Perfect Company v. Adaptics Limited

Supplemental DECLARATION of David Howell filed by Plaintiff Perfect Company re {{252}} MOTION to Compel

Western District of Washington, wawd-3:2014-cv-05976

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1 2 THE HONORABLE RONALD B. LEIGHTON 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON 10 11 PERFECT COMPANY No. 3:14-cv-05976-RBL 12 Plaintiff, (Consolidated with 3:17-cv-05922-RBL) v. 13 SUPPLEMENTAL DECLARATION ADAPTICS LIMITED, and OF DAVID S. HOWELL 14 Defendants. 15 16 I, DAVID S. HOWELL, having personal knowledge declare as follows: 17 1. I declared in my September 19, 2018 declaration, Dkt 253: 18 [21] In contrast, according to Dr. Direen's testimony at deposition, he was 19 given multiple versions of the Drop Scale Firmware, on an unrestricted PC running Windows, along with software tools and interface hardware for 20 compiling the Firmware, installing the compiled Firmware on a Drop Scale, and executing performance tests on the Drop Scale using each 21 Firmware version. Importantly, he testified in his February 27, 2018 deposition that he did indeed observe timing differences between the 22 different Firmware versions. (Underline emphasis added). 23 2. This statement is true. Dr. Direen says he did not test "each version." But he 24 was given multiple versions and allowed whatever tools he wanted to test each version. He 25 ultimately decided to load and test "several versions." Again, I was given one. I was not told 26 there were others. I was not allowed a scale, a compiler, or any other tool to load the firmware 27 on the scale and test it against other versions (which I, again, did not know existed). 28 SUPPLEMENTAL DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/11/2018 6:07:27 PM PURI.035 Page 1 1 2 3. I asserted the following table at paragraph 25 of my declaration, summarizing 3 the differences in access between myself and Dr. Direen: 4 5 Howell Direen Was given App version in varying degrees Was given multiple versions of the 6 of completeness through version 1.10, some Drop Scale Firmware, versions were corrupted or incomplete, and Allowed an unrestricted PC running 7 he was precluded from running the App in a Windows, with not limitations on debugger or on a mobile device availability 8 Was restricted to Mr. Kennedy's Mac Allowed software tools and interface computer, and only allowed when Mr. hardware for 9 Kennedy was available compiling the Firmware, Mac had few tools: Finder, Xcode, TextEdit installing the compiled Firmware on 10 Was not allowed tools for compiling the a Drop Scale, and firmware, installing the compiled firmware executing performance tests on the 11 on a Drop Scale, or executing performance Drop Scale using each Firmware tests on the Drop Scale using each firmware version. 12 version Had no limitations on his access to The Web browser was disabled—precluding the Internet or other materials during 13 reading online technical documents about analysis the process for which the microprocessor 14 was written Was not provided information on hardware 15 and chipsets Was given single version of Firmware from 16 December 2014, which was not the one that runs now on Drop Scales, and this created 17 difficulties. 18 4. Again, these statements are true, as explained above. 19 20 5. Dr. Direen testifies that he only had simple text editors, and Defendant in brief 21 said he had no debugger. This is not true. In his depositions, Dr. Direen admitted he used 22 Microsoft Visual Studio. Microsoft Visual Studio is significantly more than simple text 23 editor. It is a very robust program editor that includes an integrated debugging and compiling 24 platform. Microsoft and Wikipedia both maintain information pages. See 25, and 26 27 6. Dr. Direen discusses use of 19 load cell readings. This does not convey 28 SUPPLEMENTAL DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/11/2018 6:07:27 PM PURI.035 Page 2 1 2 sufficient information about timing. There could be 1000 load cell readings and if they are 3 done in parallel, it takes the same amount of time. His statement as to the timing is also not 4 5 accurate. I tested the Drop Scale timing (not as part of the inspection, because I was not 6 allowed the scale or test environment during the inspection—which would have been very 7 useful), using the firmware on the Drop Scale that came in the package, and I discerned very 8 different timing results than Dr. Direen's, much faster. 9 7. Finally, regarding giving direct access to me for (1) the online commits 10 library, and (2) the Drop App and Drop Firmware source code, I have agreed to abide by the 11 Stipulated Protective Order and keep all documents and things at the appropriate level of 12 confidentiality. Plaintiff's team has been scrupulous in maintaining firewalls for each level 13 of confidentiality. More importantly, I reviewed Drop App code through version 1.10.0 and 14 one version of the Drop Firmware. I saw nothing in the programming requiring the level of 15 protection Defendant demands here. For products like those in the instant case, no 16 17 programmer trying to come up with a competing product would copy the code. They would 18 see the ultimate function and just write their own code to do the same thing or better. 19 I CERTIFY under penalty of perjury of the laws of the United States the foregoing to 20 be true and correct to the best of my recollection and belief. 21 DATED THIS October 11, 2018 In Lake Oswego, Oregon DAVID S. HOWELL 22 23 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/11/2018 6:07:27 PM PURI.035 Page 3