those namespaces if they used the common dialog?
Is that what you're saying? Yes.
Q: Yes, sir?
A: Yes.
Q: I'm sorry your answer is yes?
A: Yes. They would have been able to have use
the -- the namespaces that were in Windows if they had used
the common dialog.
Q: Now, Mr. Harrol, I want to hand you what we have
marked as Defendant's Exhibit 114?
A: Thank you.
Q: Now, you will see on the very first page of
Defendant's Exhibit 114. It says at the top PerfectFit 95,
open file dialog function and issues. And then the date on
the right hand side July 11, 1995; correct?
A: I see that that is -- yup, I see that.
Q: Is this a document that you think you saw way
back in 1995?
A: I don't -- I would have to read through it to
see.
Q: Okay. Well, um, let's just look at the first
paragraph. It says right at the beginning, this main
purpose of this document is to provide a functional
description of the open dialog for Storm. Do you see that?
A: Okay. I see that at the top, first paragraph.
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Q: Do you remember that Storm was Novell's code name
for PerfectOffice?
A: I recall that, yes.
Q: All right. And does this appear, just looking at
the first page, and take a look at if you want to, does this
appear to reflect a debate about what open dialog
functionality would be included in the new PerfectOffice for
Windows 95?
A: I would have to go through the list here. It
would take me -- do you want me to take a moment?
Q: Yes, if it --
A: Okay.
Q: If you can.
THE COURT: A moment, yes.
THE WITNESS: Okay.
THE COURT: An hour, no.
THE WITNESS: I don't want to either. This looks --
looking at the history, I was looking at the history, it
appears that there appears to be a discussion about what --
with people that I recognize as worked on the file open
dialog.
Q: (By Mr. Tulchin) Well Mr. Harrol, just to move
along --
A: Go ahead. No.
Q: If you need time, let me know but --
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A: That is fine go ahead.
Q: But I'm sensitive to trying to move along a
little bit. Um, right at the top in the first paragraph it
says, "this document was necessary to alleviate differences
of opinion of how this dialog would be implemented." Do you
see that?
A: I do.
Q: And we're talking here about the open -- the file
open dialog, correct?
A: Yes.
Q: And one of the questions even in July of 1995, so
this is now ten months after the decision to withdraw
support for the namespace extensions, one of the decisions
that Novell was facing was whether to use the common file
open dialog provided by Microsoft in windows?
A: That would be --
Q: Or --
A: -- sorry.
Q: Or some special file open dialog that Novell was
working on?
A: Yes. One of the things that I have said before
is that every time the discussion came up, we were willing
to look at if there was enough information out there to be
able to fulfill our needs. We never took an option off the
table and including the one that you just mentioned.
488
Q: Okay. So to be clear, even as late as July, this
says July 11th, um, no decision had been made yet about
which file open dialog to use, the one that came from
Microsoft or some special file open dialog that the shared
code group was working on?
A: That is not true. Um, what I said is we would
revisit it. It didn't mean that works did not happen. Um,
as we were going through, for example, um, we might have
conquered the recycle bin but maybe briefcase was giving the
developer an extraordinary amount of problem. And all of
the time, while our work is going on, while we are trudging
through the mire, so to speak in this, we are willing to
come back and say you know what, if we have to refocus all
of the people that we have and see if we can get a better
solution because we are worried about our customers, then we
will -- we will bring everybody to bear and we will do it.
But this does not indicate that there was not work being
done at all. All this says is that we are willing to
reconsider something at any time if we have gotten enough
information from Microsoft to be able to take another
course.
Q: I hope I didn't indicate in my question that I
didn't think work was being done. But what the document
says it was necessary to alleviate differences of opinion?
A: There were some people outside of shared code
489
that would raise the question is there another way to do
this? And they were right to do so because they were
dependent upon it. But the decision had been made, the
decision was being acted upon. And like I said, if somebody
wanted if a -- as you have pointed out, if a business
decision maker decided that we needed to take a different
road, we would listen to that. But the decision had been
made until they changed their mind which they didn't.
Q: Okay. Fair enough. Um, could you look on the
same page, the first page of Exhibit 114?
A: Yes.
Q: There is an entry next to the date June 9th, June
9, 1995?
A: Yes, Tom Creighton. Tom C.
Q: Tom C. that is Tom Creighton; right?
A: That should be, yes. I would think so.
Q: Right. And what this document indicates is that
it was not until June 9th that Tom C. instructed all not to
pursue the alternative design. Do you see that?
A: Yes.
Q: So it was not until June 9th, '95, almost half
way through the year, that Mr. Creighton decided which
design would be used for the file open dialog; correct?
A: Okay. It says alternative design. This could
just as easily have been, and like I said I haven't read
490
this, this could just as easily have been we also looked at
multiple ways of how we would reimplement the features. He
could just as easily in alternative design be talking about
maybe we were looking at some better way to implement that
design. We were going to not pursue the alternative design
because we were going to pursue what we had already done.
There is not enough information here to tell which way this
goes.
Q: Well, you're certainly not testifying that it
means anything other than what I have said; right?
A: Um --
MR. JOHNSON: Objection.
THE WITNESS: I am.
MR. JOHNSON: He just did.
MR. TULCHIN: Well --
THE WITNESS: I am. I am saying that there is not
enough information here to be able to say that this
alternative was an alternative to the common dialog or to a
rewrite of what we had. There is not enough information to
do that. So the alternative could just as easily be an
alternative to the work we were already working on, he could
be saying, plow straight ahead, keep going, we're not going
to be distracted by the alternative design.
(Whereupon, the reporter slowed the witness down.)
THE WITNESS: Okay, plow straight ahead because it was
491
not uncommon for the business makers to come back with
the -- with the critical path being the file open dialog to
re-investigate whether there was an alternative to what we
could do. This alternative design would more likely be,
from my experience in shared code, an alternative proposed
by somebody higher up that we take. And I would say that
this alternative design he would say do not pursue it, we
would -- we would continue to pursue what we had been
working on all the time. That would be my interpretation in
lack of not being able to read the entire document.
Q: (By Mr. Tulchin) Well, let me just try a couple
of questions, Mr. Harrol.
A: Okay.
Q: The entry right below that for June 2nd?
A: Uh-huh.
Q: Refers to a meeting that was called by Jack Young
on June 2nd. Do you see that?
A: Uh-huh.
Q: Apparently it was a meeting you didn't attend;
correct?
A: No. Apparently not. I don't see my name on the
list.
Q: And it was a meeting to discuss a proposal for
the file open dialog, correct?
A: Um, let me -- hold on. In fact, I would assume
492
that is the alternative that Tom C. is talking about.
Q: Okay. And then on June 9th, as we saw --
A: Uh-huh.
Q: Exhibit 114 says that Tom Creighton instructed
all not to pursue the alternative design?
A: So to me it says that he is discounting what was
said on the 2nd.
Q: And it wasn't until June 9th, 1995 that
Mr. Creighton made a decision about which design for the
file open dialog would be pursued. Is that fair?
A: He made a decision that that would be pursued.
He made that decision many times during this whole course.
He decided when he first assigned this and every time that
this came down he decided again. So, yes, he decided again,
um, that this is not a beginning of the decision. This is a
decision about whether we're going to change gears or
whether we're going to proceed. Um, he decided back in
October that we were going to pursue, there was a design
that we're writing against and so, um, the inference that
there is a beginning here is unfounded. There is no
beginning here. Yes, a decision was made, but it is a
decision between proceed as follows or do what we were
doing. That is how I see this.
Q: Well, um, Mr. Harrol, now you're providing an
interpretation of this document though you say you didn't
493
see it at the time, am I right?
MR. JOHNSON: Your Honor, that is what he was asked to
do.
THE COURT: That is true.
MR. JOHNSON: Thank you.
Q: (By Mr. Tulchin) Am I right, Mr. Harrol, that
coding was supposed to occur beginning in June and
July 1995?
A: No. Coding did occur back in June of '94.
Q: Well, was more coding necessary once
Mr. Creighton made a decision in June 1995 not to pursue the
alternative design for the file open dialog?
A: There was still work to be done that -- and that
would be why a query would be made of Mr. Creighton do we
need -- the upper management wanted to understand what was
going on. They wanted to help. And we were working through
issues. Um, okay, so part of -- and maybe that is -- maybe
that is something that bears explanation. Um, when we work
on the file open dialog, we are able to get it to a point
where it is usable and we have to deliver that to the
application so that they can begin coding as well. Um,
sometimes we call that a strawman, sorry.
THE COURT: No problem if you want to pick it up that
is fine.
THE WITNESS: We call that a strawman so that the
494
applications can -- can proceed with their functionality.
But whether I can drive and drop a file inside of the open
dialog has little pertinence to whether the engine can open
up and let you edit it. But that is a burden that falls
upon the file open team to make sure that all of their
features are grounded and working properly. So even though
we were able to using the documentation that Microsoft
provided, we were able to get our file open dialog up and
functioning to where we could hand it to the applications
with the strawman. But it was as we were trying to work out
the details of can we get the namespaces on board which is
our problem, not the applications, that is work that we have
to do and we're continuing to do. And we were not late
because WordPerfect was late, we were late because we
couldn't ship because our responsibilities were because I'm
sorry I will -- I will -- because shared code was late.
WordPerfect was not late. Quattro Pro was not late. It was
shared code that was late. We needed to finish our features
so that when people got into our file open dialog, it
behaved properly and as expected. So I can -- I can see the
-- both of these scenarios happening which is, um, the
management is coming down and saying why is shared code
being late because it is not tradition in the case that we
are, but it is now and they're trying to help us. And so
they want to come in and say, well, you know, make an
495
executive decision, you know, can we move aside or can we do
something else. And so we were, through this entire
process, we were forever remaking this decision. Is there
something better we can do? We were not blind sided that we
could do something else. But the answer is, it always came
back that the executives could see at least from inferring
from the fact that we were never redirected to do anything
else, is we needed to proceed as we had, we were going to
give the users what they wanted, and preserve functionality
for the franchise of WordPerfect products. So here I would
say that Tom Creighton, you asked me, you know, what do I
see even though I wasn't here for this document, what do I
see? This is one of the queries that Tom -- that was made
of Tom about are you guys doing everything you can or is
there a better way to do it and somebody had this discussion
and we're not going to go and do alternative, we're going to
proceed like we had because I have talked to them and it is
-- and I have talked to them and it appears that it is still
the best course to do what we had done and continue to do.
