`
`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME I of XII
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Tuesday, April 7, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.40996 Filed 04/30/15 Page 2 of 16
`
`2
`
`APPEARANCES:
`For the Defendants:
`
`MR. STEVEN J. RIZZI
`MR. RAMY E. HANNA
`MR. RYAN SCHMID
`Foley and Lardner, LLP
`90 Park Avenue, 37th Floor
`New York, New York 10016
`(212) 682-7474
`MS. LISA S. MANKOFSKY
`Foley & Lardner, LLP
`3000 K Street N. W,
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Suite 600
`
`Reported by:
`
`Merilyn J. Jones, RPR, CSR
`Official Federal Court Reporter
`merilyn_jones@mied.uscourts.gov
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.40997 Filed 04/30/15 Page 3 of 16
`
`3
`
`Detroit, Michigan
`Tuesday, April 7, 2015 - 8:25 a.m.
`THE CLERK:
`All rise.
`The United States District
`Court for the Eastern District of Michigan is now in session.
`Honorable Gershwin A. Drain presiding.
`Calling Civil Action Everlight Electronics Company
`versus Nichia Corporation, Number 12-11758.
`Counsel, please put your appearance on the record.
`MR. NIMROD: Ray Nimrod from Quinn Emanuel on
`behalf of Everlight, and with me is Matt Traupman from Quinn
`Emanuel, Anastasia Fernands from Quinn Emanuel, and we have a
`corporate representative from Everlight, Bernd Kammerer.
`MR. PALIZZI: Mike Palizzi from Miller Canfield.
`With me in the back is Mike Simoni as well.
`Steven Rizzi
`MR. RIZZI: Good morning, your Honor.
`of Foley and Lardner on behalf of Defendant Nichia Corporation.
`With me is Lisa Mankofsky, John Trentacosta, Ramy Hanna, and
`Ryan Schmid, also Foley and Lardner, and we have Dr. Daniel
`Doxsee as a corporate representative for Nichia.
`THE COURT:
`All right.
`You can be seated.
`And I really just came out here to tell you that
`when we ordered the jury panel about a month ago, we said 9
`o'clock.
`And it was only recently that I changed it and tried
`to move it up to 8:30.
`So, long story short, the jury won't be ready
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.40998 Filed 04/30/15 Page 4 of 16
`
`4
`
`until nine.
`
`Okay.
`So, I just wanted you to know that.
`Just a couple other things.
`The stipulation that
`was submitted to me yesterday, I take it there's some authority
`for this closing the courtroom at certain times with regard to
`documents and/or testimony.
`It's not unusual in a
`MR. RIZZI: Yes, your Honor.
`patent cases involving competitors with sensitive business and
`financial technical information to do that, recognizing we want
`to limit the occasions when that needs to happen.
`THE COURT:
`Okay.
`All right.
`Just for my own
`edification, could you give me a case that deals with that
`particular issue?
`I just want -- it
`And it's not that important.
`will increase my comfort level with closing the courtroom,
`because we don't normally do that in criminal or civil cases.
`Just an authority.
`Yes, your Honor.
`MR. RIZZI:
`And then one last matter relates to my
`THE COURT:
`court reporter.
`Typically when videos are shown or there are
`video deps, I don't require that she take what's shown in the
`video or repeat and make transcript out of things that are in
`video.
`
`So, do either of you have any objection to my
`allowing her to not transcribe what's going to be shown on the
`patent video or when we have video depositions?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.40999 Filed 04/30/15 Page 5 of 16
`
`5
`
`MR. NIMROD: We have no objection to that, your
`We would just record what is actually being played by
`Honor.
`line, page and line number.
`THE COURT:
`Okay.
`MR. NIMROD:
`That would be fine.
`And submit the transcript, then --
`THE COURT:
`Okay.
`MR. NIMROD: -- to reflect what's actually being
`
`played.
`
`All right.
`THE COURT:
`As long as the
`MR. RIZZI: Yes, your Honor.
`testimony finds its way into the record, we have no objection.
`THE COURT:
`And we'll do that.
`I can't think of anything else we need to take up
`at this point before jury selection.
`We're going to have to have people who are in the
`courtroom move back for the jurors that come in.
`And once the
`jurors get seated, you can, you know, move back to the
`positions you're in.
`Yes?
