Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 1 of 284 PageID #: 29659
`1039
`
`- PORTION UNDER SEAL -
`- VOLUME 5 -
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`
`CIVIL ACTION
`
`NO. 10-258-SLR
`
`:::::::::
`
`MOBILEMEDIA IDEAS LLC,
`Plaintiff,
`
`vs.
`APPLE INC,
`
`Defendant.
`
`- - -
`Wilmington, Delaware
`Monday, September 19, 2016
`8:15 o'clock, a.m.
`
`- - -
`BEFORE: HONORABLE SUE L. ROBINSON, U.S.D.C.J., and a jury
`- - -
`
`APPEARANCES:
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: JEREMY A. TIGAN, ESQ.
`
`-and-
`
`Valerie J. Gunning
`Official Court Reporter
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`1039
`
`- PORTION UNDER SEAL -
`- VOLUME 5 -
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`
`CIVIL ACTION
`
`NO. 10-258-SLR
`
`:::::::::
`
`MOBILEMEDIA IDEAS LLC,
`Plaintiff,
`
`vs.
`APPLE INC,
`
`Defendant.
`
`- - -
`Wilmington, Delaware
`Monday, September 19, 2016
`8:15 o'clock, a.m.
`
`- - -
`BEFORE: HONORABLE SUE L. ROBINSON, U.S.D.C.J., and a jury
`- - -
`
`APPEARANCES:
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: JEREMY A. TIGAN, ESQ.
`
`-and-
`
`Valerie J. Gunning
`Official Court Reporter
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 2 of 284 PageID #: 29660
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`APPEARANCES (Continued):
`
`PROSKAUER ROSE LLP
`BY: STEVEN BAUER, ESQ.,
`SAFRAZ W. ISHMAEL, ESQ.
`KIMBERLY MOTTLEY, ESQ.,
`LAURA STAFFORD, ESQ. and
`JAMES ANDERSEN, ESQ.
`(Boston, Massachusetts)
`
`Counsel for Plaintiff
`
`MORRIS JAMES LLP
`BY: MARY B. MATTERER, ESQ.
`
`-and-
`
`O'MELVENY & MYERS LLP
`BY: LUANN SIMMONS, ESQ.
`(San Francisco, California)
`
`-and-
`
`WILMER HALE LLP
`BY: JOSEPH J. MUELLER, ESQ.
`(Boston, Massachusetts)
`
`-and-
`
`WILMER HALE LLP
`BY: TARA D. ELLIOTT, ESQ.
`(Washington, D.C.)
`
`Counsel for Defendant
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 3 of 284 PageID #: 29661
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`P R O C E E D I N G S
`
`***(A portion of the transcript is under seal.)
`
`(Proceedings commenced in the courtroom,
`beginning at 8:15 a.m.)
`
`THE COURT: Good morning, counsel.
`(Counsel respond, "Good morning, your Honor.")
`THE COURT: I had a minute to review your
`proposed revisions. Certainly the ones that are agreed to
`will be incorporated into our final set.
`I think there are two revisions that are not
`agreed to, and why don't we go to those first, and then if
`there are any other issues that need to be addressed before
`we start trial, we could do that.
`So I believe the first one is on page 25. And I
`will just hear remarks from both sides.
`MR. BAUER: I think, your Honor, you see exactly
`what the issue is. With everything that has happened, they
`now want to add to the instruction that the limitation has
`to be identical, and we just, you know, with everything that
`has been happening now, to add an instruction to the jury
`that the structure has to be identical to the structure that
`you've pointed to just creates just one more level of total
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 4 of 284 PageID #: 29662
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`uncertainty.
`
`So our suggestion is, and it does not change the
`substance, it just changes that word, is to put the period
`at the end of the structures that you, you know, the
`described structures that I defined earlier as performing
`the function, period. And we don't need to go on to say
`identical to the structures. Right? Just simply say, the
`referred structures are the structure that I defined
`earlier, and I think if you say the identical structures.
`The alternative is to add a sentence, which I
`think we've been asking or suggesting, that says, you are
`not -- you, the jury, are not limited to the exact structure
`in the patent, which I think is probably necessary, would be
`very helpful given the way the arguments have been coming
`in.