We needed to fix our bugs and get it shipped.
Q: (By Mr. Tulchin) Was it the case, Mr. Harrol,
that around this time, June July of 1995, Novell decided to
support the file open dialog from Microsoft, the one in
Windows 95?
A: I don't know those details because I was not the
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one who was actually -- I would council with the developers,
but there were other people who would direct their
day-to-day. They would only ask me if they needed some
direction for where Windows was going and maybe what options
were available. But I was not directing the file open
dialog's day-to-day efforts. That was somebody else. I
wasn't even the developer nor the person directing them.
Q: And when you spoke last Thursday about the file
open dialog, you didn't mean to tell the jury or the court
that you were involved in the decision about whether to use
Microsoft's?
A: I was consulted on that and yes, I did help make
that decision but I did not say which APIs to use, whether
it was the common dialog. That is what I inferred from your
question which is did I infer or was I saying um, was I
aware that they would use the common open dialog or not.
That was the decision of the developer to whether they would
do that and that went back and forth a number of times, it
was my understanding.
Q: Could I ask you to turn to Page 10 of
Exhibit 114.
A: Okay.
Q: Towards the bottom of the page there is a heading
MISC, perhaps means miscellaneous, and then there is item
three below that. Do you see common open dialog?
497
A: I see that.
Q: And underneath it says, "we will support common
open dialog functionality within our open wrapper."
A: Uh-huh (affirmative).
Q: Now, did that mean, as far as you know, looking
at this document and given your experience at the company,
that a decision had by then been made to support the common
open dialog provided by Windows 95?
A: I don't know that from here because when it says
functionality, we can still mimic it and provide
functionality and not have provided dialog. I can't tell.
The person who wrote this wasn't detailed enough to be able
to tell that.
Q: All right. Right under that it says, "the
installation default would be the PerfectFit," right, PF
open dialog?
A: Uh-huh.
Q: And then the user, this is what people were
thinking at the time, June and July '95, the user specifies
to use the common open dialog that would be what Windows
provides, or the Novell PerfectFit open dialog at custom
installation; correct?
A: That is what it says here.
Q: And as far as you can tell, that was the plan in
the middle of '95 to allow the user to use either the file
498
open dialog in Windows 95, or the Novell PerfectFit open
dialog, correct?
A: It looks that they had both of those options.
Q: And what you were working on was the PerfectFit
open dialog, right?
A: Um, no. Okay, I was working on that.
Q: The shared code team?
A: The shared code team would have worked on both of
those potentially because the -- there would have been one
call to the open dialog and it would have been up to shared
code. If that switch were possible, which I assume it is
from here, it would still have been shared code they would
have been calling. So it would not have been outside of
shared code to do that.
Q: Is it correct to say that given what this
document says that at the time in the middle of '95, Novell
was planning in its products to allow users either to
utilize the Windows common file open dialog or Novell's own
technology that was being created by the shared code group?
A: So in this incarnation of the document, it looks
like that they were pursuing an option for doing that. So I
don't know what the final incarnation was because I know
that there are comments in the documents that say that there
are things missing and so I don't know what the final
incarnation of the document is but it looks like in this
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incarnation that was something that they were considering.
Q: In the product that ultimately came out, the
product Corel released the next year?
A: Uh-huh.
Q: Could you, if you were a user, utilize either the
Windows file open dialog or the Novell technology the
PerfectFit open dialog?
A: I don't know the answer to that.
Q: And am I right that if Novell had chosen, had
made the choice in 1995, to put out a product that used only
the Windows file open dialog, there would have been no need
to wait for the work of the shared code group on the
PerfectFit open dialog?
A: If they had made that decision?
Q: Yes.
A: You're asking me to make the decision for the
business makers of the -- I don't know what they -- they had
reasons to want the functionality. We're talking what,
we're talking 1996 now? When they released?
Q: 1995 my question was?
THE COURT: I think yours was about the Corel release.
THE WITNESS: Yeah, so we're talking 1996.
MR. TULCHIN: That was the prior question, Your Honor.
THE COURT: Sorry. Rephrase, I'm confused.
MR. TULCHIN: May I ask a new question, Your Honor?
500
THE COURT: I'm confused. I'm sorry.
THE WITNESS: Sorry.
Q: (By Mr. Tulchin) Sorry about that. Mr. Harrol,
if it had been the case in 1995, around the time that
Exhibit 118 was written, that Novell had decided that it was
going to release PerfectOffice with -- allowing the user to
use the Windows common file open dialog, that could have
been done, correct?
MR. JOHNSON: Objection, calls for speculation.
MR. TULCHIN: This witness has testified about lots of
choices.
THE COURT: Overruled. Overruled.
THE WITNESS: Okay. So could they have made the
decision in 19 -- early on at the beginning to use the
common dialog?
Q: (By Mr. Tulchin) Well, I asked about '95?
A: The 1995, the Windows 95 dialog, could they have
made that decision earlier? Um, I think yes I said that
they could have made that decision. The question is whether
it was -- whether it was desirable to do so.
Q: I gotcha.
A: Okay.
Q: And I think what you said last Thursday is that
as far as you were concerned --
A: Uh-huh (affirmative).
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Q: -- it made sense to try to add functionality to
what Windows provided?
A: Yes.
Q: That is, to add this Novell technology, the
PerfectFit open dialog?
A: No, to add it to the common dialog.
Q: Right.
A: Yes.
Q: Maybe I misspoke.
A: Sorry.
Q: Let me try it again. I'm sorry.
A: All right.
Q: What you said last Thursday and what you're
telling us now is that Novell could have come out with a
product in '95 that utilized the Windows common file open
dialog. That was a choice that Novell had?
A: That was the choice that they had.
Q: You thought, in your testimony, and I think
you're telling us the same thing now, that it made sense for
Novell to develop some additional technology that could be
put on top of the Windows 95 file open dialog?
A: No. We weren't developing new technology. We
had existing technology that had been there for a number of
years and we were needing to make sure that it was
represented in Windows 95. So it is more of an issue of
502
servicing, we're not writing anything new, we're just trying
to figure out what Windows 95 is doing.
Q: Okay. So let me modify my question. What you're
saying is, um, what you thought Novell should do was to
utilize these other Novell technologies with Windows 95 so
that users of Windows 95 would be able to get to the
PerfectFit open dialog as well as the Windows file open
dialog?
A: To get to the technologies they had already come
to expect.
Q: From Novell?
A: From Novell.
Q: Right. And that was a choice Novell had to try
to, in effect, with the PerfectOffice product that was going
to come out for Windows 95, to try to provide to users of
PerfectOffice this Novell technology that you say they had
been used to using the PerfectFit technology, correct?
A: Yes.
Q: And as far as you're concerned, that was a choice
that was necessary to make sure that customers got the same
Novell technology, the PerfectFit open dialog that they had
been used to seeing in prior versions of the product?
A: Uh-huh (affirmative).
Q: Right?
A: Yes.
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Q: At the same time, if you had wanted to get a
product out around August of '95 or some time not long
thereafter, that could have happened using just the windows
file open dialog. That was a choice?
A: I guess that is -- I don't want to say anything
inappropriate. In regards to that there are lots of choices
you can make. Um -- um, Michael Dell told Steve Jobs to
liquidate Apple. Michael Dell told Steve Jobs to liquidate
Apple. That is a choice he could have made. At the time,
we could have made the choice to use the common open dialog
in 1994 so to ship '95 but that also would have been a
choice to have disenfranchised our customer base
and apparently they were not willing to make that choice at
that time.
Q: Mr. Harrol, you remember, sir, that last Thursday
Mr. Johnson showed you some figures or slides I think
sometimes they're called. Could we show figure seven. This
was, I think you will remember, something that you looked at
last week, correct?
A: Yes. I recall this from last week.
Q: And this -- sorry. This is a screenshot of the
Windows 95 desktop with some things on top of it; correct?
A: Yes.
Q: Now, I think you said that using Windows 95,
Novell could have put an icon for WordPerfect or
504
PerfectOffice right on the desktop; correct?
A: Yes. I know -- whether they wanted to or not
they could do that.
MR. TULCHIN: And if I may approach the screen, Your
Honor.
THE COURT: I think it is a good idea to show. I
think I know where but --
Q: (By Mr. Tulchin) So you could have had an icon
saying WordPerfect or Quattro Pro or PerfectOffice right on
this sort of light blue stuff right here (indicating)?
A: Yeah.
Q: I mean there is a lot of stuff blocking the
screen?
A: Or up above it or yeah.
Q: I can't reach that.
A: I don't want you to try to stand up there.
THE COURT: Somebody had a neat laser. Do you have
that, Mr. Johnson?
MR. JOHNSON: Yeah, we do have a laser around here
some where.
THE COURT: Do you want to use his laser?
MR. TULCHIN: That would be great if it is handy.
THE COURT: If it is not handy, just do what you were
doing.
MR. TULCHIN: I wish I were taller.
505
Q: (By Mr. Tulchin) That was something that
Microsoft provided to Novell in Windows 95, the ability to
put --
MR. JOHNSON: Mr. Tulchin, there you go.
THE COURT: The cooperation is breaking in.
MR. TULCHIN: I hope I know how to use it.
MR. JOHNSON: Just push the little red button there.
Just press it and don't point it at anybody's eyes.
MR. TULCHIN: High tech.
Q: (By Mr. Tulchin) So right there, for example?
A: Yes.
