Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 1 of 29 PageID #: 25329
`Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 1 of 29 PagelD #: 25329
`
`EXHIBIT A
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`EXHIBIT A
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`

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`Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 2 of 29 PageID #: 25330
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`T H E C O U R T : G o o d a f t e r n o o n ,
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`e v e r y o n e . T h i s i s J e n n i f e r H a l l . W e a r e h e r e
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`o n t h e p h o n e t o d a y f o r a d i s c o v e r y
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`t e l e c o n f e r e n c e i n E l m 3 D S I n n o v a t i o n s L L C v .
`
`S a m s u n g E l e c t r o n i c C o m p a n y L i m i t e d , C i v i l
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`A c t i o n 1 4 - 1 4 3 0 - L P S .
`
`M a y I h a v e a p p e a r a n c e s , p l e a s e ,
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`s t a r t i n g w i t h p l a i n t i f f ' s D e l a w a r e c o u n s e l ?
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`M R . F A R N A N : G o o d a f t e r n o o n ,
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`Y o u r H o n o r . B r i a n F a r n a n o n b e h a l f o f t h e
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`p l a i n t i f f , a n d w i t h m e i s K a t H a c k e r w h o w i l l
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`a r g u e t h i s a f t e r n o o n o n b e h a l f o f E l m ; M a t t h e w
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`F o r d , a n d N o s s o n K n o b l o c h f r o m B a r l i t B e c k .
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`T H E C O U R T : G o o d a f t e r n o o n t o
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`a l l o f y o u . M a y I h a v e a p p e a r a n c e s f o r
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`d e f e n d a n t ?
`
`M R . P O F F : G o o d a f t e r n o o n , Y o u r
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`H o n o r ; i t ' s A d a m P o f f f r o m Y o u n g C o n a w a y o n
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`b e h a l f o f S a m s u n g . A n d w i t h m e f r o m P a u l
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`H a s t i n g s w e h a v e A l l a n S o o b e r t , L i z a B r a n n ,
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`P h i l l i p C i t r o e n , S o y o u n g J u n g . A n d w i t h t h e
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`C o u r t ' s p e r m i s s i o n , M r . S o o b e r t a n d M s . B r a n n
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`w i l l a r g u e o n b e h a l f o f S a m s u n g .
`
`T H E C O U R T : P e r m i s s i o n g r a n t e d .
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
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`G o o d a f t e r n o o n t o a l l o f y o u .
`
`S o I ' l l s a y f o r t h e r e c o r d t h a t
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`w e a r e p r o c e e d i n g v i a t e l e c o n f e r e n c e . I a m a t
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`t h e c o u r t h o u s e s o c i a l l y d i s t a n t f r o m m y
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`c o u r t r o o m d e p u t y , M s . G a r f i n k e l . M y c l e r k h a s
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`d i a l e d i n r e m o t e l y . T h e c o u r t r e p o r t e r t o d a y
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`i s J e n n i f e r G u y ; M s . G u y i s a l s o d i a l e d i n
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`r e m o t e l y .
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`I c a n t e l l y o u a t t h e o u t s e t
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`t h a t w e ' v e c a r e f u l l y l o o k e d a t t h e l e t t e r s
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`f i l e d i n s u p p o r t o f t h e d i s p u t e . I h a v e t w o
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`l e t t e r s f r o m e a c h s i d e . W e ' v e a l s o l o o k e d a t
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`t h e a t t a c h m e n t s a n d d e c l a r a t i o n s t h a t w e r e
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`r e f e r e n c e d i n t h e l e t t e r s , a n d b y o u r c o u n t ,
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`t h e r e w a s a t o t a l o f 1 , 4 2 6 p a g e s o f a d d i t i o n a l
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`i n f o r m a t i o n t h a t w a s s u b m i t t e d w i t h t h e
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`t h r e e - p a g e l e t t e r s . I f t h e r e ' s a p a r t i c u l a r
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`e x h i b i t y o u w a n t m e t o f o c u s o n , p l e a s e g i v e
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`m e a s e c o n d t o b r i n g i t u p , a n d t h e n w e c a n
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`w a l k t h r o u g h i t o n t h e p h o n e t o d a y .