`
`MR. MUELLER: Good morning, your Honor. May I
`
`proceed?
`
`THE COURT: Yes.
`MR. MUELLER: Your Honor, I won't belabor it. I
`know we've got to get started. I will just describe our
`position.
`
`The only dispute is to the word "identical."
`This new suggestion I just heard for the first time, and
`obviously we oppose that. That's an incorrect statement of
`the law. I think the only dispute that we discussed in the
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 5 of 284 PageID #: 29663
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`repeated meet and confers is this word "identical." The
`remainder of this instruction is agreed on and we have no
`dispute.
`
`On the word "identical," I will just state our
`position for the record. That is the law. The case law,
`black letter case law requires that for means-plus-function
`limitations, and I will just give you two examples. This is
`from Cross Medical versus Medtronic Somafor, 424 F. 3d.,
`1293 at 1315.
`And I will quote: "Literal infringement of the
`112, Paragraph 6 limitation requires that the relevant
`structure in the accused device perform the identical
`function recited in the claim and be identical or equivalent
`to the corresponding structure in the specification."
`Now, that or equivalent language is, of course,
`black letter means-plus-function doctrine, but they're not
`making an equivalents case and they dropped all references
`to equivalents yesterday. So although the standard
`instruction for means-plus-function infringement does
`include equivalent, they have dropped that portion of their
`case, and so what we're left with is the remaining black
`letter law, which requires identical structure.
`That is the law. There's no -- I don't think
`there's a single Federal Circuit case that says otherwise.
`The Model Jury Instructions issued this year by the Federal
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 6 of 284 PageID #: 29664
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`Circuit Bar Association also discuss identical structure.
`The equivalent language is not at issue in this case because
`there is no equivalent case, so our position is the
`remainder of the standard instruction should be given. But
`again I won't belabor it at this point. I just wanted to
`state our position for the record, and that's our only
`dispute, it's just that word "identical."
`THE COURT: All right. I will start the
`conversation when you all are finished giving your
`presentations.
`So, Mr. Bauer, do you have --
`MR. MUELLER: There's a second issue.
`MR. BAUER: Well, just one last thing. The fact
`that "identical" is in there, it's an artifact, because the
`law is identical or equivalents, and so there's meant to be
`a contrast, identical or equivalents.
`When you drop equivalent, you don't need the
`reference to identical anymore. So the fact that it's in
`here at all is just an artifact of, you know, of that. And
`I think it doesn't change the substance at all to just
`simply say the set of structures are referred to.
`And I can just point out the one other issue,
`your Honor, while I'm up here?
`THE COURT: No. I think I would like to finish
`
`this one.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 7 of 284 PageID #: 29665
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`MR. BAUER: Okay.
`THE COURT: Thank you. One at a time.
`I started down this path and I didn't -- the
`path clearly may be wrong. The Federal Circuit makes that
`decision.
`
`The way I understood the definition, again,
`which could be wrong, is an alert sound generator such as
`Figure 13, Figure 2, as understood by one of ordinary skill
`in the art. That's pretty much how I came into this case.
`It's pretty much how I've allowed the case to be tried. And
`the defendant has not tried the case that way and has
`certainly put their place markers for purposes of appeal.
`So my only question is whether at this point,
`because of the way the case has been tried, and because it
`was tried this way because of the way I brought it together,
`whether I need to stay the course and make it, you know, a
`red flag for appeal. And if I'm going to stay the course at
`this point, then the question is how best to do that, how
`best to give guidance to the jury in terms of the way I've
`viewed the case and allowed the case to be tried.
`So that's really my question. I certainly
`understand defendant's position, and ultimately, they
`certainly may prevail on appeal, but it is and it has been
`contrary to the way I viewed the case.
`So that's the --
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 8 of 284 PageID #: 29666
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`MR. MUELLER: If I might, your Honor?
`THE COURT: Sure.
`MR. MUELLER: Again, I don't want to belabor
`this, and I know we have to move to preparing for the jury.
`If your Honor is of the view that not including "identical"
`is more consistent with your view, I'm not going to belabor
`it now. I do just want to make our position clear for the
`record and that we requested the word.
