Case 3:14-cv-02235-DMS-BLM Document 500 Filed 08/02/18 PageID.23590 Page 1 of 101
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` UNITED STATES DISTRICT COURT
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` SOUTHERN DISTRICT OF CALIFORNIA
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`
` BEFORE HONORABLE DANA M. SABRAW, JUDGE PRESIDING
`
` ________________________________
` )
`WI-LAN INC.,
` )
`
` ) CASE NO. 14CV2235-DMS
` PLAINTIFF, ) 14CV1507-DMS
` )
` )
`VS. )
` ) SAN DIEGO, CALIFORNIA
`APPLE INC., ) WEDNESDAY AUGUST 1, 2018
`
` ) 9:00 A.M. CALENDAR
` DEFENDANT. )
` )
`---------------------------------)
`AND ALL RELATED )
`COUNTERCLAIMS. )
`
`
`
` REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
` JURY TRIAL/DAY SEVEN
`
` VOLUME VII-A
`
`
`
`
`
`
`
`REPORTED BY: LEE ANN PENCE,
` OFFICIAL COURT REPORTER
` UNITED STATES COURTHOUSE
` 333 WEST BROADWAY, ROOM 1393
` SAN DIEGO, CALIFORNIA 92101
`
`
`
`
`
`
`
`
`
` UNITED STATES DISTRICT COURT
`
` SOUTHERN DISTRICT OF CALIFORNIA
`
`
` BEFORE HONORABLE DANA M. SABRAW, JUDGE PRESIDING
`
` ________________________________
` )
`WI-LAN INC.,
` )
`
` ) CASE NO. 14CV2235-DMS
` PLAINTIFF, ) 14CV1507-DMS
` )
` )
`VS. )
` ) SAN DIEGO, CALIFORNIA
`APPLE INC., ) WEDNESDAY AUGUST 1, 2018
`
` ) 9:00 A.M. CALENDAR
` DEFENDANT. )
` )
`---------------------------------)
`AND ALL RELATED )
`COUNTERCLAIMS. )
`
`
`
` REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
` JURY TRIAL/DAY SEVEN
`
` VOLUME VII-A
`
`
`
`
`
`
`
`REPORTED BY: LEE ANN PENCE,
` OFFICIAL COURT REPORTER
` UNITED STATES COURTHOUSE
` 333 WEST BROADWAY, ROOM 1393
` SAN DIEGO, CALIFORNIA 92101
`
`
`
`
`
`Case 3:14-cv-02235-DMS-BLM Document 500 Filed 08/02/18 PageID.23591 Page 2 of 101
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`COUNSEL APPEARING:
`
`FOR PLAINTIFF:
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`JOHN ALLCOCK, ESQ.
`SEAN C. CUNNINGHAM,ESQ.
`ERIN PAIGE GIBSON,ESQ.
`JACOB ANDERSON, ESQ.
`TIFFANY CAROL MILLER, ESQ.
`DLA PIPER
`401 B STREET SUITE 1700
`
` SAN DIEGO, CALIFORNIA 92101
`
`
`FOR DEFENDANT: ROBERT A. COTE, ESQ.
`JONATHAN R. YIM, ESQ.
`KEVIN R. SCHUBERT, ESQ.
`CHRISTOPHER MCNETT, ESQ.
`BRETT E. COOPER, ESQ.
`MCKOOL SMITH
`
`ONE BRYANT PARK 47TH FLOOR
`
` NEW YORK, NEW YORK 10036
`
`
`
`MIKE MCKOOL, JR., ESQ.
`ASHLEY NICOLE MOORE, ESQ.
`MCKOOL SMITH
`300 CRESENT COURT SUITE 1500
`DALLAS, TEXAS 75201
`
`
`
`
`
`
`
`WARREN HENRY LIPSCHITZ, ESQ.
`MCKOOL SMITH
`1719 WHITTIER AVENUE
`DALLAS, TEXAS 75218
`
`STEVEN J. POLLINGER, ESQ.
`MCKOOL SMITH
`300 WEST 6TH STREET SUITE 1700
`DALLAS, TEXAS 75218
`
`
`
`Case 3:14-cv-02235-DMS-BLM Document 500 Filed 08/02/18 PageID.23592 Page 3 of 101
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`SAN DIEGO, CALIFORNIA - WEDNESDAY, AUGUST 1, 2018 - 8:45 A.M.
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`* * *
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`(WHEREUPON THE FOLLOWING PROCEEDINGS WERE HELD
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`IN OPEN COURT, OUT OF THE HEARING OF THE JURY)
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`THE CLERK: NO. 1 ON CALENDAR, CASE NO. 14CV2236,
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`APPLE VERSUS WI-LAN; ON FOR JURY TRIAL, DAY SEVEN.
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`THE COURT: GOOD MORNING. WE HAVE COUNSEL AND
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`PARTIES. WE ARE OUTSIDE OF THE PRESENCE OF THE JURY.
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`ON THE JURY INSTRUCTIONS, WAS THERE AN ISSUE?
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`MR. ALLCOCK: YES, YOUR HONOR.
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`I THINK IT IS AN INADVERTENT TRANSCRIPTION ERROR.
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`SO HERE ARE THE INSTRUCTIONS THAT WERE FORWARDED TO
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`THE PARTIES A COUPLE OF DAYS AGO.
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`THE COURT: YES.
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`MR. ALLCOCK: AND YOU WILL NOTICE THE SUBSCRIBER
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`UNIT AND CONNECTIONS INSTRUCTIONS ARE THOSE THAT WE HAVE BEEN
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`USING AND ARE DIRECTLY OUT OF THE COURT'S CLAIM CONSTRUCTION
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`ORDER. THERE WAS, YESTERDAY, SOME DISCUSSION OF REFORMATTING.
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`THE COURT: YES.
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`MR. ALLCOCK: SO LAST NIGHT THIS IS THE THING THAT
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`WE GOT, AND IT INTRODUCES, IN PARENTHESES AND UNDERLINING,
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`SOMETHING THAT HAS NEVER BEEN PART OF THE CONSTRUCTION.
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`I THINK IT CAME IN KIND OF AS A FORMATTING ERROR
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`PROBABLY, BUT IT WAS CERTAINLY NOT DISCUSSED.
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`THE COURT: RIGHT.