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`I d o h a v e s o m e t i m e t o d a y t o
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`h e a r t h e d i s p u t e s , a n d I u n d e r s t a n d t h e r e ' s a
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`l e n g t h y h i s t o r y l e a d i n g t o a t l e a s t o n e o f
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`t h e s e d i s p u t e s , a s w e l l , s o h o p e f u l l y w e c a n
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`ELM 3DS INNOVATIONS LLC,
`Plaintiff, ) Civil Action No.
`) 14-01430-LPS
`)
`v.
`)
`)
`SAMSUNG ELECTRONICS
`)
`CO. LTD., et al.,
`Defendant. )
`
` Wednesday, December 2, 2020
` 1:00 p.m.
` Teleconference
`
`BEFORE:
`
`THE HONORABLE JENNIFER L. HALL
`United States Magistrate Judge
`
`APPEARANCES:
`
` FARNAN LLP
` BY:
`BRIAN E. FARNAN, ESQ.
`- and -
` BARTLIT BECK LLP
` BY:
`KATHERINE L.I. HACKER, ESQ.
`
`MATTHEW R. FORD, ESQ.
`
`NOSSON D. KNOBLOCH, ESQ.
`
`
`Counsel for the Plaintiff
`
`
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`A P P E A R A N C E S , C O N T I N U E D :
`
`2
`
` Y O U N G C O N A W A Y S T A R G A T T & T A Y L O R
` B Y : A D A M D . P O F F , E S Q .
`
` - a n d -
`
` P A U L H A S T I N G S , L L P
` B Y : A L L A N M . S O O B E R T , E S Q .
` E L I Z A B E T H L . B R A N N , E S Q .
` P H I L L I P W . C I T R O E N , E S Q .
` S O Y O U N G J U N G , E S Q .
`
` C o u n s e l f o r t h e D e f e n d a n t
`
` - - - - - - -
`
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
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`7
`
`Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 3 of 29 PageID #: 25331
`5
`13:09:01 1
`take our time and sort out exactly what
`dielectric material. Essentially insulation
`13:09:04 2
`happened here.
`keeps the electrical current running only
`13:09:07 3
`So let's start with the dispute
`through the gray portions or the metal to form
`13:09:10 4
`brought by Elm. Ms. Hacker, go ahead.
`circuits.
`13:09:11 5
`MS. HACKER: Good afternoon,
`13:09:13 6
`Judge Hall. This is Kat Hacker from Bartlit
`13:09:17 7
`Beck on behalf of Elm.
`13:09:20 8
`The terminology and what the
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`Court referred to as the lengthy history of
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`this issue makes what actually is otherwise a
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`very simple issue seem complex. At its heart,
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`what we're here about today can be decided
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`based on three undisputed facts. First,
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`Samsung agrees that the products we're talking
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`about fall within the scope of the claims of
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`the asserted product; second, Samsung admits
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`it has not produced information about those
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`products; third, fact discovery is still open
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`in this case. That's it.
`13:09:55 20
`The parties disagree about who
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`knew what about Samsung's interpretation of
`13:09:59 22
`these terms when. But where we are now is Elm
`13:10:04 23
`uncovered the fact that Samsung produced
`13:10:08 24
`discovery about products that fall within the
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`Samsung is right in its letter
`that the claims and the parties here use the
`terms circuit layers, die, integrated circuit,
`and integrated circuit layers interchangeably.
`Where the parties disagree is that Elm was
`also under the impression until recently that
`we all understood that to refer to the inner
`portion of the picture on Exhibit G, because
`what we all agree on is in the context of
`these claims, the claims only require that
`portion, the green layer, to be less than 50
`microns. In fact, the Court's claim
`construction uses the term semiconductor
`substrate and semiconductor layer to mean the
`same thing.
`
`Just last week after Elm
`submitted its letter brief, it actually
`deposed Ms. Hyung, the Samsung employee who
`submitted the declaration Samsung now relies
`on in its response letter. We're happy to
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
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`6
`scope of Elm's patents. Whatever the parties'
`disagreement about the reason for that, Elm
`has a right as the patentholder to seek
`information and eventually compensation for
`products that infringe its patents.
`The details of this dispute come
`from confusion about what terms refer to what
`parts within a semiconductor. So Elm included
`a very basic diagram as Exhibit G to its
`letter brief to help explain the issues. If
`the Court has the sealed letter brief, I
`believe it's on page 62 of that PDF, that
`diagram, what you see at the bottom in green
`is what everyone agrees is silicon substrate.
`That is part of what the claims in this case
`focus on and what the issue turns on.
