Main Index: Trial Testimony June 9, 1997
1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 GORDON & BREACH SCIENCE
PUBLISHERS S.A., STBS., LTD.
4 and HARWOOD ACADEMIC
PUBLISHERS GMBH,
5
Plaintiffs,
6
v. 93 CV 6656 LBS
7
AMERICAN INSTITUTE OF PHYSICS
8 and THE AMERICAN PHYSICAL
SOCIETY
9
Defendants.
10
------------------------------x
11
June 9, 1997
12 10:10 a.m.
Before:
13
HON. LEONARD B. SAND
14
District Judge
15
16
17 APPEARANCES
18 ORANS, ELSEN & LUPERT, LLP
Attorneys for Plaintiffs
19 BY: LESLIE A. LUPERT
ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: RICHARD A. MESERVE
JEFFREY G. HUVELLE
23 SUSAN L. BURKE
24
25
2
1 THE COURT: Good morning. You may be seated.
2 I think there are some preliminary matters.
3 There is a motion to change the identification of the
4 plaintiff.
5 MR. LUPERT: That is correct, your Honor.
6 THE COURT: Is there any objection to that
7 motion?
8 MR. MESERVE: Your Honor, we had consented to --
9 I was talking to Mr. Lupert about that and we had told him
10 two things. First, we would like to have a stipulation that
11 the amendment of the names of the plaintiffs would be
12 preclusive on the entirety of the Gordon & Breach
13 enterprise, and he has filed a stipulation that serves that
14 end.
15 THE COURT: Yes.
16 MR. MESERVE: We had also asked your Honor for
17 assurances from Mr. Lupert that discovery responses in this
18 case reflect the new entities.
19 These apparently corporate rearrangements as best
20 we can tell were made in 1994, and I have not yet heard from
21 Mr. Lupert on that, on the latter point, as to whether the
22 discovery responses we've gotten in this case have
23 encompassed these new entities.
24 MR. LUPERT: It was intended to include that
25 stipulation, as well.
3
1 MR. MESERVE: With that assurance, your Honor, we
2 are prepared to consent to the amendment of the complaint.
3 THE COURT: Motion granted on consent.
4 Anything else by way of preliminary matters?
5 (Pause)
6 THE COURT: Off the record.
7 (Discussion off the record)
8 THE COURT: All right. There was a stipulation
9 that was filed by the defendants with reference to intent to
10 make further use of the methodology. Is that the --
11 MR. MESERVE: Yes, your Honor, we had observed
12 that a large number of the transcript designations in the
13 exhibits that have been filed by the plaintiffs related to
14 whether the Barschall survey would have been circulated but
15 for the complaints that had been made by Gordon & Breach,
16 and so there would be no doubt about that matter, we had
17 filed a stipulation that was intended to say that, yes, but
18 for their complaints, there would have been a distribution
19 of the Barschall survey to interested persons, including
20 librarians. And we are also prepared to stipulate that one
21 of the purposes of any such distribution could be seen to be
22 commercial advertising and promotion.
23 My clients had other purposes in mind, as well,
24 but we were trying to simplify the trial and to minimize the
25 issue and so we are prepared to stipulate that one of the
4
1 purposes of that circulation would satisfy one of the issues
2 that the plaintiffs believe they need to establish in this
3 case.
4 THE COURT: Does that take the issue out of the
5 case?
6 MR. LUPERT: That is a question I think that is
7 put to Mr. Meserve. We found the stipulation to be
8 confusing in two respects. Obviously we very much would
9 like to streamline the trial, as well, Judge. We need to
10 prove, according to your Honor's prior rulings, secondary
11 uses, and we also have to prove a threat of repetition in
12 the future. And in order to prove a threat of repetition in
13 the future, it would be necessary for us to put in evidence
14 of what happened in the past, because it is directly
15 relevant to the question of conduct in the future.
16 THE COURT: Mr. Meserve is not saying that they
17 would stipulate that they would intend to use it in the
18 future.
19 MR. LUPERT: Would that suffice for a ruling from
20 the court that in fact if we prove the other element in the
21 case, which is the falsity of the methodology, that an
22 injunction would issue?
23 THE COURT: It goes to one issue and it would be
24 relevant to that one issue. As I understand it, the issue
25 is whether there is a need for injunctive relief because
5
1 there is indeed a threat of repetition.
2 I understood the substance of the proposed
3 stipulation is we concede that we would repeat, and,
4 therefore, there is no need for the plaintiff to prove a
5 risk of repetition. Is that accurate?
6 MR. MESERVE: Your Honor, so it would be
7 completely clear, the stipulation had to do with the 1988
8 survey and what we would have done, and we are agreeing that
9 but for their complaints they would have been circulated to
10 librarians. That survey is a 1988 survey. It served no
11 purpose for any commercial use now. In fact the plaintiffs
12 are seeking an injunction to bar a hypothetical future use
13 of a hypothetical future survey.
14 THE COURT: Using the same methodology? What
15 they are really seeking, as I understand it, is an
16 injunction against any future commercial use embodying the
17 methodology in the Barschall surveys.
18 MR. MESERVE: That is what they are seeking.
19 THE COURT: Is that accurate?
20 MR. LUPERT: That is accurate, Judge.
21 MR. MESERVE: And my clients have not undertaken
22 a survey that includes any Gordon & Breach journals. They
23 did undertake one for their own internal purposes in the
24 interim, since the 1988 survey, and they have no current
25 plans to undertake a survey or to use a survey for
6
1 commercial purposes.
2 They have said, and I'm saying to the Court, that
3 they do not want to be precluded in the future if they were
4 to conduct a survey, to be able to use it for commercial
5 purposes. They believe they should have that right. They
6 have not made a decision as to whether they will do that.
7 THE COURT: I think we have to be more concrete.
8 The plaintiffs contend that there is a significant danger of
9 repetition of such magnitude as to meet the standards for
10 injunctive relief. Is that a conceded issue or a disputed
11 issue?
12 MR. MESERVE: I believe, your Honor, that it is
13 our intention here to take that issue out of the case, and
14 so, your Honor, that is a conceded issue.
15 MR. LUPERT: This really will have some impact on
16 the trial. If you will bear with me for just a second so
17 that the plaintiffs can make sure that they really
18 understand what this is really all about. It really is a
19 very important point to us.
20 THE COURT: Do you want to take a few moments?
21 Do you want a recess?
22 MR. LUPERT: I would like to talk to Mr. Meserve
23 about what he is going to be doing.
24 THE COURT: One other matter. And that is, I
25 notice that there are a number of people in the courtroom.
7
1 Are any of them fact witnesses and is there any request that
2 witnesses be excluded from the trial?
3 MR. MESERVE: We have two expert witnesses who
4 are present in the courtroom. And we have Dr. Brodsky, who
5 is a party representative, who is at the counsel table.
6 MR. LUPERT: We have in the courtroom, so that I
7 can introduce them, your Honor, this is Martin Gordon, who
8 is the principal of the plaintiff companies, and sitting
9 immediately to his right is Roger Green, who is a senior
10 executive of one of the companies, and immediately to
11 Mr. Gordon's left is Gloria Korenberg, who is also an
12 officer. One of them is clearly going to testify.
13 Mr. Gordon is the party representative and Mr. Green may
14 testify on rebuttal, if it is necessary. Frankly, I don't
15 have any objection to witnesses being here. It is not that
16 kind of a case in my view. Mr. Meserve, if you agree, I
17 won't make an issue of it.
18 MR. MESERVE: If you don't mind, your Honor, we
19 are going to be conferring in any event on the other issue,
20 would you mind if I confer with my co-counsel on that point?
21 THE COURT: Let's take a recess. Advise
22 Mr. Kenneally when you are ready to proceed.
23 MR. LUPERT: Thank you, Judge.
24 (Recess)
25 THE COURT: All right. This is out of hand.
8
1 We'll start the trial. We'll leave this issue unresolved.
2 You can discuss it at lunch, you can discuss it at 4:30, but
3 the trial should begin.
4 MR. LUPERT: I had sent my colleague to get the
5 counsel for the defendants. We had drafted something. I
6 think they were just taking a look at it.
7 (Pause)
8 THE COURT: The plaintiff may call its first
9 witness.
10 MR. LUPERT: Is the court indicating it would
11 like to dispense with opening statements?
12 THE COURT: That is what the court is indicating.
13 MR. LUPERT: Our first witness would be
14 Dr. George Taylor. My partner, Mr. Plotz, will handle that
15 examination.
16 MR. MESERVE: Your Honor, there was one other
17 issue that you had asked us to deal with while you were
18 gone, which is whether we would invoke the rule with regard
19 to fact witnesses, and we would like to invoke the rule.
20 THE COURT: Who is this that you want excluded
21 from the courtroom?
22 MR. MESERVE: Mr. Gordon is a party witness and
23 he obviously can stay.
24 THE COURT: Yes.
25 MR. MESERVE: I believe that Mr. Lupert suggested
9
1 that there are two other witnesses, Ms. Korenberg and
2 Mr. Green, who have never been designated as witnesses, who
3 he has implied may be called on rebuttal.
4 MR. LUPERT: Miss Korenberg won't be called as a
5 witness. Mr. Green possibly may testify as a rebuttal
6 witness. He is the single corporate official.
7 THE COURT: I will permit him to remain in the
8 courtroom.
9 MR. LUPERT: Thank you, judge.
10 GOERGE WILLIAM TAYLOR,
11 called as a witness by the plaintiffs,
12 having been duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. PLOTZ:
15 Q. Dr. Taylor, what is your profession?
16 A. I am an electrical engineer.
17 Q. What is your area of expertise?
18 A. Ferroelectricity.
19 Q. What is your educational background?
20 A. I have a bachelor of engineering degree with
21 first class honors. I have a doctor of philosophy in
22 electrical engineering. I have a doctor of engineering.
23 And I have an honorary doctor of science degree.
24 Q. Since the completion of your education, could you
25 just very briefly describe what you have done and how you
10
1 have been employed since then?
2 A. I worked for seven years at RCA's research
3 laboratories in Princeton, New Jersey. I then started a
4 company in the area of liquid crystal displays and
5 electronic watches. This company was sold to Fairchild
6 Semiconductor in the mid-'70s. I then had a consulting
7 company called Princeton Resources, which operated for about
8 20 years doing all types of consulting work in high
9 technology areas but largely focused on materials,
10 ferroelectric and related materials, and applications of
11 these materials, and most recently I have started a new
12 company called Ocean Power Technologies, which is devoted to
13 developing a new method of generating low-cost clean
14 electricity from ocean waves using ferroelectric polymers.
15 Q. Are you the editor of any journals?
16 A. Yes. I am the founding editor of the
17 International Journal of Ferroelectrics, and also of the
18 related journals, Ferroelectrics Letters and Integrated
19 Ferroelectrics.
20 Q. When was the journal Ferroelectrics founded?
21 A. The journal Ferroelectrics was founded in 1970.
22 Q. Are you a member of any professional societies?
23 A. Yes, I am a member of the American Physical
24 Society. I am a member of the Institute of Electrical and
25 Electronic Engineers. I am a member -- I am a fellow of the
11
1 British Institute of Electrical Engineers. And I am a
2 fellow of the Institute of Engineers of Australia.
3 Q. Dr. Taylor, just so we have some context here,
4 could you, in as lay terms as possible, just briefly
5 describe what ferroelectrics is?
