Declaration_of_Alan_Baratz_in_Support_of_Sun_Microsystems_Opp_to_Microsoft_Mot_For_Summ_Judgment_Adjudication_2_12_99
 

16. Declaration of Alan Baratz in Support of Sun Microsystems, Inc.'s
Oppositions to Microsoft's Motions For Summary Judgment/Adjudication
Legal document filed with the court on February 12th, 1999.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

1. I am President of the JAVA Software Division of Sun Microsystems, Inc. ("Sun"). I have been President of the JAVA Software Division or its predecessor, the JavaSoft Division, since January 1996. I have personal knowledge of the facts stated in this supplemental declaration and, if called to testify to the truth of them, I could and would do so.
2. As I stated in my prior declarations herein, following my arrival at Sun I personally participated in the negotiations between Sun and Microsoft Corporation ("Microsoft") that culminated in the Technology License and Distribution Agreement ("TLDA") and Trademark License that Sun and Microsoft executed on March 11, 1996.
3. In the software industry, "backward compatibility" generally means that a subsequent implementation will support all of the functionality and specific interfaces that are needed to enable programs developed for an earlier implementation to execute properly on the subsequent implementation. By contrast, a requirement to pass a test suite simply means that the implementation will pass the tests contained in the test suite. If the test suite contains ten tests, then a requirement to pass the test suite means the implementation must successfully perform the ten tests contained in the test suite. For this reason, a requirement for "backward compatibility" is typically much more onerous and difficult to accomplish than a requirement to pass a test suite.
4. During the negotiations prior to the execution of the TLDA, I and other Sun representatives informed Microsoft's representatives that the JAVA™ Technology would be a rapidly evolving technology, and that Sun planned to upgrade and improve the technology periodically. In addition, because the technology was likely to change significantly as Sun improved and expanded it over time, I and other Sun employees repeatedly told Microsoft that Sun was unwilling to commit to backward compatibility from one version of the technology to the next. I also told Microsoft that Sun's compatibility test suite was still being developed, and that the early versions of the test suite were likely to be rudimentary and incomplete. However, I also said that Sun intended to improve and expand the test suite over time as the Technology was upgraded and improved.
5. Microsoft's representatives stated that Microsoft wanted some assurance that as the JAVA Technology improved and evolved over time, future versions of the Technology would not differ radically from one Upgrade to the next. To address that concern, Sun and Microsoft agreed on the final night of negotiations that Sun's Upgrades to the Technology would pass the test suite that accompanied them, as well as the test suites that accompanied the prior two Upgrades of the Technology. I specifically refused, however, to agree to any requirement that any Upgrade be backward compatible with any prior Upgrade or version of the Technology.
6. The JDK 1.0 technology was the original version of the JAVA Technology. JDK 1.0 was accompanied by the JCT test suite. When I signed the TLDA, it was my understanding and intent that JDK 1.0 did not constitute an "Upgrade," as that term is used and defined in the TLDA.
7. I attach as Exhibit A hereto a February 19, 1997 letter sent by me to Microsoft's John Ludwig.
8. I invited Microsoft to identify any test failure of the JDK 1.1 Upgrade that it considered to be important or unacceptable. It never did so.
9. I understand that certain Microsoft documents at issue reference "beans" in connection with the JAVA technology. In the lexicon of the JAVA technology, "beans" or "Beans" refers to "JavaBeans," which is a set of Supplemental JAVA Classes that depend upon runtime facilities that were added to the JAVA Runtime Interpreter in the JDK 1.1 Upgrade.
10. Sun has invested millions of dollars in the creation and refinement of its JAVA compatibility test suites.
11. At no time prior to the initiation of Sun's lawsuit against Microsoft did any Microsoft representative ever assert to me or to my knowledge any other Sun representative that Sun had failed to comply with any obligation under the TLDA to deliver "publicly available" compatibility test suites to Microsoft.
12. I understand that Microsoft has asserted that the phrase, "publicly available," as it appears in TLDA sections 1.13 and 1.15, requires that Sun make its test suites generally available at no cost and without restrictions on use. I have never understood "publicly available" to have that meaning, nor was it my intent when I signed the TLDA that the phrase "publicly available" had such a meaning. Rather, I understood that test suites would be "publicly available" if they were generally available for license by any third party. It has never been my understanding that Sun's test suites would be freely available without restriction, nor did Microsoft ever raise or address that issue during the negotiations that resulted in the TLDA.
13. I attach as Exhibit B hereto a true and correct copy of a letter from me to Microsoft's Robert Muglia, dated November 14, 1996. It is my understanding that Microsoft has contended that this letter should be read to mean that Sun's obligation under the last sentence of TLDA section 2.7(a) is to deliver Supplemental JAVA Classes that run on the prior Reference Implementation rendered obsolete by the Upgrade in which the Supplemental Classes were delivered. That is not what this letter says, nor is it what I intended. To the contrary, this letter expressly states that Microsoft is obligated to undertake "the engineering work that is needed to incorporate that latest JAVA Runtime Interpreter, JAVA Classes, and/or the JAVA Compiler from an Upgrade into the next version of [its] Product to which Supplemental Classes will apply;" and that Sun is obligated to ensure that Supplemental JAVA Classes "shall run" on this upgraded, or "most current," Reference Implementation. It is the fulfillment of both of these obligations that permits Microsoft to "safely make [the new Supplemental JAVA Classes] available within 30 days after delivery on [its] Web Site" because Sun is obligated to ensure that applications being written to these new Supplemental JAVA Classes "shall run" on Microsoft's properly upgraded Reference Implementation. This letter thus reflects my understanding, then and now, that the last sentence of TLDA section 2.7(a) obligates Sun to deliver Supplemental JAVA Classes that "shall run" on the Reference Implementation upgraded to implement the Upgrade in which the Supplemental JAVA Classes were delivered, not to run on the prior Reference Implementation rendered obsolete by that Upgrade.
14. I understand that Microsoft has suggested that the following excerpts of my deposition testimony should be understood to mean that only such products or services of Microsoft as include Sun's intellectual property constitute a "Product" within the meaning of TLDA section 1.20:

. . . .

1. Where in the final agreement does that appear? ...

1. In the above quoted testimony, I was not asked nor did I answer, what my understanding is of capital "P" Products as defined in TLDA section 1.20. My testimony does not indicate that a "Product," as defined in TLDA section 1.20, "must include Sun's intellectual property." Rather, it simply indicates that capital "P" Products as defined in TLDA section 1.20 include products that incorporate the JAVA technology and Upgrades.
2. Under TLDA section 1.20, any Microsoft "products or services" that "incorporate, implement, integrate, use, emulate and/or embody, in whole or in part, ... Independent Works of the Technology" are defined as "Products."
3. TLDA section 1.6 specifically defines an "Independent Work" as "any work, or portion thereof, that is independently developed and performs the same or similar functions as certain technology, but is not a Derivative Work of such technology." Nothing in this definition requires that an "Independent Work" "include Sun's intellectual property."
4. I attach as Exhibit C hereto a true and correct copy of an October 27, 1998 letter sent by me to Microsoft's Paul Maritz, via certified mail.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Signed this 12^th day of February, 1999.

____________________________ Alan Baratz

Declaration_of_Alan_Baratz_in_Support_of_Sun_Microsystems_Opp_to_Microsoft_Mot_For_Summ_Judgment_Adjudication_2_12_99