`The claims here require a
`substantially flexible substrate which the
`Federal Circuit and this court construed to
`mean a semiconductor substrate/semiconductor
`layer that is thinned to 50 microns or less
`and subsequently polished or smoothed such
`that it is able to bend without breaking. The
`bluish portions on top of that green layer are
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`13:10:11 1
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`8
`provide the Court with a highlighted version
`of that transcript after this hearing if it
`would be helpful, as we just received it.
`What happened in that deposition was very
`interesting. Ms. Hyung herself said she did
`not know that the term die included not just
`the silicon substrate, but also these
`additional blue, gray, and other layers, until
`she started working with the legal team on
`this case. Her quote exactly was, "Question:
`Prior to speaking with the researcher in late
`'18 or early 2019, you did not know that a die
`included a substrate and an active layer and
`polyamide layer, correct?
`"Answer: Right, I did not
`
`know."
`
`By that point in time, Ms. Hyung
`had been a Samsung employee for almost 20
`years. She had been a semiconductor engineer
`at Samsung for two years, yet even she did not
`understand the term "die" to mean what Samsung
`now says it means. If Samsung's own employee
`did not understand that, it's hard to
`understand how Elm could have. But now
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`12/03/2020 12:38:04 PM
`
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`11
`
`Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 4 of 29 PageID #: 25332
`9
`13:14:31 1
`somehow Samsung says it was obvious that
`that may be deposited on the die."
`13:14:34 2
`substrate was something different from a
`In response, Samsung included 21
`13:14:38 3
`circuit layer or a die. That is not just
`paragraphs of objection, but no objection to
`13:14:40 4
`consistent with how this dispute held.
`the term "die" or to this "for the avoidance
`13:14:43 5
`After the Federal Circuit's
`of doubt, thickness" explanation.
`13:14:46 6
`ruling, Elm asked Samsung to identify all the
`What we have now discovered is
`13:14:49 7
`relevant products that had a "circuit layer of
`Samsung had a problem here, and it's actually
`13:14:53 8
`50 microns or less." That was the one and
`known about this problem for close to two
`13:14:54 9
`only time that Samsung responded by saying it
`years. Another piece of information that was
`13:14:57 10
`was confused by what Elm meant when it used
`revealed during Ms. Hyung's deposition last
`13:15:00 11
`the term "circuit layer." So Elm immediately
`week is that Samsung discovered as early as
`13:15:03 12
`explained very clearly that it was "using the
`December 2018, two years ago, that it
`13:15:07 13
`term circuit layer as a broad term covering
`supposedly does not keep information on just
`13:15:10 14
`any semiconductor layer on which circuits are
`the thickness of that green substrate layer.
`13:15:14 15
`formed." Elm's explanation that this is a
`Instead, the thickness measurement it
`13:15:17 16
`broad term that included any semiconductor
`supposedly keeps in the regular course of
`13:15:18 17
`layer on which circuits are formed clearly
`business contain other additional layers
`13:15:22 18
`indicates that bottom green semiconductor
`included with that.
`13:15:23 19
`substrate layer that you see in Exhibit G.
`Now, we have some concerns about
`13:15:24 20
`In discovery that Elm served
`whether Samsung's search for this information
`13:15:27 21
`after that, Elm very clearly defined "die" to
`constitutes a reasonable investigation, but we
`13:15:31 22
`mean the same thing. It's defined by "any
`can put that aside for today and just assume
`13:15:36 23
`die" -- or it referred to die in incident
`that what Samsung says it keeps in the regular
`13:15:39 24
`discovery requests as "any die with a
`course of business is true. It's
`Jennifer M. Guy, RPR
`Jennifer M. Guy, RPR
`(484) 467-4359
`(484) 467-4359
`jenniferguyrpr@gmail.com
`jenniferguyrpr@gmail.com
`
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`10
`thickness of 50 microns or less" and went on
`to state, "This thickness measurement refers
`only to the semiconductor die itself and not
`to the dielectric metal or other material that
`may be deposited on the die." Once again,
`Elm's explanation very clearly eliminated the
`blue and green material on top of that green
`substrate and only focused on what Samsung now
`refers to as a semiconductor substrate.
`THE COURT: Ms. Hacker, that
`last statement, where is that in the record?
`I missed that.