6 A. Ferroelectrics are a class of materials which are
7 dielectric in nature. They are materials which have a
8 reversible polarization. This polarization relates to the
9 way the electrical dipoles exist inside the material. But
10 perhaps to put it in perspective, a very broad class of
11 materials are dielectric materials. Dielectric materials,
12 one class of materials, semiconductor materials are second
13 class magnetic materials or third class, and there are other
14 classes of materials. Focusing on the dielectric materials,
15 dielectric materials break down first into two categories,
16 pyroelectric materials and nonpyroelectric materials. The
17 pyroelectric materials, in turn, breakdown into
18 piezoelectric materials and nonpiezoelectric materials. The
19 piezoelectric materials then break down again into
20 ferroelectric materials and nonferroelectric materials. So
21 ferroelectric materials are a small section of this very
22 broad category of dielectric materials. But they are a very
23 important group because they have very outstanding
24 properties, which make them very interesting from a physics
25 viewpoint and make them very interesting from an
12
1 applications viewpoint.
2 Q. I'll come to that in a moment, but I wanted to
3 ask you first whether there is a broad branch of physics
4 that ferroelectrics belongs to?
5 A. Ferroelectrics fits under -- above the dielectric
6 category which I just explained. Above that is solid state
7 physics.
8 Q. And is another term for that is condensed matter
9 physics?
10 A. Condensed matter is another term which is a
11 little broader than solid state physics because it covers
12 certain types of liquids and certain types of gases.
13 Q. Do you have an idea of roughly how many people in
14 the world focus their work in ferroelectric materials?
15 A. I would think in the neighborhood of 2,000 people
16 at the moment. But there are certain countries like China
17 and India where there are ever increasing numbers of people
18 working in these materials.
19 THE COURT: When you say working in these
20 materials, were you talking about researchers or lab
21 technicians, or what does that encompass?
22 THE WITNESS: Yes, I am talking about
23 professional researchers. These would be physicists,
24 chemists, ceramicists, electrical engineers, electronic
25 engineers, not the supporting staff.
13
1 Q. And what are some of the practical applications
2 that the work in ferroelectric materials has?
3 A. Ferroelectric materials have been utilized for
4 approximately 50 to 70 years, and there are literally
5 hundreds of applications. They are used for sensors. They
6 are used to sense pressure and temperature. More exotic
7 forms of these would be, infrared cameras for night vision
8 use ferroelectric materials. They are used in the memory,
9 computer memories. The latest generation of semiconductor
10 chips have a thin layer of ferroelectric which provides a
11 permanent memory for the information without the need for
12 electrical power supply.
13 They are used for electronic displays. The most
14 suitable liquid crystal displays that we use in our portable
15 television and in our computer displays are ferroelectric
16 liquid crystals.
17 Q. You testified a few moments ago that you were the
18 co-founder of the Journal of Ferroelectrics. Who founded it
19 with you?
20 A. A friend of mine, Dr. Isaiah Lefkowitz, and
21 myself discussed the founding of the journal in 1969, one
22 year before the first issue came out.
23 Q. What was the reason that the two of you decided
24 to start this journal?
25 A. We both worked in the field, and we realized that
14
1 the articles on ferroelectricity were spread over many, many
2 journals in many, many countries. There was no one journal
3 which had any significant percentage of its articles devoted
4 to ferroelectricity. Because the field was very widespread
5 over many countries, we felt that it would make sense to
6 form a journal which would focus on this very important --
7 that small field.
8 Q. What were some of the journals at that time that
9 published articles in ferroelectrics?
10 A. The physics journals, the ceramics journals,
11 certain chemical journals, certain engineering journals.
12 These were journals, not only American journals but journals
13 of the National Physical Society, physical societies in
14 other parts of the world, and other disciplines, so there
15 were many, many places where ferroelectric-related articles
16 would appear.
17 Q. When you decided to start the journal, what did
18 you do?
19 A. We -- Dr. Lefkowitz and myself spoke with people
20 in the ferroelectrics community in different -- in the
21 United States and overseas to gauge their opinion about this
22 process. There has always been a reluctance in my opinion
23 in the scientific community to start a new journal unless
24 there is a very good reason to do so, because there has been
25 a very large number of journals and for this reason one
15
1 doesn't want to start a new journal unless there is a real
2 need for it. But it became very clear after we discussed
3 with probably 50 people that everybody felt that it made a
4 lot of sense to have some focal central point for articles
5 on ferroelectrics.
6 Q. Who were some of the people with whom you
7 discussed the project?
8 A. I discussed it with Professor Von Hippel, who is
9 a very eminent physicist at MIT. Previous to that he had
10 worked in Germany as a young physicist. I discussed it with
11 Professor Cochran who is the head of the physics department
12 at Edinburgh University in Scotland. Also I discussed with
13 the Japanese community, and with the Russian community,
14 Professor Smolensky at the Ioffe Institute in Petersberg,
15 Professor Takagi Nagoya University in Japan. These were
16 some of the people that I discussed it with, and with
17 Lefkowitz, of course, I jointly discussed it.
18 Q. As a result of these discussions --
19 A. As a result of these discussions, we felt it was
20 a good idea to start a specialist journal in ferroelectrics.
21 Q. So what was your next step?
22 A. The next step was to decide on how to proceed
23 with the publication, and Dr. Lefkowitz was friendly with
24 several senior scientists at Brookhavens who had --
25 Q. Is that Brookhavens National Labs?
16
1 A. -- Brookhavens National Labs on Long Island, who
2 had been involved with Gordon & Breach in publishing
3 specialized journals.
4 Q. And is that how you came to Gordon & Breach?
5 A. This is correct.
6 Q. Had you had any prior relationship with Gordon &
7 Breach?
8 A. Not.
9 Q. What was the way that you brought your project or
10 your proposed project to Gordon & Breach?
11 A. Well, that is going back 28 years, but my memory
12 of it is that we wrote a letter to Gordon & Breach, and this
13 was followed up by a meeting with Mr. Martin Gordon.
14 Q. What happened as a result of that meeting?
15 A. As a result of that meeting, the eventual outcome
16 of course was the formation of the journal. But during the
17 course of the meeting with Mr. Gordon, we discussed the --
18 what the policy would be concerning the journal. We felt --
19 Dr. Lefkowitz and myself felt it was very important that the
20 scientific community in the form of ourselves, as the
21 potential editors, and our very eminent editorial board
22 should control the policy of the journal, and Mr. Gordon
23 agreed with that, that Gordon & Breach would not have any
24 say in the editorial policy of the journal.
25 Q. What was the policy insofar as the scheduled
17
1 publication?
2 A. Initially, it was decided that we would publish
3 one volume per year, and one volume would be divided into
4 four issues.
5 Q. Did that change?
6 A. I'm sorry.
7 Q. I'm sorry. Did that change over time?
8 A. Yes. As the journal grew, as it became clear
9 that it was serving a good purpose and people wanted to
10 publish their articles, each year the journal grew in the
11 number of volumes. And a very important point was that
12 there was no limitation from Gordon & Breach in terms of the
13 number of volumes that we could publish. The only criteria
14 which was our criteria, as the editors, was that the quality
15 of the journal be maintained, that we have very good
16 articles that were thoroughly refereed.
17 Q. Are you familiar with the term "flow system"?
18 A. Yes.
19 Q. What is that?
20 A. This is essentially what I just described, the
21 policy of the Gordon & Breach journals, at least concerning
22 ferroelectrics, and I believe the other journals, that there
23 not be a set number of issues or volumes per year but the
24 demand of the scientific community for publication should be
25 satisfied by publishing as many as are required.
18
1 Q. Now, your first issue came out in 1970?
2 A. Yes.
3 Q. Who was on your board at that time? Who are some
4 of the people?
5 A. The people on the board at that point were -- we
6 had about three people from the Soviet Union, Professor
7 Shuvalov, Academician Smolensky, Professor Shuvalov,
8 Professor Fritkin.
9 We had from Japan Professor Nakamura, Professor
10 Abe, Professor Hashino. From the United States, we had
11 Professor Cross, Professor Onsager, Dr. Silverman. From
12 India, we had professor Subbarao. From Europe, we had
13 Professor Cochran. We had Professor Bertaut from France.
14 We had Professor Muser from Germany. We had a total of 40
15 people, I believe --
16 THE COURT: Four-0.
17 THE WITNESS: Four-0, yes.
18 Q. Now, you've mentioned people from many different
19 countries.
20 A. Yes.
21 Q. Was there a reason that your board consisted of
22 researchers from many different countries?
23 A. Yes. The research on ferroelectric materials and
24 their applications was indeed being done in these many
25 countries. I think in the early editorial boards, we had
19
1 people from at least ten countries.
2 Q. Let me just show you what has been marked as
3 Plaintiff's Exhibit 730A.
4 A. Yes.
5 I wonder if I could have some water. Is that
6 possible?
7 Q. Sure.
8 And I ask you if you can identify that exhibit.
9 A. This exhibit is from the first issue, volume 1,
10 No. 1, of ferroelectrics published in early 1970, and it
11 lists the editors and the editorial board and the editorial
12 policy. It lists four forwords by Von Hippel, Cochran,
13 Catalge and Smolensky, and it has the first pages of the
14 articles that were published in that first issue.
15 MR. PLOTZ: The plaintiffs offer 730A.
16 THE COURT: Received.
17 (Plaintiff's Exhibit 730A received in evidence)
18 A. And it also has on the back inside cover, which
19 includes the notes for the contributors and the subscription
20 rates.
21 MR. LUPERT: Excuse me, I was interrupted. We
22 had put together a set of exhibits for the court. I don't
23 know if they have actually been provided to the court as of
24 this point. We had intend today do that at the opening and
25 it slipped our minds.
20
1 THE COURT: I don't have it.
2 MR. LUPERT: At the next break, if you would,
3 we'll provide a full set to the Court.
4 Q. Dr. Taylor, you testified a few minutes ago that
5 since this first issue in 1970 the journal has grown. Have
6 other journals -- let me start again.
7 Have you been involved in starting other related
8 journals with Gordon & Breach?
9 A. Yes. Ferroelectrics Letters was started in
10 the -- I think 1981 or 1980, about then, and Integrated
11 Ferroelectrics was started about 1992.
12 Q. What is Ferroelectric Letters?
13 A. Ferroelectrics Letters is a journal which is
14 published about every six weeks. It is designed to give
15 very fast publication of new areas where the area may not
16 have been researched to its fullest, but it allows the
17 researchers to get credit for their work. A good example
18 might be the discovery of a new ferroelectric material. So
19 the -- there would be perhaps a six-page article where the
20 inventors or the researchers would describe their new
21 material, but would not have gone into great detail about
22 all the properties of the material. It would just establish
23 that this material for the first time had been discovered to
24 be ferroelectric.
25 Q. Were Ferroelectrics Letters previously included
21
1 within the general journal?
2 A. They were for about one year, and at that point
3 it was felt by myself -- Dr. Lefkowitz had died at that
4 stage -- it was felt by myself and after consultation with
5 the editorial board at Ferroelectrics that it made sense to
6 separate these short reports from the longer articles in
7 ferroelectrics.
8 Q. What was the reason for that?
9 A. Just to allow for faster publication.
10 Q. The other journal you just mentioned was
11 Integrated Ferroelectrics. What is that?
12 A. Integrated Ferroelectrics is a new application of
13 ferroelectric materials where the ferroelectric material is
14 formed as a thin film and is then coupled with -- mostly
15 with semiconductor devices. I mentioned earlier what is
16 called a nonvolatile memory chip which, because of the
17 ferroelectric film, you don't need to sustain the
18 information with an external battery.
