`
`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 VII OF XII
`PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Wednesday, April 15, 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. 532, PageID.43931 Filed 05/22/15 Page 2 of 144
`
`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
`MR. MICHAEL D. KAMINSKI
`Foley & Lardner, LLP
`3000 K Street N. W,
`Suite 600
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`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. 532, PageID.43932 Filed 05/22/15 Page 3 of 144
`
`3
`
`TABLE OF CONTENTS
`
`WITNESSES:
`None
`
`PLAINTIFF
`
`DEFENDANT
`WITNESSES:
`YASANOBU NOGUCHI
`Redirect examination by Mr. Kaminski
`Recross-examination by Mr. Nimrod
`E. FRED SCHUBERT
`Direct examination by Mr. Rizzi
`
`EXHIBITS:
`Defendant's Exhibit D0401
`Defendant's Exhibit D171
`Defendant's Exhibit D359
`Defendant's Exhibit D364
`
`Identified
`
`122
`
`PAGE
`
`22
`25
`
`30
`
`Received
`25
`
`142
`142
`
`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. 532, PageID.43933 Filed 05/22/15 Page 4 of 144
`
`4
`
`Detroit, Michigan
`Wednesday, April 15, 2015 - 8:10 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.
`You may be seated.
`Please put your appearance on the record.
`MR. NIMROD:
`Good morning, your Honor.
`THE COURT:
`Good morning.
`MR. NIMROD:
`Ray Nimrod from Quinn Emanuel on
`behalf of Everlight.
`With me is Matt Traupman from Quinn
`Emanuel, Mike Palizzi from Miller Canfield and Mike Simoni.
`And we have our corporate representative, Bernd Kammerer.
`THE COURT:
`All right.
`Steven
`MR. RIZZI:
`Good morning, your Honor.
`Rizzi, Foley & Lardner, on behalf of Nichia.
`With me is Ramy
`Hanna, Lisa Mankofsky of Foley & Lardner, Mr. Ryan Schmid, and
`also our corporate representative, Dr. Dan Doxsee.
`THE COURT:
`Okay.
`All right.
`We've got a few
`things to take up.
`Your Honor, if I may, there is one
`MR. NIMROD:
`other issue that I think -- I just wanted to advise you early
`on.
`
`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. 532, PageID.43934 Filed 05/22/15 Page 5 of 144
`
`5
`
`THE COURT:
`
`Is that something that's going to come
`
`up today?
`
`And it's a short
`Yes, I think it is.
`MR. NIMROD:
`thing and I don't think it needs to be resolved.
`But we found out yesterday at 4:30 that Nichia was
`dropping 15 of its claims and was going to assert six claims.
`And I think that -- and they wanted to drop our invalidity
`counterclaims on those sixteen claims after we have gone
`through hours and hours of testimony from Dr. Bretschneider.
`We think this is unfair what they have done here,
`a litigation tactic to have done this in mid-trial.
`You told
`Nichia asserted 21 claims before trial.
`the jury that there were 21 claims at issue.
`We put our proofs
`on.
`We burned clock time.
`We took up the jury's time.
`I
`think Mr. Traupman, I think, apologized three or four times, I
`might have the number of times wrong, but for taking up the
`jury's time as we slogged through the claims.
`Now Nichia wants to come in and say, like, we're
`the good guys, we are going to trim things down for you.
`Just
`think about this, your Honor.
`There has been no evidence put
`in on non-infringement whatsoever.
`One, they
`So one of two things is happening here.
`heard our validity proofs and they know those 15 claims are
`invalid, and if they want to stipulate to that, then that
`should happen and the jury should be told that; or, this is
`
`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. 532, PageID.43935 Filed 05/22/15 Page 6 of 144
`
`6
`
`They knew they weren't going to
`just a litigation tactic.
`assert these things, they wanted to burn our time, and they
`want to look good in front of the jury to say that they were
`trimming the case for them.
`Now, we're not asking you to resolve this issue
`right now about what to do about this, but what we want to ask
`you to do is to tell the other side that they cannot say
`anything today about Nichia trimming the case, about trying to
`make things easier for the jury.
`They should put their proofs in that they're
`putting in on their six claims, just do that, and then I think,
`your Honor, we should talk about what message should go to the
`jury, and it should come from you, your Honor, because you're
`the one that charged the jury in the preliminary instructions
`that there would be 21 claims at issue here.