`MS. HACKER: I can find that for
`you right now. It's Exhibit F, it's Elm's
`fifth set of interrogatories, and on page 2 of
`that. So if you're in the PDF of Elm's
`letter, on what is page 55 of the PDF, page 2
`of the fifth set of interrogatories, the
`instruction number 6 says, "The term 'relevant
`die' means any die with a thickness of 50
`microns or less. For the avoidance of doubt,
`this thickness measurement relates only to the
`semiconductor die itself and not to the
`dielectric, metal, and any other materials
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`
`13:15:41 1
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`12
`understandable if Samsung did not have perfect
`information, that's not unusual in cases like
`this. And there are many solutions to that
`problem that the parties could have worked
`through together. But instead of coming to
`Elm to discuss the issue, Samsung just sat
`silent about what it discovered for the next
`18 months. As the Federal Circuit issued its
`ruling, as Elm sent emails explaining what it
`meant by circuit layer, as Elm issued
`discovery specifically targeted to the
`thickness of that semiconductor substrate
`without any dielectric or metal or anything
`else on top of it, Samsung said nothing about
`the fact that it believed that it did not have
`this information. Instead, Samsung just
`produced different information to Elm without
`explaining the difference. Samsung eliminated
`nearly two-thirds of its potentially
`infringing products from any of its discovery.
`That timeline makes it
`particularly troubling that Samsung now relies
`on Ms. Hyung's declaration from May of this
`year to claim that somehow Elm was the party
`Jennifer M. Guy, RPR
`(484) 467-4359
`jenniferguyrpr@gmail.com
`12/03/2020 12:38:04 PM
`
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`15
`13:19:15 1
`who delayed here. Samsung found out it did
`concern about the timing here, given that fact
`13:19:18 2
`not have information on substrate thickness in
`discovery is currently set to close on January
`13:19:20 3
`December of 2018. Keep in mind that was
`15th. But that date is not realistic, no
`13:19:23 4
`before the Federal Circuit issued its
`matter what the outcome is here today. Elm
`13:19:26 5
`position, before Elm ever sent the email
`has served a dozen deposition notices that
`13:19:29 6
`Samsung now argues was Elm narrowing the scope
`Samsung has yet to schedule. The parties are
`13:19:31 7
`of this case beyond the Federal Circuit and
`still negotiating product agreements. Samsung
`13:19:34 8
`this court's claim construction ruling.
`has told us that it will need at least two
`13:19:37 9
`Despite knowing since December
`weeks after the parties' finalize that
`13:19:39 10
`of 2018 that it did not have the information
`agreement to finish discovery related to those
`13:19:42 11
`Elm was asking for, the first thing Samsung
`products. And there's still no trial date set
`13:19:45 12
`can point to showing that it revealed its
`in this case, at the insistence of Samsung and
`13:19:48 13
`problem to Elm was months later in May of
`the defendants.
`13:19:49 14
`2020, only after Elm had filed a motion to
`So as frustrated as Elm is with
`13:19:51 15
`compel. When Elm saw that declaration from
`the continued delays and the continued
`13:19:55 16
`Ms. Hyung, it took it as a red flag that
`difficulty it has had in just getting a list
`13:19:58 17
`Samsung was now saying something different
`of the products that are within the scope of
`13:20:00 18
`than what Elm understood the parties to be
`Elm's claims here, the already unrealistic
`13:20:05 19
`referring to over the life of this case.
`fact discovery deadline in January should not
`13:20:08 20
`So Elm sent a product to the lab
`prevent Elm from getting this discovery.
`13:20:10 21
`for measurement to see for itself exactly what
`Finally, Samsung tries to make
`13:20:13 22
`was going on here. That was at the end of May
`it seem like it's impossible to give Elm the
`13:20:16 23
`and in June, at the height of the COVID
`information it's seeking here. To be clear,
`13:20:18 24
`pandemic, and things took longer than Elm
`Elm is not asking for Samsung to produce
`Jennifer M. Guy, RPR
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`
`14
`
`would have preferred with lab closures
`happening across the country. But once Elm
`got those measurements back, it immediately
`questioned Samsung about what was going on
`here.
`
`That was the first time in this
`case that Samsung admitted it actually only
`produced information on products where the
`entire die, including the green, blue, gray,
`and even more material were altogether less
`than 50 microns as opposed to all products
`where just the green material was less than 50
`microns.