19 And we had begun to publish articles on this
20 topic in ferroelectrics earlier, but because of the
21 technical importance and commercial importance of this area,
22 there were suddenly many more articles than had appeared
23 previously, and there were several conferences on this
24 subject, and it seemed a good idea to, once again, to
25 separate it into a specialized journal which would deal with
22
1 Integrated Ferroelectrics. This is the integration of
2 ferroelectrics with other materials.
3 Q. Focusing again on the journal, Ferroelectrics,
4 what types of articles does it publish?
5 A. It publishes theoretical articles, experimental
6 articles, and applications.
7 Q. Could you just very briefly describe what you
8 mean by "theoretical papers"?
9 A. Theoretical papers deal with the explanation of
10 the ferroelectric phenomena, why do certain materials have
11 this reversible electrical polarization, and that's a very
12 general area, but many different ferroelectric materials
13 behave differently from other groups, and, therefore, it's
14 necessary to explain this theoretically.
15 Q. And how about experimental papers?
16 A. Experimentally -- experimental papers deal with
17 the actual measurements of the material to measure its
18 properties and to understand its properties.
19 Q. And finally, what about applied papers?
20 A. The applied papers deal with how these materials
21 can be used in devices and systems.
22 Q. Does ferroelectrics normally publish review
23 articles?
24 A. Occasionally.
25 Q. What do you mean by "occasionally"?
23
1 A. I would think no more than one or two percent of
2 all the papers published in ferroelectrics are review
3 papers.
4 Q. And just so we're clear on terminology, what is a
5 review paper?
6 A. A review paper is a paper that is written by an
7 expert, somebody who has spent a good amount of his time and
8 has worked in a special area of, in our case,
9 ferroelectrics. He writes the review article identifying
10 the most important parts of that area that he has worked in,
11 and it is designed to be read by people working in
12 ferroelectrics who may not have a full understanding of this
13 particular specialty within ferroelectrics.
14 Q. And what about conference proceedings? Does
15 Ferroelectrics publish conference proceedings?
16 A. Yes, Ferroelectrics publishes conference
17 proceedings.
18 Q. Could you just describe what's involved in
19 publishing those proceedings?
20 A. Typically, the organizers of a ferroelectrics
21 conference will write to me and ask whether we -- the
22 journal would be interested in publishing the proceedings of
23 their conference, and then I make a decision, possibly
24 consulting with many of the editorial board members or other
25 people in the ferroelectrics community as to whether such
24
1 proceedings would be of interest to the ferroelectrics
2 community. Usually a guest editor is appointed by the
3 organizing committee subject to my approval, and we have set
4 up very strict rules as to how the papers must be prepared.
5 And by this, I mean that we insist that the articles that
6 are published in the proceedings receive the same refereeing
7 procedures, the same review procedures, as regular papers
8 published in the journal.
9 Q. Now, you mentioned review procedures. What are
10 you referring to?
11 A. In order to make sure that the articles are of
12 the highest quality, we follow the standard scientific
13 procedure of a peer review where we would have two referees
14 chosen by the editor, or in the case of a guest editor,
15 chosen by the guest editor. The manuscripts are then -- a
16 manuscript is then sent to each of those referees. The
17 referee then reports on the standard form what his opinion
18 of the paper is and whether it should be published as is,
19 whether it should be rejected, or whether it could be
20 improved by revisions.
21 Q. Who does the refereeing for the journal?
22 A. A lot of people. They include the editorial
23 board members, but they go well beyond that. It is a case
24 of finding and selecting people who are experts in the
25 subject of the paper that is to be reviewed.
25
1 Q. What is the rejection rate for the journal
2 Ferroelectrics?
3 A. On the average, over this long period of time of
4 27 years, about one third of all papers are accepted in
5 their first form, about one third go through revisions
6 before they are accepted, and one third are rejected, either
7 initially or after some revisions which are still not
8 satisfactory.
9 Q. Have you served as a referee for other journals?
10 A. Yes.
11 Q. What are some of those journals?
12 A. I serve as a referee for the Journal of Applied
13 Physics.
14 Q. Who publishes that?
15 A. The American Physical Society. The American
16 Ceramic Society Journals I have refereed for. I have
17 refereed for many of the European Physical Society journals.
18 I have refereed for the IEEE transactions.
19 Q. What is IEEE?
20 A. IEEE is the Institute of Electrical and
21 Electronic Engineers.
22 Q. That is another society?
23 A. That is another society that I am a member of
24 also.
25 Q. Do you know about how many subscribers there are
26
1 to the journal, ferroelectrics?
2 A. About 400, to the best of my knowledge.
3 THE COURT: You said before that there were 2,000
4 people who were professional researchers.
5 THE WITNESS: Yes.
6 THE COURT: Is that today?
7 THE WITNESS: Well, as I said, in India and
8 China, the numbers are growing very fast. But if I go back
9 five years, I would say 2,000 is a pretty accurate number.
10 THE COURT: The journal is published only in
11 English?
12 THE WITNESS: Yes.
13 THE COURT: Would you make an estimate as to the
14 number of English-speaking professional researchers engaged
15 in this area?
16 THE WITNESS: I think the -- of the 2,000,
17 probably the large majority of those do speak English,
18 either native-speaking English, or it is pretty much the
19 general language of science.
20 Q. Doctor, are many of the authors who contribute to
21 ferroelectrics from non-English-speaking countries?
22 A. Yes.
23 Q. That includes Russia, Japan?
24 A. Russia, Japan, China, India, Brazil, all the
25 European countries.
27
1 Q. And their articles are in English?
2 A. Yes. That is one of the -- probably the biggest
3 chores that I have is dealing with articles where the
4 English is not satisfactory and one then has to go back and
5 forth with the authors on the English.
6 Q. About what percentage of the ferroelectrics
7 articles that are published anywhere are published in your
8 journal?
9 A. It was in, up to five years ago, probably as high
10 as 35 percent of all articles on ferroelectrics were
11 published in the journal Ferroelectrics. It's probably gone
12 down to somewhere between 25 and 30 percent currently.
13 Q. Is there a way that you know these percentages?
14 A. Yes. The journal Ferroelectrics publishes
15 approximately twice every year a bibliography of all
16 articles on ferroelectrics that are published in all
17 journals in the world. So, therefore, we know on an annual
18 basis how many articles have been published around the world
19 and we know of course how many are published in the journal
20 ferroelectrics. That's the basis for the bibliography.
21 Q. I'm going to hand you what has been marked as
22 Plaintiffs' Exhibit 730B, which is volume 77 of
23 Ferroelectrics, and ask you if that contains such a
24 bibliography.
25 A. Yes, it contains two bibliographies.
28
1 Q. The first one starts at about page 167, is that
2 correct?
3 A. Yes.
4 Q. What bibliography is that?
5 A. This is the bibliography that's prepared
6 approximately every six months by Professor Toyota. It is
7 entitled "The Bibliography of Ferroelectrics."
8 Q. Now, if you turn to page 235, is there another
9 bibliography that starts there?
10 A. Yes.
11 Q. What bibliography is that?
12 A. This is Professor Sidney Lang's bibliography,
13 which is entitled bibliography of piezoelectricity and
14 pyroelectricity.
15 Q. And that compiles different articles from what is
16 in the first one?
17 A. It overlaps. As I mentioned earlier,
18 ferroelectrics is a subsection of dielectrics and a
19 subsection of piezoelectrics and pyroelectrics. Piezo and
20 pyrolectric materials are very closely related to
21 ferroelectric. So the readers of the journal appreciate the
22 fact that there are the two bibliographies.
23 Q. And about what proportion of that journal that
24 you have in front of you, how much a percentage of that does
25 the bibliography take?
29
1 A. In it this particular issue, the -- well, I would
2 say the two bibliographies together combine to about 50
3 percent of this issue.
4 Q. What is the purpose of publishing these
5 bibliographies?
6 A. As a service to researchers around the world,
7 they have in one place all the articles that are published
8 in their field.
9 Q. Do you know if those bibliographies are used?
10 A. Extensively. Researchers tell me every time I go
11 to a conference and meet people how useful they find the
12 bibliographies.
13 Q. Do you know if anyone cites to it in their
14 research?
15 A. Excuse me?
16 Q. Does anyone cite to the bibliography in their
17 research?
18 A. Yes. I have seen citations to the bibliography
19 quite often, but of course there is also the citation to
20 articles within the bibliography. So I cannot tell, when
21 articles are cited, whether the citation came about via the
22 bibliography or not. But in both cases it happens. The
23 bibliography as a whole is cited but obviously in more
24 instances the individual articles are cited.
25 Q. What are some of the other journals that publish
30
1 the 70 to 75 percent of ferroelectrics articles that your
2 journal does not publish?
3 A. They are numerous. Would you like me to try and
4 list a few?
5 Q. Just list a few.
6 A. OK. In no order, no prescribed order.
7 Helvetica Physica, which is the Swedish -- excuse
8 me -- the Swiss physics journal; the Krystallographica,
9 which is a Russian journal; the Japanese Journal of Applied
10 Physics; the Journal of the American Ceramic Society; the
11 IEEE Transactions on Ultrasonics, Ferroelectrics and
12 Frequency Control; the Journal of Applied Physics; various
13 sections of the Phys. Rev.
14 Q. Is that the Physical Review?
15 A. Physical Review.
16 Q. Published by the American Physical Society?
17 A. Published by the American Physical Society. That
18 is just a few of the journals.
19 Q. Do any of these journals cover a percentage of
20 the ferroelectrics literature similar to your journal?
21 A. No. If we say that Ferroelectrics publishes
22 around 30 percent as a round number, the other 70 percent is
23 distributed very widely and I doubt if there is any one
24 journal that publishes more than 2 percent on a regular
25 basis more than 2 percent of the total.
31
1 Q. Do those other journals that you just mentioned
2 cover areas other than ferroelectrics?
3 A. Yes.
4 Q. Now, what do you do, as editor of ferroelectrics,
5 to attract articles?
6 A. In the early years, I spoke to people,
7 researchers, to encourage people to consider publishing in
8 ferroelectrics, but within one or two years that was no
9 longer necessary, the journal took a life of its own and
10 people became aware of the journal and sought to publish
11 their articles in the journal, so there was no need for any
12 intensive or extensive promotion on my part.
13 THE COURT: Are authors compensated?
14 THE WITNESS: No.
15 Q. Do you consider that the journal has had an
16 impact in the scientific community?
17 A. Yes, I think it has had a very large impact
18 because it has focused the area of ferroelectricity, where
19 before it was a very diffuse area, and as a result of that
20 there as been a lot of interaction between workers in
21 different countries, researchers in different countries,
22 being aware and being able to easily access the work of
23 their colleagues in other places.
24 Q. Has your journal been involved in sponsoring
25 ferroelectrics conferences?
32
1 A. Yes. Gordon & Breach has, and the journal
2 Ferroelectrics, have sponsored many, many conferences. This
3 sponsorship has included financial grants to the conferences
4 and support of the publication of the proceedings.
5 Q. What factors do you consider important in
6 determining whether or not the journal has an impact in the
7 community?
8 A. I think there are a number of issues that are
9 involved in determining the impact on the community. One of
10 them, of course, is the quality of the papers. The papers
11 must be of the highest quality. And, therefore, since we
12 know of no better way than the peer reviewing process, we
13 insist on very strong peer refereeing. The speed of
14 publication is an extremely important area, particularly
15 when you have a fast-moving field, which applies to most of
16 the papers in ferroelectrics.
17 If the researcher cannot get his publication
18 quickly, then there is a lot of value lost to the researcher
19 in terms of his reputation, but also on the other side, if
20 the article is not published quickly, there may be a group
21 in another part of the world that is wasting their time
22 doing research because somebody else has already done this
23 research and the work is not being published. So it serves
24 a very important -- speed is a very critical factor in terms
25 of impact.
