`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`In re:
`
`MAXIM INTEGRATED PRODUCTS,
`
`INC.
`
`Miscellaneous
`No. 12—244
`MDL No. 2354
`
`Transcript of proceedings on Wednesday, March 20, 2013,
`United States District Court, Pittsburgh, Pennsylvania, before
`Joy Flowers Conti, District Judge.
`
`SPECIAL MASTER: Richard D. Eagan, Esq.
`SPECIAL DISCOVERY MASTER: Tina 0. Miller, Esq.
`
`APPEARANCES:
`
`Maxim:
`
`Matthew Powers, Esq.
`Leland P. Schermer, Esq.
`William P. Nelson, Esq.
`Mary Fuller, Esq.
`
`Bank of America/Merrill
`Lynch:
`
`Kevin S. Katona, Esq.
`Kevin J. Culligan, Esq.
`
`Bank of the West:
`
`BMO Harris Bank NA:
`
`Edward J. Benz, III, Esq.
`Kirsten R. Rydstrom, Esq.
`
`Harry F. Kunselman, Esq.
`Robert M. Masters, Esq.
`Ryan D. Fabre, Esq.
`
`Court Reporter:
`
`Juliann A. Kienzle, RMR, CRR
`5300 USPO & Courthouse
`700 Grant Street
`
`PA 15219
`Pittsburgh,
`(412) 261—6122
`
`Proceedings recorded by mechanical stenography;
`transcript produced by computer-aided transcription.
`
`CHASEEX.HMO-p.fl10
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`CHASE EX. 1010 - p. 1/10
`
`
`
`1 APPEARANCES:
`
`Branch Banking and Trust
`Company:
`
`Kevin S. Katona, Esq.
`Kirsten R. Rydstrom, Esq.
`
`Capital One Financial Corp:
`
`Maya Miriam Eckstein, Esq.
`Daniel G. Vivarelli, Jr., Esq.
`Stephen S. Stallings, Esq.
`
`Chipotle Mexican Grill,
`Inc.:
`
`Benjamin Baughman Lieb, Esq.
`
`CitiBank,
`NA/Citigroup;CitiBank,
`National Association:
`
`Benjamin Baughman Lieb, Esq.
`Robert L. Masterson, Esq.
`
`Comerica, Inc.:
`
`William F. Long, Esq.
`
`Deutsche Bank AG:
`
`Jeffrey A. Finn, Esq.
`
`Expedia,
`Inc./Mobiata/Hotels.com
`
`LP/Hotels.com GP,
`LLC/Hotwire:
`
`Amanda Rose Pezzano, Esq.
`
`Fidelity Brokerage Services,
`LLC:
`
`J. Anthony Downs, Esq.
`Christopher Verdini, Esq.
`
`Groupon, Inc.:
`
`Ryan R. Smith, Esq.
`
`Jack Henry & Associates,
`Inc./First United Bank:
`
`Russell S. Jones, Jr., Esq.
`Richard A. Ejzak, Esq.
`Thomas H. Soehl, Esq.
`
`JP Morgan Chase:
`
`Samuel W. Braver, Esq.
`Shamita Etienne-Cummings,
`
`Esq.
`
`KeyCorp/Key Bank National
`Association:
`
`Tracy S. Johnson, Esq.
`Georgia K.E. Yanchar, Esq.
`
`PNC Financial Services
`
`Inc.
`Group,
`Group, Inc.:
`
`& The Vanguard
`
`Elizabeth Laughton, Esq.
`Lionel M. Lavenue, Esq.
`Scott R. Leah, Esq.
`
`QVC,
`
`INC.:
`
`Timothy S. Durst, Esq.
`Richard A. Ejzak, Esq.
`Thomas H. Soehl, Esq.
`
`2 3
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`CHASE EX. 1010 - p. 2/10
`
`CHASE EX. 1010 - p. 2/10
`
`
`
`APPEARANCES: Cont'd.
`
`Starbucks Corp.:
`
`John A. Schwab, Esq.
`
`Target:
`
`Eric G. Soller, Esq.
`Daniel M. Lechleiter, Esq.
`
`Union Bank, N.A./Unionbancal
`Corp.:
`
`Andrew J. Isbester, Esq.
`John Hall, Esq.
`
`U.S. Bancorp, US Bank:
`
`Wal-Mart:
`
`Wells Fargo:
`
`Kadie M. Jelenchick, Esq.
`Jeffrey W. Spear, Esq.
`
`Cynthia E. Kernick, Esq.
`Khurram N. Gore, Esq.
`Robert A. Muha, Esq.
`
`John Hall, Esq.
`Jonathan E. Harris, Esq.
`Andrew James Isbester, Esq.
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`CHASE EX. 1010 - p. 3/10
`
`CHASE EX. 1010 - p. 3/10
`
`
`
`40
`
`Since I'm doing this in the quick version,
`
`I'm going
`
`to go rather quickly.
