UPdate fromEDvacourt....
Trial Update 2:35PM: Ungar Cross continues...more bad news for defense
By edvacourt . 2 minutes 40 seconds ago . Permalink
After morning break Dr. Ungar being questioned by Cimino about differences between the 664 and the 420 patent. Specifically when Ungar testified yesterday he looked at one element in the 664 patent that the USPTO referenced in the comments section where they distinguished in a particular prior art that you could use a wire and Ungar said that the only difference is that this is a wire and Plaintiff never claimed Google uses a wire. What Cimino establishes is that there is no requirement that one use a wire in order to infringe the 664 patent. This is another bad Ungar moment. Also too, the 664 patent doesn't have a requirement for "collaborativeness" and Ungar has assumed that the patents are the same in terms of a collaborative requirement...not so. Cimino further establishes that none of the three prior art references supplied by Ungar yesterday actually require a search engine! The abstracts do not talk about it and none of the patents anticipate the prior art. Ungar was forced to agree with this. During this line of questioning Google's lawyers literally flipped out (as much as can be done in a courtroom) and objected to it and the judge ruled that Cimino could go on with his questioning. I'm not sure this really means anything but Judge Jackson said Google could bring it up on appeal. At this point as with earlier today it is pretty clear this cross exam is going to result in a substantial question in the jury's mind about Dr. Ungar's testimony. At one point Cimino says to Ungar...well you don't have a computer science degree but what about anyone at the PTO? He makes the point that in this arena the PTO is smarter than Ungar. Cimino then went through all of Google's "alternatives to infringement" and was very clear that each alternative was not a work around. He asks Ungar whether he has tested these alternatives to which Ungar was evasive or said no. One of the alternatives, filtering by minimum cost per click, was proven by Cimino to have been abandoned by Google. He asks Ungar incredulously.. so one of the alternatives is to go back to a system used before your revenues started going up by 20%? He then shows that Ungar came up with these alternatives in two, half hour phone calls with a Google Engineer. Ungar is shown to have taken these alternatives down and submitted them verbatim the very next day. He was then asked by Cimino, is that all the thought you gave to it? Ungar responds that it just means that it was the first time he thought of it. Again, it is noted that Ungar is very uncomfortable and the jury is paying rapt attention. Cimino does a yeoman's job of blowing out of the water any idea that the minor changes Google makes are actually work-a-rounds that avoid infringement. Ungar now looks entirely like a guy that took his brief directly from Google rather than being an expert.