33
1 Q. And how speedily does your journal, in general,
2 try to get papers out?
3 A. We try to get them out as quickly as possible.
4 And typical average time is between 6 and 12 months from the
5 time the paper has first been received. If a paper has to
6 go through extensive reviewing, of course it takes longer,
7 because you have to go back and forth between the author and
8 the referees, but six to twelve months is typical.
9 Sometimes we're faster. Sometimes, for different reasons,
10 we're slower.
11 Q. Besides the quality of papers and the speed of
12 publication, are there other factors that you consider
13 important in determining the impact of the journal on the
14 community?
15 A. That the research work, for example, becomes a
16 field which may have important commercial application.
17 Taking the example of the liquid crystal work, the
18 ferroelectric liquid crystal work, the impact that that has
19 as a driver of technology has been incredible, and
20 Ferroelectrics has been the journal which has spearheaded
21 the publication of papers in that area. So I consider that
22 a very important impact issue.
23 Q. Are you familiar with the survey that was
24 conducted by Professor Barschall and was published in 1988?
25 A. Yes.
34
1 Q. Let me just hand you what has been marked as
2 Plaintiff's Exhibit 3, which is a copy of "Physics Today" of
3 July 1988.
4 MR. PLOTZ: Your Honor, I don't know if you have
5 a copy, but I can hand up a copy.
6 THE COURT: Thank you.
7 Q. Let me ask you, Dr. Taylor, to turn, if you
8 would, to page 58, which consists of table 1.
9 A. Yes.
10 Q. Now, there are several -- table 1 consists of a
11 list of journals divided into different categories. Do you
12 see that?
13 A. Yes.
14 Q. And just leaving the first two aside and looking
15 at the atomic physics, condensed matter physics, nuclear
16 physics particle physics, applied physics and
17 instrumentation --
18 A. Yes.
19 Q. Are those branches of physics that you recognize?
20 A. They are branches that I recognize, but these are
21 subjective classifications. One can come up with a dozen
22 other ways to classify physics, to break physics up into
23 smaller sections.
24 Q. Well, just taking your Journal of
25 Ferroelectrics --
35
1 A. Yes.
2 Q. -- which does not appear in this particular
3 table, what category would ferroelectrics come in among the
4 six that are listed here?
5 A. Some of the major categories it would come under
6 would be condensed matter physics, applied physics and
7 instrumentation. And occasionally there are papers that
8 deal with some the other topics, too, but those three are
9 areas under which ferroelectric articles could appear.
10 Q. Now, looking at the category of condensed matter
11 physics in table 1, are you familiar with any of the
12 journals listed there?
13 A. Yes.
14 Q. Do you know whether the journals listed here
15 cover specialization similar to ferroelectrics or broader
16 areas?
17 A. There is only one that I'm familiar with that I
18 would classify as a specialized journal. That's the Journal
19 of Magnetics and Magnetic Material.
20 Q. And would you classify any of the journals as
21 being broad in scope, covering more than a single specialty?
22 A. Yes. Most of the other journals are very broad
23 in scope.
24 Q. Do you know whether the general journals of the
25 American Physical Society -- which I think you said were
36
1 several sections of the Physical Review, is that correct?
2 A. Yes.
3 Q. Is that Physical Review A, B, C and D?
4 A. Yes.
5 Q. Do those journals cover more than one area of
6 specialization?
7 A. Yes.
8 Q. Which one would ferroelectrics fit into?
9 A. It can fit into -- you could have ferroelectric
10 articles in most of the physical review sections. And, in
11 fact, you find such to be the case.
12 Q. Have you ever become aware, during the time you
13 have been editor, of anyone urging authors not to contribute
14 to Ferroelectrics on account of the price of the journal?
15 A. Yes, I know of two occasions, one in 1990 and one
16 in 1996.
17 Q. Let's focus in first on the 1990 incident.
18 How did you become aware of that?
19 A. One of my editorial board members, who is also an
20 associate editor of the journal, Professor Sidney Lang, sent
21 me a copy of a letter that he had received from Dr. Etzold
22 of IBM.
23 Q. Let me hand to you what has been marked as
24 Plaintiff's Exhibit 550.
25 What is Exhibit 550?
37
1 A. 550 is the copy of the letter that Professor Lang
2 sent from -- or received from Dr. Etzold and which he sent
3 on to me.
4 Q. What did you understand -- who is Dr. Etzold?
5 A. Dr. Etzold is a -- or was a research scientist at
6 IBM, and had recently been appointed an associate editor of
7 the IEEE Transactions on Ultrasonics, Ferroelectricity and
8 Frequency Control.
9 Q. What was Dr. Etzold -- what was he doing in this
10 letter?
11 A. The purpose of the letter, as he states in the
12 letter, is to encourage people to publish in the UFFC
13 transactions and not to publish in Ferroelectrics.
14 Q. Did he have a basis for that, a stated basis?
15 A. His argument was that the price of Ferroelectrics
16 was too expensive.
17 THE COURT: I note it says the cost is very high
18 from 1990, $8,220. Is that the subscription cost in 1990?
19 THE WITNESS: I believe so.
20 Q. What did you do upon receipt of this letter?
21 A. I met Dr. Etzold at a conference at the
22 University of Illinois shortly afterwards, and I had a long
23 discussion with him, where I told him that I felt that his
24 letter was -- did not address the -- all the issues
25 involved. The transactions that he had become the associate
38
1 editor of published a very few numbers of papers on
2 ferroelectrics. Ferroelectrics was solely devoted -- the
3 journal Ferroelectrics was solely devoted to ferroelectrics.
4 So if a subscriber to the UFFC transactions was solely
5 interested in ferroelectrics, he would only get a very small
6 percentage of the articles that he was purchasing which
7 dealt with the subject that he was interested in, whereas,
8 if he purchased the journal Ferroelectrics, he would get --
9 all the articles would be on ferroelectrics.
10 So I discussed with him how one might evaluate
11 the cost effectiveness of the two journals and determine
12 that the cost effectiveness of -- based on that criteria,
13 that for a researcher that was interested in ferroelectrics
14 and not interested in the other parts of that journal,
15 ultrasonics and frequency control, it was about six or seven
16 times more cost effective to buy the journal Ferroelectrics.
17 And I felt that if he was going to encourage people to
18 publish in the UFFC transactions, it was necessary to point
19 this out.
20 It was also necessary to point out the speed of
21 publication. The UFFC transactions typically takes two to
22 three times longer to publish any article, be it on
23 ferroelectrics or anything else. And the third area which I
24 pointed out to him was that the number of articles that the
25 UFFC was allowed to publish by their own policy was strictly
39
1 limited because of page limitations. The number of pages
2 and therefore the number of articles were limited.
3 Plus, there were other factors involved in
4 comparing the two journals, one being that one journal made
5 no page charges to the authors; the other journal, the UFFC
6 transaction, charged about $100 a page for an author to
7 publish --
8 THE COURT: Charged the author?
9 THE WITNESS: The author or the author's
10 institution.
11 THE COURT: Is charged $100, right? I asked you
12 earlier whether there was compensation and you said no.
13 THE WITNESS: No.
14 THE COURT: Now you are also telling me that
15 there is a charge to the author or the author's --
16 THE WITNESS: Not in the case of the journal
17 Ferroelectrics, but in the case of this --
18 THE COURT: The UFFC?
19 THE WITNESS: The UFFC transactions, yes.
20 BY MR. PLOTZ:
21 Q. Could you just describe for Judge Sand what page
22 charges are?
23 A. The societies of journals, certain societies,
24 including the American Physical Society and the IEEE, in
25 order to reduce their publication costs, ask the author or
40
1 the author's institution to support the publication by
2 paying so much per page.
3 Q. And just to be clear, your journal does not do
4 that?
5 A. And ferroelectrics does not do that.
6 Q. Do you know whether any Gordon & Breach journals
7 do that?
8 A. I believe no Gordon & Breach journals do that.
9 And the other aspect that I discussed with
10 Dr. Etzold, which I felt that he had been unfair in not
11 mentioning this in this letter that he had circulated, was
12 that ferroelectrics was -- the journal Ferroelectrics was
13 very much an international journal. The IEEE transactions
14 and its subscribers are largely -- excuse me -- the people
15 who write articles for the IEEE transactions and the
16 subscribers to the transactions are -- the majority of them
17 are American, whereas in the case of ferroelectrics the
18 Americans are not the majority.
19 Q. In your view, what is the significance of that
20 last point?
21 A. That the journal Ferroelectrics is able to
22 publish research from all over the world, and, therefore,
23 the readers of Ferroelectrics get a much broader
24 understanding of what is going on in the world, whereas the
25 UFFC transactions is more limited in that respect.
41
1 Q. You testified a few moments ago that in your
2 conversation with Dr. Etzold you pointed out that for a
3 researcher in ferroelectrics, a subscription to your journal
4 would be more cost effective than a subscription to the UFFC
5 transactions.
6 A. Yes.
7 Q. What was your standard or basis for making that
8 statement?
9 A. I calculated, over a three-year period, the --
10 what it would cost to subscribe to Ferroelectrics, what it
11 would cost to subscribe to the UFFC Transactions. I then
12 divided those two numbers, those three years of subscription
13 costs, by the numbers of articles on ferroelectrics in each
14 of the two publications. And if my memory serves me right,
15 the cost of the -- for the UFFC transactions was about $40
16 per article, whereas the cost in the journal Ferroelectrics
17 was about $6 or $7 an article.
18 Q. Let me show you what has been marked as
19 Plaintiffs' Exhibit 555, and ask you what that is.
20 A. After I met with Dr. Etzold, I put into writing
21 the discussion that I had had with him, the points that I
22 had made to him, as a counter to the letter that he had
23 circulated.
24 Q. And is one of the points this calculation that
25 you just described?
42
1 A. Yes. This is on the second page, under the
2 subheading "Cost Effectiveness."
3 Q. And does this reflect that you calculated that it
4 would have cost a ferroelectrics person $3.50 per article to
5 subscribe to your journal and $11 for a ferroelectrics
6 person to subscribe to UFFC transactions?
7 A. Yes. That is based on an individual subscription
8 in both -- comparing the individual subscription for both
9 journals, yes.
10 Q. And above that is your calculation for library
11 subscribers?
12 A. Yes.
13 Q. And that shows a per ferroelectrics article cost
14 of $7 for your journal and $46 for the other journal?
15 A. Yes.
16 Q. And is that what you were referring to --
17 A. Yes.
18 Q. Now, at the time that you talked to Dr. Etzold,
19 had you done this calculation?
20 A. No. Well, let me -- this is a long time ago. It
21 was Dr. Etzold's letter that caused me to -- his letter to
22 Sidney Lang and to other people that caused me to think
23 about this, and whether I had done the calculation exactly
24 when I met with Dr. Etzold or whether it was a few weeks
25 later, I can't remember.
43
1 THE COURT: To whom did you send this letter?
2 THE WITNESS: This letter was not distributed.
3 THE COURT: It was not distributed?
4 THE WITNESS: Not.
5 THE COURT: I see. You prepared this for
6 possible distribution but did not in fact distribute it?
7 THE WITNESS: Exactly.
8 THE COURT: And this was sometime in 1990?
9 THE WITNESS: Yes.
10 Q. Did you tell anyone at Gordon & Breach about this
11 letter from Dr. Etzold?