`
`If we go to Slide No. 5,
`
`this shows the distinction
`
`between the original opposing parties and the new opposing
`
`parties. We distinguish that based upon when the initial case
`
`management conference occurred before Judge Fischer on October
`
`2nd.
`
`THE COURT:
`
`It would be fair to say now you're all
`
`just opposing parties because we're going to have the new -- as
`
`I said, whatever is filed on Friday about the infringement
`
`contentions,
`
`that applies to all the present parties here who
`
`are the opposing parties, whether new or the original ones.
`
`If
`
`there are ones that come along after this, we'll deal with
`
`10
`
`11
`
`12
`
`13
`
`14
`
`those later.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`MR. LAVENUE: Slide 6 shows all of those opposing
`
`parties put into a chart divided by the different technology
`
`groups.
`
`So you can see that there are vast, different --
`
`everything from finance to food services, Starbucks, Chipotle,
`
`to airlines, Southwest Airlines,
`
`there are all these different
`
`technology areas.
`
`As you know,
`
`the accused devices here are apps,
`
`applications on a phone.
`
`So, all of these different entities
`
`provide apps that you can download onto your iPhone and use,
`
`and that is what -- that is part of what Maxim is going after.
`
`CHASE EX. 1010 - p. 4/10
`
`CHASE EX. 1010 - p. 4/10
`
`
`
`41
`
`At the original scheduling conference,
`
`they were only going
`
`after the apps.
`
`In their new infringement contentions,
`
`they
`
`have also added in some claims to websites. We're not sure
`
`where they're going with that, but it's now either apps or
`
`websites or both.
`
`THE COURT: Okay.
`
`MR. LAVENUE:
`
`The next slide, Slide 7,
`
`shows all of
`
`the third parties that have received discovery in the case.
`
`You'll see when we do our quick run-through through
`
`the patents,
`
`the patents are all directed to hardware aspects,
`
`not software aspects alone, and,
`
`in fact, most of the patent
`
`claims in the case are mostly hardware with software thrown in.
`
`So,
`
`interestingly, Maxim did not sue the hardware
`
`manufacturers,
`
`that is,
`
`the smart phone manufacturers, which
`
`their claims are primarily directed to.
`
`They have only sued
`
`us,
`
`the application providers,
`
`so because of that, after the
`
`infringement contentions when we filed our initial motion to
`
`strike, we said,
`
`look, you have nothing.
`
`You can't show
`
`infringement.
`
`They then -- notice this began in November
`
`'09.
`
`They then began seeking discovery from all of the smart phone
`
`manufacturers. That's where all this is coming from,
`
`is in
`
`order to prove their case on hardware,
`
`they have to get that
`
`information from those smart phone companies.
`
`So, if we go to Slide 9,
`
`this shows the patents.
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`CHASE EX. 1010 - p. 5/10
`
`CHASE EX. 1010 - p. 5/10
`
`
`
`42
`
`There are five patents in the case.
`
`The first three on the top
`
`of the slide are asserted against everyone.
`
`The '095 patent is
`
`asserted against all but one party, QVC.
`
`Then the '702 is
`
`asserted only against two parties.
`
`Slide 10 shows the overall timing of how these
`
`patents came to exist.
`
`On the left-hand side of the screen you can see that
`
`these were filed in 1995 and 1996,
`
`so many, many years ago.
`
`They issued in 1998 through 2001, and then it wasn't until 10
`
`10
`
`11
`
`12
`
`to 12 years later that these patents were actually accused
`
`against the parties in this case, either in the original
`
`filings in January of 2012 or the supplemental filings in
`
`13
`
`October.
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Slide 11 gives an overview of the patents as to what
`
`the different patents are directed to.
`
`I won't go through this, other than to just note
`
`that it deals with what is shown on the next slide, which is
`
`the iButton. This iButton is a devise that is the preferred
`
`embodiment for the patents on which the patents were written
`
`and on which they're based. This was created by a company
`
`named Dallas Semiconductor. Maxim purchased that company, and
`
`along with it, its patents. And then after they bought the
`
`patents they figured, ah, we have some patents and we can sue
`
`on them.
`
`So this iButton that you see on the screen,
`
`this was
`
`25
`
`the basis of that.
`
`CHASE EX. 1010 - p. 6/10
`
`CHASE EX. 1010 - p. 6/10
`
`
`
`43
`
`The way the iButton works is it is used with a
`
`reader. What is called a digital cash equivalent is placed
`
`onto the iButton, and you can see it's filled, one can walk
`
`around with it, and then go to a reader and use that iButton.
`
`So, you can see Maxim looks at this and they say,
`
`well, if we just replace that iButton with that smart phone and
`
`we replace that reader with the airwaves, that's where our
`
`infringement case is.
`
`Of course,
`
`the distinction is we're not cell phone
`
`manufacturers, we're app providers,
`
`so that's the difference.
`
`Slide 14 shows the patent figure which divides the
`
`patent or the patented technology into three sections. We have
`
`those numbered 1,
`
`2 and 3.