`Like I said, I don't think we need to resolve
`anything today, but to say that they should just put their
`proofs in and then we can talk about what the message should
`be.
`Thank you.
`Your Honor, this wasn't even raised
`MR. RIZZI:
`with us before today, but I do want to respond, so the record
`is clear.
`
`This was not a litigation tactic by any stretch of
`the imagination.
`During the course of trial decisions are made
`based on how much time we have allotted and we made a decision
`
`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. 532, PageID.43936 Filed 05/22/15 Page 7 of 144
`
`7
`
`to streamline this case in order to present it in a way that
`was more coherent for the jury.
`And I also want to reiterate, we made more than
`one attempt four months ago, we asked them, we will agree -- in
`fact, we even told them two months ago, we will agree to reduce
`our presentation down to, I think it was, eight claims, and
`they refused.
`They would not even negotiate with us, because
`they didn't want to reduce their prior art.
`So they should not
`be heard here today to be heard to complain that somehow this
`is Nichia, some litigation strategy.
`That's such a stretch and
`completely unfair for them to characterize it that way.
`And as long as it's clear, we have no intent of
`
`trying to --
`
`I'm not -- I'm going to take
`Okay.
`THE COURT:
`care of some other things right now, but stay right there,
`Mr. Rizzi.
`
`Yes.
`MR. RIZZI:
`I'm a little concerned about the TAEUS
`THE COURT:
`And let me just -- I want to make sure I get a good
`report.
`understanding of -- what is it, that IAL report --
`MR. RIZZI: Yes.
`THE COURT:
`-- and the TAEUS, those are two
`separate groups.
`MR. RIZZI:
`THE COURT:
`
`And these --
`Yes.
`Hold on just a second.
`
`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. 532, PageID.43937 Filed 05/22/15 Page 8 of 144
`
`8
`
`The IAL, their testing, they just purely do
`testing; is that correct?
`MR. RIZZI:
`Correct, your Honor.
`THE COURT:
`They're pure testers, they test for
`all kinds of things?
`They do product testing and
`Yes.
`MR. RIZZI:
`analysis and prepare the data from that testing.
`THE COURT:
`Okay.
`But TAEUS is a company that
`prepares data for litigation.
`TAEUS
`MR. RIZZI:
`Not in this case, your Honor.
`was really just sort of -- because IAL was really just a
`testing lab, TAEUS performed the role of simply taking the IAL
`data and compiling it into product reports on a
`product-by-product basis.
`In this case, TAEUS was really just
`a passthrough.
`They are certainly a litigation --
`THE COURT:
`They are really just a what?
`MR. RIZZI:
`A passthrough.
`THE COURT:
`A passthrough.
`MR. RIZZI:
`There's really no dispute of that.
`That's what the declarations we submitted support.
`So, yes, their business is litigation support
`services and that's -- there's many firms in that business that
`perform that role of sort of just logistics.
`THE COURT:
`Is anybody from TAEUS coming in to
`
`testify?
`
`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. 532, PageID.43938 Filed 05/22/15 Page 9 of 144
`
`9
`
`No, your Honor. You know, we didn't
`MR. RIZZI:
`know this was going to be an issue until the pretrial order
`when they raised an objection.
`We thought the issue had been
`resolved by your ruling on Daubert.
`They raised hearsay
`objections there.
`Your Honor rejected their objections.
`When they first raised the issue in the pretrial
`order, we said, we really don't think this should be an issue,
`but just to avoid having to burden the court, we will go ahead
`and get the authenticating declarations from TAEUS and an IAL
`representative and we provided those.
`THE COURT:
`Are you seeking to admit the TAEUS
`reports into evidence or just to have that testified about?
`MR. RIZZI:
`Well, as a practical matter, there are
`200-some-odd reports that are part of the analysis performed
`by Dr. Schubert in connection with his opinions.
`He cannot
`possibly put 200 reports up on the screen and go through them
`one by one, so it simply is a matter of expedience.
`It's the same issue with the chart, your Honor,
`there is no possible way, with the limited time we have, we can
`put in our proofs on thousands of products on a
`product-by-product basis.
`So our intent, your Honor, is to have Professor
`Schubert walk through his analysis of one product, showing
`one report with a cross-section.
