released prior to the trade show. Zapf Testimony, 329:14-21.
79. On November 11, 1985, Sevastopoulos visited Thorn-EMI, a
customer in England, and discussed the LT1070 with several of its
engineers. Def.Exh. A-3 [Sevastopoulos Decl.], at ¶ 13;
Sevastopoulos Testimony, 378:11-379:8.
80. Although the Salon des Composants trade show and the
presentations to Standard Radio and Thorn-EMI were not held
within the United States, LTC's actions in promoting the LT1070
on those occasions in early November 1985 is contemporaneous
evidence of LTC's actual sales practices with respect to the
LT1070 prior to the critical date. In particular, these events
establish that it was not against LTC's company practice to
commercially promote the LT1070 to customers before the LT1070's
"official release" on November 18, 1985.
81. From November 19-22, 1985, LTC attended the WESCON '85
electronics industry trade show in San Francisco and distributed
copies of its 1986 Linear Data-book. That data book included the
Preliminary LT1070 data sheet. Def.Exh. A-65; Scott Testimony,
82. According to LTC, prior to the December Newsline, there
was no announcement to the sales force that the LT1070 had been
released or that it was officially available for sale. Zapf
Testimony, 323:24-324:10. However, testimony revealing that LTC
accepted orders for the LT1070 prior to December 1, 1985, casts
significant doubt on LTC's claim that the December 1, 1985, issue
of Newsline was the first time LTC informed its independent
sales representatives and/or distributors that they could promote
the LT1070 to end-user customers.
H. Pre-Critical Date Receipt of Orders For LT1070s By LTC
83. Serena Ann Lucey, a Customer Service Representative for
LTC, testified that in 1985, LTC received purchase orders from
its customers, often by fax or telex. Lucey Testimony, 545:8-9.
Each of those purchase orders contained "line items" identifying
the specific products and quantities the customer desired to
purchase. Lucey Testimony, 549:19-550:5.
84. In 1985, LTC sometimes received requests from customers for
products that were about to be released but which had not yet
been formally released by the company. Those orders could not be
entered onto LTC's order entry system at the time they were
received because the computer system did not accept entries for
part numbers it did not recognize. Scott Testimony, 501:3-23;
Lucey Testimony, 551:4-14. Part numbers were not added to the
system library until the device was released.
85. When LTC received an order for a product that was not yet
formally released, the Customer Service representative first
checked with Marketing to determine the status of the product.
Lucey Testimony, 571:19-572:25; 578:8-13. If the product was soon
to be released, or expected to be released within the quarter,
the Customer Service representative entered a notation into the
bookings database for that order, listing "will advise" in the
part number description column. Id. Typically, the "will
advise" entries were also listed with a quantity of "1" because
the bookings system required some quantity to be entered. Lucey
86. If the incoming order was for a product that was not
expected to be released within 90 days, LTC would not have
entered the "will advise" notation to track the order. Instead,
LTC would have sent the order back to the customer. Lucey
Testimony, 572:11-17; 572:21-573:3.
87. Acknowledgments for these "will advise" entries were issued
automatically. Zapf Testimony, 315:3-316:13.
88. LTC kept track of the requests for which "will advise"
notations had been made in the bookings system by placing the
request on the Orders On Hold Report.
Lucey Testimony, 566:19-25. The Orders On Hold Report consisted
of a ledger that the Customer Service person used to keep track
of the orders. Lucey Testimony, 577:3-17.
89. The "will advise" entry could be deleted from the bookings
system by entering the appropriate negative quantity for the same
line item. Lucey Testimony, 567:7-10. Once the product was
released and a product number was added to the computer system,
the order could be formally booked as an order for the specific
device on a new line item entry for that customer. Scott
Testimony, 512:16-513:10. The product order could not be entered
as the same line item as the line item previously occupied by a
"will advise" entry, however, it had to be entered as a new line
item. Scott Testimony, 514:6-515:5.
90. LTC received requests for LT1070s prior to November 18,
1985. Def.Exh. A-18 [Bookings Report excerpt]; Scott Testimony,
501:3-6; Zapf Testimony, 290:8-18. LTC could not enter those
requests into the computer system because the LT1070 was not yet
released and the part number was not yet in the computer system's
library of part numbers. Scott Testimony, 501:3-502:1. Instead,
LTC used "will advise" as an electronic marker or placeholder, to
keep track of those orders for LT1070s. Scott Testimony,
501:3-502:1; Zapf Testimony, 314:15-17. Thus, once the paperwork
cleared and the part number was entered into LTC's computerized
bookings system, the orders could be booked as orders for the
product. Zapf Testimony, 314:18-315:2.
91. For each of these "will advise" transactions, no further
communication from the customer was required for LTC to process
the order. Zapf Testimony, 317:7-11. LTC simply entered the order
for LT1070s once the part number had been added to LTC's
computerized data base. Zapf Testimony, 317:12-20. Thereafter,
LTC shipped LT1070s to fill the orders. Zapf Testimony,
92. LTC's Bookings Report, excerpted as Exhibit A-18 and
summarized in Exhibit A-80, and the testimony of the witnesses at
trial established that LTC received four separate requests for
LT1070s from international purchasing distributors before
November 18, 1985, which LTC tracked under its "will advise"
procedure. See Def.Exh. A-80. Specifically:
(a) on or about October 31, 1985, LTC received an
order from its international distributor Microlog
for 50 LT1070s. LTC entered a "will advise"
notation onto its bookings system on that date.