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`AUGUST 1, 2108
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`
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`MR. ALLCOCK: OBVIOUSLY, IT IS AN IMPORTANT
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`DIFFERENCE THAT WE THINK ABSOLUTELY NEEDS TO BE REMOVED.
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`THE COURT: ALL I WAS TRYING TO DO IS ADD THE
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`UNDERLINING THAT MS. GIBSON WANTED. SO I AM NOT SURE HOW THAT
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`HAPPENED. I JUST ASKED MY SECRETARY TO MAKE THAT HAPPEN, SO
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`IT ACTUALLY IMPORTED.
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`MR. SCHUBERT: CAN I ADDRESS THAT, YOUR HONOR?
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`THE COURT: YES.
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`MR. SCHUBERT: NO, THAT IS NOT CORRECT. WE PROPOSED
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`THIS CLARIFICATION ON THE CONSTRUCTION. THE LANGUAGE IS
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`DIRECTLY OUT OF YOUR CLARIFICATION ORDER THAT YOU GAVE, THAT
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`IS THE EXACT LANGUAGE THAT YOU GAVE.
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`AND WE THINK IT IS IMPORTANT THAT THE JURY HAVE YOUR
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`CLARIFICATION THAT THE SUBSCRIBER UNIT CAN BE A COMPONENT OF A
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`CELLULAR PHONE. THAT IS THE EXACT LANGUAGE OUT OF YOUR
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`HONOR'S CLARIFICATION ORDER.
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`MR. ALLCOCK: SO, YOUR HONOR, HERE IS THE
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`INSTRUCTION THAT THE COURT SENT AROUND TWO DAYS AGO. THIS IS
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`THE CONSTRUCTION THAT HAS BEEN USED IN THIS TRIAL FROM THE
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`VERY BEGINNING BY EVER WITNESS.
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`EARLIER THEY PROPOSED THE ADDITION OF THAT
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`UNDERLINED LANGUAGE. THAT UNDERLINED LANGUAGE COMES FROM THE
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`CLARIFICATION ORDER THAT THE COURT ISSUED IN THE PRIOR CASE.
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`IT HAS NEVER BEEN PART OF THE CLAIM CONSTRUCTION IN THIS CASE.
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`BUT, MORE IMPORTANTLY, IT HAS NEVER BEEN SHOWN TO
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`AUGUST 1, 2108
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`THE JURY. THE CLAIM CONSTRUCTION THAT HAS BEEN USED FOR THIS
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`ENTIRE CASE IS THE ONE HERE, AND THE FIRST TIME THAT
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`UNDERLINING SHOWED UP WAS LAST NIGHT.
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`THE COURT: THAT'S ALL TRUE.
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`MR. SCHUBERT: YOUR HONOR, I THINK IT IS IMPORTANT
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`THAT WE HAVE THE CLARIFICATION HERE. WE HAD THREE HOURS OF
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`TESTIMONY ABOUT HOW THE PATENTS RELATE TO FIXED WIMAX. THIS
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`IS DIRECTLY WHAT YOUR HONOR SAID. I THINK IT IS IMPORTANT
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`THAT THE JURY GET YOUR CLARIFICATION THAT THIS SUBSCRIBER UNIT
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`CAN BE A COMPONENT OF A CELLULAR PHONE.
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`WE HAD MULTIPLE HEARINGS ON THIS. YOUR HONOR SAID
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`THAT THIS IS WHAT YOU CLARIFIED, THE CONSTRUCTION, TO INCLUDE
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`THAT. WE SENT AROUND A PROPOSAL FOR A HANDOUT OF THE CLAIM
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`CONSTRUCTION TERMS. AND WE THOUGHT -- WE THOUGHT YOUR HONOR
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`WAS ADOPTING WHAT HAD ALREADY BEEN SAID IN THE CLARIFICATION
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`ORDER. THAT IS DIRECTLY FROM WHAT YOU SAID. YOU SAID THAT
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`WAS PART -- THAT WAS A CLARIFICATION OF THE CONSTRUCTION.
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`I THINK IT IS FAIR THAT THE JURY SEES THAT SO THERE
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`IS NO MISLEADING. THERE HAS BEEN A LOT OF TESTIMONY HERE THAT
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`OUR PATENTS RELATE TO FIXED DEVICES. IT IS IMPORTANT THAT
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`THAT CLARIFICATION BE GIVEN TO THE JURY. THAT IS DIRECTLY
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`FROM YOUR ORDER, YOUR HONOR.
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`THE COURT: I AM GOING TO REMOVE IT JUST BECAUSE, IN
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`FAIRNESS TO BOTH SIDES, IT SHOULD HAVE BEEN PART OF THE
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`CONSTRUED CLAIMS FROM THE BEGINNING RATHER THAN AT THE VERY
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`AUGUST 1, 2108
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`END THROUGH INADVERTENCE.
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`SO IT CAN BE ARGUED BASED ON THE COMPETING TESTIMONY
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`AND THE EVIDENCE, EITHER WAY. BUT I WOULD DECLINE -- I AM NOT
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`SURE HOW IT CAME BACK INTO THIS DOCUMENT, BUT IT WASN'T
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`SUPPOSED TO. AND I DIDN'T CATCH IT WHEN I --
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`MR. SCHUBERT: ARE WE ALLOWED TO RAISE THE
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`CLARIFICATION ON CLOSING, THAT YOUR HONOR HAS GIVEN THAT
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`CLARIFICATION?
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`THE COURT: WELL, I THINK I WANT TO JUST STICK WITH
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`WHAT -- THE CLAIMS THAT WERE CONSTRUED IN THIS PROCEEDING WITH
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`INSTRUCTION 12. OTHERWISE, I DON'T WANT TO DO ANYTHING THAT
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`DIRECTS A VERDICT OR DIRECTS AN ISSUE ONE WAY OR ANOTHER.
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`MR. SCHUBERT: RIGHT, YOUR HONOR. I JUST DON'T WANT
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`THE JURY TO BE MISLED. THERE HAS BEEN A LOT OF TESTIMONY HERE
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`ABOUT HOW OUR PATENTS RELATE TO FIXED WIMAX. AND YOUR HONOR
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`SAID THAT THAT WAS A CLARIFICATION THAT THESE CLAIMS COULD BE
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`A COMPONENT.
