DEC OF MCNALLY ISO AMERANTH S OPPO TO DEFS MOTION TO 11-cv DMS (WVG)

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1 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 CALDARELLI HEJMANOWSKI & PAGE LLP William J. Caldarelli (SBN #) Ben West (SBN #0) 0 El Camino Real, Suite 0 San Diego, CA 0 Telephone: () 0-00 Facsimile: () 0-0 wjc@chplawfirm.com dbw@chplawfirm.com FABIANO LAW FIRM, P.C. Michael D. Fabiano (SBN #0) High Bluff Drive, Suite 00 San Diego, CA 0 Telephone: () - mdfabiano@fabianolawfirm.com OSBORNE LAW LLC John W. Osborne (Appointed Pro Hac Vice) Habitat Lane Cortlandt Manor, NY 0 Telephone: () - josborne@osborneipl.com WATTS LAW OFFICES Ethan M. Watts (SBN #) 0 El Camino Real, Suite 0 San Diego, CA 0 Telephone: () 0-00 Facsimile: () - emw@ewattslaw.com Attorneys for Plaintiff Ameranth, Inc. -cv-00 DMS (WVG)

2 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 IN RE: AMERANTH PATENT LITIGATION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CASE NOS. cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv0 DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv00 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv0 DMS (WVG) cv0 DMS (WVG) cv DMS (WVG) cv DMS (WVG) cv0 DMS (WVG) cv0 DMS (WVG) DECLARATION OF KEITH MCNALLY IN SUPPORT OF AMERANTH, INC. S OPPOSITION TO DEFENDANTS MOTION TO Date: December, 0 Time: :0 p.m. Location: Courtroom A Judge: Hon. Dana M. Sabraw Complaint Filed: August, 0 -cv-00 DMS (WVG)

3 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 I, Keith McNally, declare as follows:. I am over years of age and competent to testify. I am the President of Ameranth, Inc. ( Ameranth ), the plaintiff in this action, and am one of its original founders. I am also the lead inventor of the four patents-in-suit owned by Ameranth and asserted in the consolidated lawsuits pending before this Court. I was involved with the prosecution of the patents in the USPTO. On these bases, I have first-hand personal knowledge of the facts contained in this declaration, and if called upon to testify I would and could do so competently as set forth herein. I provide this declaration in support of Ameranth s Opposition to the Defendants Motion to Stay.. Ameranth is a small but innovative software development company founded in California in. Ameranth s founders identified needs and challenges existing in the hospitality industry, and invented breakthrough technology to solve the underlying problems required to meet those needs.. Some of the problems, challenges, and needs that Ameranth s founders perceived, and for which they invented novel technological solutions, are described in Section A of Ameranth s Opposition to the Defendants Motion to Stay, filed herewith.. Ameranth conceived, invented, produced and deployed five core products for use in the hospitality industry (in addition to a Poker Room Manager system). Attached as Exhibit to the Notice of Lodgment filed herewith is an excerpt from an exemplary Disclosure of Asserted Claims and Infringement Contentions which accurately lists, in section G, five of Ameranth s hospitality industry products that Ameranth invented, developed and widely deployed. Red Lobster, Seasons, Medieval Times, The Cheesecake Factory restaurants and others adopted Ameranth s technology systems for their operations. Ameranth s -cv-00 DMS (WVG)

