New Pacer--DECLARATION OF MAC LECKRONE IN SUPPORT OF BARCO’S ADMINISTRATIVE
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New Pacer--DECLARATION OF MAC LECKRONE IN SUPPORT OF BARCO’S ADMINISTRATIVE MOTION FOR A SEALING ORDER
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
BARCO, N.V.,
Plaintiff,
vs.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORP., and
ALLIACENSE LTD.,
Defendants.
DECLARATION OF MAC LECKRONE IN SUPPORT OF BARCO’S ADMINISTRATIVE MOTION FOR A SEALING ORDER
Courtroom: 3
Judge: The Hon. Jeremy Fogel
I, Mac Leckrone, declare as follows:
1. I am the President and Chief Operating Officer of defendant Alliacense Ltd. (“Alliacense”) I have held this position for approximately five years. I am a member in good standing of the California State Bar, although I do not operate in a legal capacity in my position at Alliacense, and have never represented Alliacense, its parent, Technology Properties Ltd. (“TPL”), or any related entities. I have personal knowledge of the matters set forth below and if called and sworn as a witness, I could and would competently testify to the facts set forth herein.
2. Alliacense is the corporate entity responsible for licensing and enforcing the Moore Microprocessor Patent (“MMP”) Portfolio, which includes the patents-in-suit. As President and Chief Operating Officer of Alliacense, I am primarily responsible for directingAlliacense’s MMP Portfolio licensing program as well as the testing and analysis involved in creating reverse engineering product reports regarding potential infringement of the MMP Portfolio. To date, over 50 companies have entered into license agreements as part of Alliacense’s licensing program for the MMP Portfolio.
3. Currently, Alliacense is in discussion with companies in various industries regarding participation in the MMP Portfolio licensing program, in which prospective licensees compete within their industry for “tiered” pricing, which rewards early movers with lower royalty rates. Because of this competitive environment, Alliacense conducts all of its negotiations confidentially to prevent information that is competitively sensitive to Alliacense and TPL from being disseminated to other prospective licensees indirectly related third parties. Negotiations are conducted between Alliacense and the prospective licensee, and despite frequent requests, exclude third parties such as components vendors and other indirectly related third parties.
4. As a part of Alliacense’s licensing negotiations, Alliacense typically provides confidential “Product Reports” and other information relating to the MMP Portfolio. These Product Reports provided to the prospective licensee depict the confidential technical analyses, including significant reverse engineering efforts, conducted by Alliacense engineers, which demonstrate how a prospective licensee’s strategically significant product lines utilize the MMP Portfolio. Alliacense’s approach to the licensing of technology like the MMP Portfolio is unique in its volume, detail, breadth, and organization, and is the subject of frequent compliment by prospective licensees. Alliacense invests extremely significant financial and human resources in the development of its highly detailed Product Reports.
5. Product Reports are disseminated only to the prospective licensee and are treated as confidential material. The Product Reports all include a “confidential” stamp on every page and are proprietary to Alliacense. The Product Reports are solely intended to advance licensing negotiations by assisting a prospective licensee with evaluating Alliacense’s licensing program.
6. If other third party companies obtained the confidential information communicated between Alliacense and a prospective licensee, including the Product Reports, the information could be used to competitively harm Alliacense as well as the prospective licensee. Such competitively sensitive information includes the careful business analysis and selection of strategically significant products, the compilations of technical references and data used in supporting the analytical work, the reverse engineering purchased and conducted by Alliacense, and the technical analysis conducted by Alliacense engineers. Unintended third party access to this competitively sensitive information would likely be used to negotiate lower royalty rates with Alliacense and delay, obstruct and harm negotiations with Alliacense by taking actions and sharing data pertaining to another company’s potential license scope or the technical analysis conducted by Alliacense. Alliacense invests significant financial and human resources in the long sales cycles associated with its business model built on education rather than litigation. If multiple prospective licensees, or indirectly related third parties connected to multiple licensees were given access to the competitively sensitive information, companies would likely coordinate their responses and strategies in an effort collectively to refuse to deal with Alliacense.
7. The Preliminary Infringement Contentions served in this case and in Technology Properties Ltd. v. Matsushita Electric Industrial Co., Civil Action No. 2-05CV-494 (TJW), E.D. Tex., incorporate or have attached to them confidential, detailed Product Reports containing the confidential technical analysis of the type described above. These detailed Product Reports cover the product lines of either Barco and Panasonic. If the Alliacense Product Reports, which were confidential when provided, are suddenly not treated as confidential information, Barco and other companies would be free to share the content of the Product Reports with a number of companies, some of whom are known to be prospective licensees themselves, and known to be supporting the efforts of their customers who are also known to be prospective licensees. Without the confidentiality designation, this information that is confidential to Alliacense may even end up on the Internet. These prospective licensees could use the content of the Product Reports to coordinate their responses and strategies in an effort to block and harm Alliacense’s licensing program, including a coordinated refusal to deal with Alliacense. The companies to which Barco would give Alliacense’s proprietary information would pay substantial consideration to develop or purchase comparable information. Thus, the Product Reports, including the ones provided to Barco and Panasonic as part of the ongoing negotiations, and as a helpful supplement to the Preliminary Infringement Contentions served in this case and in Technology Properties Ltd. v. Matsushita Electric Industrial Co., derive economic value by virtue of them being confidential. If the information from these Product Reports were deemed non-confidential, the information could be widely disseminated and cause significant, irreparable competitive harm to Alliacense.
8. The excerpts of infringement contentions constituting Exhibits D through N and Exhibit R to Barco’s Motion For Summary Judgment Of Noninfringement Of U.S. Patent No. 5,809,336 are excerpts of TPL’s and/or Alliacense’s Infringement Contentions and contain reproductions of Product Reports and reverse engineering reports belonging to Alliacense that relate to Barco’s accused products in this litigation and an accused Panasonic product in Technology Properties Ltd. v. Matsushita Electric Industrial Co. Exhibit Q to Barco’s Motion For Summary Judgment Of Noninfringement Of U.S. Patent No. 5,809,336 is an excerpt of a deposition transcript in which the witness discusses a Product Report excerpted as Exhibit R to Barco’s Motion For Summary Judgment. The Product Report is related to a Panasonic product relevant in the Matsushita lawsuit and the testimony concerning it reveals details of the report. The deposition transcript bears an “Attorney’s Eyes Only” confidentiality legend. Confidential information from Exhibits D through N, Q, and R is repeated in the excerpts of Barco’s Motion For Summary Judgment Of Noninfringement Of U.S. Patent No. 5,809,336 that Barco has moved for permission to file under seal. These Product Reports and reverse engineering reports were created by Alliacense and contain highly confidential proprietary information, and their public disclosure would cause substantial harm to Alliacense’s competitive and financial position as discussed herein.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 8th day of December, 2010, at Cupertino, California.
Mac Leckrone
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