12 A. Yes.
13 Q. Do you remember who you told?
14 A. I believe I spoke to several people, which would
15 have included Pat Bardi, who was the vice president of
16 Gordon & Breach and in charge of editorial matters.
17 Q. Do you know what happened, if anything, between
18 Gordon & Breach and Dr. Etzold after that?
19 A. Yes. There were discussions which resulted in a
20 letter of retraction by Dr. Etzold being circulated to all
21 the people that he had written to in the first place, in
22 which in this letter of retraction he apologized and
23 basically said that the points that I had made were correct,
24 that there were other factors involved. One couldn't just
25 simply look at the subscription price and draw the
44
1 conclusion that he did.
2 Q. Let me hand you Plaintiff's Exhibit 551 and ask
3 you to take a look at that.
4 THE COURT: Let's take a five-minute recess
5 before we start that.
6 (Recess)
7 THE COURT: Professor Taylor, you said that
8 Dr. Etzold had sent a retraction letter?
9 THE WITNESS: Yes.
10 THE COURT: Is that in the record.
11 MR. PLOTZ: I just handed it up, your Honor.
12 That is Exhibit 551, your Honor.
13 BY MR. PLOTZ:
14 Q. Actually, Doctor, let me have you identify
15 Exhibit 551.
16 A. Yes, 551 is a -- three letters, one of which is
17 a -- the retraction letter, which is addressed to Professor
18 Alex Muhler, who is on our editorial board and is also a
19 Nobel laureate, who happens also to work for IBM, or worked
20 for IBM in Zurich in those days.
21 The other letters are letters addressed to
22 Mr. Gordon, which are apologies.
23 Q. And one of those letters is from Dr. Etzold?
24 A. One of those letters is from Dr. Etzold and the
25 other is from IBM.
45
1 Q. Now, you testified there was a later incident
2 involving a situation where someone was urging authors not
3 to write for your journal on the basis of its price?
4 A. Yes. In August '96 --
5 Q. Before you get to that, I just want to go back to
6 something and just have you clarify it.
7 Could you look at, just briefly again, at Exhibit
8 3, which is the Barschall article.
9 A. Yes.
10 Q. At table 1, which you were looking at --
11 A. Yes.
12 Q. One of the journals under "Condensed Matter
13 Physics" is a journal called The Physics and Chemistry of
14 Liquids, a Gordon & Breach journal?
15 A. Yes.
16 Q. Are you familiar with that journal?
17 A. No.
18 Q. So you don't know whether or not that is a
19 specialized or general journal?
20 A. No, I don't know if it is specialized.
21 The one that I know is specialized is the Journal
22 of Magnetism and Magnetic Materials published by North
23 Holland.
24 Q. Let's return to this second incident that we
25 began to discuss. Could you describe what happened on this
46
1 later occasion?
2 A. Yes.
3 Q. First of all, when did this happen?
4 A. In August of '96, the ferroelectrics committee of
5 the IEEE, of which I have been the secretary of this
6 committee for 20 or more years, organizes every two or three
7 years a conference on the applications of ferroelectrics.
8 And the day before the conference began, our committee held
9 a regular committee meeting and to this meeting Dr. Vig from
10 the IEEE was invited --
11 Q. Who is Dr. Vig?
12 A. Dr. Vig is the vice president of the IEEE society
13 entitled the Society of Ultrasonics, Ferroelectrics and
14 Frequency Control. This society has three component
15 committees, of which the ferroelectrics is one of those
16 committees.
17 Q. And do you know where he works?
18 A. He works at U.S. Army research office in Fort
19 Monmouth, New Jersey.
20 Q. Continue with what happened at this meeting.
21 A. Dr. Vig, after we had completed our normal
22 committee business, Dr. Vig asked to speak to the committee,
23 and there were several topics that he spoke about, and one
24 of these was a statement to the effect that the members of
25 our ferroelectrics committee should publish all their
47
1 ferroelectrics articles in the transactions of the
2 ultrasonics ferroelectrics and frequency control, the UFFC
3 transactions. The reasons he said that this was necessary
4 were that the ferroelectrics was too expensive and
5 subscriptions were being canceled by certain libraries.
6 Q. Did he say how expensive the journal was?
7 A. He said about $40,000, four-zero thousand.
8 THE COURT: What was $40,000?
9 THE WITNESS: He claimed that the subscription
10 price to ferroelectrics was $40,000, and this was too
11 expensive.
12 Q. Did you say anything at this meeting?
13 A. Yes. I said --
14 Q. What did you say?
15 A. -- that this number was grossly exaggerated, it
16 was considerably less than this, and that the number of
17 subscriptions to my knowledge, of Ferroelectrics, had not
18 significantly decreased in recent years.
19 Q. What happened after this meeting?
20 A. I should say that before the meeting concluded,
21 Professor Cross, who is the chairman of the ferroelectrics
22 committee, told Dr. Vig that his comments were not
23 appropriate, his criticism of the journal Ferroelectrics was
24 not appropriate, and that both journals served a very useful
25 purpose. And, in fact, neither I nor any editorial board
48
1 member of ferroelectrics over the 27 years that the journal
2 Ferroelectrics is published has ever criticized any other
3 scientific journal nor have we encouraged people not to
4 publish in other scientific journals and to publish in
5 ferroelectrics. I personally think that this is a very bad
6 situation where you set up a fight among scientists when
7 both journals, and many other journals, serve very good
8 purposes --
9 THE COURT: How large is that committee?
10 THE WITNESS: The committee is about 20 people.
11 THE COURT: That were present at the time?
12 THE WITNESS: Yes.
13 A. In some ways his comments and his actions
14 reflected what Dr. Etzold had said six years previously, and
15 what is also in my opinion very disappointing is that the
16 journal Ferroelectrics has always had a very good
17 relationship with the UFFC transactions, and, in fact, in
18 the past we have co-published proceedings --
19 THE COURT: I was wondering about co-publication.
20 THE WITNESS: Yes.
21 THE COURT: Is the choice of the publication
22 always mutually exclusive?
23 (Pause)
24 Is it ever case that the same article will appear
25 with everyone's consent in more than one publication?
49
1 THE WITNESS: It's very rare, because an article
2 should only be published in one place, unless there is some
3 very extenuating circumstance.
4 In the case of the co-publication, which took
5 place between the two journals, of a particular proceedings,
6 the reason why both journals decided that this was an
7 exception that was worth doing was related to this question
8 of internationality, that the UFFC transactions was only
9 distributed primarily in the United States, and the feeling
10 was that Ferroelectrics, because of its international
11 distribution and publication, would extend the readership of
12 the proceedings of this conference.
13 THE COURT: Are there, in the scientific
14 community, the equivalent of what in the lay community might
15 be thought of as something like a Reader's Digest? Are
16 there publications which are solely re-print publications?
17 THE WITNESS: Not that I know of. There are
18 copyright issues involved and, therefore, editors of all
19 reputable scientific journals that I know will not publish
20 an article unless the author will state that this article is
21 not being published elsewhere.
22 THE COURT: All right.
23 BY MR. PLOTZ:
24 Q. In fact, Dr. Taylor, had your journal,
25 Ferroelectrics, promoted the conference at which Dr. Vig
50
1 made his statements?
2 A. Yes. Ferroelectrics -- excuse me, not
3 Ferroelectrics -- Gordon & Breach had paid for a booth at
4 the conference that followed after this committee meeting.
5 Is this the question you -- yes.
6 Q. That is responsive, but let me ask you something
7 else.
8 A. Yes.
9 Q. Let me show you Plaintiffs' Exhibit 730C, which
10 is volume 174, numbers 1 through 2, of your journal
11 Ferroelectrics and direct your attention near the back of
12 the journal and ask you whether that is a call for papers
13 for this very conference.
14 A. Yes. One of the services that Ferroelectrics
15 does for the ferroelectrics community is to advertise
16 conferences that are being held in the area of
17 ferroelectrics anywhere in the world, and I guess it's a
18 measure of our openness and willingness to cooperate with
19 the IEEE that we gladly advertise their conference, the one
20 that occurred in August of '96.
21 Q. That call for papers was for papers that would
22 ultimately be published not in your journal but in the UFFC
23 transactions?
24 A. Conceivably, yes, but as it turned out the UFFC
25 society does not publish the proceedings of the -- of their
51
1 conference on applications of ferroelectrics, which makes
2 Dr. Vig's request for people to stop publishing in
3 Ferroelectrics rather strange, because the IEEE could easily
4 publish, if they wanted to, many of the papers that were
5 given at the IEEE conference on applications of
6 ferroelectrics, but because of their budgetary
7 considerations and because of the number of pages they are
8 able to publish, they do not publish the articles from their
9 ferroelectrics conferences.
10 Q. Between 1990, when Dr. Etzold wrote his letter,
11 and 1996, when Dr. Vig made the comments at the meeting, had
12 the UFFC transactions expanded its coverage of the
13 ferroelectrics field?
14 A. Hardly at all. And I imagine this is why Dr. Vig
15 was so strongly promoting the UFFC transactions --
16 MR. HUVELLE: Your Honor, I think we are into the
17 range of speculation here.
18 THE COURT: Sustained. I take it you are going
19 to be counsel in cross-examination of this witness?
20 MR. HUVELLE: Yes, your Honor.
21 THE COURT: Sustained.
22 Q. Let's go back to the conference.
23 Following this meeting at which about 20 people
24 were present that you just described, were any further
25 comments about the journal Ferroelectrics made at that
52
1 conference?
2 A. Yes, I made the --
3 (Pause; Mr. Huvelle rose)
4 THE COURT: The fact that he rises doesn't mean
5 that you have to be speechless.
6 THE WITNESS: He scares me.
7 THE COURT: You have to be speechless when the
8 Court is talking or when the Court says "sustained."
9 MR. HUVELLE: Your Honor, I appreciate the rare
10 instance of respect that I get occasionally. I thought that
11 the witness was about to go into a subsequent statement
12 that, according to my understanding from the deposition, was
13 not made in his presence.
14 MR. PLOTZ: That is true, and I am offering it to
15 give background to what comes next.
16 THE COURT: It is too abstract. Let me hear the
17 question. If there is an objection, then, please, give me
18 an opportunity to rule before you respond.
19 OK. What is the question?
20 BY MR. PLOTZ:
21 Q. The following day, Dr. Taylor, was there a
22 general session of this conference?
23 A. Yes.
24 Q. The following day after the meeting that you have
25 testified about?
53
1 A. After the committee meeting on the Sunday, the
2 conference started on the Monday, the three-day conference
3 started on the Monday.
4 Q. And about how many people attended that
5 conference?
6 A. There were about 300 to 400 people.
7 Q. Did Dr. Vig speak at that conference?
8 A. I understand he spoke at the opening session. I
9 arrived -- I live in Princeton, so I did not stay at the
10 conference, and I arrived about a half an hour after the
11 conference had begun. But I was told that he made some
12 opening comments at the conference.
13 Q. Were you told those opening comments, in part,
14 related to the journal Ferroelectrics?
15 A. I was told this, yes.
16 Q. What did you do, if anything, following the
17 conference in relation to Dr. Vig's statements?
18 A. I spoke to the chairman of the ferroelectrics
19 committee, Professor Cross, and voiced my dismay at this
20 open attack on what I had considered a good relationship
21 between the IEEE and the journal Ferroelectrics, and
22 Professor Cross agreed with me. I also brought it to the
23 attention of Gordon & Breach.
24 Q. Do you know whether Gordon & Breach got into
25 contact with the IEEE about this incident?
54
1 A. Yes, they did.
2 Q. Let me hand you what has been marked as
3 Plaintiffs' Exhibit 552, and ask you if you can identify
4 that?
5 A. This is a letter written by Gordon & Breach's
6 attorneys to the IEEE concerning Dr. Vig's comments.