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`I THINK IT WOULD BE FAIR FOR US TO SAY IN CLOSING
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`THAT THE CLAIMS HAVE BEEN CLARIFIED TO BE A COMPONENT OF A
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`CELLULAR DEVICE. THAT IS WHAT YOUR HONOR SAID IN THE ORDER.
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`THE COURT: I WOULD DECLINE TO DO THAT. I THINK IT
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`IS IMPORTANT FOR THE PARTIES TO HAVE CERTAINTY AS TO THE
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`GROUND RULES FROM THE BEGINNING. AND SO THIS WOULD BE -- THIS
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`SHOULD HAVE BEEN DISCUSSED AND DECIDED BEFORE THE TRIAL
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`WHETHER IT WAS GOING TO BE DEFINED THIS WAY IN THIS CLAIM
`
`AUGUST 1, 2108
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`
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`CONSTRUCTION IN INSTRUCTION 12. SO I THINK I WOULD JUST LEAVE
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`IT WHERE IT CAN BE ARGUED, EITHER WAY, BASED ON THE EVIDENCE.
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`MR. SCHUBERT: THANK YOU, YOUR HONOR.
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`MR. ALLCOCK: YOUR HONOR, WITH THAT, WE HAVE OTHER
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`OBJECTIONS PREVIOUSLY STATED, BUT NONE RELATE TO THE CHANGES
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`MADE YESTERDAY, WITH THE EXCEPTION OF MS. GIBSON IS GOING TO
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`ADDRESS AN ADDITIONAL.
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`THE COURT: YES.
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`MS. GIBSON: YOUR HONOR, WE MET AND CONFERRED LAST
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`NIGHT ABOUT A PROPOSED ADDITION TO THE GLOSSARY ON PRIORITY
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`DATE AND WE WERE NOT ABLE TO AGREE, UNFORTUNATELY.
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`I HAVE A PROPOSAL TO PRESENT ON BEHALF OF APPLE, AND
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`I HAVE THE CORRESPONDING MPEP SECTION. IF I COULD SHOW IT TO
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`YOUR HONOR, AND ALSO PASS IT UP.
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`THE COURT: YES.
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`MS. GIBSON: YOUR HONOR, I WILL PUT MPEP SECTION ON
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`THE MONITOR.
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`WE HAD PROPOSED PRIORITY DATE BECAUSE OF, OF COURSE,
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`THE ISSUES WITH RESPECT TO WHETHER THESE ARE 2012 INVENTIONS
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`OR NOT. I THINK THEY ARE CLEARLY NOT. AND THE JURY HAS HEARD
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`SOME -- A LOT OF ARGUMENT ABOUT THAT.
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`FOR PRIORITY DATE WE HAD PROPOSED WHAT YOU WILL SEE
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`ON OUR PAGE: THE FILING DATE OF THE VERY FIRST PATENT
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`APPLICATION FOR A SPECIFIC INVENTION.
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`THE MPEP DEFINES IT. THIS IS THE SECTION ON
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`AUGUST 1, 2108
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`
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`DETERMINING THE FILING DATE AS THE EFFECTIVE FILING DATE OF AN
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`INVENTION CLAIMED IN A U.S. APPLICATION.
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`AND WE WOULD BE FINE WITH THAT, AS WELL.
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`SO THAT'S THE AUTHORITY, MPEP SECTION 706.02
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`SECTION VI.
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`MR. COOPER: YOUR HONOR, THIS IS THE PROPOSAL WE
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`RECEIVED FROM THEM LAST NIGHT. AS YOU SEE, I HAVE CIRCLED THE
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`WORDS THAT ARE A PROBLEM.
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`FIRST OFF, THE FILING DATE SORT OF IS MISLEADING
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`BECAUSE WE ARE TALKING ABOUT A PRIORITY DATE, AND THE FIRST
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`THING THE JURY IS GOING TO SEE IS FILING DATE. AND THAT HAS
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`REALLY BEEN THE ISSUE IN THE WHOLE CASE.
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`IF YOU LOOK AT OUR PROPOSAL HERE, WE HAVE REMOVED
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`FILING FROM THE WORD DATE, ALTHOUGH THEY BOTH APPEAR IN THE
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`SENTENCE. AND IT IS A MUCH FAIRER WAY TO PRESENT THE ISSUE TO
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`THE JURY, AND IT WON'T GET THEM CONFUSED AS TO WHICH DATE WE
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`ARE TALKING ABOUT.
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`WE HAVE AUTHORITY, OF COURSE, LISTED.
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`MS. GIBSON: YOUR HONOR, FROM MY PERSPECTIVE THEIR
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`PROPOSED DEFINITIONS ARE SO VAGUE AS TO BE MEANINGLESS TO THE
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`JURY IN LIGHT OF WHAT HAS BEEN PRESENTED TO THEM.
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`WE PROPOSE -- AND I WILL JUST PUT IT RIGHT NEXT TO
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`IT.
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`EITHER OUR PROPOSAL THAT WE HANDED UP OR JUST
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`STRAIGHT OUT OF THE MPEP, THE EFFECTIVE FILING DATE OF AN
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`AUGUST 1, 2108
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`INVENTION CLAIMED IN A U.S. APPLICATION.
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`MR. COOPER: I AM SORRY, I DIDN'T UNDERSTAND YOUR
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`PROPOSAL.
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`MS. GIBSON: IT IS EITHER WHAT WE HANDED UP TO THE
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`COURT, PRIORITY DATE HERE, OR JUST STRAIGHT OUT OF THE MPEP,
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`THE EFFECTIVE FILING DATE -- WHAT I HAVE HIGHLIGHTED -- OF AN
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`INVENTION CLAIMED IN A U.S. APPLICATION.
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`MR. COOPER: MAY BE DETERMINED AS FOLLOWS. THEN IT
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`LISTS A LOT OF LAWYER SPEAK. SO I AM NOT SURE WHAT YOU ARE
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`PROPOSING.
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`MS. GIBSON: JUST WHAT IS HIGHLIGHTED.
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`THE COURT: DO YOU OBJECT TO THE HIGHLIGHTED ONE
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`THAT MS. GIBSON PUT UP?
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`MS. GIBSON: SO HERE WE GO -- I AM SORRY. I
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`MISUNDERSTOOD.
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`PLEASE, GO AHEAD.