Q: Or over here (indicating)?
A: Uh-huh (affirmative).
Q: And, in fact, here is an icon for network
neighborhood?
A: Yes.
Q: Right. And so that was technology that Microsoft
gave Novell so that Novell could put an icon for WordPerfect
or PerfectOffice or Quattro Pro right on the desktop;
correct?
A: Yes.
Q: And in addition on Windows 95, there is something
called the start button, right here (indicating)?
A: Yes.
Q: Thank you for letting me borrow this,
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Mr. Johnson. And um, if you clicked on the start button,
you could also get to a point on the start button, though it
is not shown here, where again you could find WordPerfect or
PerfectOffice?
A: Yes.
Q: And you could click there and get to those
products and --
A: And they did that, in fact.
Q: Right. I just want to make sure that is correct.
And that was all stuff that Microsoft gave to Novell without
charge?
A: That was all things -- a lot of that was already
available industrywide, in fact.
Q: Are you sure that --
A: Yeah. There is a place in the application
browser in Windows 3.1 where I could put my icon and I can
click on it and start it up.
Q: Same for the start menu?
A: Start menu was a new thing. That was a nice
addition that they made.
Q: Okay. And it allowed Novell to make sure that
users of its products could get to those products very
easily?
A: Uh-huh (affirmative).
Q: And use all of the functionality that those
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products provide, true?
A: Use all of the functionality that those products
traditionally provided, yes.
Q: Right from the start button. Okay.
THE COURT: Or the icon.
MR. TULCHIN: Correct.
Q: (By Mr. Tulchin) Now, um, Mr. Harrol, I want to
look at your figure nine from last week if you could put
that up. And I just want to make sure that we understand
something. Was it your testimony last week that this is a
screenshot from Windows 95?
A: This appears to be a Windows 95 open dialog.
Q: That is not correct, is it, sir? It is actually
a screenshot of Windows 2000; isn't that right?
A: I don't -- I wouldn't know the nuances to be able
to tell the difference.
Q: Well, My Network Places, you see that, maybe I
can come back on the screen, I can reach this one?
A: Yes.
Q: My Network Places there (indicating)?
A: Yes.
Q: That was something first made available on
Windows 2000, am I right?
A: Um, I don't know because you also have the
ability to rename the icon. So I didn't know if the person
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who was actually doing this might have just renamed them.
Q: Well, let me just understand it. Is it your
testimony that this is a screenshot of Windows 95 or
something else or you don't know?
THE COURT: He doesn't know. He doesn't know.
THE WITNESS: I don't have enough time to be able to
discern that nor the machine on which it was taken. If I
had that, I could tell you.
Q: (By Mr. Tulchin) All right. Let's look at slide
11. This is something that you prepared or was prepared for
you; is that correct?
A: Yes.
Q: And the red box on the left, the left pane is the
tree view, right?
A: Yes, that is -- that is what some people call it,
yes.
Q: I think you called it that last week. If I am
wrong tell me?
A: It is a tree. It is a folder browser view
because you browse the folders there and then you browse the
files on the other side. So I try to use different terms
depending on the people I talk to to make sure I communicate
properly. That is why there are different names for these
things.
Q: Okay. Are we comfortable calling it the tree
509
view?
A: Yeah, I think that is fine.
Q: All right. Now, um, the material within the red
box that was placed on this slide 11, that is what is known
as the custom folders; is that right?
A: These are the folders on the disk that I see
right now. The disk is the physical hard drives that are on
the machine or, you know, and then I see my computer above
it, so these are the folders underneath the C drive on this
computer.
Q: Well, the functionality that the namespace
extension APIs provided to ISVs including Novell --
A: Uh-huh (affirmative).
Q: -- was the ability to put custom folders in the
tree view within the red box, am I right?
A: That is one of the things that it provided. That
was not all it provided, but that is one of the things that
it provided.
Q: Well, is it correct, Mr. Harrol, that everything
to the right of the tree view, and let's look at the pane
just to the right in the center, do you see that?
A: Uh-huh (affirmative).
Q: Everything in that pane was something that if
Novell wanted to do that it was going to have to do for
itself. The namespace extension APIs didn't provide that
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ability?
A: No, that is actually IShell view. That is what
IShell view provides is that panel.
Q: The center panel. You're saying that the IShell
view, the IShell View API was provided by the center panel?
A: Yes.
Q: Um --
A: Now, there are -- there are default ones inside
of Windows and they provide these lists. But part of IShell
View and IShell browser is like the dialog, or it is like
the browser window. It is the place where everything is
going to live. And IShell view is okay I have got my like
you said I have got this folder, I got a place and what am I
going to present in that place. The person presenting it
could choose to present a list. The person could just as
easily as in one incarnation of the file open dialog, he
chose to present web pages. So I could put a web page up
there and we did that in a later incarnation. It just
depended upon how much effort a programmer wanted to put
into IShell view. And our mail product, for example, this
is their intention but they wanted to put the mail system
over in that pane. And so that was one of the de-documented
APIs. That is why the mail group, unlike the shared code,
Lynn Monson, as I talked with him my understanding from him
was that he was, um, much more concerned about the
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de-documentation because it affected their whole product
more so than it did the shared code.
Q: Well, let's just talk about a shared code for a
minute.
A: Okay.
Q: Um, the material in the right pane where it says
compensation proposal, do you see that?
A: The view?
Q: Um --
A: On the right hand side.
Q: All the way to the right.
A: Yes. Yes, I see that.
Q: Everything in this pane, this box?
A: Uh-huh.
Q: That was material that Novell itself would have
to provide?
A: Yes, they did. Yes.
Q: And the namespace extension APIs didn't give you
that ability?
A: Um, when you say that do you mean icon dialog
browser as well or just are you talking about the four APIs
or talking about the namespace extensions themselves?
Q: The namespace extension APIs that Mr. Gates
decided to withdraw support for in October of '94?
A: It would include that.
512
Q: It is your testimony that those APIs would have
given you the ability to write compensation proposal to put
that in the right pane?
A: What -- okay. So one of the things that the
common dialog browser did is that you could -- when you, um,
built it, and a common dialog came up, it gave you the
ability to change what space was available on the dialog.
So for example if you can go back to the previous, um, file
open view on the regular common so that I can --
Q: I think it was figure nine. The one --
A: I'm glad you keep track of these because I can't.
Q: Is this the one you wanted us to go back to?
A: That is the one. Thank you very much. So, okay,
so to represent the other dialog, I need when this dialog
comes up to be able to create space on the side where this
list is at. And I can't do that except through icon dialog
browser. That is where I negotiate with these dialogs and
say I need more space over here, I need a new button down
here. So being able to get to be able to control the place
where things are displayed, that was one of the things that
we needed access to. So, yes, one of the de-document APIs
directly affected our ability to tie into the common dialog
and leverage it with what we were trying to do in the shared
code.
Q: Have you spoken to Ronald Alepin, Novell's
513
technical expert in this case about that point?
A: I have never -- I do not know who Ronald Alepin
is.
Q: Never talked to him?
A: I have never had -- not that I know of. If I
knew his face, maybe I might say but I don't know who he is.
Q: Let's look at figure 12. And here I think that
what you were depicting is that a user had clicked on the
find file tab. I should have brought that pointer back.
The find file tab up here, is that right? Is that what your
slide 12 was meant to depict?
A: Slide 12.
Q: This is figure 12?
A: Uh-huh.
Q: You saw this last week.
A: Right.
Q: You were testifying about the find file tab?
A: This is -- this is -- okay. So find file would
be one, we're coming to this because this is the Quickfinder
being leveraged, this isn't about file open dialog. The
Quickfinder being leveraged that is why the different tabs
here and not the find open dialog. So like the question you
asked about could the Quickfinder be there or not, I would
assume if you said not then this tab would disappear, for
example.
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Q: Okay. Well I think you answered my question
which was, um, the find file utilized the Quickfinder
technology; correct?
A: Yes. Not having written it, and my understanding
is that the find file used the Quickfinder technology.
Q: And that was Novell's technology and had nothing
to do with the namespace extension APIs; right?
A: The file, the Quickfinder didn't have anything to
do with the namespace APIs.
Q: Right. And if we could look at slide 13, here
this is similar except now the tab that has been clicked on
towards the top is find content. Do you see that?
A: I do.
Q: And again, that would be some way of utilizing a
specific Novell technology; right?
A: It is where you are -- it is an application
listing from Novell, yes. Now, keep going I'll tell -- I'll
say it later.
Q: Now the question, Mr. Harrol, and then we can
move on is that in figure 13, that you showed the jury last
week, this was all technology that Novell wanted to install
to augment Windows; correct?
A: This is part of the technology. Okay, so the
Quickfinder team I think wanted to install this technology
in Windows.
515
Q: And again, Quickfinder was something that was
built without using the namespace extension APIs?
A: That is correct.
Q: There was no need to use them to build
Quickfinder?
A: No, not to build Quickfinder. Um, well, okay,
there is a problem there. And so the answer I have to give
is yes on the surface but no not really. Um, they did need
the namespace technologies in a way as well because the --
they can't adequately browse the documents in a briefcase,
for example, unless we give them access to that. Um, they
can't edit, they can't traverse network neighborhood to get
it out to the file to get out to the network. Um, they --
because what we found is the cases that when we got out into
the namespaces trying to get to the network through the
namespaces, that when we would get into the namespace to a
new -- let me back up. When we would try to list the
networks that were there, Network Neighborhood had a special
way of showing those networks. And if we could not make
sense of that space, we couldn't jump off into the networks.
And so Quickfinder had some dependencies on shared code.
And even though the -- just like every other product, just
because the Quickfinder team did not use namespaces, they
still used shared code and shared code was the bridge that
they were going to get. So if Quickfinder wouldn't be able
516
to search and show you the documents in your recycle bin
properly unless shared code could interpret the recycle bin
properly. So we're reading again the namespaces and we
can't see them.