7 Q. Following -- well, did you review this letter
8 before it was sent?
9 A. Yes, I did.
10 Q. Did you review it for the accuracy of its factual
11 statements?
12 A. Yes.
13 Q. Were you satisfied --
14 A. I did not draft the letter in its entirety
15 because it obviously deals with legal issues as well as the
16 factual issues of what Dr. Vig said.
17 Q. But as to the factual statements in the letter,
18 did you review the letter for its accuracy?
19 A. Yes.
20 Q. And do you know whether that letter was sent?
21 A. I believe it was sent.
22 Q. Do you know what, in general, happened following
23 the mailing of that letter?
24 A. Yes. I was told that there were discussions
25 between the IEEE's attorneys and Gordon & Breach's attorneys
55
1 about a possible way to resolve the problem.
2 Q. Do you know if this problem has been resolved?
3 A. No, to my knowledge it has not been.
4 MR. PLOTZ: Can I have just one moment, your
5 Honor?
6 THE COURT: Yes.
7 (Pause)
8 MR. PLOTZ: I have no further questions, your
9 Honor.
10 THE COURT: Very well.
11 CROSS-EXAMINATION
12 BY MR. HUVELLE:
13 Q. Dr. Taylor, do you spend approximately 10 to 15
14 hours per week on your editorial duties for Gordon & Breach?
15 A. Yes.
16 Q. You are not an employee of Gordon & Breach, are
17 you?
18 A. No.
19 Q. Do you receive approximately $70,000 to $100,000
20 gross per year in compensation from Gordon & Breach?
21 A. In recent years, because of the number of journal
22 volumes that are published, it has reached this number, yes.
23 Q. Do you know what your compensation was in 1987?
24 A. It was much less than that, and I don't remember.
25 Q. Am I correct in understanding that you have
56
1 exclusive responsibility for the editorial functions with
2 respect to the journal Ferroelectrics?
3 A. Yes.
4 Q. And that Gordon & Breach does not get involved in
5 the editorial process?
6 A. Yes.
7 Q. Do you know whether they see a proof of the
8 articles before they are actually published?
9 A. The in-house editor of ferroelectrics receives
10 copies of the page proofs of the articles.
11 Q. And is it true that in your 28 years -- 27 years
12 editing the journal, that it has been your experience that
13 Gordon & Breach does not provide you with feedback of a
14 substantive nature with respect to those articles which you
15 send to them in proof form?
16 A. I think I understand your question, but perhaps
17 you could elaborate on it a little bit.
18 Q. When you send the page proofs to Gordon & Breach
19 prior to publication --
20 A. I do not send them. The printer sends them.
21 Q. When they are sent --
22 A. Yes.
23 Q. -- am I correct in understanding that Gordon &
24 Breach does not send to you feedback of a substantive nature
25 regarding the articles that are to be published?
57
1 A. That's correct.
2 Q. And is it true that you are the one who
3 determines whether there are a sufficient number of pages
4 collected to justify the publication of a new issue?
5 A. Yes.
6 Q. And am I correct in understanding that, in
7 contrast to the editorial side of the business, where you
8 run the show, that in terms of the business side of the
9 journal Ferroelectrics, you know very little?
10 A. Correct.
11 Q. You have testified that, as of a couple of years
12 ago, I believe, that you understood there were 400
13 subscribers worldwide to the journal Ferroelectrics, is that
14 correct?
15 A. That's my knowledge -- limited as it is.
16 Q. And am I correct that you do not know the number
17 of subscribers to the journal Ferroelectrics in the year
18 1987?
19 A. Not exactly, no.
20 Q. Is it true that you do not know if the number of
21 subscribers to the journal Ferroelectrics has radically
22 increased or decreased during the last 17 years?
23 A. I do not have any direct evidence as to what has
24 happened. I do know that the American Physical Society has
25 published articles -- since I am a member, I read some of
58
1 these journal articles that show that all journal
2 publications, all journal subscriptions for the APS journals
3 and therefore I think the articles suggested that throughout
4 the scientific community their number of subscriptions has
5 shown a decline over the last 20 or so years. That's my
6 only knowledge of this.
7 Q. But you have no idea of what year the journal
8 Ferroelectrics had the greatest number of subscribers, do
9 you?
10 A. No.
11 Q. And you know very little -- I'm sorry.
12 Do you know the number of university libraries
13 that subscribe to the journal Ferroelectrics?
14 A. No.
15 Q. Do you know the number of university libraries in
16 the United States that subscribe to the journal
17 Ferroelectrics?
18 A. No.
19 Q. And would your answer be the same for both of
20 those questions as to the year 1987?
21 A. The first -- the last two questions applied to
22 currently, is that correct?
23 Q. Is it true throughout the history of the journal
24 Ferroelectrics that you do not know, at any time, what the
25 number of university libraries subscribe to Ferroelectrics?
59
1 A. That is correct.
2 Q. And is it true that you have never asked Gordon &
3 Breach for subscription data?
4 A. I think, in the early days, I was interested from
5 the viewpoint of making sure that all the potential
6 subscribers or all potential institutes that would want to
7 read the journal were covered, and in those early years I
8 talked to Gordon & Breach about mentioning, has anybody at
9 Gordon & Breach contacted university A to find out if they
10 are taking a subscription or want to take a subscription. I
11 was interested in it from a promotional viewpoint.
12 Q. But since 1980, for example, you have never asked
13 for subscription data from Gordon & Breach?
14 A. No.
15 Q. And is it your understanding that -- is it your
16 belief that the company would be reluctant to share that
17 data with you?
18 A. I would think so, because it's very sensitive
19 data and it is data that even as an editor, as being an
20 editor for a long time, that kind of data getting into the
21 wrong hands represents a very significant commercial
22 problem.
23 THE COURT: Giving it to you wouldn't be the
24 wrong hands, would it?
25 THE WITNESS: I am not an employee of Gordon &
60
1 Breach, and one could imagine the scenario where I might
2 decide that I want to be the publisher of my own journal,
3 and knowing the subscription list would be valuable
4 information.
5 THE COURT: Isn't the composition of your
6 subscribers relevant to editorial judgments? For example,
7 if 90 percent of your subscribers were commercial
8 organizations such as IBM and 10 percent were university
9 libraries, would that impact on the editorial judgment as to
10 how much space to devote to commercial applications as
11 distinguished from pure theory?
12 THE WITNESS: No, it would not be an issue for
13 ferroelectrics, because our only criteria about space is
14 that the articles be good and pass the refereeing process,
15 be significant articles, and then we will publish them.
16 Now, if we happen to find that we were getting the majority
17 of our articles on applications, so be it, we would publish
18 all those articles. Or if in another year all the articles
19 tended to deal with basic research papers, we would publish
20 all those, provided they had gone through the refereeing
21 cycle.
22 Q. Is it true that you have no involvement in
23 pricing issues relating to the journal Ferroelectrics?
24 A. That's true.
25 Q. You have no idea of whether Gordon & Breach
61
1 considers the journal Ferroelectrics to be profitable?
2 A. I have no idea.
3 Q. You have no idea of what the profit margin is for
4 the company on that journal?
5 A. No idea.
6 Q. It could be 20 percent, 40 percent, you don't
7 know?
8 A. It might be a loss, I don't know.
9 Q. And it is true, is it not, that not many
10 scientists read the Ferroelectrics journal, is that correct?
11 A. I think to the contrary, a lot of people read it.
12 Q. Is it true that in many universities in the U.S.
13 there would be no professor or instructor with a research
14 interest in ferroelectrics?
15 A. Yes.
16 Q. And that ferroelectrics is, in your own words, a
17 very small scientific area?
18 A. Yes.
19 Q. And it is quite diffuse in the sense that there
20 might be one person at one university who is interested in
21 it and no one at the next two universities with an interest
22 in this subject?
23 A. Yes.
24 Q. Is it your opinion that there are no other
25 scientific journals that compete with Ferroelectrics?
62
1 A. Yes.
2 Though perhaps we should define the word
3 "compete." Perhaps I said yes too quickly here. Perhaps
4 you could elaborate on what you mean by "compete."
5 Q. Do you recall in your deposition I asked you if
6 there were any journals that competed with Ferroelectrics?
7 A. And I think I elaborated in that answer to that
8 question as to why I did not consider the other journals to
9 be competitors.
10 Q. I was not asking you for the reasons why. I was
11 asking whether it is your opinion that no other journals
12 compete with Ferroelectrics?
13 A. OK. Let me ask a legal question. Is the Judge
14 and the Court aware of what I said in my deposition
15 concerning the word "compete"?
16 Q. Your attorney is, and he will have the
17 opportunity to go back to that.
18 Let me ask you about your testimony regarding
19 percentage of articles on the subject of ferroelectrics that
20 appear in your journal Ferroelectrics, do you recall that
21 testimony?
22 A. Yes.
23 Q. And I believe that you said that some years ago
24 the percentage was 35 percent appearing in your journal,
25 Ferroelectrics?
63
1 A. Yes.
2 Q. Can you give us the time period that you believe
3 that 35 percent figure applies?
4 A. I think 35 percent plus or minus 5 percent,
5 because it obviously can vary from year to year.
6 Q. Right.
7 A. I would say that that number in general was true
8 from the time the journal began in 1970 through until maybe
9 five years ago, where the numbers may have started -- the
10 percentage may have started to decrease from where it had
11 been previously.
12 Q. So the 35 percent figure in your mind applies to
13 the period 1984, '85, '86, '87 that we are dealing with?
14 A. Yes, 30 to 35 percent, yes.
15 Q. Am I correct that in forming your opinion as to
16 this percentage, that what you have done is to look at the
17 index by Professor Toyota that appears in your own
18 ferroelectrics journal?
19 A. Yes.
20 Q. And what you've done is to go through and count
21 the number of articles --
22 A. Yes.
23 Q. -- cited --
24 A. Yes.
25 Q. -- in that index --
64
1 A. Yes.
2 Q. -- or listed in that index that come from
3 Ferroelectrics itself?
4 A. Yes.
5 Q. As compared to the total number of articles?
6 A. Yeah, the numerator is the number of articles in
7 the journal Ferroelectrics, and denominator is the annual
8 number from Toyota's bibliography.
9 Q. And have you actually done that calculation?
10 A. I did it. I did it at the time of Etzold's -- in
11 1990. I have not done it on a regular basis since then.
12 Q. And counsel referred you to a copy of your
13 journal in which such an index appeared.
14 A. Yes.
15 Q. And that was an index for the second half of
16 1985, is that correct?
17 A. It typically runs -- the bibliography runs a year
18 or a year and a half behind the issue of the journal that it
19 appears in. Is that your question?
20 Q. Right. But you have the journal right there.
21 A. Do I have the journal?
22 Q. I think you do. It may be on your left.
23 A. Yes.
24 (Pause)
25 Q. Does that index cover the second half of 1985?
65
1 A. Yes.
2 Q. And could you briefly look at volume 74, nos. 1
3 and 2, which is Defendant's Exhibit VVVVV?
4 A. Yes, 1 and 2, right.
5 Q. And is this the index for the first half of 1985?
6 A. Yes.
7 Q. This same index by Professor Toyota?
8 A. Yes.
9 Q. And you would expect ferroelectrics to appear
10 about 35 percent of the times in those indexes?
11 A. Well, I said approximately.
12 Q. Approximately?
13 A. It varies from year to year, yes.
14 Q. And would Phys. Rev. be likely to appear at all
15 as a publisher of articles in Ferroelectrics?