4 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 technology was also deployed at numerous entertainment venues, including Madison Square Garden, Staples Center, Lambeau Field, and Improv and Funny Bones comedy clubs throughout the country. Holiday Inn likewise adopted and deployed Ameranth s technology throughout its hotels nationwide. Zagat adopted Ameranth s Magellan restaurant reservations product, which at its peak it was operational in more than 000 dining establishments before being largely displaced by OpenTable and others.. Ameranth s award winning hospitality products were deployed in thousands of restaurants, hotels, casino, clubs and stadiums (as described in greater detail in the CFR. Declarations discussed below and lodged with the Court), until infringing products introduced by entities such as OpenTable and many of the other defendants herein largely displaced them from the hospitality market.. Ameranth had direct discussions with and demonstrated its products and technology to many of the defendants in this matter, including Domino s, Pizza Hut, QuikOrder, Papa John s, Starbucks, Agilysys, Marriott and Micros, which subsequently rolled out infringing products after disclosure of Ameranth s products to them (Agilysys was, until some point in 0, a licensee of Ameranth). Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of a September 00 press release from Domino s calling its mobile ordering product, (which copied and infringed upon aspects of Ameranth s patented invention), its own breakthrough technology.. Ameranth properly and timely applied for patents for its inventions with the USPTO, resulting in the eventual issuance of the four patents in suit (Ameranth s 0,, and 0 patents). The patents describe software -cv-00 DMS (WVG)

5 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 systems for performance of certain novel hospitality functions which are necessarily performed with computerized components.. Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of a declaration, signed by me on August, 00, and submitted to the USPTO pursuant to CFR., accurately describing many of the secondary factors demonstrating the innovative and novel nature of Ameranth s inventions and products.. Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of a supplemental declaration, signed by me on May 0, 00, and submitted to the USPTO pursuant to CFR., accurately describing several additional secondary factors demonstrating the innovative and novel nature of Ameranth s inventions and products. 0. Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of a supplemental nexus declaration, signed by me on December, 00, and submitted to the USPTO pursuant to CFR., accurately explaining the nexus between the secondary factors and the patented inventions.. Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of a supplemental declaration, signed by me on December,, 00, and submitted to the USPTO pursuant to CFR., accurately describing several additional secondary factors demonstrating the innovative and novel nature of Ameranth s inventions and further explaining the nexus between secondary factors and the patented inventions.. Attached as Exhibit to the Notice of Lodgment filed herewith are true and correct copies of exemplary press releases issued by Ameranth and two of -cv-00 DMS (WVG)

6 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 0 its existing licensees Snapfinger, Inc. and PAR Technology Corporation attesting to the novel and visionary nature of Ameranth s patented inventions.. Attached as Exhibit to the Notice of Lodgment filed herewith is a true and correct copy of an Ameranth press release regarding Ameranth s strategic partnership with Zagat to provide a restaurant reservation service through Ameranth s Magellan system.. Ameranth currently has licensees, all of whom compete directly with one or more of the defendants herein. The defendants continued infringement of Ameranth s patents adversely affects Ameranth s licensees business, Ameranth s income from such licenses, and Ameranth s licensing efforts and ability to obtain further licensees and licensing income within the remaining term of the patents. In fact, recently one of the defendants, OWeb, displaced an Ameranth licensee in Outback Steakhouses, thereby directly and adversely impacting the revenue both of our licensee and of Ameranth itself, since Ameranth s licenses generally provide for running royalties based upon processed transactions. An expanded stay of the litigation, which would allow defendants to continue infringing Ameranth s patents without consequence, would further harm Ameranth and its many licensees. Moreover, a stay would harm Ameranth by prolonging and increasing the expense of litigation, by allowing witnesses memories to fade and relevant evidence to become stale and harder to find in discovery, and would result in loss of some of the remaining term of the patents in suit (the oldest of which may expire in 0).. Furthermore, the technology involved in the litigation mobile/ web systems and products evolves rapidly. New versions of products are often released twice a year. Ameranth has invested substantial sums of money in discovery, source code and technical document review, and detailed analysis of the -cv-00 DMS (WVG)

7 Case :-cv-00-dms-wvg Document - Filed /0/ Page of 0 source code and technical implementations of the recent versions of the infringing products and systems in connection with this litigation. A further stay of the litigation may render such products and analysis outdated as products continue to evolve, require further expensive and time consuming updating, and unfairly require Ameranth to conduct one of the most expensive aspects of a patent plaintiffs case preparation multiple times. I declare under penalty of perjury under the laws of the United States that this declaration was executed by me in San Diego, California, on November, 0. Keith McNally 0 -cv-00 DMS (WVG)