Q: Now, Mr. Harrol, when Novell sold --
THE COURT: We're going to break for lunch. I think
their lunch is here. Let's take 20 minutes for lunch and
then continue.
(Lunch recess.)
517
BY MR. TULCHIN:
Q: Mr. Harral, when Novell sold WordPerfect and Quattro
Pro to Corel, you went along to Corel, correct?
A:I did.
Q: So did Jim Johnson, who would be your boss at Novell?
A:Yes, he did.
Q: And at Corel in 1996, Jim Johnson reported to a man
named Paul Skillen, S-k-i-l-l-e-n; is that right?
A:I think so.
Q: Mr. Skillen was the vice president of engineering, I
think, for Corel?
A:Yes. I recall that's the case.
Q: He hadn't come over from Novell, he was a Corel person,
correct?
A:Yes, he came from I think Canada.
Q: Right. Now do you recall that in 1996 Mr. Skillen told
Mr. Johnson, Jim Johnson, this is while you were at Corel,
that your group, the shared code group, should use the
standard file open dialog in Windows 95 so as to get the
WordPerfect and Quattro Pro products out on to the market?
A:I don't know if he told Mr. Johnson that. If they had
decided that, they would have told us and we would have done
that. But I don't know if he told them that or not.
Q: Do you remember that Mr. Skillen actually fired Jim
Johnson in 1996?
518
A:I do remember that Jim Johnson was fired in 1996.
Q: Do you recall that he was fired because he did not
comply with Mr. Skillen's directive to use the Windows
common file open dialog in order to get the products out?
A:They did not divulge to me the reason for him leaving
the company.
Q: Okay. I want to go back to 1994, just briefly. I
think you said earlier today that between June 10th and
October you wrote a version of the file open dialog that
called the namespace extension APIs?
A:Yes.
Q: Now what happened to the code that you wrote?
A:That you being the shared code group?
Q: Yes, sir, because we don't have it. It's not --
MR. JOHNSON: Objection, Your Honor. There was no
source code --
THE COURT: The question was who was you.
MR. JOHNSON: There was no source code produced in
this case. Both sides objected to it.
THE COURT: Let me hear the question. As far as
I'm concerned, the only exchange was who was you are -- who
was you.
BY MR. TULCHIN:
Q: You wrote code that called on the namespace extension
APIs; is that right?
519
A:The shared code group wrote code that called upon the
namespace extension APIs.
Q: Was that code that was written preserved in some
fashion?
A:That code was the same code that was used by
WordPerfect in their development later on. So it was in
use -- I know it was in use after December still because
WordPerfect would not have -- would have been running on it
to do their development, but we wouldn't have done our APIs
at that point. So I don't know whether it ever saw the
light of day in the actual shipped product. That I wouldn't
know.
Q: Whether it saw the light of day in a shipped product,
was it preserved somehow at Novell electronically, let's say
placed in a particular file or on a server?
A:Well, I don't know -- I don't know if they archived it.
Any of the releases of WordPerfect that they were working on
and testing would have had that code inside of it.
Q: Was there ever a written specification describing the
work that was done to write code to the namespace extension
APIs?
A:I don't know if the person who wrote that code did such
a thing.
Q: Well, you didn't write the code?
A:I did not write the code.
520
Q: Was it one of the people who worked for you who wrote
it?
A: It was one of the people who worked for Tom Creighton
that wrote it.
Q: You don't know if there was ever a specification,
prepared something in writing describing what was done?
A: I am unaware of a specification for it.
Q: Now was it the case, Mr. Harral, that during 1995, one
of the difficulties that the shared code team was having in
creating Perfectfit that could be used with PerfectOffice
stemmed from, let's say, disagreements that shared code
people were having with some of the other Novell people like
the Netware people?
A: I don't know -- I don't know to what you are referring.
Q: Was it true that people in the shared code group, in
the group that Mr. Creighton was running, and people
elsewhere at Novell were at each other's throats during this
period?
A: I'm not aware of that. In fact, later on Mr. Creighton
was taken off by Novell and wasn't even in charge of the
shared group. I'm not aware of any problems that he might
have been having or if there were any problems whatsoever.
Q: If I could just show you Defendant's Exhibit 347. This
is an e-mail written it says in 1995, August 27th. So it's
just about a month or month and a half after that other
521
document we looked at, Exhibit 118. And this is an e-mail
written by Mr. Creighton, correct?
A:It says that it is.
Q: And Mr. Creighton is writing to someone named Dave
Miller. Do you see that?
A:Right underneath Mr. Creighton's name I see that.
Q: Do you recall who Dave Miller was at Novell back in
let's say August of 1995?
A:I don't.
Q: And in the first sentence of the e-mail Mr. Creighton
says, in principle I have no argument with the proposition.
It is strategic for the company to have all groups work
together to form a synergy resulting in greater revenue than
we could do alone. Do you see that?
A:I do.
Q: Do you recall a debate in 1995 at the company about the
extent to which different groups should work together?
A:I don't. I don't recall.
Q: Do you recall Mr. Creighton thinking that one of the
problems in producing software was that various groups at
Novell were at each other's throats?
A:I don't know about that.
Q: Would it be fair to say again that was sort of at a
different level above you if that was going on?
MR. JOHNSON: Objection.
522
THE COURT: Is this somewhere or I'm just missing
this -- at each other's throats?
MR. TULCHIN: I'm about to show that, Your Honor.
BY MR. TULCHIN:
Q: If we look at the first page --
A: Well, you asked me a question first.
Q: Go ahead and answer.
A:So as I said before, the WordPerfect -- at least from
the developers' perspective, there was limited interchange
between us and Novell so that we could get our product out.
So there was -- if there were requests that were going on
between Novell and our division with applications, they were
probably keeping that to a minimum so we could get the
product out.
Q: One of the things that was going on around this time is
that the Netware people at Novell were pressing people in
the applications group to include some Netware technology in
the applications that were being written, correct?
A:Like I said, I don't know.
Q: You don't know.
If you look at Mr. Creighton's e-mail, it's just about
halfway down, there is a big thick paragraph that starts I'm
quite aware of some strong feelings. Do you see that?
A:I do.
Q: Does this refresh your recollection at all that there
523
was some strong feelings in the system group at Novell that
there's a lack of commitment on the part of applications
people to support Netware fully?
A:I don't remember any conversations like that.
Q: And Netware was Novell's main product, correct?
A:Yes, the Netware operating system was their main
product.
Q: The Netware operating system accounted for, would you
say like half of all of Novell's revenues or maybe more?
A:I couldn't say. I don't have any numbers.
Q: Then going down to the next paragraph which starts with
remember, the first sentence says -- this is Mr. Creighton
writing to Mr. Miller -- remember also that it's not easy to
make dramatic changes to existing code.
Now was that a reference to the fact that in 1995 there
were some people at Novell asking the shared code group to
make dramatic changes to the code in order to incorporate
some of the Netware technology into the applications?
A:There was a polling of -- as I said, there were a
limited number of interchanges because of our schedule. At
the beginning, with the acquisition of WordPerfect, there
was an initial polling about what kind of synergy there
could be between the groups. And we had milestone charts
that said, you know, here's what we plan in the year, here's
what we plan in two years, three years, four years, five
524
years.
So we then had discussions with people and I -- at the
time, it was my understanding they would take that
information and they would work that into the plan. Where
those ended up, I do not know. If there was trouble with
that, I do not know. We were of the habit of taking that
input and integrating it.
They could have been upset that we weren't doing it.
They could have been upset that we weren't doing it soon
enough. I don't know what that would be. I have no
knowledge of the interchanges here beyond the query of can
we do something and we said yes, but just not now.
Q: Is it the case, Mr. Harral, that part of the reason for
the delay in getting the Perfectfit product, the shared code
product out, that the delay you talked about was trying to
make these sorts of dramatic changes to the existing code,
the source code?
A:No. We never did the integration that Novell wanted,
that they talked about at this time.
Q: And if we look at the very next paragraph down the
page, it says, we cannot make this happen if we are at each
other's throats or if we snipe at each other.
Do you recall that part of the reason for the delay was
that people at Novell were sniping at one another?
A:I guess Mr. Creighton did a very good job of keeping
525
all those things from us so we could do our work.
Q: We talked about Mr. Miller a moment ago, and I want to
hand you a document that we've marked at Exhibit 6. This is
a one-page document and it's dated October 16th, 1995.
THE COURT: Again, this is just the same thing.
When you say an exhibit, the record will reflect that it's a
defense exhibit unless you otherwise indicate.
MR. TULCHIN: Yes, I'm sorry.
THE COURT: No, no, no.
MR. JOHNSON: We have an objection to this
exhibit.
THE COURT: Come up and tell me what the objection
is.
(Side-bar conference held)
MR. JOHNSON: Your Honor, this is about Netware.
THE COURT: Is Netware DOS and DOS technology?
MR. JOHNSON: No. Netware is a server.
THE COURT: It's a server. Nothing to do with
PCs.
MR. JOHNSON: This is all Netware related stuff.
That has nothing to do with what we're talking about here.
These bugs being talked about have to do with bugs in
Windows 95 that were causing problems with existing
products, not the product that was being planned for,
Windows 95, backwards compatibility required. In other
526
words, Windows 95, you had to be able to run your old
products on Windows 95. So what they are talking about is
bugs that had to do with running existing products like
Netware. Nothing to do with this case. We're only
confusing the jury as to the significance of this completely
irrelevant document.
MR. TULCHIN: Your Honor, I don't know that that
is the case. It strikes me that this is a business record.
And Mr. Richards says this, worked in the legal department
at Novell, submitted an affidavit to the Court in connection
with the motion to compel saying that he wrote this, if I
remember correctly, or maybe a different document. I hope I
have got the right one, but this is a business record of
Novell. It reflects something other than the ability to get
these products out in 1995. I guess the witness can say so.
I hear what Mr. Johnson is saying.
MR. JOHNSON: Here's another problem. He's going
to show that the problem that we had, we had with
development.