`THE COURT:
`MS. MANKOFSKY: Thank you, your Honor.
`other housekeeping matter if we can do that now.
`Yesterday we mentioned to you that there was one
`paragraph from the stipulated facts that Nichia felt was
`inaccurate, and we were working with Everlight to see if we
`
`There's one
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41000 Filed 04/30/15 Page 6 of 16
`
`6
`
`The parties have decided instead
`could correct that paragraph.
`to just take that paragraph out of the stipulated facts and we
`will be putting it into our own fact section.
`So, I have today with me a revised stipulated
`facts that you can use to read to the jury.
`And I also have --
`And I think I'd prefer to have
`THE COURT:
`Okay.
`one of you read the stipulated facts to the jury.
`MS. MANKOFSKY: And then I also have a revised
`preliminary jury instruction that reflect the ruling you made
`yesterday about rebuttal cases.
`THE COURT:
`Yes.
`MS. MANKOFSKY: Because in the version that we had
`submitted to you previously there were the competing
`provisions.
`
`THE COURT: Yes.
`MS. MANKOFSKY:
`
`And now this just has the one
`
`provision.
`
`So we can hand these up to you, if you like, even
`though counsel will be reading the stipulated facts.
`THE COURT:
`Okay.
`You can do that.
`MS. MANKOFSKY: Okay.
`Thank you.
`THE COURT:
`Is that the only change that's in the
`preliminary jury instructions?
`MS. MANKOFSKY: Yes.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41001 Filed 04/30/15 Page 7 of 16
`
`7
`
`Okay.
`THE COURT:
`MS. MANKOFSKY: There is one related question for
`
`you.
`
`Yes.
`THE COURT:
`MS. MANKOFSKY: That question is, when we bring you
`our revised facts that add that one paragraph in, would you
`like us to bring it to court, for example, tomorrow as a
`separate stand alone section, or would you like us to bring a
`new version of the pretrial order that includes that new
`stipulated fact section and our new fact section.
`We can do it
`either way.
`
`THE COURT:
`
`Just bring me the new stipulated
`
`facts.
`
`MS. MANKOFSKY: Our new fact section?
`THE COURT:
`Yes.
`Thank you.
`MS. MANKOFSKY: All right.
`THE COURT:
`Yes?
`We have something else, Mr. --
`MR. PALIZZI: One more thing, judge.
`In the
`pretrial the parties agreed that we would meet and confer on
`any objections we had on the opening slides last night.
`We
`did.
`There are four slides that Everlight objects to in
`Nichia's opening deck.
`I assume you want to do this after jury
`selection, but if you wanted to do it now, I'm happy to address
`those as well.
`THE COURT:
`
`Have you -- is this beyond what we
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41002 Filed 04/30/15 Page 8 of 16
`
`8
`
`took care of yesterday --
`MR. PALIZZI: Yes.
`THE COURT:
`-- with regard --
`MR. PALIZZI: We just got the slides yesterday
`What the order says is at 6 o'clock last night we
`morning.
`were supposed to confer, which we did.
`And there's four slides
`that we're objecting to they're including in the opening
`statement.
`So now we bring them to you.
`THE COURT:
`Okay.
`Let me see the slides, and, I
`guess, maybe you can tell me what the issues are now.
`MR. RIZZI: We can hand up a --
`MR. PALIZZI: I have the four that, only four are
`at issue with us.
`Okay.
`THE COURT:
`MR. RIZZI: If I can hand you the entire
`presentation.
`Okay.
`THE COURT:
`MR. RIZZI: This has the four that we moved from
`
`yesterday.
`
`MR. PALIZZI: There should be five that are out
`from yesterday.
`MR. RIZZI: Five, correct.
`THE COURT:
`Okay.
`MR. PALIZZI: So I can just -- I'll run through
`these, probably, in two minutes apiece.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41003 Filed 04/30/15 Page 9 of 16
`
`9
`
`The first one is the Slide Number 4.
`THE COURT:
`Okay.
`MR. PALIZZI: And in our objection to this is that
`it's misleading and prejudicial.
`Here's what they've done.
`They've taken a patent that Everlight filed in 2010 and they're
`using it to, as the title suggests, suggest that we are saying
`that Nichia's patents-at-issue in this suit are incredible.
`The problem is is that that's not what this patent says.