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`MR. COOPER: YOUR HONOR, I AM JUST UNCLEAR. IT IS
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`GOING TO SAY PRIORITY DATE, AND IT WILL SAY, THE EFFECTIVE
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`FILING DATE OF AN INVENTION CLAIMED IN A U.S. APPLICATION.
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`IS THAT ALL IT IS GOING TO SAY?
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`THE COURT: YES.
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`MR. COOPER: SO, YOUR HONOR, IT IS THE SAME
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`MISLEADING PROBLEM. THEY ARE PUTTING THE WORD FILING NEXT TO
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`DATE AND THAT IS, AS YOU RECALL IN THE OPENING, THE SAME
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`MISLEADING INFORMATION THEY PRESENTED IN DDX NO. 1.
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`AUGUST 1, 2108
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`
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`PUTTING FILING NEXT TO DATE MISLEADS THE JURY. THEY
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`CAN'T, IN THEIR MIND, PARSE OUT WHAT PRIORITY MEANS VERSUS
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`FILING AND THEY ARE GOING TO SEE BOTH TOGETHER AND THEY ARE
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`GOING TO THINK THAT IS WHEN WE FILED THE PATENTS.
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`THE COURT: MS. GIBSON, WHAT IS THE OBJECTION TO
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`WI-LAN'S PROPOSAL? WHICH WOULD BE THE DATE OF THE EARLIEST
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`PATENT APPLICATION SUPPORTING A CLAIM FILED IN A LATER
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`APPLICATION.
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`MS. GIBSON: THAT IT IS SO VAGUE AS TO BE
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`MEANINGLESS TO THE JURY. THEY DIDN'T -- THESE AREN'T THE
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`WORDS THAT CAME OUT OF ANYONE'S MOUTH ABOUT THE PRIORITY DATE.
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`I MEAN, THE PRIORITY DATE, YOUR HONOR, IS THE
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`EFFECTIVE FILING DATE. AND UNFORTUNATELY WI-LAN GOT UP AND
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`CALLED INTO QUESTION OUR CREDIBILITY IN SUGGESTING THAT THAT
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`WAS TRUE, AND IT IS. THAT'S THE DEFINITION.
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`MR. COOPER: THE PROBLEM, YOUR HONOR, IS THEY DIDN'T
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`SAY EFFECTIVE FILING DATE, THEY PUT FILING DATE ON ALL OF
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`THEIR DEMONSTRATIVES. AND IT IS JUST MATERIALLY MISLEADING.
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`AND IF WE CAN SOMEHOW SEPARATE THE WORD FILING FROM
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`DATE WE ARE FINE. HOWEVER THEY WANT TO DO THAT. BUT WE CAN'T
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`HAVE FILING DATE PRESENTED TO THE JURY, THEY WON'T UNDERSTAND
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`IT.
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`THE COURT: OKAY. IT SEEMS TO ME THAT THE WI-LAN
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`PROPOSAL, WHILE IT IS NOT THE MOST PRECISE, GIVES SUFFICIENT
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`BOUNDARIES. AND THEN THE PARTIES CAN MAKE THEIR ARGUMENTS.
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`AUGUST 1, 2108
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`MS. GIBSON: YOUR HONOR, WE COULD ALSO JUST ACCEPT
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`THE ACTUAL DATES FOR THE PRIORITY DATES THAT THE PARTIES DO
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`NOT DISPUTE.
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`MR. COOPER: AGAIN, I AM NOT CLEAR WHAT THE PROPOSAL
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`IS, YOUR HONOR. I AM SORRY.
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`MS. GIBSON: THE PRIORITY DATE OF THE '145 PATENT IS
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`X, THE PRIORITY DATE FOR THE '757 PATENT IS X.
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`MR. COOPER: YOUR HONOR, AGAIN, WE CAN'T INCLUDE
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`ACTUAL DATES IN THE GLOSSARY. WE WOULD HAVE TO INCLUDE DATES
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`ON EVERY GLOSSARY DEFINITION, AND IT JUST BECOMES CONFUSING.
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`THE COURT: ON THE GLOSSARY, I WAS ASSUMING THAT
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`COUNSEL WAS GOING TO PREPARE THE GLOSSARY. IS THAT NOT RIGHT?
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`OR ARE YOU LOOKING TO THE COURT TO MAKE THE MODIFICATIONS?
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`MS. GIBSON: WE CAN DO THAT, YOUR HONOR.
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`THE COURT: CAN YOU DO IT HERE?
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`MS. GIBSON: YES.
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`THE COURT: OKAY. BECAUSE WE TOOK OUT THE FOUR
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`THINGS THAT YOU WANTED OUT.
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`I THINK I AM GOING TO ADOPT THE WI-LAN PROPOSAL HERE
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`ON PRIORITY DATE, ASK THAT THAT BE PUT IN THE GLOSSARY. AND
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`THEN WE CAN HAVE THAT PRINTED AND AVAILABLE TO THE JURY. I
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`CAN SIMPLY INDICATE TO THE JURORS THAT THAT IS COMING.
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`THERE IS ANOTHER ISSUE ABOUT EXHIBITS?
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`MR. COOPER: UNFORTUNATELY, YOUR HONOR. I THINK
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`THERE IS ONE EXHIBIT EACH WAY THAT NEEDS YOUR DECISION.
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`AUGUST 1, 2108
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`THE COURT: YES.
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`MR. POLLINGER: THANK YOU, YOUR HONOR.
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`THE FIRST ONE IS PX 681.
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`MR. DIAZ, IF WE COULD PLEASE HAVE THAT UP.
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`THIS IS THE EXHIBIT, THE PIECE OF EVIDENCE, THAT WE
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`HAVE SEEN THROUGHOUT THIS TRIAL. FROM THE VERY START THROUGH
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`MULTIPLE WITNESSES IT HAS BEEN A CENTERPIECE OF EVIDENCE IN
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`THIS CASE.
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`SO THERE HAS BEEN A DISCUSSION OF, WELL, IS THIS
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`EVIDENCE? I WAS KIND OF SCRATCHING MY HEAD, WELL, WHAT IS
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`EVIDENCE? SO LET'S GO BACK TO THE FEDERAL RULES OF EVIDENCE.
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`THAT IS WHAT I WOULD LIKE TO DO.
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`SO IF WE LOOK AT -- AND I REALIZE WE ARE ALL VERY
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`FAMILIAR WITH THE RULES OF EVIDENCE, BUT I THINK THAT ORIENTS
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`US HERE AS TO WHY THIS IS EVIDENCE, AND EVIDENCE THAT THE JURY
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`NEEDS TO SEE AND RECEIVE.