`The rest of them will be
`submitted into evidence with Professor Schubert's analysis
`
`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. 532, PageID.43939 Filed 05/22/15 Page 10 of 144
`
`10
`
`chart so that the jury will have those to consider on its own
`based on Professor Schubert's analysis of the one report and
`his testimony here at trial.
`There are
`It's just a question of practicality.
`so many products at issue, and that's the same issue with the
`chart, that there is no possible way we could have Professor
`Schubert testify to all of them live in court.
`So it was our
`plan to simply do it that way for expediency purposes.
`THE COURT:
`And I guess with regard to the TAEUS
`reports that are really prepared for litigation, how do you get
`around the fact that they really aren't technically business
`records in the sense that they're prepared for litigation?
`MR. RIZZI:
`Well, the -- so to be clear, IAL is a
`testing laboratory.
`And I don't have any problem with any
`THE COURT:
`of their test results coming into evidence as a business
`record.
`I don't have any problem with IAL.
`MR. RIZZI:
`And, your Honor, then that really
`resolves the issue, because the TAEUS report, essentially it's
`a cover sheet; no analysis, no judgment, just a cover sheet
`essentially on top of the IAL data.
`THE COURT:
`But you want to give that to the jury
`and you want me to receive the TAEUS report into evidence?
`MR. RIZZI:
`You know, we're happy to sort of
`provide just the IAL data.
`
`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. 532, PageID.43940 Filed 05/22/15 Page 11 of 144
`
`11
`
`THE COURT:
`MR. RIZZI:
`THE COURT:
`MR. RIZZI:
`issue on the chart?
`THE COURT:
`
`later.
`
`Okay.
`That would work fine, your Honor.
`Okay.
`Okay.
`Would you like me to address the other
`
`Yeah, I'll give you a chance to speak
`
`I just want to make clear,
`Okay.
`MR. RIZZI:
`though, the chart is a very big issue because we have prepared
`our whole infringement case, you know, not just day and night
`this week, but for the entire case, based on Professor Schubert
`being able to certainly use that chart to present his opinions,
`and if we're not able to do that, we basically have to redo our
`whole infringement presentation.
`So I just want to make that
`clear to the Court.
`Okay.
`THE COURT:
`Sure.
`MR. RIZZI:
`So before trial -- well, let me just
`THE COURT:
`say, Everlight has objected to some recent, more in-depth
`analysis on some products, is that --
`We've actually -- because
`MR. RIZZI:
`That's out.
`we have reduced the number of claims, one of the -- two of the
`issues resolved yesterday with the chart.
`There was still a tab that had to do with products
`that Everlight did not indicate were imported or sold into the
`
`Don't leave yet.
`
`I'm not done.
`
`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. 532, PageID.43941 Filed 05/22/15 Page 12 of 144
`
`12
`
`U.S. those have been removed.
`We also removed all the claims that are no longer
`And there is no issue, no remaining issue in
`in the case.
`terms of any new claims or new infringement opinions that have
`been put in.
`
`Because as I understood it yesterday,
`THE COURT:
`Everlight was complaining about the fact that Schubert
`originally did some analysis on, what was it, half a dozen
`products or something like that.
`MR. RIZZI: I think that's a different issue.
`That's the exemplary, their exemplary.
`THE COURT:
`Okay.
`Well, let's talk about that,
`He originally did analysis on four products or something
`then.
`like that?
`
`He has always done
`No, your Honor.
`MR. RIZZI:
`the analysis on all the products.
`Literally, it's 800, but
`because those 800 were made at different times, and multiple
`iterations, so it ended up being close to 10,000.
`So he
`performed -- and this was addressed in your Daubert ruling.
`You already determined, confirmed what we clearly did or what
`Professor Schubert clearly did, was just analyze each of those
`on a limitation-by-limitation basis.
`In the expert report
`itself, he provided one chart, a representative claim chart, so
`a chart which clearly, as he said, and as your Honor indicated
`in your Daubert ruling --
`
`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. 532, PageID.43942 Filed 05/22/15 Page 13 of 144
`
`13
`
`Was that one chart
`
`Hold on.
`Okay.
`THE COURT:
`with regard to all of the items or --
`MR. RIZZI:
`A group --
`THE COURT:
`I thought there was a representative
`sample that he went into greater detail about.
`MR. RIZZI:
`So what he did was, he made clear --
`actually, it's right in your Daubert ruling.
`THE COURT:
`Okay.