`this is doing --
`THE COURT:
`
`When you say, patent, you're talking
`
`What
`
`about --
`
`This is a patent
`
`MR. PALIZZI: Let me back up.
`that Everlight filed.
`Okay.
`THE COURT:
`Okay.
`MR. PALIZZI: And what they've done --
`THE COURT:
`Just a minute.
`MR. PALIZZI:
`-- is they've taken some statements
`
`--
`
`second.
`
`THE COURT:
`
`Just a minute.
`
`Hold on just a
`
`MR. PALIZZI: Sure.
`THE COURT:
`This would be the 543?
`MR. PALIZZI: Correct.
`THE COURT: Okay.
`MR. PALIZZI:
`So the 543 isn't at issue in this
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41004 Filed 04/30/15 Page 10 of 16
`
`10
`
`case.
`
`Right.
`THE COURT:
`So what they've done is they found
`MR. PALIZZI:
`this patent that Everlight filed and they've pulled out a
`couple of statements from this patent.
`And if you look at the
`second box it says:
`"The preparation method for white LEDs was first
`developed by Nichia Corporation, which mixed light
`of two wavelengths."
`The patent of the preparing method for white LEDs
`is held by Nichia Corporation.
`Neither the '925 or '960
`patents that are at issue in this lawsuit are method patents.
`This is not referring to the '950(sic) or '960.
`So what they're doing is they're taking this
`statement and they're saying -- they're going to use this to
`suggest to the jury that the '925 and the '960 by our admission
`are not only not invalid, but in their words, incredible.
`And
`I think it's confusing and misleading to allow them to put in
`front of the jury a reference to a patent that isn't at issue
`in this lawsuit.
`So that's our objection to that one.
`THE COURT:
`Okay.
`And this is one
`MR. PALIZZI: Next, Slide 12.
`that we would, I don't like to say this, but this is one we
`strenuously object to.
`And here's our objection to this,
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41005 Filed 04/30/15 Page 11 of 16
`
`11
`
`there's three.
`What this is is this is a letter from Everlight to
`a Japanese company concerning products that Everlight was
`selling in Japan.
`It relates to the, as the Court recalls,
`there was some disputes between Nichia and Everlight's customer
`in Japan.
`It was a foreign proceeding.
`It doesn't relate to
`the patents-at-issue in this case, but the foreign
`counterparts.
`So our first objection to this is, as the Court
`has already ruled, and as we discussed yesterday, the foreign
`proceedings don't come into this case.
`They're relevant to
`willfulness and willfulness only.
`So that's our first objection to their reference
`to this document.
`The second point is the slide is misrepresenting
`What they say here is that, right in the title,
`something.
`Everlight's first attempt to use Nichia's technology
`misrepresent Everlight's products, and they're highlighting the
`sentence that says:
`"It should be noted that Everlight does not use
`YAG phosphor in manufacturing and production of its
`white LEDs."
`At the time, which this letter was written in
`2004, that was accurate.
`We weren't using YAG phosphors in
`LEDs in Japan.
`This is talking about a dispute that's pending
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41006 Filed 04/30/15 Page 12 of 16
`
`12
`
`in Japan.
`
`So, our second objection is it's misleading and we
`would object to them being able to offer this document into
`evidence at all, let alone show it to the jury.
`This is a 2004
`And the third one is -- I'm sorry.
`So this is even outside of the time period by two
`letter.
`years that's at issue in this lawsuit.
`It's
`So this is hugely prejudicial to us.
`This court has already ruled that this, that the
`inaccurate.
`foreign proceedings don't come in except in connection with
`willfulness, which this trial isn't about, and it's very
`prejudicial.
`
`I think that this is talking about a
`Slide 18.
`They're suggesting that we're trying to force a
`license.
`license from Nichia.
`We're not trying to force a license from
`Nichia.
`We're trying to invalidate their patents in this
`trial.
`If they want to talk about a license, they can do that
`in the damage portion of the case.
`This isn't for this phase
`of the trial.
`Last, you know, the age old debate about what you
`get to say about the burden of proof.
`I think that it is
`improper for them to instruct the jury on the burden.
`That's
`up to your Honor.