THE COURT: A lot of things that he says, there is
a difference in interpretation in what the documents mean.
Certainly some you have introduced. I have confidence in
the jury. It's got nothing to do with this and, again, you
can bring it on later.
(Side-bar conference concluded.)
527
THE COURT: Ladies and gentlemen, this document
may look very dramatic. It's going to be for you to
determine the significance. There's going to be subsequent
questioning in the case that maybe has nothing to do with
PCs or with Netware, which is a server product.
MR. TULCHIN: Let's not quite show it yet.
BY MR. TULCHIN:
Q: Mr. Harral, before we publish the document to the jury,
this is Defendant's Exhibit 6, let me ask you, sir, are you
familiar with this document? Do you recall having seen it
before?
A:I do not recall having seen this document before.
Q: Can you tell from the second paragraph which begins,
the important matter in Dave's mind whether this has
anything to do with the Netscape -- sorry, namespace
extension APIs?
A:I don't know.
Q: When there's reference here to the beta release, can
you tell whether this is a beta release of Windows 95, such
as the first release that you got in 1994?
A:I don't know.
THE COURT: I think -- this witness knows nothing
about the document. It's just for identification right now.
MR. TULCHIN: Under the circumstances, Your Honor,
I think I will not use it.
528
THE COURT: Thank you, Mr. Tulchin.
MR. TULCHIN: I am about to finish my questions
with Mr. Harral.
BY MR. TULCHIN:
Q: Mr. Harral, I think this the last question.
When you showed these three choices, the three options
that you referred to, one was to continue to use the
namespace extension APIs. That was one number one, correct?
A:Yes.
Q: Number two was not to the use them -- not to use the
APIs, but to try to proceed without that extra
functionality, correct?
A:No. Let me back up here. I need to make sure what you
are saying is that we had three options. One was to use the
APIs. The second one was to use the common dialog and
enhance it such that we could leverage those functionalities
within the framework of the common dialog. The third was,
as we were told, reproduce exactly what was -- what was
there.
Now you rightly state that the bad side of the common
dialog is that if we couldn't leverage what we were doing,
we would end up with just the common dialog, which is not
the option we were looking for. That's why if we could get
beyond just the common dialog, we could then use that
option. If we couldn't get beyond just the common dialog,
529
we wouldn't be able to -- and, in fact, didn't use that
option many times.
MR. TULCHIN: Your Honor, if this isn't too much
of an imposition, could I ask the plaintiff's team to put
this demonstrative on the screen? It's demonstrative 15
that they showed this morning.
MR. JOHNSON: Not a problem, Your Honor.
BY MR. TULCHIN:
Q: I'm sorry, Mr. Harral. I didn't mean to spend as much
as time on this. But the first option was to continue to
use the namespace extension APIs, correct?
A:And see if we somehow fit it, yes.
Q: Those APIs never went away, they remained there?
A:What we're referring to there is icomdlg browser.
Q: Mr. Harral, you testified earlier those APIs were never
removed, they remained there in the product?
A: They were re-documented. That one was re-documented.
Q: The APIs were not removed, they actually remained in
the beta and were in the final version for Windows 95,
correct?
A: That is correct.
Q: Here was my question. On the second option, you said
last Thursday, and this slide reflects what you said, page
342, the second option would be to see if we could somehow
fit within the framework that they had given us and reduce
530
functionality.
A: Uh-huh.
Q: My question to you is this: What you are referring to
there in the second option is using the Windows common file
open dialog, correct?
A: Using -- do you mean using it wholly --
Q: Yes.
A: -- or using it and then working with it?
Q: No, using it as the file open dialog --
A: No, that's not what we were intending. Because it says
work within that framework. Okay. There's still work to
do. Okay. We're not just putting up the dialog and that's
what we're going to have. What we're saying is could we
work with Microsoft and find a way that we could still
expand what real estate we had access to. Could we get the
viewer on there even if we couldn't maybe get the namespaces
up. This is a wide vista of possibilities.
The question is as we work with Microsoft, do we get
enough help that we think it's adequate, or are we going to
be so reduced, i.e., by just the common dialog that it's not
an option. It always came back to we could never get enough
help so that we could work with it. So that option always
came on and we always looked at it and we said, but it
doesn't look like it yet, but we still have enough
information to do that, and it always went off.
531
Q: Did we not look earlier at Exhibit 118, Defendant's
118, from July -- I will get you another copy if you want?
A: I hope I still have it. I'm running out of space on my
desk.
THE COURT: When Mr. Tulchin said that was going
to be his last question before, you didn't believe it, did
you?
MR. TULCHIN: Last subject matter I hope I said.
THE WITNESS: That's okay. Maybe I can remember.
Tell me about it.
BY MR. TULCHIN:
Q: The document written in July, which talks being Mr.
Creighton's directive in June, remember that, about which
alternatives, and he didn't --
MR. JOHNSON: Your Honor, I would like him to have
the document, please.
MR. TULCHIN: Well, if I may proceed, Your Honor?
If I may proceed?
THE COURT: Go ahead.
MR. TULCHIN: But let me do this and we'll try to
move along. It's the wrong document, 118, and my memory was
wrong about what document.
MR. JOHNSON: That's exactly why I wanted him to
have it, Your Honor.
MR. TULCHIN: Shall I proceed, Your Honor?
532
THE COURT: Just proceed.
BY MR. TULCHIN:
Q: Am I right in thinking that we looked at a document
earlier today where Novell recognized that it was possible
to use the Windows file open dialog, the file open dialog
provided by Microsoft, and still get out the product?
MR. JOHNSON: Your Honor, asked and answered
innumerable times.
THE COURT: Overruled. This is a predicate for
the next series, the subject matter in which we have now
resolved.
Go ahead.
THE WITNESS: So, okay. I think this is the
document.
THE COURT: Did you hear what I said? The subject
matter in which we now reside. Didn't make any sense.
THE WITNESS: So if you are referring to when we
were talking about the document where Tom Creighton said we
were no longer going to consider the alternative, then that
was a discussion -- in my view, that was a discussion of a
representative above Tom Creighton wanting to know why
things are going the way they are. And that is why Tom
Creighton said, we're not going to do anything with the
alternative. I think the representative who asked that
Q:uestion was given information and Tom was allowed to make
533
that decision. And so I think at that point everything went
the same way, the representative didn't tell Tom to do
differently, and that's where it stood.
BY MR. TULCHIN:
Q: But certainly you told me earlier this morning that if
you decided to use the Windows file open dialog, you could
have gotten the product out in 1995?
A: If that was an acceptable solution, it would have been
easier to get it out.
MR. TULCHIN: Nothing else, Your Honor. Thank
you.
THE COURT: Mr. Johnson.
MR. JOHNSON: Thank you, Your Honor.
REDIRECT EXAMINATION
BY MR. JOHNSON:
Q: Why was it not an acceptable solution?
A: Because we had customers who had been on WordPerfect
for a decade and we had -- WordPerfect Corporation had a --
knew that its customers had made a great investment in their
product. If we were to -- there were many, many, many
discussions as we moved into Windows, because Windows had a
huge amount of standards that it taught people. And we knew
that as people moved on to Windows, they were adopting those
standards.
As the people that we had that were already using DOS,
534
they already had entrenched standards. How they had -- the
people who ran their day around trying to work with the
documents they had created with WordPerfect. And only when
they chose to move would they be saying they were going to
adopt these different standards. We weren't trying to force
them to move in any direction. We wanted to provide
functionality wherever they were at.
If we brought out a version of WordPerfect -- and there
was a discussion about this. When we tried to move forward,
I talked about how you would record things that you did so
you could play them back later so you didn't have to do the
work yourself over and over again. There were huge
discussions in WordPerfect about how do you bring forward
this way that they've done it on DOS into Windows when
Windows had totally different ways to do it. We could
invalidate all the work that they've invested in our product
as they moved to Windows. So we had lots and lots of
meetings and discussions with the DOS group to make sure
that we didn't only do what Windows wanted but we were able
to bring forward these people so that their work was not
invalidated.
At the same time, we knew that their way of living in
the product was what we were talking about as well with the
file open dialog. If we wanted them to live in the product
and feel like -- we wanted them to feel like, oh, here's
535
where it's at now. We didn't want them to feel like, oh,
can I even do this anymore. That wasn't the option we
didn't have. Because if you disenfranchise your customer,
usually what my experience has been is they will -- if they
have to go look at something else, they will look at all the
options and you're at the bottom of the list because you
just hurt them. We did not want to be in that position.
Just like we wanted to make sure their work of
capturing work they had done was brought forward, we wanted
the place that they lived in to be brought forward. We knew
that new people would live in the Windows 95 shell. But we
had to make sure that the people who were going to be coming
forward, they felt comfortable as well. The people in the
Window 95 shell, we thought there were features they would
like. So we wanted to make sure that people using
WordPerfect on Window 95 and all the other products that
leverage that, that they were going to have the same -- they
felt -- nobody felt like a second class citizen, whether
they were in Windows or whether they were inside of our
products. That was the goal that we had.
Q: Thank you.
Going back early on to the cross-examination by Mr.
Tulchin, he asked a large number of questions and almost all
of them were framed during the period of 1994 to 1996, and
he kept referring to that period in time. Then he asked the
536
question, quote, is it also fair to say, Mr. Harral, that
throughout this period you did not rub shoulders with upper
management. And you said that you didn't rub shoulders with
upper management during that time period. Then he showed
you a portion of your deposition. And do you still have
that up there with you?
A:I do have it.
MR. JOHNSON: Can we get that deposition up? We
don't have that one. Can we put this on the Elmo?
BY MR. JOHNSON:
Q: Mr. Tulchin referred you to this testimony that you had
given in this deposition -- not in this case --
A:Which page was this again?
Q: But in some other case.
177.
A:Thank you.
Q: And I just wanted to be clear here that the question
about --
A:Rubbing shoulders.