`MR. RIZZI:
`Because we quote -- you quoted a
`portion of his expert report where he made clear exactly what
`he did.
`So he did group the thousands of products into what he
`called YAG or TAG-based, and simply, that's just based on the
`phosphor that's used in the white LED, and he considered those
`essentially as a group.
`What page are you on?
`THE COURT:
`I'm on page 4 of your ruling.
`MR. RIZZI:
`Okay.
`THE COURT:
`So if you look at the bottom, you're
`MR. RIZZI:
`actually quoting from his report.
`And he makes clear -- of
`course, there's not all these claims still at issue.
`The products are grouped into YAG or TAG-based
`products and he said, set forth below are representative claim
`charts for the asserted claims, including an element-by-element
`analysis of exemplary YAG and TAG-based products for each of
`these claims.
`And then he makes clear, the infringement
`
`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. 532, PageID.43943 Filed 05/22/15 Page 14 of 144
`
`14
`
`analysis set forth below applies to all of the YAG and
`TAG-based accused products.
`And then he goes on, my analysis chart identifies
`the complete list of the YAG and TAG-based accused products,
`as well as the specific claims asserted and the supporting
`documentation.
`So in his report he did, for a couple of exemplary
`products, he just pointed to the documents, you know, that
`supported where the limitations were found in those particular
`products, but he made very clear that that analysis, that claim
`chart, applied to all of the products in his, in his analysis
`chart.
`
`Now, on the next page your Honor confirmed that,
`Contrary to Everlight's assertions, Schubert's
`and said:
`expert report and analysis chart provide a detailed
`limitation-by-limitation analysis -- I'm reading from page 5 --
`for all of the accused products.
`And then you go on to say:
`For example, Schubert's representative claim charts regarding
`the '925 patent state that the accused products include LEDs
`with the common features of, one, YAG or TAG-based phosphors;
`two, combined with a nitride compound semiconductor chip, and
`providing corresponding exemplary product information.
`THE COURT:
`Let me ask you this:
`Are you going to
`go into any detail with any products that are not in -- that
`are not detailed in his report?
`
`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. 532, PageID.43944 Filed 05/22/15 Page 15 of 144
`
`15
`
`Your Honor, they are -- all of the
`MR. RIZZI:
`products we are going to present are included in the -- either
`in the report, the body of the report, or in the chart that's
`part of the report.
`We're not going outside the scope of
`what's in his report, including the thousands of products in
`his analysis chart.
`Nor did -- and to be clear, you know, we didn't
`intend that the way it's apparently construed by Plaintiff,
`that what Professor Schubert will present is exemplary of all
`the other products, it's exemplary of his analysis, because
`he can't -- he simply can't present his analysis for 10,000
`products here during trial.
`So to be clear, it's an exemplary analysis of what
`Professor Schubert did to conclude that all of those 10,000
`products infringe, it's not exemplary product.
`The supporting
`information for each and every product, one by one, is included
`in his chart.
`All right.
`THE COURT: Okay.
`MR. RIZZI:
`Is that clear?
`THE COURT:
`Yes, well, somewhat.
`Okay.
`I just want to hear what Mr. Nimrod has to
`say, just about the items we just talked about.
`MR. NIMROD:
`Your Honor, on that last point he has
`a detailed analysis for four products in his report, and that's
`it.
`And you asked him, are you going to get into detailed
`
`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. 532, PageID.43945 Filed 05/22/15 Page 16 of 144
`
`16
`
`Now he
`And the answer was, yes.
`analysis for other products?
`is going to do four more.
`He didn't do the detailed analysis
`for the other four that he is now trying to do.
`That's not in
`his report.
`We weren't able to take his deposition on that
`one.
`They're trying to yank something out of this chart --
`THE COURT:
`Okay.
`Stop.
`Is that true, Mr. Rizzi?
`We just
`MR. RIZZI:
`It's not true, your Honor.
`walked through the explanation of his report.
`The analysis in
`his report, he did for each and every one of those products in
`the chart.
`He's not yanking something --
`THE COURT:
`Okay.
`Just a minute.
`So Mr. Nimrod is saying there's a detailed
`analysis for only four products and you're saying that's not
`true?
`
`He
`
`No, because Professor Schubert made
`MR. RIZZI:
`clear that that same analysis applied to all the products.
`just didn't -- it made no sense to repeat the identical
`analysis for a thousand products.
`THE COURT:
`Okay.