`
`That might seem like a minor
`difference, so to give the Court the scope
`here, based on the incomplete information we
`have right now, Elm's best estimate is that
`these products that Samsung has not produced
`information about could account for billions
`of dollars of sales. Billions with a B, not
`millions. That in itself should be enough to
`indicate whether it was Elm that agreed to
`forego discovery on these products.
`Now, Samsung expresses a lot of
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`(484) 467-4359
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`
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`16
`information it does not have. We understand
`that we can't force any party in litigation to
`abide by that obligation. Elm just wants
`information on products that have a similar
`substrate that has a thickness of 50 microns
`or less. If Samsung truly does not have or
`keep information on substrate thickness of
`just the green layer, then Elm would ask that
`Samsung produce discovery for products with a
`die with all the layers together of 65 microns
`and less. From there, the parties can
`finalize a representative product agreement,
`and Elm can take on the burden of measuring
`the substrate thickness of those products to
`be determine if the substrate is indeed 50
`microns or less. But Samsung should not be
`able to leverage the information asymmetry it
`naturally has as a defendant to exclude more
`that than two-thirds of the potentially
`infringing products from this case.
`THE COURT: Okay. I have a few
`questions. So the way I looked at the record,
`at least at some point in time, the parties
`were exchanging lists of stacked products that
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`
`12/03/2020 12:38:04 PM
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`17
`13:24:05 1
`could potentially fall within the scope of the
`I want to make sure that today, now that
`13:24:10 2
`claims. So you can tell me where my
`Samsung has clarified that it believes they
`13:24:11 3
`understanding breaks down. But the way that I
`were talking about something different than we
`13:24:13 4
`saw the record, it looks like you asked them
`were asking for, despite all of these
`13:24:15 5
`for spreadsheets of stacked products; you
`definitions saying it's a broad term, saying
`13:24:18 6
`asked them to complete the spreadsheet that
`that it does not include the dielectric or
`13:24:20 7
`had thicknesses, and you may have some dispute
`metal on top of it, today we all agree that
`13:24:25 8
`about what those thicknesses were and what
`what we're talking about here is substrate,
`13:24:27 9
`they mean. But they filled out the
`because that's what the claims focus on.
`13:24:29 10
`spreadsheet with the information they had, at
`So the term we used in the email
`13:24:31 11
`least according to them. And then you
`back then was circuit layer, and throughout
`13:24:33 12
`selected ones that you wanted further
`this case have used a number of terms
`13:24:37 13
`technical data and sales data for. Does that
`interchangeably.
`13:24:39 14
`sum it up, or where do I get that wrong?
`THE COURT: Wait, just to be
`13:24:40 15
`MS. HACKER: I think the
`clear, we're talking about substrate today
`13:24:42 16
`confusion is because of the extended timeline
`because that's the discovery you want.
`13:24:44 17
`of this case. So in the very beginning of
`Substrate is a claim term, and circuit layer
`13:24:48 18
`this case, Samsung produced a spreadsheet that
`is a claim term, and those are two different
`13:24:51 19
`showed products of a variety of thicknesses,
`claim terms, right?
`13:24:54 20
`including those below and above 50 microns.
`MS. HACKER: They are, though
`13:24:57 21
`Because at that point in time, there was not a
`they are used somewhat interchangeably.
`13:25:00 22
`ruling from the Federal Circuit limiting these
`THE COURT: They had different
`13:25:02 23
`claims to ones with substrates of 50 microns
`constructions, right?
`13:25:03 24
`or less. So at that point in time, the claims
`MS. HACKER: Correct. And what
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`
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`18
`still could have covered stacked products with
`substrates of 100 microns or 125. And so we
`got an initial list of products, including
`those. But it was initial, and it was
`incomplete.
`
`Now, after the Federal Circuit
`ruling, we took that spreadsheet and said,
`now, we believe this information is
`incomplete, Samsung. Can you now, now that we
`agree with the Federal Circuit's ruling that
`the claims in this case cover products with
`substrates of 50 microns or less, give us a
`completed list falling into the scope of the
`claims? At that point, Samsung --
`THE COURT: Wait, that's what
`you say you did, but that's the part where I'm
`not getting it. Is there anywhere in the
`record where you said give us a list of
`products where the substrates were 50 microns
`or less?