`THE COURT: Absolutely, and that certainly is
`clear from the record, but I think it is at this point, it's
`either identical as understood by one of ordinary skill in
`the art, or it's not identical in the way that you have
`presented it. So whichever makes the most sense to you and
`would be less legally objectionable, it's the one I would
`vote for.
`
`MR. MUELLER: And I would just suggest that as
`long as we're preserving our position for the record, we
`have agreed on everything else, and so, you know.
`THE COURT: All right.
`MR. MUELLER: If your Honor would prefer to omit
`"identical," as long as we're preserving our position, we're
`not going to belabor it now.
`THE COURT: All right. I think we will do
`
`that.
`
`MR. MUELLER: Thank you, your Honor.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 9 of 284 PageID #: 29667
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`THE COURT: All right. Thank you very much.
`And I do appreciate the work you put into this
`over the weekend. I truly do. Thank you.
`All right. And then 29, which I think is
`MobileMedia's issue, because I think in my first proposal, I
`included those 272A, although I identified it as a
`defendant's exhibit rather than plaintiff's.
`MR. BAUER: Right. So that we believe is a typo
`in the record, but it's in the record and just leave it
`alone.
`
`THE COURT: All right.
`MR. BAUER: But that's not the issue.
`So, your Honor, on this one, the exhibits, the
`prior art is 271 and 272. 271 is the one-pager. 272 is the
`Japanese document. That's the prior art. We just think it
`puts too much weight to put -- 272A is the page with the
`handwritten notes written by counsel. It's a translation by
`the lawyer -- by the lawyer, by the witness, not a certified
`translation.
`
`It's in evidence, so it's going to go into the
`jury room. We just think it puts too much weight on the
`document to be putting it in the instruction as the prior
`art. And neither side suggested it, and as your Honor just
`pointed out, it just ended up on the list. I call it a
`typo.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 10 of 284 PageID #: 29668
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`THE COURT: Well, I mean, I try to be helpful,
`and I think it was my effort in terms of gathering the most
`helpful evidence. Well, anyway, let me hear from the
`defendant.
`
`MR. MUELLER: May I?
`THE COURT: Sure.
`MR. MUELLER: So this, you'll recall, is the
`final page of the foreign prior art document. It was
`admitted and it was discussed with Dr. Balakrishnan and the
`various parts of the circuit that's depicted in that figure
`were translated into a technical reading through that
`testimony.
`
`And so we think it is fair a fairly considered
`part of the prior art that the jury can consider in its
`deliberations. They are going to have the first page.
`They're going to have that circuit diagram and it has all
`been admitted and discussed at great length by Dr.
`Balakrishnan.
`So we don't think it's putting too much weight
`on it. It is, in fact, the diagram. The only thing that
`has been added to it is just English translations of the
`parts that were just based on Dr. Balakrishnan's testimony,
`and so we think it would be appropriate to admit it.
`THE COURT: Well, I clearly thought it would be
`helpful, and I agree, it's not technically part of the prior
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 11 of 284 PageID #: 29669
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`art reference, but I think it's accurate and I think it
`would be helpful, so we will leave it in.
`MR. MUELLER: Thank you, your Honor.
`THE COURT: I didn't see any other issues.
`MR. BAUER: No other issues with the jury
`instructions, your Honor.
`MR. MUELLER: That's right, your Honor.
`THE COURT: Thank you again for the team who
`worked on it.
`MR. MUELLER: We did have one more issue before
`we get started.
`THE COURT: Sure.
`MR. MUELLER: If we can address it. Ms. Elliott
`will address it. It's with respect to some exhibits that
`were disclosed last night for the final witness.
`THE COURT: All right.
`MS. ELLIOTT: Good morning, your Honor.
`THE COURT: Good morning.
`MS. ELLIOTT: May I proceed?
`THE COURT: Yes.
`MS. ELLIOTT: Apple objects to three exhibits
`disclosed late night that are intended to be used for Dr.
`Meldal. For the record, they're PTX-753, 754, and 755.
`Your Honor, 755 is the one page of the catalogue that did
`come up in the cross-examination of Dr. Balakrishnan. It
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 12 of 284 PageID #: 29670
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`was not admitted into evidence as I had objected to it and
`it was permitted to be published, but it was not yet
`admitted, so we maintain our objection of that particular
`exhibit. But all three of these exhibits are pages that
`were a part of Dr. Meldal's declaration that was submitted
`in support during the summary judgment briefing stage.