`Let me ask you this.
`MR. RIZZI:
`And they did depose Professor Schubert
`on all this, your Honor.
`They had the chart.
`They had his
`full analysis on all the products when they deposed him.
`So
`they could have asked him about any of the products that were
`in the chart.
`
`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. 532, PageID.43946 Filed 05/22/15 Page 17 of 144
`
`17
`
`MR. NIMROD:
`on pages 58 to 66.
`THE COURT:
`
`me.
`
`Your Honor, he gave the full analysis
`
`I don't have that report in front of
`
`I can give you a copy of his opening
`
`MR. RIZZI:
`expert report.
`Okay.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`May I, your Honor?
`MR. RIZZI:
`What pages are you handing up?
`MR. TRAUPMAN:
`I handed up the entire report.
`MR. NIMROD:
`Your Honor, on the table of
`
`contents --
`
`Because, like I
`Hold on.
`Okay.
`THE COURT:
`said, my goal is to always try to start at 8:30 with the jury.
`And when is this going to come up in earnest?
`MR. RIZZI:
`It's going to come up pretty soon,
`
`right away.
`
`Who is the next witness?
`THE COURT:
`Pardon?
`MR. RIZZI:
`Who is the next witness?
`THE COURT:
`Mr. Noguchi, but it's very short
`MR. RIZZI:
`testimony, and then the deposition designations, which is very
`short.
`
`And then there's a little bit
`Okay.
`THE COURT:
`of background and foundation that you're going to go into with
`
`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. 532, PageID.43947 Filed 05/22/15 Page 18 of 144
`
`18
`
`Let's do
`
`Dr. Schubert.
`Yes, of course.
`MR. RIZZI:
`How long will that take?
`THE COURT:
`I would say an hour or so.
`MR. RIZZI:
`Okay.
`Let's do that first.
`THE COURT:
`that first and then deal with this issue.
`MR. NIMROD:
`And we'll be able to deal with the
`TAEUS reports, also?
`I take it I'll be able to respond to that
`at that time?
`Yeah, I'll give you a couple minutes.
`THE COURT:
`So you will know where to look,
`MR. RIZZI:
`paragraph 204 is a good place, and then the actual chart
`follows that.
`And, actually, that's the paragraph you quoted
`in your Daubert order.
`Okay.
`THE COURT:
`MS. MANKOFSKY:
`One thing that will come up early,
`before any break, are these deposition designations.
`Will you
`be giving the jury an explanation as to what's going on or do
`you want us to do that?
`I'll give them a general explanation.
`THE COURT:
`If there is something else that you think they need to be told,
`I can do that or you can do it.
`MS. MANKOFSKY:
`I think it's just very simple,
`that there was a court reporter, the witnesses were sworn,
`there was a transcript, and we're just reading certain parts
`
`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. 532, PageID.43948 Filed 05/22/15 Page 19 of 144
`
`19
`
`from the transcript, and that two attorneys are playing the
`role of four people.
`And just that the testimony should
`MR. TRAUPMAN:
`be treated the same way as all the other testimony they have
`heard live.
`
`Let's bring the jury in.
`All right.
`THE COURT:
`You know, I'm going to tell the
`All right.
`jury -- they really want to know how long the case is going to
`last.
`I'm going to tell them that it's going to go at least
`into next week, and I think I'm also going to tell them that
`you all have time limits, and that it will definitely go into
`next week.
`
`Do either of you have any objection to my telling
`
`them that?
`
`No, your Honor.
`MR. NIMROD:
`That's fine, your Honor.
`MR. RIZZI:
`Okay.
`THE COURT:
`All rise for the jury.
`THE CLERK:
`(At 8:30 a.m. jury present)
`You can be seated.
`THE COURT:
`All right.
`All right.
`I like to always start with the good
`news, and that's that the Tigers did win last night.
`That was
`a matter of a certain degree of joy here.
`But, secondly, I think some of you have asked how
`long the case is going to take, and it's going to go into next
`
`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. 532, PageID.43949 Filed 05/22/15 Page 20 of 144
`
`20
`
`Probably around Wednesday we might be finished
`
`week for sure.
`I'm not sure.
`You know, in a case like this I have the authority
`to give the parties time limits, and they have a certain amount
`of time to do certain things.
`And I really think if I didn't,
`this case would probably take about a month or two.