`
`MS. HACKER: I believe that the
`email, and this is the email that Samsung
`points to, says circuit layer. Now, the term
`that Samsung is using today is substrate. And
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`(484) 467-4359
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`
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`20
`we explained in follow-up in all this back and
`forth was what we were asking for was any
`semiconductor layer, any semiconductor layer
`of 50 microns or less. That would include
`substrate. So we asked for that information
`from Samsung. What they gave us in response
`was a list of products where the entire die,
`not just the substrate, was 50 microns or
`less.
`
`THE COURT: But they didn't say
`here is a list of products where the
`substrates are 50 microns or less, they said
`here is a list of products where the entire
`die is 50 microns, right? And they told you
`what they were giving you. Do you think that
`they misrepresented what they gave you?
`MS. HACKER: I think this is a
`situation where they did not explicitly say
`what they gave us. They stayed silent about
`it. One spreadsheet, for example, if you look
`at the exhibits that Samsung attached to its
`letter in Exhibit 27, it's a spreadsheet that
`Samsung produced to Elm with various part
`numbers and numbers stacked in a chip and
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`12/03/2020 12:38:04 PM
`
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`Case 1:14-cv-01430-LPS Document 389-1 Filed 12/18/20 Page 7 of 29 PageID #: 25335
`21
`23
`13:28:34 1
`thickness information that is titled minimum
`THE COURT: Well, let me ask you
`13:28:36 2
`thickness. It doesn't say die thickness, it
`this, and I'll ask it in a different way. You
`13:28:41 3
`doesn't say chip thickness. And they never
`knew at least as of May that the green layer
`13:28:43 4
`explicitly said, when we say die, we are using
`was going to be something smaller than the
`13:28:46 5
`that different ways than Elm has defined in
`number you were getting from Samsung, did you
`13:28:51 6
`its discovery or asked us for. Instead they
`not?
`13:28:52 7
`just gave us information and did not explain
`13:28:58 8
`that they were producing different information
`13:28:58 9
`than Elm asked for.
`13:29:01 10
`THE COURT: Well, I guess one of
`13:29:03 11
`the challenges here is that the way that you
`13:29:07 12
`define terms may be different, and the way
`13:29:09 13
`that I read the documents in the record, and
`13:29:12 14
`you can tell me where I get this wrong, is
`13:29:18 15
`that they're giving you what they have. They
`13:29:20 16
`didn't have the exact information you wanted,
`13:29:23 17
`they told you how they compiled what they did
`13:29:26 18
`give you, and if you wanted to confirm whether
`13:29:29 19
`or not their understanding of some term was
`13:29:35 20
`consistent with your proposed theory of the
`13:29:39 21
`case, shouldn't you have sent it to the lab
`13:29:40 22
`earlier than that? Tell me why that's wrong.
`13:29:42 23
`MS. HACKER: Well, we had no
`13:29:45 24
`indication earlier that Samsung had a
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`
`MS. HACKER: May was our first
`indication that Samsung was defining die
`differently than what Elm understood the
`parties to be talking about all along, but we
`did not know until we measured the product
`what actually happened here. And the
`declaration in May didn't actually define the
`terms, it just separated the term "die" out
`and put it in quotes, but it didn't actually
`indicate what Samsung was defining as a die.
`So from there, Elm took this sort of
`questionable "die" in quotation marks
`separated out and investigated it. And once
`we measured it in the lab, we raised it with
`Samsung immediately.
`And discovery is still open at
`this point. This happens all the time in
`discovery. There's back and forth, you
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`
`24
`investigate things, and there's more discovery
`once you understand things.
`But Samsung should not be
`allowed to just sit quietly while it knows
`there's a problem, and Elm is asking for one
`type of information. Samsung provides another
`type of information without explaining to Elm
`that there is a difference in what it's giving
`to it, and then reaps the benefit of hiding
`that for two years.
`THE COURT: Let me ask you this.
`What exactly is it -- well, let me take a step
`back. Around May, I remember you all were
`before the Court discussing that Samsung
`needed to fill out a certain chart. If you
`thought at that point in time -- Samsung was
`telling you at that point in time that it
`didn't compile substrate thickness, and you
`thought it was curious enough that you sent it
`out for a test.
`Why didn't you have at that
`point in time products added to the chart so
`that you could identify all the products that
`could have reasonably had a substrate of 50
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`
`22
`
`different definition of these terms. They
`just sat quiet about it. We'll accept at face
`value that Samsung doesn't have this
`information. That's fine. They also never
`told us that until just May of this year.
`But if that's the case, we need
`to figure out a way to address that
`information imperfection, right? If what the
`claims