`
`No.
`
`1 is the portable module,
`
`the little iButton.
`
`No.
`
`2 is one of the readers that allows you to read
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`the iButton.
`
`17
`
`18
`
`And then No.
`
`3 is after you have loaded information
`
`or digital cash equivalents onto the iButton, you can then use
`
`19
`
`that at No. 3.
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Slide 15 shows that the iButton is hardware-based
`
`and so,
`
`in order to prove infringement,
`
`they're going to have
`
`to show these hardware elements that are shown in the patent
`
`and are in the claims.
`
`These are in the claims of the patent.
`
`Slide 16 shows the portable module reader, again,
`
`hardware-based.
`
`It's described as a microprocessor-based
`
`CHASE EX. 1010 - p. 7/10
`
`CHASE EX. 1010 - p. 7/10
`
`
`
`44
`
`device not an application, which we provide.
`
`Slide 17 shows the third element, which is the
`
`security device or accessing the portable module, again,
`
`describing very specific hardware. Note that it even has such
`
`things as math coprocessors. Well, back in the 1990s math co
`
`processors were something that were new.
`
`It's now many, many
`
`years later and computers don't have math coprocessors anymore.
`
`So Maxim is going to have problems proving these things because
`
`these are old technologies in their patents.
`
`So,
`
`the overview of the accused technology on Slide
`
`19, we point out what I mentioned before, which is there are
`
`two things that are accused of infringement,
`
`the applications
`
`that go on a phone and the new allegations by Maxim of the
`
`10
`
`11
`
`12
`
`13
`
`14
`
`website.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Slide 20 makes the distinction that the opposing
`
`parties, we do not provide mobile phones, we only provide the
`
`applications.
`
`And Maxim does not, for some reason, accuse the
`
`phones in this case, only the applications.
`
`Slide 21, basically, that's the heart of the matter
`
`and that's what this case will be about is,
`
`is that iButton
`
`equal to a cell phone and can Maxim prove that claims that are
`
`written to that iButton are the same as applications that work
`
`on a phone.
`
`The next
`
`few slides are basically slides that are
`
`CHASE EX. 1010 - p. 8/10
`
`CHASE EX. 1010 - p. 8/10
`
`
`
`45
`
`directed to the complexities of the case.
`
`Slide 23 shows that they'll have to go to all of
`
`these cell phone manufacturers to get
`
`information to prove
`
`infringement.
`
`Slide 24 is really directed more to our motion to
`
`strike their infringement contentions,
`
`so I won't go into
`
`details there other than to mention that they have accused
`
`1,376 mobile phones of infringement, using our apps, with 51
`
`different cell phone manufacturers using our apps, but yet,
`
`in
`
`10
`
`11
`
`12
`
`13
`
`their infringement contentions,
`
`they have not provided one
`
`chart that maps a single specified device to a software
`
`combination. What they do is they pick and choose.
`
`They take
`
`a little from here, a little from there. This will all be in
`
`14
`
`our motion to strike.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`THE COURT: You're going to have to be very careful
`
`the motion to strike isn't a disguised Markman issue.
`
`So, you
`
`are going to be very careful about that because if it is,
`
`I'm
`
`not going to entertain it.
`
`MR. LAVENUE: Understood, Your Honor. Our motion to
`
`strike is based on case law from the Eastern District of Texas,
`
`21
`
`the Northern District of California --
`
`22
`
`23
`
`24
`
`25
`
`THE COURT:
`
`I don't want to go into it.
`
`I'm getting
`
`a sense here that you're trying to do a preemptive strike,
`
`so
`
`to speak, on this and if it's really something that is going to
`
`get into what should be reserved for the Markman hearing,
`
`I'm
`
`CHASE EX. 1010 - p. 9/10
`
`CHASE EX. 1010 - p. 9/10
`
`
`
`107
`
`1 those types of disputes and I don't want this to be a situation
`
`2 where people are running to the Court with that type of
`
`3 quarrel. But, I'll leave that for you to put into your
`
`4 submissions.
`
`5
`
`6
`
`7 you.
`
`8
`
`9
`
`Now,
`
`is there anything else?
`
`MR. POWERS: Nothing from Maxim, Your Honor.
`
`Thank
`
`THE COURT: Anything from any of the other parties?
`
`The other thing I will be circulating is the draft
`
`10 order for the Special Master appointment of Mr. Egan and that
`
`11 should be coming out shortly.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`MR. POWERS:
`
`Thank you, Your Honor.
`
`THE COURT:
`
`Thank you all.
`
`(Court adjourned.)
`
`—————
`
`C E R T I F I C A T E
`
`19
`
`I, Juliann A. Kienzle, certify that the
`foregoing is a correct transcript from the record of
`20 proceedings in the above-titled matter.
`
`s/Juliann A. Kienzle
`
`Juliann A. Kienzle, RMR, CRR
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`CHASE EX. 1010 - p. 10/10
`
`CHASE EX. 1010 - p. 10/10
`
`