`But I've
`set some time limits, and the lawyers, I'm sure, will use all
`the time that I've given them.
`And if they do that, and if
`we're able to at least get about three hours and fifteen
`minutes to three and a half hours per day, we should be able
`to finish at least the evidence and the testimony by midweek.
`And the other part of the case that is not
`terribly time-consuming, but takes up a little bit of time are
`the arguments of the lawyers.
`They get to give their closing
`arguments at the end of the evidence, and then I'll give some
`instructions, and that's going to take a certain amount of
`time, and then your deliberations is another big chunk that's
`really unpredictable.
`Sometimes jurors in relatively simple cases decide
`them in 10 or 15 minutes.
`Other times, it takes several days.
`That part is totally unpredictable and it's really kind of in
`your hands and I don't know how long the deliberations will
`take in regards to this matter.
`I do know that whatever
`verdict form you get, it's going to take a little while to just
`work through that.
`
`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. 532, PageID.43950 Filed 05/22/15 Page 21 of 144
`
`21
`
`But I'm pretty sure it's going to go into probably
`midweek next week.
`So I think I mentioned yesterday that we
`were probably maybe halfway through.
`But anyway, that's about
`as much as I can tell you.
`The pure duration of trial is
`sometimes hard to predict and I've been wrong so many times
`in the past, but I try to keep the case moving as smoothly and
`as efficiently as possible, and I also try to minimize the
`downtime for you all on the case, because we -- I can say, we
`have been in court, it was a little after 8:00, and at 8:30 we
`didn't finish resolving some issues, but I wanted to bring you
`all here in court and get started with whatever we can do up to
`the point that those issues come up.
`So I hope that kind of helps you to figure out
`about how long the case is going to take, because, like I said,
`I thought it would be about two weeks, give or take, and
`that's, I think, what it should be.
`So hopefully that's
`helpful.
`
`Nichia is presenting their case.
`So, let's see.
`And who is going to call the next witness, Mr. Kaminski?
`We
`MR. KAMINSKI:
`Yes.
`Good morning, your Honor.
`would like to recall Yasunobu Noguchi to the stand to discuss
`and authenticate one document, your Honor.
`THE COURT:
`All right.
`Then he may resume the
`witness stand and everyone is still under oath.
`Mr. Noguchi is
`still under oath.
`The interpreters are still under oath.
`
`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. 532, PageID.43951 Filed 05/22/15 Page 22 of 144
`
`22
`
`Yes.
`
`Yes, your Honor.
`
`And Mr. Noguchi, you can tell Mr. Noguchi that
`he's still under oath.
`May I pass this up to you?
`MR. KAMINSKI:
`THE COURT:
`Yes.
`And that he's sworn to tell the truth.
`Ma'am, ma'am, interpreter, just tell him that he's
`sworn to tell the truth.
`INTERPRETER ISOMUCHI:
`THE COURT:
`All right.
`Y A S A N O B U
`N O G U C H I,
`called by the Defendant at 8:35 a.m., previously sworn through
`the interpreter testified as follows:
`REDIRECT EXAMINATION (Continued)
`BY MR. KAMINSKI:
`Q.
`Mr. Noguchi, good morning again.
`A.
`Good morning.
`Q.
`I've given you what has been marked as Defendant's
`Exhibit 0401.
`Do you see it?
`A.
`Yes.
`Q.
`Do you know what this is?
`A.
`Yes.
`Q.
`What is it?
`A.
`This is an article from the Tokyo newspaper called Nikkei
`Sangyo Shimbun, announcing the successful development of white
`LED.
`
`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. 532, PageID.43952 Filed 05/22/15 Page 23 of 144
`
`23
`
`And when you mean white LED, what are you referring to?
`Q.
`It's the LED that can produce white light when combining a
`A.
`blue LED and a phosphor.
`Q.
`Is this the same project that you testified about
`yesterday and also testified about the day before?
`A.
`That's correct.
`Q.
`If you could please take a look at the screen, and look at
`the Japanese, and could you please confirm that this sentence
`and this article is referring to your white LED invention,
`Mr. Noguchi?
`A.
`Yes, there's no doubt.
`Q.
`And for the record, I'll just read in the English
`translation:
`
`"The white light was emitted with providing a
`layer of YAG, yttrium aluminum garnet-based phosphor on
`a chip of a blue LED."
`Mr. Noguchi, do you remember when you first saw
`this article?