Q: -- rubbing shoulders had to do with a much earlier
period in time back when you were with WordPerfect in 1989
and 1990?
A:I was -- one of the things that I noted here is that
the context of the comment, in 1989 and 1990, when I was
first hired, I was hired in 1989 at WordPerfect. And in to
537
1990 when I'm still working in the printing group at
WordPerfect, the only interaction I had with the upper
management really was that the head of the company
interviewed me to get hired. After that, I never talked to
them. So in that time frame, that wasn't something that I
really had the opportunity to do.
Q: But if we turn to the time period that Mr. Tulchin kept
talking about, which is the time period between 1994 all the
way through 1996, it would be fair to say that you did rub
shoulders with upper management at Novell?
A:Yes.
Q: Thank you, Mr. Harral.
MR. JOHNSON: Can we put up Defendant's Exhibit
172, please?
BY MR. JOHNSON:
Q: Do you have that document before you, Mr. Harral?
A:I'm searching through the dead trees that I have here
right now.
THE COURT: It's on the screen.
BY MR. JOHNSON:
Q: Can you read it on the screen there?
A:Yes, I actually think I can.
Q: There's a simple question I have about this. I know
you didn't even know who Scott Nelson was. Down at the
bottom it says he was apparently some product marketing
538
director, NBA. Do you know what that means, NBA?
A: No.
Q: This document is about compatibility of PerfectOffice
3.0. On the new operating system, Windows 95, that hadn't
even shipped yet; is that right?
A: That's what it says here. Because PerfectOffice, we
would have concern in shipping a Windows product and
operating system that had not been yet been released.
Q: PerfectOffice 3.0, which had already been released, I
think you testified, in December of 1994, it was important
that that product be at least able to work on Windows 95; is
that right?
A: Yes, that would be a big concern. Because when you
release a new operating system like the -- one of the
companies that I came from, as I dealt with the IT
department and my frustration they had not upgraded Windows
in a while, I would talk to them and they told me it would
take them a year to deploy an operating system. So it takes
a while for a new operating system to end up in businesses
where they are using it day to day. So we could have this
older product in place for a long time after afterwards and
some people could use Windows 95 and some may not. So even
though we wouldn't have everybody over, if somebody was
trying it on Windows 95, that could determine whether they
wanted to use our product or not from just those small
539
tests. We wanted to make sure -- we were concerned that
they would have a good experience of this older product for
the new operating system.
Q: Thank you.
MR. JOHNSON: I think we can turn that one off.
BY MR. JOHNSON:
Q: There were quite a number of Q:uestions from Mr. Tulchin
with respect to e-mails and memos and things, and a
discussion of your discussions with Premier Support. At one
point you said that Premier Support kept records of the
phone conversations that you would have had with them. How
do you know that?
A: Well, because when I called Premier Support and I
wanted to follow up on an issue that I had submitted with
Premier Support, there is no way that the person I just
happened to get on the phone could know, one, what my issue
was and, two, what the status was unless there was a
recording system that they would maintain those incidents
from call to call.
Q: So based upon your knowledge of how this worked,
Microsoft should have a record of all those phone calls you
made to Premier Support?
A: Yes.
Q: I have looked through all of Microsoft's document in
this case and I haven't seen those records. Have you seen
540
any of those records in this case, Mr. Harral?
A: I have not, and I don't get the chance to look through
all the documents that you do.
Q: Let's turn to Defendant's Exhibit 259. If you would
turn to the second page. Mr. Tulchin referred you to one
bullet point, I believe it was the first bullet point, and
talked about the slow and too many bugs part of this
particular bullet point. Do you recall that?
A:I do recall this page.
Q: Let's go up to the top of the page, executive summary,
first paragraph. It states, WordPerfect 6.0 for Windows has
done many things to help establish WordPerfect Corporation
as a leader in Windows word processing. The product has
been correctly positioned, advertised and reviewed as the
most comprehensive word processing program in the market.
Is that consistent with your recollection of the
reviews with respect to WordPerfect 6.0 for Windows?
A:It was.
Q: Let's not leave this to doubt, Mr. Harral.
MR. JOHNSON: Could we put up Plaintiff's Exhibit
110, please? And turning to the second page. This is a
December --
MR. TULCHIN: I would object to the let's not
leave this to doubt comment on direct -- or redirect.
THE COURT: Sustained.
541
BY MR. JOHNSON:
Q: Mr. Harral, I'm drawing your attention to Plaintiff's
Exhibit 110 and looking at this computer magazine from
December of 1993, and turning to the first page there,
WordPerfect 6.0, at the top it says, looking for the
ultimate Windows processor, and it talks about WordPerfect
6.0.
Do you recall that this was the type of reviews that
WordPerfect 6.0 was receiving?
A: I do. I didn't see this review, but I do recall that
is the sentiment we had about the product.
Q: Reading form the top of the review, it states,
WordPerfect 6.0 for Windows isn't just another software
program. It is a computer user's garden of unearthly
delights, an MVP award winner. The latest version of
WordPerfect makes major gains in the word processing
features war adding functions available in its chief rival,
Microsoft Word for Windows, and then some.
Is that consistent with what you recall at the time
about the reviews of WordPerfect 6.0?
A: Yes, it is.
Q: Turning now to Plaintiff's Exhibit 126. This is much
like Plaintiff's Exhibit 390 that we looked at in your
direct examination where WordPerfect had excerpted some of
the reviews with respect to PerfectOffice 3.0. This is the
542
same thing for WordPerfect 6.0. And by looking through
these blurbs, can you tell us, are these also consistent
with your memory that WordPerfect 6.0 for Windows received
high praise?
MR. TULCHIN: Objection, Your Honor, both because
apparently it's being offered for the truth and because this
witness has already said he wasn't familiar with the
marketing or advertising.
MR. JOHNSON: Your Honor, we've already instructed
the jury that these are offered to show its impact on the
consumers and not for the truth of the statements made.
THE COURT: I think under the circumstances, I
think Mr. Tulchin opened the door a little bit, but I think
you've gone through it. Sustained.
MR. JOHNSON: Your Honor, may I show a couple
reviews for the other WordPerfect version that he talked
about, which was not 6.0 but 6.0A?
THE COURT: Yes. I don't remember him being
asked, but that's fine. Go ahead.
BY MR. JOHNSON:
Q: Turning now your attention to WordPerfect 6.0, Mr.
Harral, was that a subsequent version of WordPerfect?
A:Yes, by the number it would be. It is.
Q: And drawing your attention to Plaintiff's Exhibit 233,
in this business services industry article with respect to
543
WordPerfect 6.0A says, WordPerfect 6.0A for Windows named
best word processor for second year in a row. WordPerfect
for Windows chosen over Microsoft Word for Windows as the
best word processor of 1994.
MR. TULCHIN: Object.
THE COURT: I'm going to tell you all later this
case is not about monopolizing or attempt to monopolize in
the application market. It's important for you all to
understand this. This is not a case about whether -- I'll
not get into this war, but I might as well say it now. It's
time it's stated clearly by me, this is not a case against
Microsoft for attempting to leverage any monopoly it has in
the operating systems market into the applications market.
That is not what the case is all about except to the extent
that somehow it's a basis for destroying -- to the extent
that it affects the operating system. It's a very hard
concept to understand, but you will have to -- putting all
these things up, this is not a case about somehow Microsoft
monopolizing or attempting to monopolize the word processing
application market. It's very important for you to
understand that.
BY MR. JOHNSON:
Q: Mr. Harral, now turning your attention --
MR. JOHNSON: This will be the last one of these,
Your Honor. This is actually Mr. Gates speaking.
544
BY MR. JOHNSON:
Q: -- to Plaintiff's Exhibit 162. And drawing your
attention to the top of this e-mail, e-mail from Mr. Gates
to Mr. Pete Higgins and Mr. Mike Maples dated Wednesday
March 30th, 1994. The subject is with WordPerfect 6.0A.
Mr. Gates states, I'm amazed at their responsiveness. This
is very scary and somewhat depressing. This is as much as
we plan to do for 1995. A lot of work in this release.
Do you recall, Mr. Harral, that the press was saying
that you had done a lot of work for this release, this 6.0A
release of WordPerfect?
MR. TULCHIN: Objection, Your Honor. This
document --
THE COURT: Sustained.
MR. TULCHIN: Can they take it off the screen,
Your Honor?
THE COURT: It's off.
BY MR. JOHNSON:
Q: Mr. Harral, there were a number of questions asked by
Mr. Tulchin with respect to whether or not there were
reports that came out after Microsoft's developer
conferences that you would have seen at the time. I just
want to show a couple of these. Plaintiff's Exhibit 63.
If you can take a look at that, would that be an
internal document within WordPerfect where somebody had gone
545
to the conference, details for everybody else what occurred
and what was presented at the conference?
A:Yes, it is.
Q: And, similarly, if we take a look at PX-78. Is that
another one of these types of internal things at WordPerfect
where people that had been at the conference are telling
everybody else what happened there and all the features and
things that were being discussed?
A:Yes, it is.
Q: Mr. Tulchin also asked you a number of questions
relating to whether or not there had been any work done
prior to receipt of the beta in June of 1994 with respect to
WordPerfect for Windows 95. I would like to show you what
has been marked --
MR. JOHNSON: Before you put that up, I think you
have an objection to this one. So it's PX-172. If you
don't, I will put it up. If you do --
MR. TULCHIN: I don't know what the document is,
Your Honor.
We do, Your Honor.
THE COURT: Approach the bench.
THE COURT: Has the witness ever seen it before?
Has the witness ever seen this document?
MR. JOHNSON: The witness has seen this document.
(Side-bar conference held at bench.)
546
MR. JOHNSON: Your Honor, this document, the
articles of the development efforts for 132 Windows 95 was
the first 32 bit operating system for Microsoft. This goes
in detail through the chronology of work that had been done
with respect to getting ready for Windows 95, the 132
development process.