LTC subsequently deleted the "will advise" entry
and formally booked the Microlog order for 50
LT1070CTs on November 19, 1985. Def.Exh. A-18 at
LIN 09674; Zapf Testimony, 305:11-307:3.
(b) LTC also received an order from its international
distributor Neye for 50 LT1070s on or before
November 6, 1985. LTC entered the order onto
LTC's bookings system as a "will advise" entry,
specifically listing the quantity as 50, and the
price, $5.25. Thereafter, on November 19, 1985,
LTC deleted the "will advise" notation and
entered the order as an order for 50 LT1070s at
the price of $5.25. Def.Exh. A-18 at LIN
09635-36, Zapf Testimony, 307:20-309:16.
(c) LTC also received an order for LT1070s from
international distributor Bacher prior to
November 18, 1985. LTC entered the transaction
onto its bookings system under "will advise" on
November 12, 1985, deleted the "will advise"
entry on November 14, 1985, and entered Bacher's
order for 100 LT1070s on November 19, 1985.
Def.Exh. A-18 at LIN 19616, Zapf Testimony,
(d) The fourth "will advise" transaction relating to
LT1070s occurred with LTC's international
distributor Svensk. Svensk placed orders for
three types of LT1070s, specifically 200
LT1070CKs, 300 LT1070CTs and 100 LT1070CHVTs.
See Def. Exh. A-18. On November 11, 1985, LTC
entered these transactions into the bookings
system under three separate "will advise" entries
with the quantity listed as "1" and with a price
of zero. LTC later deleted those three Svensk
"will advise" entries on November 14, 1985, using
a "-1" quantity entry, and thereafter, LTC booked
Svensk's orders for 200 LT1070CKs and 300
LT1070CTs on November 19, 1985, and LTC booked
Svensk's third order for 100 LT1070CHVTs on
November 21, 1985. Def.Exh. A-18, at LIN 09658;
Zapf Testimony, 311:2-314:11; Scott Testimony,
93. No communication was necessary from these customers for LTC
to formally enter into the bookings system the orders for LT1070s
that it had previously received and tracked as "will advise."
Zapf Testimony, 324:21-24.
94. These "will advise" entries also appear in LTC's Sales
Order Report. Def. Exh. A-17; Scott Testimony, 534:10-536:5. On
the Sales Order Report, the column entitled "SO DT" stands for
"Sales Order Date," and the column entitled "REQ DT" stands for
"Request Date." Def.Exh. A-17; Scott Testimony, 536:10-23. The
Sales Order Date is the date that the sales order entry was made,
whereas the Request Date is the date on which a customer or
distributor wanted to have the part delivered. Scott Testimony,
536:18-23. Finally, the Sales Order Report indicates the number
of parts which remained "unshipped" at the time of the printout.
Scott Testimony, 536:25-537:19.
95. LTC shipped the 200 LT1070CKs to Svensk on December 29,
1985. Scott Testimony, 619:9-20. This shipment, along with a
shipment of 200 LT1070s to distributor Amitron on the same date,
constituted the first shipments of LT1070s to purchasers. Scott
Testimony, 618:10-619:20. The Bookings Report, Exhibit A-18, and
the summary of the sales records, Exhibit 210, establish that
this December 29, 1985 shipment to Svensk resulted from the same
transaction and was part of the same purchase request that LTC
originally noted as a "will advise" entry in its bookings system
on November 11, 1985.
96. Additionally, LTC received another order for LT1070s prior
to November 18, 1985. Specifically, LTC received an order for 50
LT1070s from distributor Jermyn on November 14, 1985. Def.Exh.
A-19 [Scott Decl., at ¶ 11]. LTC did not use its "will advise"
procedure for this order, however. LTC instead booked the order
on November 19, 1985 and acknowledged the order on November 25,
1985. Def.Exh. A-74, Zapf Testimony, 261:18-262:1; 263:23-264:3.
I. LTC's Booking of LT1070 Orders Immediately After The Critical
97. Separate and aside from these "will advise" transactions
with Microlog, Svensk, Bacher and Neye, and the November 14, 1985
order from Jermyn, LTC also booked orders for nearly 1000 LT1070s
in the few days immediately after the critical date.
Specifically, on November 19, 1985, LTC booked Amitron's order
for 200 LT1070CKs. Zapf Testimony, 321:25-322:2; Def.Exh. A-18 at
LIN 09656. On November 20, 1985, LTC booked Henskes' orders for
50 LT1070CKs and 50 LT1070CTs. Zapf Testimony, 320:14-23;
Def.Exh. A-18 at LIN 09638. Also on November 20, 1985, LTC booked
Success Electric's order for 100 LT1070CTs. Zapf Testimony,
321:2-7; Def.Exh. A-18 at LIN 09640. On November 22, 1985, LTC
booked Metronik's orders for 50 LT1070CKs and 100 LT1070CTs; LTC
booked Eltron's orders for 100 LT1070CHVTs and 100 LT1070CTs;
and, LTC booked Stolz's orders for 100 LT1070CTs and 100
LT1070CKs. Zapf Testimony, 320:4-13 [Metronik], 321:8-24 [Eltron]
and 322:11-18 [Stolz]; Def.Exh.