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`UNDER OF FRE 402, RELEVANT EVIDENCE IS ADMISSIBLE.
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`IT IS ADMISSIBLE, UNLESS YOU HAVE AN EXCEPTION. THERE IS NO
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`EXCEPTION APPLICABLE HERE.
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`IS IT RELEVANT? WELL, WE GO TO FRE 401, EVIDENCE IS
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`RELEVANT IF IT HAS ANY TENDENCY TO MAKE A FACT MORE OR LESS
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`PROBABLE.
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`PX 681 GOES TO MULTIPLE ISSUES IN THIS CASE
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`REGARDING THE INFRINGEMENT ISSUE.
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`IN TERMS OF IS THIS PIECE OF EVIDENCE, PX 681, IS IT
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`AUGUST 1, 2108
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`RELIABLE? WE HAVE TESTIMONY FROM MR. KODALI, THEIR LEAD
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`ENGINEER THAT THEY BROUGHT INTO TRIAL HERE. AND HE SAID, I DO
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`NOT HAVE A PROBLEM ABOUT THE ACCURACY. IT IS SHOWING AN
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`EXAMPLE.
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`IT IS AN ACCURATE EXAMPLE, CORRECT?
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`ONE ACCURATE EXAMPLE.
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`THERE IS NO EXCEPTION TO ADMISSIBILITY OF EVIDENCE,
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`IT SAYS, WELL, IF IT IS -- IF IT IS ONE EXAMPLE OF RELEVANT
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`EVIDENCE DOESN'T COME INTO EVIDENCE.
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`AND THEN THE FACT THAT ATTORNEYS MAY HAVE BEEN
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`INVOLVED IN CREATING IT.
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`IF YOU GO BACK TO PX 681.
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`THE FACT THAT ATTORNEYS MAY HAVE BEEN INVOLVED IN
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`CREATING IT, THAT COULD HAVE CREATED A WORK PRODUCT PRIVILEGE
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`CLAIM. BUT ANY WORK PRODUCT OR ATTORNEY/CLIENT PRIVILEGE WAS
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`WAIVED WHEN THIS WAS PUT UP IN OPENING STATEMENT.
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`THERE IS NO BASIS TO KEEP IT OUT.
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`SO WE GO BACK TO THE OTHER, WE HAVE ADDITIONAL
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`TESTIMONY, YESTERDAY. THEY THEMSELVES PUT UP PX 681. AND MR.
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`CUNNINGHAM ASKS DR. FUJA, I AM GOING TO GO OUT TO THIS
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`BOARD --
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`THAT IS PX 681.
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`-- THAT WE HAD TALKED A LOT ABOUT.
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`YEAH, WE TALKED A LOT ABOUT IT. A LOT OF WITNESSES
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`DID.
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`AUGUST 1, 2108
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`AND MR. CUNNINGHAM ASKS, DO YOU BELIEVE THIS TO BE
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`AN ACCURATE DIAGRAM OF THE INNER WORKINGS OF THE APPLICATION
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`PROCESSOR AND THE BASEBAND PROCESSOR?
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`CRITICAL ISSUES IN THE CASE.
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`HE SAID, YES, IT IS.
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`IT IS A PIECE OF EVIDENCE.
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`THE COURT: AND APPLE DOESN'T STIPULATE?
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`MR. CUNNINGHAM: NO, YOUR HONOR.
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`MR. POLLINGER: LET ME CONTINUE ON HERE. I AM NOT
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`DONE.
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`THE COURT: MR. POLLINGER, I KNOW IT IS -- I
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`UNDERSTAND THE POINTS. THE ISSUE, THOUGH, IS RELEVANT
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`EVIDENCE IS DIFFERENT FROM DEMONSTRATIVES THAT ARE CREATED TO
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`ILLUSTRATE POINTS TO THE JURY. SO DEMONSTRATIVES OBVIOUSLY
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`ARE ROUTINELY CREATED BY COUNSEL AND USED BY WITNESSES TO MAKE
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`A POINT. BUT IT IS NOT EVIDENCE IN THE SENSE THAT IT IS --
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`THEY ARE NOT EVENTS THAT, FOR EXAMPLE, MAY HAVE OCCURRED PRIOR
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`TO THE LITIGATION WHICH ARE RELEVANT IN THE CASE ITSELF TO
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`INFORM DECISION-MAKING.
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`MR. POLLINGER: YOUR HONOR, IT IS EVIDENCE OF HOW
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`THEIR PRODUCT IS STRUCTURED AND HOW IT OPERATES IN MAKING A
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`VOLTE CALL. THEIR WITNESSES ADMITTED THAT.
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`THE FACT THAT AN ATTORNEY TAKES A PICTURE OF AN
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`EVENT DOES NOT SOMEHOW MAKE IT NOT EVIDENCE. THE FACT THAT
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`ATTORNEYS WERE INVOLVED IN PUTTING THESE TWO EXHIBITS, DX 40
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`AUGUST 1, 2108
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`
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`THAT ARE REFERENCED HERE ON -- THEY PUT TOGETHER -- THEY TOOK
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`THIS FROM DX 40 AND DX 271, PAGE 32 AND PUT IT TOGETHER TO
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`SHOW AN EXAMPLE OF HOW THE PHONE WORKS IN OPERATION, DOES NOT
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`THE NEGATE IT FROM EVIDENCE.
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`THE COURT: IF PX 681 WAS ADMITTED WOULDN'T ALL OF
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`THE DEMONSTRATIVES THEN COME IN? I MEAN, SOMETIMES THE
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`ATTORNEYS STIPULATE TO THAT, BUT ABSENT A STIPULATION.
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`MR. POLLINGER: YOUR HONOR, THIS IS -- IT IS A VERY
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`IRONIC SITUATION. NORMALLY I WOULD LIKE TO GET MY -- THIS IS
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`EVIDENCE. OKAY. WE WILL TURN TO DEMONSTRATIVES. NOW, THIS
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`IS EVIDENCE BUT WE TURN TO DEMONSTRATIVES.
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`NORMALLY I WOULD LIKE TO GET MY OWN DEMONSTRATIVES
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`INTO EVIDENCE BECAUSE I BELIEVE THEY ARE HELPFUL TO MY CASE.