MR. TULCHIN: None of this is work that he did or
is familiar with, at least that was his testimony today. It
also, Your Honor, has nothing to do with what work they did
in reliance on the statements at the meeting in November of
1993. There is no question whether they had done any work.
It's whether they had done any work based on anything they
were told at the conference, at least as I remember we just
went through.
THE COURT: What is the testimony going to be?
MR. JOHNSON: Your Honor, in opening he said over
and over again we're late, we're late, we're late. We were
always late. This document shows we were not late. We were
on top of our development efforts for Windows. That's when
we begin Windows 95. Windows 95 was the first 32 bit
operating system.
THE COURT: I am going to allow the testimony.
It's only marked for identification right now, but you can
put it on the screen.
(Side-bar conference concluded.)
547
BY MR. JOHNSON:
Q: Mr. Harral, drawing your attention to Plaintiff's
Exhibit 172.
THE COURT: This document is not in evidence, but
will let Mr. Harral testify about it and you all can look at
it as he testifies. Maybe it comes in later. I just
haven't made up my mind.
BY MR. JOHNSON:
Q: Does this document summarize the development efforts
begun at WordPerfect going all the way back to 1992 in
preparation for the first 32 bit operating system from
Microsoft, which would have been Windows 95?
A:Okay. I was -- sorry. I was confused about the first
part because it's talking about the win NT.
These would have been efforts for Windows 32 bit
development that would have led up to the Windows 95
release.
Q: So even as far back as November of 1992, WordPerfect at
least was engaged in development efforts looking forward to
the first Windows 32 bit product?
A:Yes.
Q: Thank you, Mr. Harral.
MR. JOHNSON: Can I have this entered into
evidence, Your Honor?
THE COURT: Not right now. I will decide it
548
later.
MR. JOHNSON: Thank you.
THE COURT: It may very well be admitted. This
witness didn't author it.
BY MR. JOHNSON:
Q: Mr. Harral, there were some questions to you by Mr.
Tulchin concerning concept design specifications, and this
was Defendant's Exhibit 98.
MR. JOHNSON: Can we get Defendant's Exhibit 98 up
there?
BY MR. JOHNSON:
Q: And this was with respect to thunder, which you weren't
really certain exactly what that was. But there was a
suggestion by Mr. Tulchin in his questions that they weren't
able to find any of these concept design specifications for
Perfectfit and the file open.
So I would like to draw your attention to PX-91,
please.
MR. JOHNSON: And if we could put -- maybe we
could put those kind of side by side. Is that possible? If
we could do that.
BY MR. JOHNSON:
Q: So turning your attention to this PX-291, would this be
the concept design specification as of March 31, 1995 for
Perfectfit 95 with respect to the file system and the file
549
open?
A:Yes. That's what it says.
Q: Turning to --
MR. JOHNSON: I'm going to require a little help
on this, Your Honor. Just a moment.
BY MR. JOHNSON:
Q: Turning to the page Bates stamped 186, which is page 15
of the document, and it has a glossary of new terms. The
very first one is namespace. So this would have been a
glossary of new terms in connection with the file open
dialog for Perfectfit. And the namespace being referred to
here, Mr. Harral, does that relate to the namespace
extension APIs that we've been talking about in this case?
A:Yes.
Q: Thank you, Mr. Harral.
There was a series of Q:uestions by Mr. Tulchin with
regard to Quattro Pro and whether or not they were somehow
the reason for the delay. I recognize that you said
appropriately that that wasn't what you were doing, the
product Quattro Pro was not your thing. But let me ask you
this. Would Gary Gibb be a person that would know if
Q:uattro Pro was the problem?
A:Yes.
Q: Why?
A:Because he was at the level of management to look over
550
the various products. All I would be able to report to Gary
through Tom was what our reasons were and convey those. I
would be unaware of that. Gary would be the person that
would be able to talk more about that.
Q: Drawing your attention now to another exhibit used by
Mr. Tulchin. It was actually marked as Exhibit 559-A
because it was a portion of that big book in front of you
that was apparently a 1995 -- mid 1995 publication of some
type.
MR. JOHNSON: Can we bring that up? You don't
have that?
We don't have it, Your Honor, because we didn't --
THE COURT: No, it's not yours. In fact, you
objected to it, as I recall.
BY MR. JOHNSON:
Q: Drawing your attention to this 559-A exhibit, which is
a portion of this book, and all I want to ask you, in this
list of shell extensions that Microsoft apparently published
some information about sometime in 1995, is there anything
here in this list of shell extensions about namespace
extensions?
A:On this first page I don't see anything about namespace
extensions.
Q: I'm sure if there's a reference to namespace extensions
in there, Mr. Tulchin will bring it to your attention.
551
MR. TULCHIN: Objection, Your Honor.
THE COURT: Sustained.
BY MR. JOHNSON:
Q: Now could we turn to Defendant's Exhibit 347.
Mr. Harral, you were referred to this exhibit during
the cross-examination. And Mr. Tulchin highlighted the
first sentence in the fifth paragraph there. If we could
just draw out that you whole paragraph.
Mr. Creighton was apparently reporting that there were
some strong feelings in the systems group that there was
some sort of lack of commitment by the applications people
to support the network fully. So mr. Creighton goes on,
does he not, to say that is not the case?
A:Yes, it says it's simply not the case.
Q: And doesn't he go on in this paragraph to say that
what's really important here is we've got to be make very
sure that whatever we do doesn't cause our products undue
delay in release? Doesn't he say that, sir?
A:It does later on there, yes.
Q: That, in fact, he actually suggests that -- and he
says, there is also a fairly strong desire to maintain our
jobs.
Can you tell us why Mr. Creighton would be concerned
about his job in case of a late release of this product?
A:A late release, there are two things that would happen.
552
When developing software, you have got to deliver -- you've
got to be able to deliver what you said you would and you
have to be to able to deliver it in a timely fashion. So
you always weigh that -- the Windows team in WordPerfect
Corporation had a good history of delivering what they said
they would and when they said they would. And you don't get
the chance to keep doing it if you consistently show that
you can't do it, that you can't release the product on time
and release the product that you said you would.
So Tom is pointing out rightly so here that we
understand the risk here. We are not -- we are not taking
this for granted. We are trying to weigh very difficult
decisions with things that are potentially, depending upon
how things fall out, very much out of our control, and
trying to chart the best course that we can to release this
product, and Tom understood that fully.
Q: Thank you, Mr. Harral.
MR. JOHNSON: I think the last thing I wanted to
do was -- and I think I owe an apology for this. Figure 11,
which was the common file open -- I think it was 11. No, it
wasn't 11. What was it?
MR. TULCHIN: I believe, Your Honor, it was nine.
MR. JOHNSON: There it is.
I blamed myself for this. As Mr. Tulchin said
this is the file open dialog for Windows 2000. I'm sure he
553
didn't get that wrong. Could we put up one now that came
from one of the exhibits in the case that is the file open
dialog for Windows 95? And if we could enlarge that.
BY MR. JOHNSON:
Q: Is that substantially different, Mr. Harral, from the
file open dialog in Windows 2000?
A: It's not significantly different, which is why you
would want to take some time to discern which operating
system it came from. Functionally they are not
significantly different.
Q: Thank you.
MR. JOHNSON: I apologize for that, Your Honor.
Thank you, Mr. Harral. No further questions.
MR. TULCHIN: Very few, Your Honor.
RECROSS-EXAMINATION
BY MR. TULCHIN:
Q: Mr. Harral, you were shown on redirect two memos, one
is Exhibit 63 and the other is Exhibit 78, written by people
at WordPerfect in 1993 about meetings or conferences with
Microsoft, right?
A:Yes.
Q: And just so that I'm sure about this, you have never
seen any memos about the November 1993 meeting that you
testified about, correct?
A: Never seen any memos about --
554
Q: Sorry. Let me ask a better question.
Exhibit 63 is about 15 pages long, and it's all about a
design preview in July of 1993, right?
A:Okay.
Q: Exhibit 78 is about a workshop in September '93 and
it's about 12 or 13 pages, right?
A:Okay.
Q: And I think what I asked you on cross -- and I'm just
going to make sure that I've got this -- is that there are
no memos of which you are aware about this 19 --
November 1993 meeting when Mr. Struss and Mr. Cole talked
about what might be in the beta versions of Windows 95?
THE COURT: I think we've been through that. You
better say people at Microsoft.
BY MR. TULCHIN:
Q: People at Microsoft. There is no memo about that as
far as you know?
A:As far as I know.
Q: Lastly, you were shown Plaintiff's Exhibit 291, concept
design specification, March 31, 1995.
A:Yes.
Q: Do you recall any document with a similar title or same
title for Perfectfit that goes back to 1994?
A:The reason there may not be is because -- so the answer
is I wouldn't recall any because it would be entirely
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different because back in 1994, that was close to the
acquisition time and WordPerfect had a different way of
maintaining its information. This is a Novell document that
going forward they would do it in this form. So I don't
know what -- so would there be something similar to it?
There were documents that were produced that we worked from,
but I don't -- I haven't seen any of them yet.
Q: Let me just see if I can get this straight. In the
last six months of 1994 when Novell owned WordPerfect, was
there any concept design specification for Perfectfit as far
as you can remember?
A:I don't recall concept design specification.
MR. TULCHIN: Nothing else, Your Honor.
THE COURT: Thank you very much. I'm a little
worried we're running behind schedule, but still this is
just a natural time to break. I will stay here with counsel
and Mr. Harral for a second and see you all at eight o'clock
in the morning. Thank you all very much.
(Jury excused)
THE COURT: Sorry, Mr. Harral. I know you need to
get back on the road, but let me ask you a couple Q:uestions
which I'm not sure are different from the ones I asked you
last Thursday. Everybody else seems to understand all of
this better than I do. I don't have the transcript from
this morning, although I think it's been prepared.