`A.
`That was September 13, 1996, the day this article was
`published.
`Q.
`Do you remember how you received this article on
`September 13, 1996?
`A.
`Back then I was getting information about phosphors
`from -- actually, my department was getting information about
`phosphors from our Tokyo sales office.
`
`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. 532, PageID.43953 Filed 05/22/15 Page 24 of 144
`
`24
`
`I mean, how would
`
`And when did you receive a fax from the Tokyo sales office
`Q.
`with this article?
`A.
`The same day, September 13th, 1996.
`Q.
`And could you please tell the jury, Mr. Noguchi, what kind
`of newspaper is the Nikkei Sangyo Shimbun?
`A.
`This is a business newspaper and anybody who is a business
`person would know.
`Q.
`Is this an article or an advertisement?
`you characterize this article?
`A.
`It's an article.
`Q.
`Do you personally know why this article was created?
`A.
`That's because we provided a press release about our
`successful development of -- Nichia Chemical's successful
`development of white LED.
`Q.
`If you could please take a look at two pictures in the
`article, and if you could please explain them very briefly,
`sir?
`The drawing shows the structure of white LED where, on top
`A.
`of a blue LED chip, a phosphor is injected or input.
`And when
`the light from those, the blue LED and phosphor, when they're
`mixed, create white light.
`Q.
`Mr. Noguchi, are you aware of any similar articles around
`September 1996 announcing the white light LED invention?
`MR. NIMROD:
`Can I have a sidebar, your Honor?
`THE COURT:
`Yeah.
`Let's do that right quick.
`
`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. 532, PageID.43954 Filed 05/22/15 Page 25 of 144
`
`25
`
`(At 8:42 a.m. to 8:43 a.m. sidebar held off the record)
`MR. KAMINSKI:
`Your Honor, I would like to
`withdraw my last question.
`And also, at this time I would
`proffer D0401 into evidence.
`THE COURT:
`0401.
`
`Then it will be
`
`All right.
`
`received.
`
`(Whereupon Defendant's Exhibit D0401 received into
`evidence)
`No further
`Thank you, your Honor.
`MR. KAMINSKI:
`questions on direct examination, re-redirect, whatever
`examination.
`
`All right.
`THE COURT:
`MR. NIMROD: Just a couple questions.
`Good morning, Mr. Noguchi.
`THE WITNESS:
`Good morning.
`MR. NIMROD:
`Good morning, ladies and gentlemen.
`JURORS:
`Good morning.
`RECROSS EXAMINATION
`
`BY MR. NIMROD:
`Q.
`Mr. Noguchi, just to be clear, the article you're
`referring to was published in Japanese, correct?
`A.
`Yes.
`Q.
`And the English translation on the left was not from 1996,
`right?
`A.
`That, I wouldn't know.
`
`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. 532, PageID.43955 Filed 05/22/15 Page 26 of 144
`
`26
`
`So you're not testifying today that that English version
`Q.
`was published in 1996, are you?
`A.
`The Japanese one -- could you repeat the question?
`Q.
`The publication was published in Japanese, correct?
`A.
`Yes.
`Q.
`And the translation was prepared for litigation simply to
`provide an English version; do you understand that?
`A.
`I don't know that.
`Q.
`And just -- could you go to the next slide, please.
`The Nikkei Sangyo Shimbun, does that refer to the
`Nikkei Industrial Journal?
`A.
`I only know it by the Japanese name.
`Q.
`Well, what does -- Sangyo Shimbun, doesn't that stand for
`Industrial Journal?
`A.
`Well, what I'm saying is, I know that it's called Nikkei
`Sangyo Shimbun in Japanese, but I don't know what it's called
`in English.
`Q.
`In September 1996, you never saw an English version of
`this article, did you?
`A.
`Correct.
`No further questions.
`MR. NIMROD:
`All right.
`THE COURT:
`No further redirect, your Honor.
`MR. KAMINSKI:
`THE COURT:
`All right.
`Mr. Noguchi may be excused
`and you can tell him that.
`
`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. 532, PageID.43956 Filed 05/22/15 Page 27 of 144
`
`27
`
`All right.
`
`Is the deposition testimony the next
`
`item?
`
`Okay.
`
`Yes, your Honor.
`MR. RIZZI:
`All right.
`Ladies and gentlemen,
`THE COURT:
`you're going to hear some prior testimony of a witness