`And I really think it's improper to suggest
`that it is accurately reflected by this speedometer chart here
`suggesting that it's, it's pretty close to beyond a shadow of a
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41007 Filed 04/30/15 Page 13 of 16
`
`13
`
`doubt, which, of course, isn't even a legal principle as far as
`I know, and for that reason it's misleading, and I think it
`invades on what the Court should be doing as oppose to the
`parties in opening statement.
`That's all I got.
`THE COURT:
`All right.
`MR. RIZZI: Your Honor, frankly, these are all
`silly objections.
`This, this is an
`Starting with Slide 4.
`Everlight patent that Everlight itself filed in 2010 praising
`Nichia's invention of the white LED, and that's not in dispute.
`I'm happy to hand up the patent and these excerpts come from
`something I intend to read to the jury that makes clear that in
`this patent Everlight is attributing the invention of a white
`LED as described in the Nichia patents to Nichia in the context
`of trying to get its own patent.
`This is classic secondary considerations of
`nonobviousness that must be considered in the nonobviousness
`analysis.
`Praise by others is square on one of those secondary
`conversations, and his distinction that this is somehow talking
`about a method, that's absurd, your Honor.
`It describes the
`product, and if I can read that right from Everlight's patent.
`THE COURT:
`Okay.
`You know what, I'm going to
`allow you to use this one.
`MR. RIZZI:
`Thank you, your Honor.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41008 Filed 04/30/15 Page 14 of 16
`
`14
`
`THE COURT:
`
`And I'm going to also allow you to use
`
`Thank you, your Honor.
`MR. RIZZI: Okay.
`And Number 13, you know, all that's about, your
`
`Number 12.
`
`Honor, is --
`
`You mean, Number 18.
`THE COURT:
`MR. RIZZI: I'm sorry.
`18, yes.
`THE COURT:
`18.
`MR. RIZZI: Everlight has injected into this case
`the reasons it brought this lawsuit.
`It wants to tell the jury
`that the reason it brought the lawsuit is it believes Nichia's
`patents are invalid.
`We submit, your Honor, the real reason is
`it's trying to force the license from Nichia.
`It's in a
`pattern of conduct and that is directly rebutting their
`position.
`
`So I don't see any basis to prevent us from
`allowing to rebut --
`THE COURT:
`
`And I think I'll let you go ahead and
`
`do that.
`
`Thank you.
`Okay.
`MR. RIZZI:
`I've never
`What about this last one.
`THE COURT:
`heard of a burden of proof that's beyond a shadow of a doubt.
`I've never heard of that before.
`MR. RIZZI: Well, your Honor, we're showing that
`that's all the way at the end.
`I think it --
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41009 Filed 04/30/15 Page 15 of 16
`
`15
`
`But, I've never -- I mean, there's no
`
`THE COURT:
`legal basis for that.
`MR. RIZZI: We can change that to "beyond a
`reasonable doubt" so it matches up with an actual --
`THE COURT:
`That would be appropriate, but this
`one -- So I'll grant their motion to strike this one, because
`it's legally incorrect.
`MR. RIZZI: To be clear, if we just change it to
`"reasonable doubt", would that be acceptable?
`THE COURT:
`Yes.
`MR. RIZZI:
`Thank you, your Honor.
`THE COURT:
`Yes.
`You can change that, yes.
`All right.
`Then, we'll be in recess until the
`jury arrives.
`THE CLERK: All rise.
`(At 8:40 a.m. court in recess)
`(At 9:15 a.m. jury selection held, but not transcribed)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 4:12-cv-11758-GAD-MKM ECF No. 507, PageID.41010 Filed 04/30/15 Page 16 of 16
`
`16
`
`C E R T I F I C A T E
`I, Merilyn J. Jones, Official Court Reporter of the
`United States District Court, Eastern District of Michigan,
`appointed pursuant to the provisions of Title 28, United States
`Code, Section 753, do hereby certify that the foregoing pages
`1-16, inclusive, comprise a full, true and correct transcript
`taken in the matter of Everlight Electronics Company, Limited
`versus Nichia Corporation, et al, 12-cv-11758 on Tuesday, April
`7, 2015.
`
`/s/Merilyn J. Jones
`Merilyn J. Jones, CSR, RPR
`Federal Official Reporter
`231 W. Lafayette Boulevard, Suite 123
`Detroit, Michigan
`48226
`Date: April 11, 2015
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`