`Your Honor, this is almost the exact mirror
`image of the Fujita Panasonic document outside of the scope
`issue that your Honor generously spent a lot of time with
`the parties on for framing this. Recall that MMI objected
`to Dr. Balakrishnan talking about anything after the first
`page because it was their position that he did not rely on
`it, and they cited his deposition for that that your Honor
`read, and they cited the fact that they didn't see that in
`his expert report notwithstanding in his deposition he
`clearly was referring to components that were in the
`diagram. We ultimately reached a partial compromise when
`Mr. Bauer did not object to the diagram going up, but
`nothing in the middle of that exhibit. Again, your Honor
`was generous in the amount of time that you listened to both
`sides' parties on this outside the scope of the expert
`report.
`
`I submit to you, your Honor, that this is a much
`cleaner case of well outside of the expert report. Dr.
`Meldal did not once refer to any of these three exhibits in
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 13 of 284 PageID #: 29671
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`his expert report. It was not the subject of deposition
`testimony. It was not the subject of a supplemental expert
`report. It was not even the subject of MMI's
`cross-examination of Dr. Balakrishnan with respect to
`PTX-753 and 754.
`This is in our view a much more clean and clear
`example of a party not providing their Rule 26 disclosure as
`to their intent to testify. There is a line preceding the
`citation of these three exhibits in Dr. Meldal's declaration
`that is precisely the same line used in his expert report
`except for what's conspicuously absent from his expert
`report are these references. No discussion whatsoever.
`Your Honor has a lot of paper up there. I know
`Dr. Meldal's report was one of the things we submitted, but
`I also have copies here should your Honor want to review
`that again. But I think given that report, you'll see very
`clearly that these exhibits were not the subject matter of
`the report, they clearly aren't the subject matter of the
`deposition. They did not submit this in a supplemental
`expert report even though they had clearly over a year to do
`so because that summary judgment briefing was in 2015, but
`they've had the documents for four years.
`So we submit, your Honor, that it would be
`inappropriate, improper, outside the scope of his expert
`disclosures in violation of Rule 26 for Dr. Meldal to
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 14 of 284 PageID #: 29672
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`testify about these exhibits.
`THE COURT: All right. Thank you.
`MR. BAUER: So, your Honor, let me just start.
`This is nothing like the Dr. Balakrishnan thing, because
`that was a document that we didn't even know they were going
`to use until they gave us the exhibit list here.
`The documents we're talking about are the
`documents that Dr. Meldal submitted with his declaration
`for the claim construction about what an alert sound
`generator is. We used one with Dr. Balakrishnan, the page
`from the Radio Shack. It has already been published to the
`jury. We offered it and your Honor reserved admission on
`that. But this is an issue that didn't become an issue
`until Dr. Balakrishnan testified in this trial. There's not
`one word in his expert report about his understanding of
`what a sound generator is. We had that discussion with your
`Honor.
`
`They say it didn't become an issue until your
`Honor entered the claim construction order and, in fact, as
`your Honor knows how the case is coming in, it's only an
`issue because the parenthetical that your Honor added on the
`eve of trial.
`So there's not -- there was no discussion
`between either expert on what the term meant. And then your
`Honor added the parenthetical, and the first we ever knew
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 15 of 284 PageID #: 29673
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`what they were going to say was when we saw their slides
`the night before and I came in that very next day and
`objected.
`
`So this is, these documents are not new
`documents. They've been on the exhibit list at least. But
`more than that, they were attached to Dr. Meldal's
`declaration, so they're as much a part of the record
`as a deposition or expert report. They've known about
`these things from at least that day, and were just coming
`in.
`
`This is rebuttal testimony. Dr. Balakrishnan
`talked about the document. Dr. Meldal is going to come in
`now and explain the document. The jury has already seen it,
`so I don't know that there should be any objection to us
`even talking about it.
`But there are three documents. As to the
`declaration, fairly disclosed, directly rebutting what Dr.
`Balakrishnan said for the first time on Thursday, and it
`directly goes to the heart of it. And these are old
`historic 1980 documents. It's not like they needed a
`deposition to be able to respond to this.