16 A. Could you remind me what the full title of Phys.
17 Rev. is?
18 Q. I think it is the condensed matter.
19 A. Yes.
20 Q. It would be likely to appear?
21 A. Yes.
22 Q. And I take it that in your view Professor
23 Toyota's index is the definitive place to look in terms of
24 classification?
25 A. Everybody in the ferroelectrics community has
66
1 accepted that.
2 Q. So if he says it's ferroelectrics, it's
3 ferroelectrics?
4 A. I am not sure I understand what the question --
5 Q. You accept his classification of an article as
6 being in the area of ferroelectrics as a --
7 A. Well, if you read the subtitle to his
8 bibliography, it says "Ferroelectrics and Related
9 Materials." And that is also the title of the journal
10 itself, Ferroelectrics and Related Materials. So --
11 Q. So you agree?
12 A. No -- well, I'm not sure. I'm just pointing out
13 that you are saying, any article in here must be a
14 ferroelectrics article. I'm saying that it's defined as a
15 bibliography of -- in its subtitle, it is a bibliography of
16 ferroelectrics and its related material.
17 Q. We are not asking you for 100 percent precision,
18 but when you make a statement regarding the percentage of
19 ferroelectrics articles that appear in the journal
20 Ferroelectrics, am I correct in understanding that Professor
21 Toyota's listing of ferroelectrics articles is an
22 appropriate place to look?
23 A. Yes.
24 Q. Let me ask you about the ferroelectrics articles
25 that appear in other journals.
67
1 A. Yes.
2 Q. And I take it that when you are asked to referee
3 for other journals, often it is with respect to an article
4 in the area of ferroelectrics?
5 A. Yes.
6 Q. So you've seen those articles?
7 A. Sure.
8 Q. As a referee, quite apart from your own
9 involvement as a researcher in the area, is that correct?
10 A. Yes.
11 Q. And am I correct in understanding that in your
12 view there are no differences in the character or nature of
13 the ferroelectrics articles that appear in these other
14 journals as compared to the ones that appear in your
15 journal, Ferroelectric?
16 A. Could you repeat that question, please?
17 Q. Is it true that in your view there is no
18 difference in the character or nature of the ferroelectric
19 articles that appear in the other journals publishing such
20 articles, as compared to Ferroelectrics itself?
21 A. Provided those other journals are what I would
22 consider to be high-quality journals. There are some
23 journals in the world which may have articles that I
24 would -- because they are in those journals, I would not
25 consider them to be of the same quality that would go into
68
1 Phys. Rev. B, for example.
2 Q. And there is no doubt that the journals published
3 by APS and AIP are high-quality journals?
4 A. Yes, they are.
5 Q. And is it also true --
6 THE COURT: One of the things which an author
7 does -- a good author does -- is consider the level of
8 sophistication and knowledge of the reader. And I take it
9 that the thrust of the question was, or an implication in
10 the question was, whether in the articles that appear in
11 your journal there is an assumption of higher knowledge or
12 sophistication or an interest in the subject matter which is
13 different from that which the author assumes in articles
14 which appear in more generalized publications?
15 THE WITNESS: I understand what you are saying.
16 But the -- as the counsel just said, I referee articles on
17 ferroelectrics subjects for other scientific journals, and I
18 would say that I see no difference of the type that you are
19 discussing.
20 I mean, there are some popular journals, like
21 Scientific American or Nature -- or not Nature so much, but
22 Scientific American, in which there are articles which are
23 written in a very broad basis so a lot of people can
24 understand them. But if we exclude that type of article, I
25 would say the articles that appear in other learned journals
69
1 are very similar in their quality to the articles that
2 appear in Ferroelectrics.
3 Q. And am I correct that there is no difference that
4 you see in the degree of specialization of the articles on
5 ferroelectric subjects that appear in the other journals as
6 compared to your journal, Ferroelectrics?
7 A. That's correct.
8 Q. And as you referee for other journals, am I
9 correct in understanding that you see articles that you
10 would say, gee, I wish we had that for publication in
11 Ferroelectrics?
12 A. Sometimes I see that. Sometimes I see articles
13 which I am very glad didn't come across my desk as an editor
14 because the quality is bad and the paper is rejected.
15 Q. And you might reject it?
16 A. Yes.
17 Q. And you would reject it for the other magazines?
18 A. Yes.
19 Q. For the other journals, too?
20 A. Absolutely.
21 Q. But at least there would be some that you would
22 be proud to have in Ferroelectrics --
23 A. Yes.
24 Q. -- that appear in other journals?
25 A. Yes.
70
1 Q. And what percentage of ferroelectric articles do
2 you believe appear in the APS journal, Physical Review B?
3 A. I don't know. I have not calculated how many
4 articles appear in Phys. Rev. B on ferroelectrics.
5 Q. And you don't have an opinion?
6 A. I have an opinion, which I stated earlier, that
7 the -- I don't believe there is any other journal, including
8 Phys. Rev. B, that publishes more than a couple of percent
9 in any one year of ferroelectric articles. I mean a couple
10 of percent of the total worldwide articles on
11 ferroelectricity.
12 Q. Could I ask you to look at one of the -- an
13 additional journal, an issue of Ferroelectrics from 1987.
14 A. Yes.
15 Q. Could you look at the inside flap. Does it state
16 that the journal publishes four issues per volume?
17 A. Yes.
18 Q. And six volumes per year?
19 A. Which page is this under? The inside front
20 cover?
21 Q. Right. I think I need to withdraw the latter
22 question, though.
23 Does it state that it publishes four issues per
24 volume?
25 A. Yes.
71
1 Q. And do you recall that in 1987 you were
2 publishing six volumes per year?
3 A. I cannot be specific, but I think that was about
4 the right number.
5 Q. And does it state that the subscription price per
6 volume for a university library is $290?
7 A. Yes, including postage.
8 Q. Does it also state that it is published -- that
9 it is printed in the United States of America?
10 A. Yes.
11 Q. And does it at the bottom of the inside flap of
12 the front cover state the date of publication?
13 A. Yes.
14 Q. And does it state, on the outside binder, the
15 number of pages contained in the volume?
16 A. Yes.
17 Q. Can you tell us what an issue is? It states
18 "four issues per volume."
19 A. Yes. The average number of pages per volume is
20 around 350, and if the flow of the papers is such that you
21 can divide the 350 pages into four parts, each part is
22 nominally therefore about 90 pages. But because of the --
23 in order to achieve the fastest possible publication we
24 don't necessarily wait until we have one part, one part, one
25 part and publish. We may combine them together and have
72
1 four parts published at the same time or three parts
2 published at the same time. There is great flexibility in
3 this to make sure that we get the fastest publication.
4 Q. So when you state that there are four issues per
5 volume, that does not mean that you send out four separate
6 issues per volume?
7 A. Sometimes -- sometimes we do, sometimes we don't.
8 Q. And in 1987, volume 71, it reads, nos. 1, 2, 3
9 and 4, which I have in my hand --
10 A. Yes.
11 Q. This would be an example --
12 A. -- of putting the four parts into one cover.
13 Q. So this is one volume?
14 A. Correct.
15 Q. That costs $290?
16 A. That is the list price advertised on the inside
17 front cover. I don't know what discounts or what other
18 factors are involved in the actual pricing of the journal.
19 Q. It is the price stated in the journal?
20 A. The listed price, yes.
21 Q. And the number of pages is about 302?
22 A. Yes.
23 Q. And is it true that in each and every volume of
24 Ferroelectrics, that the number of pages include many blank
25 pages?
73
1 A. Sometimes no blank pages, sometimes a small
2 percentage of blank pages, the reason being that in order to
3 arrange for authors to receive free reprints, it's more
4 economical from the printing process to start each new
5 article on the right-hand page, which means that the
6 preceding article, if it doesn't have an even number of
7 pages, will finish with a blank page. So it is a random
8 question -- I mean it is a random statistical issue of how
9 many blank pages there are in a particular volume or a
10 particular issue.
11 Q. Roughly, every other article should end with a
12 blank page?
13 A. That's if you believe in probability, yes.
14 Q. You would be the expert on that.
15 A. No, no, I'm not. I'm not a mathematician.
16 Q. Isn't it also true that in this volume, ending on
17 page 302, the last article ends on page 296?
18 A. The last article finishes on 296, which is
19 followed by an author index on page 297.
20 Q. But the journal states that there are 302 pages,
21 is that correct?
22 A. Yes.
23 Q. Am I correct in understanding that the six
24 volumes published in 1987, which I have in my hand, the
25 total cost for the six volumes is $1,740?
74
1 A. If you multiply the list price by six, yes.
2 THE COURT: What year was that?
3 MR. HUVELLE: 1987.
4 Q. And then in subsequent years it went up?
5 A. Yes. Just like your salary and my salary went
6 up.
7 Q. And it now costs more than $15,000 a year?
8 A. I don't know. Which type of subscription are you
9 discussing? Individual? A university library? Or
10 corporate?
11 Q. A university library.
12 A. I don't know. I would have to look at the issue
13 and read off the list price off it. I don't remember these
14 numbers because, as I said, I'm not involved in the
15 commercial side of it.
16 Q. The price of $1,740 for these journals, that's
17 the lower price for university libraries, is it not?
18 A. Yes.
19 Q. It is not the corporate rate?
20 A. There is also a lower price for individuals, even
21 lower price than that number.
22 Q. And if someone subscribes to the journal back in
23 1985/'86, you agree to pay a per volume price for the year,
24 is that correct?
25 A. I don't know how the journal was marketed,
75
1 whether it was marketed on a so many volumes a year or
2 whether it was marketed on a curve, whether the invoices
3 were sent out as a per volume or whether they were sent out
4 as blocks -- a block of volumes. I am not familiar with the
5 details of the billing.
6 Q. Am I correct in understanding that as a result of
7 the flow system, that you might anticipate that there would
8 be six volumes per year, total cost $1,740, but, in fact,
9 you might publish ten volumes?
10 A. In that particular year, we did not. But what
11 you are saying is theoretically possible.
12 Q. And in that case, the total cost, or total price,
13 would then be high?
14 A. I think -- high is a --
15 Q. Higher, it would be higher by four times $290?
16 A. Once again, I cannot give you a definite answer
17 on that because I don't know what the marketing discounts
18 were that might have applied. I know that publishers often
19 group together journals and sell the journals at a discount
20 if the subscriber buys other journals at the same time. I
21 think the APS does this themselves.
22 Once again, I just want to repeat that I am not
23 the person to ask about pricing issues because I'm not
24 involved in the commercial aspects of the journal.
25 Q. All you know is the price of $290 as stated in
76
1 the journal itself?
2 A. As a list price, yes, including airmail delivery,
3 which can be quite expensive, by the way.
4 Q. And it was printed in the United States in 1987,
5 according to the journal?
6 A. Yes -- '87 -- yes, '87, yes.
7 Q. And in 1987, there was no airmail service within
8 the United States, is that correct?
9 A. I don't know. I believe there was airmail.
10 Q. Do you know that?
11 A. I'm not an expert on postal rates, either. But
12 my memory -- I'm pretty sure there was airmail inside the
13 United States.
14 Q. Let me ask you about the IEEE Transactions
15 journal on ultrasonics. Did I get the title right?
16 A. You got one third of the title.
17 Q. Am I accurate as to the one third I stated?
18 A. The first third you were right.
19 Q. If we may dispense with the second two thirds?
20 A. Certainly.
21 Q. Thank you.
22 That brings us to the dispute with Dr. Etzold of
23 IBM, is that correct?
24 A. Correct.
25 Q. And Dr. Etzold -- you got a copy of Dr. Etzold's
77
1 letter --
2 A. Yes.
3 Q. -- that Dr. Lang had sent to you?
4 A. Yes.
5 Q. And Dr. Etzold had expressed outrage at the high
6 price of the Ferroelectrics journal?
