Declaration_of_Patch_in_Support_of_Sun_Microsystems_Opp_and_Counter_Mot_to_Microsoft_Motions_for_Sum_Jud_2_99
 

19. Declaration of Lee Patch in Support of Sun Microsystems, Inc.'s
Oppositions and Counter-Motions to Microsoft Corporation's Motions for
Summary Judgment
Legal document filed with the court on February 12th, 1999.
 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

1. I am Vice President and Associate General Counsel of Sun Microsystems, Inc.
2. I make this declaration of my own personal knowledge. If called to testify as to the truth of the matters stated herein, I could and would do so competently.
3. I attach as Exhibit A hereto an October 17, 1997 letter sent from David Vaskevitch to me. In the first two items of his letter, Mr. Vaskevitch states that Sun received on February 21, 1997 actual notice of certain breaches of the TLDA, and that Sun had not cured the breaches.
4. Because I had not received the February 21, 1997 notice to which Mr. Vaskevitch referred, I informed him of this fact in my November 13, 1997 reply letter, attached as Exhibit B hereto. On pages five and six of my letter, I asked Mr. Vaskevitch to provide me with a copy of the February 21, 1997 communication to which he was referring. I never received from Mr. Vaskevitch either a response to my letter or a copy of the notice to which Mr. Vaskevitch had referred.
5. In another letter I wrote to Mr. Vaskevitch, also dated November 13, 1997, I also identified several material breaches by Microsoft of the parties' March 11, 1996 Technology License and Distribution Agreement and Trademark License, and informed Microsoft that, "[u]ntil Microsoft complies with its obligations under the agreements and cures each of its past and current material breaches of the agreements, Sun shall suspend all future performance of any obligation Sun may otherwise have under either agreement and continue to pursue its remedies in court." A true and correct copy of this letter is attached as Exhibit C.
6. From late 1995 through March 1996, I was personally involved in the negotiations between Sun Microsystems, Inc. ("Sun") and Microsoft Corporation ("Microsoft") that resulted in the Technology License and Distribution Agreement between Sun and Microsoft dated March 11, 1996 ("TLDA"). A true and correct copy of the TLDA is attached hereto as Exhibit D.
7. I personally attended meetings between representatives of Microsoft and Sun as well as prepared and revised draft agreements. True and correct copies of the draft agreements exchanged between Sun and Microsoft during the negotiations leading up to the TLDA are attached as exhibits hereto. A true and correct copy of the November 1995 draft of the TLDA prepared by Sun ("Sun's 11/95 Draft TLDA"), the February 21, 1996 draft of the TLDA prepared by Microsoft ("Microsoft's 2/21/96 Draft TLDA"), the February 28, 1996 draft of the TLDA prepared by Sun ("Sun's 2/28/96 Draft TLDA"), the March 5, 1996 draft of the TLDA prepared by Microsoft ("Microsoft's 3/5/96 Draft TLDA"), and the March 10, 1996 draft of the TLDA prepared by Microsoft ("Microsoft's 3/10/96 Draft TLDA") are attached hereto as Exhibits E thru I, respectively.
8. The following testimony is based on my personal participation in the direct communications between Microsoft and Sun during the negotiation and drafting of the TLDA.
9. I have read and am familiar with Microsoft's Motion for Partial Summary Judgment re: Damage Limitations. In its Motion re Damage Limitations, Microsoft takes the position that the damage limitations of Section 10.1(a) of the TLDA were intended to apply to any claim that requires an interpretation of the TLDA, including claims involving violations of statute and intentional torts.
10. Microsoft's assertions do not comport with my recollection of the negotiations between the parties.
11. Section 10.1(a) of the executed TLDA appears in Sun's original draft of the TLDA as Section 9.1(a). See Exh. D at 10.1(a); Exh. E at 9.1(a).
12. The first Microsoft draft of the TLDA, dated February 21, 1996, deleted this provision. See Exh. F at 10.1.
13. In late February and early March, I had numerous discussions with Erich Anderson and Bob Muglia of Microsoft about the importance to Sun of this limitation on liability. I explained that except with regard to certain express indemnification provisions, it was important to Sun that its liability for damages relating to the commercial viability and/or quality and performance of any code Sun delivered to Microsoft be limited to license fees. I expressed Sun's concern that a licensee might try to convert a breach of warranty claim into some type of negligent tort claim based on imperfections in delivered code to evade the limit on liability, so the liability provision should apply to claims for negligent torts as well.
14. Microsoft told me that they wanted the limit on liability embodied in Section 10.1(a) to be reciprocal, because they too did not want to have unlimited liability.
15. As a result of these conversations, Section 10.1(a) was reinserted into the TLDA.
16. At no time did any representative from Microsoft tell me that Microsoft wanted or intended the limitation of liability in Section 10.1(a) to extend beyond breaches of the contract or claims for negligence.
17. "SUN's publicly available source license agreement" referenced on page 1 of the parties' December 6, 1995 Letter Of Intent was a confidential Sun document that was only available to qualified prospective licensees who first executed a confidentiality agreement with Sun before obtaining access to the agreement. In order to obtain access to "SUN's publicly available source license agreement" a third party had to contact Sun, demonstrate its interest in entering into a technology license and distribution agreement, demonstrate its qualification as a prospective commercial partner, and execute a separate confidentiality agreement with Sun restricting its use of the "source license agreement."
18. Sun delivers to its JAVA Development Kit ("JDK") commercial source code licensees technology that includes the source code to the sun.* classes. Sun does not generally permit its JDK commercial source code licensees to redistribute the source code to the sun.* classes to customers. Sun has granted a limited number of licenses permitting one JDK commercial source code licensee to redistribute the sun.* classes in source code form to another JDK commercial source code licensee for specified purposes. Sun does not ship in the binary form of the JDK, which Sun makes available to its tools customers, the source code to the sun.* classes.

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.

____________________________

Lee Patch