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But your testimony this morning and on Thursday
seems to me to be that you all -- when I say you all, I will
say you. I guess you and the members of your group, I don't
want to get hung up on that. You saw that Windows was a
technological breakthrough. It was adding things that other
operating systems had not in the past conceptually, correct?
Features, something?
THE WITNESS: No. I have not characterized that
well.
THE COURT: No, you probably did. I just didn't
understand.
THE WITNESS: So it was new for the PC. I could
look to the McIntosh and I could find some of the things --
THE COURT: Excuse me, for the PC. It was
something -- in the PC area it really was different?
THE WITNESS: Yes.
THE COURT: You wanted, and I think you said it
very well before, you wanted, and I wish I had it, you
wanted WordPerfect to be -- to make the best of the new
product, the best of Windows?
THE WITNESS: I wanted -- we wanted Windows to be
the best it could be because of that.
THE COURT: So as I understand it, at least from
your perspective, you wanted Windows to succeed, but you
just wanted WordPerfect to succeed along with it?
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THE WITNESS: Yes.
THE COURT: And so you were expecting consumers
and end users to be buying Windows so it could be used with
this new wonderful application for WordPerfect as it
developed?
THE WITNESS: The way that -- we had people still
using DOS. And we felt that if we started producing very
compelling products in Windows 95, that those people -- we
would remove one more reason that people would hold off
going over to Windows and would move over to Windows.
THE COURT: So the consumer would buy -- it was a
better -- a new better product that Microsoft had produced
which you wanted to have consumers buy?
THE WITNESS: Yes.
THE COURT: That's what you wanted?
THE WITNESS: Yes.
THE COURT: What your concern was, and I don't
quite know how to put this, but essentially it's quite
frankly the case is not all about, you were worried about
Microsoft using its access to the operating system, Windows,
to leverage its knowledge there and make WordPerfect and
eventually win out over WordPerfect and eventually
Perfectfit because it was going to be able to tie into
the -- it sounds like I know what I'm talking about, but I
don't -- this rich expansive environment that Windows 95
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provided, that it was going to be, respectively, a word
and --
THE WITNESS: And the operating system.
THE COURT: Together it was going to connect the
hooks. It wasn't going to allow you all to connect to the
hooks. So therefore it was going go to a better product?
THE WITNESS: That's right.
THE COURT: So your real concern really was that
Microsoft was trying to use its knowledge to monopolize or
attempt to monopolize the applications part of it?
THE WITNESS: That was one of the concerns we had.
THE COURT: What was the other concern, if any?
THE WITNESS: Even if you don't monopolize it --
THE COURT: Be dominant, without getting into
legal terms.
THE WITNESS: Yes, because --
THE COURT: To win out over WordPerfect?
THE WITNESS: Yes.
THE COURT: And that was a concern?
THE WITNESS: Yes.
THE COURT: Perfectly understood. But from your
perspective, that's what the concern was?
THE WITNESS: Yes.
THE COURT: In fact, no matter what happened, you
were trying to connect WordPerfect and whatever it exposed
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in terms of its own APIs or everything else, it was going to
be operating on the Windows 95 operating system?
THE WITNESS: Yes.
THE COURT: No matter what happened. And if
somebody could use what it exposed in terms of APIs and use
them eventually as whatever, it was still going to be
operating on the basis of the Windows 95?
THE WITNESS: Yes.
THE COURT: Thank you. I understand and I
understand. Thank you. I will take a recess.
I'm getting impatient. I'm getting very, very
inpatient.
Is there anything we need to discuss about
tomorrow, if there is a tomorrow?
MR. TULCHIN: Your Honor, we did deliver a letter,
we filed it this morning, asking -- I don't know if the
Court had a chance to see this. It was filed earlier this
morning before court. Mr. Johnson played a bunch of slides
during his opening and we asked in writing two or three
times for copies of them. He didn't respond until Saturday
when he told Mr. Holley that he wouldn't give us copies
unless he was ordered to do so. And we filed that letter
this morning with the Court. And my request now is that the
Court tell Novell to provide us with copies of what he
showed to the jury in his opening.
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MR. JOHNSON: Your Honor, the letter that went to
you omitted some facts that I think are relevant here.
Prior to the openings, we had requested of Microsoft that
they provide us copies of all their summary charts and
exhibits that they expected to use in opening. I asked
three times and I got no response from them. Prior to --
THE COURT: I'm sorry. We'll it take this up at
8:45 tomorrow, if there is an issue.
Is there anything else for tomorrow that we have
to decide?
MR. TULCHIN: Not from us, Your Honor.
MR. JOHNSON: No, Your Honor.
THE COURT: I hope the reason for my impatience is
clear. This case is not about trying -- about the dominance
that Word might have obtained over WordPerfect. And it's
not. That claim is time barred and that ruling is subject
to appeal. And the Fourth Circuit has ruled on it. The
Tenth Circuit can do it. But the fact of the matter is to
the extent this is about acquiring or maintaining monopoly
in the operating systems market, and your own client just
testified and your own witness just testified that it was a
better product and WordPerfect was going to use it and it
was going to be -- it's clear as a bell to me. And I'll
take a recess.
MR. JOHNSON: Your Honor, may I respond to that
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just very briefly?
THE COURT: You are going to have to sometime.
MR. JOHNSON: I think this is important that we
bring this back to what the Fourth Circuit said and why
we're here. Okay. Remember that what Mr. Raikes said was
that if we own these key franchises, and that may have to do
with monopolization of the applications market, that may yet
to do, but that's not what we're trying here. What
Mr. Raikes, if we own those key franchises, if we dominate
on top of Windows, we widen the moat protecting Windows
operating --
THE COURT: Your own client just testified that if
WordPerfect was the word processing application, it would be
using Windows 95 too. That is what he just testified to.
It doesn't matter. Whatever Mr. Raikes perceived, the fact
of the matter is the realty of the marketplace was that they
had a better product, it was somebody else's work, as the
witness already testified to. And the fact of the matter is
whether it was WordPerfect or whether it was Word or
whatever, it was going to use Windows 95, and this case is
about Windows 95, and it was a better product. And maybe
somebody wanted to back into the DOS system, but if they
wanted to back into the DOS system by reverse engineering,
then this claim is barred by the moat, the asset purchase
agreement.
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MR. JOHNSON: Your Honor, this has nothing to do
with DOS, respectfully. And what the witness said was
actually they were looking to try to move those users over
to Windows 95.
But what Your Honor asked Mr. Harral last week was
very probative. You asked him, this is crazy, according to
your testimony, Microsoft was hurting it's own product.
THE COURT: Absolutely, and that's why I thought
more about it over the weekend. The fact of the matter is
it was still intending whatever -- I understand that. But
Microsoft, under your theory, was embarking upon a course of
conduct to maintain its monopoly frankly after 1996, which
itself is an issue. But I will give you the benefit of the
doubt on that. The fact of the matter is Novell and
eventually Corel wanted to use -- wanted these APIs and
namespace extensions so that it could take advantage of the
technological superiority of the new product that Microsoft
had produced.
MR. JOHNSON: That's right, Your Honor. Please,
because those questions you asked are very probative. You
said they were prepared to take a short term loss. You said
that. They were prepared to stop WordPerfect and take the
loss to make their product, Windows 95, less valuable, less
innovative in order to get rid of WordPerfect.
THE COURT: That's why I asked last --
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MR. JOHNSON: That is a classic formulation of
anticompetitive conduct. You take a short term loss for a
long term gain.
THE COURT: That's why I asked last Thursday.
What I asked just now was WordPerfect, and your own client
testified to it, he wanted WordPerfect to be -- I forget
what it was -- to make Windows the best it could possibly
be. The fact of the matter is widening the moat is going to
be irrelevant vis-a-vis WordPerfect because WordPerfect was
going to be using Windows anyway, at least according to the
evidence so far.
MR. JOHNSON: But the point is, Your Honor --
THE COURT: That's the whole purpose. Of course,
you had a very honest witness. He was trying -- also it
seems to me you just wanted to turn Microsoft into an open
platform, which by the way -- which the government didn't
order, but the D.C. Circuit reversed.
MR. JOHNSON: Your Honor, the important part here
is that Microsoft was willing to -- in order to hurt
WordPerfect was willing to make it a less valuable piece of
property, which is --
THE COURT: Maybe that was its intent, but it had
nothing to do with the fact happening in the marketplace
because WordPerfect wanted to use Windows.
MR. JOHNSON: Of course, they did, Your Honor.
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THE COURT: Because it was a better product.
MR. JOHNSON: But the effect of this conduct, Your
Honor, which is different obviously for Mr. Harral, the
impact is with respect to his product, the PerfectOffice
Suite. But the impact on the operating systems market,
that's not something Mr. Harral is interested in.
THE COURT: He's interested in this product which
you wanted to connect with Windows.
MR. JOHNSON: But the point of this case, which is
monopoly maintenance of --
THE COURT: You want to put some expert on the
stand who is going to ignore what was happening when they
were actually developing the product.
MR. JOHNSON: He's not going to ignore that at
all, Your Honor. He's going to speak to it and speak how
Microsoft's actions both with respect to WordPerfect, with
respect to Lotus, with respect to Netscape, and with respect
to these other products --
THE COURT: I will allow the case to continue and
hear it all, but what I've said before I continue to say,
and there are problems in your case having to do with the
facts. It's not just the theory. It's a wonderful theory.
I understand it. That's how you got this far. The fact of
the matter is I've now heard some of the evidence, and the
fact of the matter is your developer, your very good guy
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here, who frankly got a lot of people at Microsoft to
believe that, look, the way to do this is to develop the
best operating system. We owe that. It ought to be
socialized. And people -- the competition ought to be in
the applications market. That is a way to approach it. But
the fact of the matter is I have heard testimony so far that
Windows 95 was a qualitative improvement, it was a superior
product that WordPerfect itself wanted to write to. That's
what I've heard.
Court is in recess.
(Whereupon, the trial was continued to Tuesday,
October 25, 2011 at 8:00 a.m.)
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