7 A. Yes.
8 Q. And you did a calculation and determined that for
9 the three-year period prior to the date of this incident,
10 which I believe was in 1990, that the subscription price for
11 Ferroelectrics was $9,120?
12 A. I would have to look at it, but I believe that's
13 what I said -- here it is.
14 Yes, $9,120 for three years.
15 Q. And that's for --
16 A. Covering volumes 71 to volume 100.
17 Q. That is for an academic library?
18 A. A university library, yes.
19 Q. And for this same period, the subscription price
20 for the IEEE journal was $507?
21 A. The subscription price -- stated subscription
22 price to a university library for the IEEE was $507 for
23 three years.
24 Q. Just for clarification, the IEEE journal is not
25 published by APS or AFP, is it?
78
1 A. That's correct.
2 Q. I take it that in your view it would not have
3 been fair simply to compare the overall price of the IEEE
4 journal, $507, to the price of Ferroelectrics, $9,120?
5 A. It would not have been fair if the reader of both
6 journals was only interested in the topic of ferroelectrics.
7 Q. And so you did a cost effectiveness analysis, did
8 you not?
9 A. Yes.
10 Q. And is it your testimony that that analysis that
11 you performed was a fair and reasonable analysis of the
12 relative value of these two journals?
13 A. Yes, for somebody who is interested solely in
14 ferroelectric articles.
15 Q. And you took the total number of papers appearing
16 in the IEEE journal that were devoted to ferroelectrics?
17 A. I took the number that the IEEE themselves
18 identified as being ferroelectric articles.
19 Q. And you then divided that into the total
20 subscription price?
21 A. Yes.
22 Q. And you got a cost per ferroelectrics article?
23 A. Yes.
24 Q. And you did the same as to the ferroelectrics
25 journal?
79
1 A. Yes.
2 Q. But you included all the articles, because they
3 all deal with ferroelectrics?
4 A. Well, we are comparing subscribing to
5 ferroelectrics as opposed to subscribing to the UFFC
6 transactions, yes.
7 Q. But the number you divided into the subscription
8 price was the total number of articles?
9 A. Yes.
10 Q. And you did it this way because you were looking
11 at it from the point of view of an individual who was only
12 interested in ferroelectrics articles?
13 A. Yes.
14 Q. And I take it if someone was interested in all of
15 the articles in the IEEE journal, then you would take the
16 total number of articles in the IEEE journal and divide that
17 into the price to get a per article cost?
18 A. There would be no purpose to doing that, because
19 the people who work in frequency control, which is the last
20 third of the title of that transaction, generally are not
21 people who are interested in ferroelectrics.
22 Q. And you calculated a price per ferroelectrics
23 article for your ferroelectrics journal?
24 A. Yes.
25 Q. And you did the same for IEEE, a price per
80
1 article?
2 A. For the ferroelectrics articles.
3 Q. For the ferroelectrics articles?
4 A. Yes.
5 Q. Would I be correct in understanding that you
6 would get essentially the same result in terms of comparison
7 between the two articles if instead of calculating the
8 dollar cost per article you had looked at the dollar cost
9 per page of the articles devoted to ferroelectrics?
10 A. No, I don't think so. I think you would have to
11 -- if you want to do it on a per-page basis, you have to
12 measure the number of pages of ferroelectrics articles in
13 both journals.
14 Q. Right. Would you also have to take into account
15 whether the pages were approximately the same size?
16 A. If that is your measure of -- if you want to
17 count the number of printed characters, for example, which I
18 don't think is a particularly comprehensive way of judging
19 the value, which is what we are talking about -- cost
20 effectiveness -- one could do that.
21 Q. It's a cumbersome process, isn't it, to count the
22 characters?
23 A. Well, not that cumbersome. You simply take an
24 average page and you count the number of characters on that
25 page and then you multiply by the number of pages, that is
81
1 correct.
2 Q. If the ferroelectrics articles in the journal
3 Ferroelectrics and the ferroelectrics articles in the IEEE
4 journal had the same number of characters, you would get the
5 same result as what you got?
6 A. Yes. Yes.
7 Q. So it's just a different way of doing the
8 analysis?
9 A. Yes. But it's like -- it's almost like counting
10 the -- when you start to get into that kind of detail, it's
11 like counting the number of angels on a pinhead. The real
12 issue is not the length of the article, it's the question of
13 the quality of the article. And ferroelectrics has made a
14 point of deciding what length of the article is not in order
15 to fill out pages or, on the other hand, to restrict the
16 cost of publication by having less pages but simply to
17 determine by the referees, for the referees to determine if
18 a paper is too long or too short. In other words, there is
19 no point in publishing articles that are too long. It is
20 wasting the reader's time.
21 Authors are requested to make their arguments
22 concise, and, therefore, I don't think your concept of
23 measuring the numbers of characters in an article as a way
24 of determining its worth is the end-all of judging the value
25 and the worth of an article.
82
1 Q. But it is a possible way?
2 A. It's a possible way, yes.
3 Q. And you have no reason to think that the length
4 of the ferroelectrics articles that appear in your journal
5 Ferroelectrics differs from the length of ferroelectric
6 articles that appear in the other reputable journals?
7 A. I don't know. The reason is that I have never
8 looked at the articles in that way. I've never used that
9 criteria. So I can't answer that.
10 I do know that the -- that some of the other
11 journals, including the IEEE, do put a very strict page
12 length irrespective of the quality of the paper. It may be
13 a very good paper but the author is restricted in the length
14 of his article and also there is a financial penalty for
15 having a long article because the -- his institution then
16 has to pay more page charges.
17 So, for example, I know that people from Eastern
18 Europe, where hard currency is very critical, are forced to
19 reduce the size of their articles below what they would like
20 them to be, because they just don't have the money to pay
21 page charges.
22 Q. Isn't it true in science, as it is in law, that
23 sometimes a restriction on how much you can write actually
24 increases the quality of the article?
25 A. Sometimes yes, sometimes no. If you have a very
83
1 complicated topic in law, I'm sure you can't do it in one
2 page; I'm sure it takes a lot of pages to make the points.
3 Q. In your opinion, Dr. Taylor, do the articles that
4 appear in Ferroelectrics contribute to subsequent research
5 by practitioners in the field?
6 A. Yes.
7 Q. And is it your expectation that those subsequent
8 researchers would rely on material that they learn from your
9 ferroelectrics journal, would cite the journal in their own
10 articles?
11 A. Sometimes yes, sometimes no.
12 Q. Would this same answer apply to other journals
13 that these authors would rely on?
14 A. I don't know.
15 Q. Are you familiar with the ISI --
16 A. Yes.
17 Q. -- organization? That's the organization that
18 compiles and makes available data on citations and
19 scientific journals, is that correct?
20 A. Yes.
21 Q. And the journal Ferroelectrics has been accepted
22 by ISI as one of the journals that's worthy of inclusion in
23 their analyses, is that correct?
24 A. I believe so.
25 Q. And that's not true of all scientific journals,
84
1 is it?
2 A. That's correct.
3 Q. You have to meet a certain threshold in terms of
4 quality and reliability?
5 A. Yes.
6 Q. But during the 1987 period, the ferroelectrics
7 journal did appear in ISI, is that correct?
8 A. Yes.
9 Q. And then in 1993, about, it was dropped by ISI,
10 wasn't it?
11 A. It was dropped for one year, and I forget which
12 year it was. I think it was later than '93.
13 Q. And that was over a concern regarding the
14 regularity of publication by the ferroelectrics journal?
15 A. I don't believe so. I think there was some
16 confusion as to why it was dropped. One statement was made
17 that it was a question of regularity. But if you look at
18 the regularity numbers, the journal has been extremely
19 regular and publishes monthly.
20 Q. But one of the people who made the statement that
21 it was over regularity, that that was the issue, was you in
22 your deposition?
23 A. Somebody told me that. But when I went back to
24 look at the regularity, the regularity was as good them as
25 it is now and as it was in 1990. So for some other reason,
85
1 I can only assume, or some misunderstanding by the person at
2 ISI, it was stated to me that it was a question of
3 regularity. But when I looked at the -- after I heard this
4 and went back and looked at the regularity, the regularity
5 was quite good.
6 Q. Have you also seen correspondence suggesting that
7 the reason for it being dropped was its declining impact
8 factor numbers?
9 A. No, and it is now -- it was reinstated after one
10 year, so I think if that was the reason, whatever changes in
11 impact factor occurred would not have been dramatically up
12 or down in the course of twelve months.
13 Q. And you were very pleased when it was reinstated?
14 A. I was pleased, yes.
15 THE COURT: Approximately how much longer do you
16 have?
17 MR. HUVELLE: I don't have very much, but I do
18 have to look for one document. So if we were going to take
19 a lunch break --
20 THE COURT: How long is your redirect?
21 MR. PLOTZ: Very short, your Honor.
22 THE COURT: We will take the luncheon recess.
23 We will resume at 2 o'clock.
24 (Luncheon recess)
25
86
1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 THE COURT: Good afternoon. I'm sorry for the
4 delay.
5 GEORGE WILLIAM TAYLOR,
6 Resumed, and testified further as follows:
7 THE COURT: Mr. Taylor, I have been wondering
8 about, over lunch, hasn't the Internet and the Web and these
9 other devices, hasn't that impacted significantly on what we
10 have been talking about?
11 THE WITNESS: Not yet.
12 THE COURT: Not yet?
13 THE WITNESS: Not yet. I think it's a -- my
14 opinion is that it's -- this is for scientific journal
15 publication generally you mean?
16 THE COURT: Yes.
17 THE WITNESS: Yes. I think the jury is not in as
18 to what's going to happen with that. Because peer review is
19 a very important part of scientific publication, and if
20 people can put their articles up on the Web without them
21 having been refereed or reviewed, then there are some
22 questions as to how good the article might be.
23 THE COURT: But if an organization wishes to
24 disseminate information to an audience as small as 400
25 subscribers, is not some type of electronic communication
87
1 the more efficient and expeditious manner of doing this?
2 THE WITNESS: I think it may well be. The exact
3 way it will work is probably still to be sorted out. In
4 fact, we have just established a Web site for
5 ferroelectrics, at least at some level of communication, and
6 we are about to begin what we call our first virtual
7 conference on ferroelectrics, where we will try to
8 experiment with some of the procedures that might ultimately
9 be the way to go. Yes.
10 MR. HUVELLE: Thank you, your Honor. I will just
11 have about five minutes, I believe.
12 CROSS-EXAMINATION (Resumed)
13 BY MR. HUVELLE:
14 Q. Dr. Taylor, you spoke before about the desire on
15 your part to ensure that articles are published rapidly --
16 A. Yes.
17 Q. -- in the journal Ferroelectrics.
18 Am I correct in understanding that underneath the
19 title of each article is listed the date on which the
20 article was received by the editor?
21 A. Yes.
22 Q. One can compare that date to the publication date
23 on the bottom left-hand corner of the inside of the front
24 cover?
25 A. Yes. There is also a variation on that, and that
88
1 is, if the article has had to be revised, there may be under
2 the title of the article also the date that the article was
3 received in final form, at which point it then went to the
4 printers to be typeset.
5 Q. If we could just quickly look at a couple of
6 examples. In Volume 73 --
7 A. 73? 74.
8 Q. 74, No. 3.
9 A. 75, No. 3.
10 Q. That's what I meant.
11 A. I understood.
12 |