`MS. ELLIOTT: Your Honor, it's simply not true
`that Dr. Balakrishnan that didn't discuss this. In fact, in
`Dr. Meldal's declaration, and I have a copy here for your
`Honor if it would be convenient, he actually cites to Dr.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 16 of 284 PageID #: 29674
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`Balakrishnan's expert report, where Dr. Balakrishnan cites
`to a 1985 Radio Shack report for rendered silences.
`Balakrishnan report at page 30. This was his invalidity
`expert report in 2012.
`So Dr. Meldal had every opportunity to rebut
`this in an expert report such that it could be properly the
`subject of deposition testimony so his theories can be
`tested. It was not.
`The fact that he attached these exhibits to his
`declaration that was submitted to the Court with their
`position on indefiniteness does not bring it within the
`scope of Rule 26. There's absolutely no argument here, no
`case law that suggests that one can bootstrap a late filed
`declaration citing exhibits that were never the subject of
`examination, never once disclosed before. And, in fact,
`indefiniteness is not even an issue in this case. There's
`just no disclosure here under Rule 26 for us to have
`responded to, for us to be able to examine Dr. Meldal with,
`absolutely nothing.
`They did not cross him on 753 or 754 and we
`objected to the use of 755. Those objections have been
`lodged since the very beginning of the pretrial process,
`and, in fact, they objected. MMI objected to our listing
`754 and 755 on Apple's exhibits list. So it's quite ironic
`that they're trying to bring it in now notwithstanding that
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 17 of 284 PageID #: 29675
`1055
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`it's outside the scope of his report, not disclosed under
`Rule 26, not presented in cross-examination, and not the
`subject of a supplemental expert report, not the subject of
`a deposition.
`MR. BAUER: Just one last thing. It's pure
`rebuttal and this is our rebuttal stage. Pure rebuttal. It
`came in through Dr. Balakrishnan and he is responding what
`Dr. Balakrishnan said.
`MS. ELLIOTT: Dr. Balakrishnan talked about this
`very subject matter in his 2012 expert report. If it was to
`be rebutted, it should have been rebutted in response to
`that four years ago.
`THE COURT: Well, I think we all, if we were
`honest with ourselves, know that the case has transformed
`itself a tad and that the focus of the case isn't I don't
`believe what the focus of the case was in 2012 or 2015 as so
`often is the case.
`I think the fairest way I can do this, and
`we're talking about its admission. In my notes, such as
`they are, I have 755, the objection was, well, gee, you did
`not allow us to admit Defendant's Exhibit 298, and it's the
`same sort of thing. It wasn't quite the objection I'm
`hearing now.
`
`So I think at the very least I'm going to admit,
`allow plaintiff to admit 755. I will also admit Defendant's
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 18 of 284 PageID #: 29676
`1056
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`298, which is the Motorola annual report.
`And am I hearing that there's an objection to
`even use of 753 and 754 or just to their admission, because
`they're still -- well --
`MS. ELLIOTT: May I, your Honor?
`THE COURT: Yes.
`MS. ELLIOTT: With respect to 755, I think the
`record will show there was an initial objection to lack of
`foundation, and then when it was moved to be admitted, I
`asked the Court to reserve consistent with 298. And so I
`think your point is fair on that one.
`All I would ask, if your Honor is inclined to
`admit 755, that the entirety of the catalogue be admitted,
`not just the one page. It's one page of the catalogue. So
`for completeness, we would ask that -- first of all, we
`object to 755, but I understand your Honor's point, and I
`would ask the entirety of that catalogue be admitted if 755
`is going to be admitted.
`With respect --
`THE COURT: Well, I don't generally -- I don't
`know what the catalogue is. I don't know how much more
`information it is. I don't know whether it's helpful to
`have the jury look at an entire catalogue, so I would have
`to look at that.
`MS. ELLIOTT: Sure.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 19 of 284 PageID #: 29677
`1057
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`THE COURT: To make sure I know what you're
`asking me to do.
`MS. ELLIOTT: Sure.
`With respect to 753 and 754, your Honor, we
`would strenuously object to not only the admission, but even
`the presentation of that evidence, and I think that it is
`entirely than consistent with Apple not being able to
`present those middle pages of the Panasonic reference. They
`strenuously, at great length of time and effort, forced me
`to deal with only the first page and last all over a
`disputed reading of a deposition.