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`BUT THEY OPPOSE THEM BECAUSE THEY ARE DEMONSTRATIVES. IT IS
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`NOT EVIDENCE.
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`THIS IS THEIR DOCUMENT THAT THEY PUT TOGETHER. THEY
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`ARE TRYING TO KEEP IT OUT OF EVIDENCE WHEN THEIR WITNESSES
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`HAVE SAID IT IS ACCURATE AND IT DEPICTS ONE EXAMPLE OF HOW IT
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`WORKS IN OPERATION.
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`I WILL SUBMIT, YOUR HONOR, THIS IS ONE OF THE BEST
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`PIECES OF EVIDENCE BECAUSE IT IS THE ONE PIECE OF EVIDENCE
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`THAT PUTS THESE TWO EXHIBITS, DX 40 AND DX 271, AND SHOWS HOW
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`IT WORKS IN OPERATION.
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`I SUBMIT THEIR STRENUOUS OPPOSITION TO THEIR OWN
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`DOCUMENT BEING ADMITTED INTO EVIDENCE SHOWS THAT IT IS
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`AUGUST 1, 2108
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`EVIDENCE, AND IT IS RELEVANT EVIDENCE THAT THE JURY SHOULD
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`SEE. PARTICULARLY IN LIGHT OF ALL OF THE DISCUSSIONS THAT
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`OCCURRED ON IT.
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`MR. CUNNINGHAM: MAY I RESPOND?
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`THE COURT: LET ME RESERVE ON THAT ONE.
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`ARE THERE OTHER EXHIBITS TO WHICH THERE IS
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`OBJECTION?
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`MR. YIM: THERE ARE TWO MORE.
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`THE COURT: LET'S HEAR THOSE.
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`MR. ANDERSON: GOOD MORNING, YOUR HONOR. JACOB
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`ANDERSON FROM APPLE.
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`THE COURT: GOOD MORNING.
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`MR. ANDERSON: THERE IS JUST TWO EXHIBITS THAT
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`CONCERN -- WELL, YOUR HONOR, PRIOR TO THE COURT'S SUMMARY
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`JUDGMENT ORDER INTEL CHIPSETS AND IPHONES WITH INTEL CHIPSETS
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`WERE PART OF THE CASE, AND MR. KENNEDY CALCULATED DAMAGES
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`BASED ON IPHONES WITH QUALCOMM CHIPSETS AND IPHONES WITH INTEL
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`CHIPSETS.
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`WHAT WI-LAN IS ASKING THE COURT TO MOVE INTO
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`EVIDENCE ARE MR. KENNEDY'S EXHIBITS TO HIS REPORT THAT SHOWED
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`THOSE CALCULATIONS THAT INCLUDE THE INTEL CHIPSETS AND APPLE'S
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`FINANCIAL INFORMATION THAT SEPARATELY IDENTIFY THE INTEL
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`CHIPSETS.
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`WE THINK THAT AS A RESULT OF THE SUMMARY JUDGMENT
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`ORDER THOSE UNITS ARE NOT IN THE CASE. WI-LAN'S DAMAGES BASE
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`AUGUST 1, 2108
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`RIGHT NOW IS 170 UNITS -- MILLION UNITS, IT IS NOT 182 MILLION
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`UNITS. AND WE DON'T WANT THERE TO BE ANY CONFUSION WITH THE
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`JURORS AS TO HOW MANY UNITS WI-LAN CONTENDS ARE ACTUALLY AT
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`ISSUE.
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`WI-LAN HAS SUBMITTED -- WI-LAN CONTENDS THAT THESE
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`DOCUMENTS SHOULD BE MOVED INTO EVIDENCE WITHOUT REDACTIONS
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`BECAUSE THEY NEED TO MAKE AN OFFER OF PROOF AS TO THESE INTEL
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`CHIPSETS, THAT THESE UNITS WERE ACTUALLY SOLD. BUT I NOTE
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`THAT DOCKET NO. 461, WI-LAN HAS ALREADY FILED A NOTICE OF
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`OFFER OF PROOF OF THIS SAME EVIDENCE, SO WE JUST DON'T THINK
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`THAT THESE DOCUMENTS WITHOUT THE REDACTIONS OF THE INTEL
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`CHIPSETS SHOULD GO BEFORE THE JURY.
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`THE COURT: ALL RIGHT.
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`MR. YIM: BRIEFLY, YOUR HONOR.
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`THE NOTICE OF PROOF WAS FILED LAST WEEK AFTER THE
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`PARTIES HAD MET AND CONFERRED ABOUT OBJECTIONS TO THESE
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`EXHIBITS.
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`COUNSEL FOR APPLE DID NOT BRING UP THE INTEL ISSUE
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`THEN. AND MR. KENNEDY DID TESTIFY AS TO THE EXHIBITS AS WE
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`PRESENT THEM NOW.
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`THE NOTICE OF PROOF DID NOT -- IT NOTES IN THERE
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`THAT MR. KENNEDY WOULD TESTIFY ABOUT THE FINANCIAL DATA WHICH
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`DID NOT EXCLUDE THE INTEL UNITS.
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`ADDITIONALLY, THE INTEL UNITS HAVE BEEN PUT INTO
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`ISSUE BY COUNSEL FOR APPLE BY THE CROSS-EXAMINATION
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`AUGUST 1, 2108
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`YESTERDAY -- OR -- I AM SORRY -- THE DIRECT EXAMINATION OF
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`MR. GUNDERSON YESTERDAY TALKING ABOUT HOW THERE ARE INTEL
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`CHIPS IN APPLE PRODUCTS.
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`AND AS YOU CAN SEE, YOUR HONOR, THE 170 MILLION
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`UNITS THAT HAVE BEEN DISCUSSED IN THIS CASE ARE CLEARLY
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`IDENTIFIED AS QUALCOMM CHIPS SO IT IS IMPORTANT FOR THE JURY
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`TO SEE WHERE WI-LAN'S CALCULATIONS FOR DAMAGES COME FROM. SO
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`THEY NEED THE FULL DOCUMENTS.
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`THE COURT: WHY DOES THE JURY NEED TO SEE THE 182?
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`MR. YIM: THEY NEED TO SEE IT IN THE CONTEXT THAT
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`WI-LAN IS NOT SEEKING 183 TOTAL, IT IS 170, WHICH IS QUALCOMM.