`Here we have no deposition testimony, your
`Honor, none at all. Nothing in the expert report even
`though there was clear opportunity to in the same statement
`that precedes these citations in the declaration is the same
`exact statement Dr. Meldal has in his report.
`So we really feel it is entirely inappropriate
`for them to come in and present these two documents that
`were never the subject of expert discovery and even being
`presented to this jury in the same way we were precluded
`from presenting through Dr. Balakrishnan those middle pages
`of the Panasonic reference.
`THE COURT: All right. Thank you.
`Mr. Bauer, last word?
`MR. BAUER: Well, your Honor --
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 20 of 284 PageID #: 29678
`1058
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`THE COURT: I'm not sure how rebuttal plays into
`my general rule that there's -- and I'm not sure how the
`fact that it's rebuttal plays into my general rule that
`there has to be some vetting during discovery, and I'm not
`sure how rebuttal plays into the fact that you're the one
`who brought it up on cross. It's not as though it was
`brought up and you're rebutting the defendant.
`MR. BAUER: No, it's not the rebuttal. That's
`not the rebuttal. What I'm talking about is the rebuttal to
`the position Dr. Balakrishnan is taking that there's no
`ordinary meaning to this term, and it is now -- and as your
`Honor is so correct, this wasn't the subject for either
`side's discovery. It wasn't an issue in this case. And it
`became an issue when Dr. Balakrishnan testified that there
`is no ordinary meaning. And until then, we had no idea this
`was the position they were taking. It wasn't in his expert
`report about that because your claim construction didn't
`come down until right at the beginning.
`And so we objected when he took the stand. It's
`the issue of the case. As your Honor knows, I've been
`dealing with it on the fly as we all have. And there's
`just, in these exhibits, there's no surprises. It's not
`like we ran off last night and started looking for documents
`to bring in today. These are the documents on which your
`Honor relied in making the claim construction ruling, the
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 21 of 284 PageID #: 29679
`1059
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`documents.
`
`As your Honor told us the other day, you
`assumed -- you couldn't define there was a dispute between
`the experts and that you knew that this was the issue to be
`tried here. So certainly, they knew these were the exhibits
`on which we were relying. Your Honor knew this was going to
`be an issue that might be in dispute, because both experts
`were a little bit different in the briefing.
`And then their expert takes the stand and gives
`us his position on what one of ordinary skill means, and I
`need to put my witness on to rebut that, because I didn't
`know what he would say until he testified.
`THE COURT: All right. Thank you.
`Any final word, Ms. Elliott?
`MS. ELLIOTT: Yes. Thank you, your Honor.
`Again, it's simply not true that he did not know
`what Dr. Balakrishnan would say because, in fact, it's Dr.
`Meldal who quotes, "Dr. Balakrishnan admits in his expert
`report that alert sound generator was well-known at the time
`of the patent filing," and he cites to pages 29 and 30 of
`Dr. Balakrishnan's report.
`THE COURT: Right. And he basically has gone --
`says it's not. So that's a problem.
`MS. ELLIOTT: Well, the problem is he's claiming
`it's an opportunity to test something that was never
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 22 of 284 PageID #: 29680
`1060
`
`disclosed before because it was never disclosed before, and
`that predicate, underlying predicate, is not true.
`THE COURT: Well, back in the old days before we
`were so wedded to the report, if an expert came in on --
`well, first of all, you can impeach an expert with anything,
`and certainly, if an expert came in with testimony that was
`inconsistent with testimony that he had given before, you
`can certainly impeach him with virtually anything.
`So now that we're so wedded to the reports,
`it really -- I'm not sure it's helping the adversary
`process, and it all comes down to what is truly fair. This
`isn't a total surprise, but I agree, it hasn't been vetted
`through a deposition and it's generally one of my primary
`rules. So it's one of these, I'm going to think about it.
`All right.
`
`MS. ELLIOTT: All right.
`MR. MUELLER: Just one last housekeeping matter,
`your Honor. The parties had on their initial, both sides on
`initial deposition designations a gentleman named Matthew
`Klahn. There's a photo of him in the notebook. Neither
`side has called him. We would propose removing that photo
`to avoid confusion.
`THE COURT: We will at some point. Easier said
`than done, but certainly I will tell Francesca.
`MR. MUELLER: Thank you, your Honor.
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 23 of 284 PageID #: 29681
`1061
`
`MR. BAUER: Your Honor, Dr. Meldal is our first
`witness coming in at 9:00 o'clock. When your Honor says you
`need to think about it...
`THE COURT: I understand.
`MR. BAUER: Okay.
`THE COURT: I understand.
`MR. BAUER: And, your Honor, the issue was, I
`couldn't cross him when he was on the stand because they
`said it wasn't impeachment and then he's flipping and that's
`what this is all about.
`MS. ELLIOTT: Your Honor, respectfully, not
`
`true.
`
`MR. BAUER: Well --
`MS. ELLIOTT: He actually crossed Dr.
`Balakrishnan on 755. All three of these exhibits were never
`part of Dr. Meldal's testimony in any way, shape or form,
`but they clearly were on notice of Dr. Balakrishnan.
`THE COURT: Right. But the problem is, during
`the report process, your expert wasn't taking this position,
`so, you know, the general give-and-take in that process
`wasn't really available. So now we're at trial and we're
`trying to figure out how much give-and-take we can give
`under the circumstances.
`So I understand your position. I have a
`slightly different view of how this case got to this point
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 24 of 284 PageID #: 29682
`1062
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`and I'm just trying to keep it relatively balanced. So just
`give me five minutes out of your presence and then I will
`let you know.
`MS. ELLIOTT: Thank you, your Honor.
`MR. BAUER: Thank you, your Honor.
`(Short recess taken.)
`- - -
`(Proceedings resumed after the short recess.)
`THE COURT: All right. I've gone back over our
`collective recollection of how we got here, once again,
`talking about staying the course at this point in the trial,
`and I have to say, my recollection is that it was the
`declaration in the summary judgment for indefiniteness that
`Apple brought up that persuaded me that alert sound
`generator was something known in the art to one of ordinary
`skill in the art. So for me to say that, again, this is a
`surprise, that this appropriate evidence, I think it is
`inconsistent with my understanding of the case.
`I'm not sure at that time that I understood this
`was new, but apparently, it was. But I think it's
`appropriate rebuttal, so I'm going to let them in. All
`right.
`
`(Short recess taken.)
`- - -
`(Proceedings resumed after the short recess.)
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 25 of 284 PageID #: 29683
`1063
`Meldal - direct
`THE COURT: Let's bring the jury in.
`(The jury entered the courtroom and took their
`seats in the box.)
`THE COURT: Good morning, ladies and gentlemen.
`Thank you so much. I know your drive wasn't easy here
`today, so thanks.
`And everyone may be seated. And, Mr. Bauer, you
`
`may proceed.
`
`MR. BAUER: Thank you, your Honor.
`Your Honor, we recall Dr. Meldal to the stand.
`THE COURT: All right. And I will just remind
`Dr. Meldal that he is still under oath.
`THE WITNESS: Yes, your Honor.
`... SIGURD MELDAL, having been previously
`duly sworn as a witness, was examined and
`testified further as follows ...
`MR. BAUER: And, ladies and gentlemen, Dr.
`Meldal will be testifying briefly today in response to the
`things you heard from Dr. Balakrishnan on Thursday relating
`to infringement, invalidity issues.
`All right. Your Honor, may I begin?
`THE COURT: Yes, you may.
`MR. BAUER: Thank you.
`DIRECT EXAMINATION
`
`BY MR. BAUER:
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`Case 1:10-cv-00258-SLR Document 744 Filed 05/19/17 Page 26 of 284 PageID #: 29684
`1064
`Meldal - direct
`Good morning, Dr. Meldal. Welcome back.
`Q.
`Thank you. Good morning.
`A.
`Did you get to see and hear Dr. Balakrishnan
`Q.
`testify last week about his noninfringement and invalidity
`views?
`Yes, I did.
`A.
`Okay. Let's talk first about the infringement issue
`Q.
`and the alert sound generator. Where is the agreement and
`disagreement between you and Dr. Balakrishnan?
`It seems that Dr. Balakrishnan and I agree on how the
`A.
`iPhone works. It seems that we agree on the fun
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