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`SO THERE MIGHT BE SOME CONFUSION AS HOW WI-LAN DID ITS
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`CALCULATIONS FOR THE TOTAL ACCUSED PRODUCTS.
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`MR. ANDERSON: MAY I RESPOND, YOUR HONOR?
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`THE COURT: THEN WHAT WOULD BE THE PREJUDICE? IT
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`SEEMS THAT THAT WOULD BE THE -- THE JURY COULD SEE THAT BUT
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`THEN UNDERSTAND THROUGH EXPLANATION AND ARGUMENT AS TO THE
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`CARVE-OUT OF THE OTHER 12.4.
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`MR. ANDERSON: YES, YOUR HONOR. AND IT JUST SEEMS
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`LIKE THAT IS JUST UNNECESSARY EXPLANATION AND UNNECESSARY RISK
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`OF CONFUSION.
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`SO, TO BE CLEAR, WE ARE NOT OBJECTING TO THIS ENTIRE
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`EXHIBIT, WE WOULD JUST ASK THAT WHEN IT SPECIFICALLY
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`IDENTIFIES INTEL MODEMS AND THE PORTIONS THAT INCLUDE THE
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`DAMAGES CLAIMS THAT WOULD INCLUDE THOSE AMOUNTS, WE WOULD
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`AUGUST 1, 2108
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`REVISE THEM.
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`SO, FOR EXAMPLE, THIS 155.7, THAT IS NOT A NUMBER
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`THE JURY HAS EVER SEEN YET THAT IS WHAT STATES -- IF THEY LOOK
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`AT THIS THAT IS WHAT THE TOTAL IS. SO WE DON'T THINK THAT IS
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`NECESSARY. WE ARE FINE WITH JUST THE 145 AND THE 170.
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`THE COURT: DO YOU AGREE THAT THAT IS THE ACCURATE
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`NUMBER IN LIGHT OF THE COURT'S PRIOR RULINGS?
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`MR. YIM: THAT IS ACCURATE, YOUR HONOR. BUT AGAIN,
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`THERE IS CONFUSION AS TO WHAT THAT CONSTITUTES. AND LAYING
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`OUT INTEL NEXT TO IT SHOWS THAT THAT IS NOT PART OF THE 170
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`MILLION.
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`THE COURT: I THINK I WOULD OVERRULE THE OBJECTIONS.
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`I DON'T THINK THERE IS ANY UNDUE OR UNFAIR PREJUDICE, AND IT
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`CAN BE EASILY CLARIFIED THROUGH ARGUMENT.
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`MR. YIM: THANK YOU, YOUR HONOR.
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`THE COURT: ON THE DIAGRAM, I WOULD SUSTAIN THE
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`OBJECTION. IT IS A DIAGRAM AND IT IS DEMONSTRATIVE. AND
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`DEMONSTRATIVES SIMPLY ARE NOT EVIDENCE IN THE SENSE OF
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`EVIDENCE THAT IS RECEIVED, ADMITTED, AND THEN PROVIDED TO THE
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`JURY.
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`COUNSEL, OF COURSE, ARE FREE TO USE THAT
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`DEMONSTRATIVE AND TELL THE JURY THEY ARE NOT GOING TO GET IT,
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`SO LOOK AT IT CAREFULLY AND EVALUATE IT.
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`YOU CAN MAKE ALL OF THOSE ARGUMENTS. IT IS JUST
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`THAT FROM AN EVIDENTIARY STANDPOINT IT IS NOT EVIDENCE, IT IS
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`AUGUST 1, 2108
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`A DEMONSTRATIVE. AND SO ABSENT A STIPULATION --
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`MR. CUNNINGHAM: YOUR HONOR, I MEAN, WE HAVE OTHER
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`ISSUES, POTENTIALLY, WITH THIS CLOSING. BUT THERE CAN'T BE A
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`SUGGESTION THAT APPLE IS PREVENTING THEM FROM HAVING THIS
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`DEMONSTRATIVE BACK IN THE JURY ROOM.
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`THE COURT: I WOULD AGREE.
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`MR. CUNNINGHAM: THIS IS THE RULE.
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`THE COURT: THAT WOULD BE AN UNFAIR ARGUMENT. IT IS
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`JUST THAT IT CAN BE ARE ARGUED THAT THIS IS A DEMONSTRATIVE
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`THAT APPLE HAS USED THROUGH MANY OF ITS EXPERTS. IT IS NOT
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`GOING TO BE ADMITTED INTO EVIDENCE, BUT THE JURY CAN -- THE
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`ENTIRE ARGUMENT CAN BE MADE USING THAT DEMONSTRATIVE IN THE
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`PRESENCE OF THE JURY, THEY JUST WON'T GET IT IN THE JURY ROOM.
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`SO WITH THAT --
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`MR. POLLINGER: THANK YOU, YOUR HONOR.
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`THE COURT: YOU ARE WELCOME.
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`WE HAVE RUN -- I HAVE REDACTED INSTRUCTION 12 AND
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`MADE COPIES FOR THE JURY.
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`DO COUNSEL STIPULATE TO WAIVE REPORTING OF THE
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`READING OF THE JURY INSTRUCTIONS, UNDERSTANDING THAT ON ANY
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`APPEAL THE INSTRUCTIONS THEMSELVES WILL BE IN THE FILE?
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`MR. MCKOOL: YOUR HONOR, NORMALLY I WOULD HAVE NO
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`PROBLEM WITH THAT, BUT I UNDERSTAND THERE IS AN ORAL
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`INSTRUCTION THAT THE COURT IS GOING TO GIVE THAT IS NOT
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`INCLUDED IN THIS. SO IF THE RECORD COULD REFLECT THAT
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`AUGUST 1, 2108
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`INSTRUCTION.
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`THE COURT: YES.
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`MR. MCKOOL: WE ARE HAPPY WITH THE COURT'S
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`SUGGESTION.
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`THE COURT: YES. MS. PENCE WILL BE HAPPY WITH THAT,
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`AS WELL.
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`WHAT SHE ORDINARILY DOES IS SHE REPORTS EVERYTHING
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`THAT I SAY WITH THE EXCEPTION OF JUST READING THE
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`INSTRUCTIONS.
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`SO I AM GOING TO, PROBABLY AT THE END OF THE READING
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`OF THE INSTRUCTIONS, FOR EXAMPLE, INDICATE THAT THE EFFECT OF
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`THE DISMISSAL DOES NOT INDICATE WHICH PARTY PREVAILED. AND I
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`WILL HAVE A FEW OTHER GENERAL INSTRUCTIONS THAT WILL BE
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`REPORTED.
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`SO I WOULD LIKE TO BRING IN THE JURY, INSTRUCT THEM,
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`AND THEN MOVE STRAIGHT INTO CLOSING ARGUMENT.
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`AND I THINK WE WOULD HAVE THE INITIAL CLOSING AND
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`THEN PROBABLY TAKE A BREAK AND GO INTO APPLE'S CLOSING, AND
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`MAYBE RIGHT INTO REBUTTAL THEREAFTER.
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`MR. MCKOOL: COULD WE HAVE A COUPLE OF MINUTES
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`BEFOREHAND TO USE THE RESTROOM?
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`THE COURT: YES. WHY DON'T WE JUST TAKE A COUPLE OF
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`MINUTES, THEN BRING OUT THE JURY.
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`MR. POLLINGER: YOUR HONOR.
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`THE COURT: MR. POLLINGER.
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`AUGUST 1, 2108
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`MR. POLLINGER: I AM NOT GOING TO ARGUE PX 681
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`AGAIN, I WILL HOLD BACK. BUT THANK YOU FOR HEARING MY
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`ARGUMENT.
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`WE HAVE TO PRESENT OUR ORAL JMOL TO PRESERVE OUR
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`JMOL ISSUE, SO WE WOULD LIKE TO -- WE THINK WE NEED TO MAKE IT
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`PROCEDURALLY NOW, PRIOR TO THE JURY GETTING THE CASE. SO WE
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`WOULD LIKE TO ORALLY DO THAT.
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`THE COURT: APPLE HAS FILED ITS MOTION, AS WELL.
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`DID YOU FILE A WRITTEN MOTION?
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`MR. POLLINGER: NO, WE ARE GOING TO DO IT ORALLY
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`RIGHT NOW.
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`THE COURT: WHY DON'T YOU JUST OUTLINE, SO YOU
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`PRESERVE YOUR 50A MOTION. I DON'T WANT THE ARGUMENT, THOUGH,
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`JUST TELL ME WHAT YOU HAVE TO PRESERVE IT, AND THEN WE CAN
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`ADDRESS IT AFTER CLOSING.
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`MR. MCNETT: WELL, YOUR HONOR, I WILL TRY TO BE
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`BRIEF.
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`WITH RESPECT TO INFRINGEMENT OF THE '145 AND '757
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`PATENTS, INCLUDING CLAIMS 9, 26, AND 27 OF THE '145 PATENT AND
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`CLAIM 1 OF THE '757 PATENT, WI-LAN ASKS FOR JUDGMENT AS A
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`MATTER OF LAW BECAUSE WE DON'T BELIEVE THAT THE DEFENDANTS
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`HAVE PROVEN OR PROVIDED ANY EVIDENCE ON WHICH A REASONABLE
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`JUROR COULD REACH A CONCLUSION THAT THESE CLAIMS ARE NOT MET
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`IN THEIR ENTIRETY FOR EACH OF THE ACCUSED PRODUCTS.
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`WI-LAN PRESENTED PROFESSOR MADISETTI'S TESTIMONY
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`AUGUST 1, 2108
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`
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`Case 3:14-cv-02235-DMS-BLM Document 500 Filed 08/02/18 PageID.23612 Page 23 of 101
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`19
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`20
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`21
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`22
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`SHOWING THAT EACH ELEMENT OF THE CLAIMS IS MET THROUGH APPLE'S
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`SOURCE CODE, TECHNICAL DOCUMENTATION, DEPOSITION TESTIMONY,
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`BASEBAND LOGS, THE LTE STANDARD, AND EMAILS, AMONG OTHER
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`EVIDENCE. WE BELIEVE THAT THE NONINFRINGEMENT DEFENSES APPLE
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`HAS PRESENTED ARE A MISAPPLICATION OF THE COURT'S CLAIM
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`CONSTRUCTION AND A MISAPPLICATION OF THE LAW, AS WELL AS
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`INCONSISTENT WITH THE COURT'S SUMMARY JUDGMENT ORDER DENYING
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`CERTAIN OF APPLE'S ARGUMENTS AS A MATTER OF LAW.
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`APPLE'S TESTIMONY, INCLUDING FROM DR. BUEHRER, DR.
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`FUJA, MR. LANNING, MR. SEBINI, AND MR. KODALI, FAILED AS A
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`MATTER OF LAW TO SHOW NONINFRINGEMENT.
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`FIRST, APPLE'S ARGUMENT AND TESTIMONY ABOUT WIMAX
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`WERE IRRELEVANT AND HAD NO BEARING ON THE ISSUE OF WHETHER
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`APPLE'S IPHONES INFRINGE.
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`SECOND, APPLE AND ITS EXPERTS ARGUED THAT THE
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`SUBSCRIBER UNIT IS NOT PRESENT IN APPLE'S IPHONE BECAUSE
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`BANDWIDTH WAS NOT ALLOCATED ACROSS USER CONNECTIONS. BUT
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`APPLE'S OWN EVIDENCE DEMONSTRATED HOW IPHONES SEPARATE VOICE
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`AND DATA TRAFFIC ACROSS MULTIPLE CONNECTIONS, AND GIVE
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`PRIORITY TO THE VOICE DATA. THIS MEETS THE COURT'S
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`CONSTRUCTION OF SUBSCRIBER UNIT, AND SHOWS APPLE'S
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`INFRINGEMENT AS A MATTER OF LAW.
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`ALL OF APPLE'S ARGUMENTS REGARDING ALLOCATION ACROSS
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`USER CONNECTIONS WERE BASED ON A MISAPPLICATION OF THE COURT'S
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`CLAIM CONSTRUCTION AND SOUGHT TO IMPORT ADDITIONAL LIMITATIONS
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`AUGUST 1, 2108
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`
`
`Case 3:14-cv-02235-DMS-BLM Document 500 Filed 08/02/18 PageID.23613 Page 24 of 101
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`IN THE CLAIM CONSTRUCTIONS THAT ARE NOT PRESENT OR HAVE
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`ALREADY BEEN REJECTED.
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`T
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