UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`STARBUCKS CORP., APPLE, INC., EVENTBRITE, INC., and
`STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
`Petitioner
`
`v.
`
`AMERANTH, INC.
`Patent Owner
`____________
`
`Case CBM2015-000911
`U.S. Patent No. 6,384,850
`____________
`
`Case CBM2015-000992
`U.S. Patent No. 6,871,325
`____________
`
`
`
`
`TRANSCRIPT OF MAY 6, 2016 CONFERENCE CALL
`
`
`
`
`
`
`
`1 Case CBM2016-00007 has been joined with this proceeding.
`
`2 Case CBM2016-00006 has been joined with this proceeding.
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`STARBUCKS CORP., APPLE, INC., EVENTBRITE, INC., and
`STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
`Petitioner
`
`v.
`
`AMERANTH, INC.
`Patent Owner
`____________
`
`Case CBM2015-000911
`U.S. Patent No. 6,384,850
`____________
`
`Case CBM2015-000992
`U.S. Patent No. 6,871,325
`____________
`
`
`
`
`TRANSCRIPT OF MAY 6, 2016 CONFERENCE CALL
`
`
`
`
`
`
`
`1 Case CBM2016-00007 has been joined with this proceeding.
`
`2 Case CBM2016-00006 has been joined with this proceeding.
`
`
`
`CBM2015-00091
`CBM2015-00099
`
`
`TRANSCRIPT OF MAY 6, 2016 CONFERENCE CALL
`
`
`
`Attached hereto is a copy of the court reporter's transcript of the May 6,
`
`2016 conference call with the Board and counsel for the parties in CBM2015-
`
`00080, -00082, -00091, and -00099.
`
`
`
`Dated: May 20, 2016
`
`Respectfully Submitted,
`
` /s/ John W. Osborne
`__________________________
`
`John W. Osborne
`Lead Counsel for Patent Owner
`USPTO Reg. No. 36,231
`OSBORNE LAW LLC
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`josborne@osborneipl.com
`Tel.: 914-714-5936
`Fax: 914-734-7333
`
`Michael D. Fabiano
`Back-up Counsel for Patent Owner
`USPTO Reg. No. 44,675
`FABIANO LAW FIRM, P.C.
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`mdfabiano@fabianolawfirm.com
`Tel.: 619-742-9631
`
`
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`——————————————————————————————
`STARBUCKS CORPORATION | Case CBM2015-00091
` Petitioner, | Patent 6,384,850 B1
` v. |
`AMERANTH, INC. | Case CBM2015-00099
` Patent Owner. | Patent 6,871,325 B1
`——————————————————————————————
`APPLE, INC., ET AL. | Case CBM2015-00080
` Petitioner, | Patent 6,384,850 B1
` v. |
`AMERANTH, INC. | Case CBM2015-00082
` Patent Owner. | Patent 6,871,325 B1
`——————————————————————————————
`EXPEDIA, INC., et al. | Case CBM2015-00096
` Petitioners, | Patent 6,384,850 B1
` v. |
`AMERANTH, INC. | Case CBM2015-00097
` Patent Owner. | Patent 6,871,325 B1
`——————————————————————————————
`APPLE, INC., EVENTBRITE INC. |
`and STARWOOD HOTELS & RESORTS | Case CBM2016-00006
`WORLDWIDE, INC. | Patent 6,384,850 B1
` Petitioners, |
` v. | Case CBM2016-00007
`AMERANTH, INC. | Patent 6,384,850 B1
` Patent Owner. |
`——————————————————————————————
` Friday, May 6, 2016
` 2:00 p.m. EDT
` Teleconference before the Patent Trial and Appeals
`Board, Judge Meredith C. Petravick presiding, the
`proceedings being recorded stenographically by Jonathan
`Wonnell, RMR, a Registered Professional Court Reporter
`(NCRA #835577) and Notary Public of the State of
`Minnesota, and transcribed under his direction.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
`
`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
`
` A P P E A R A N C E S O F C O U N S E L
` (All participants appearing by phone)
`
`2
`
` On behalf of the Patent Trial and Appeal Board:
` MEREDITH C. PETRAVICK, ESQ., RICHARD E.
` RICE, ESQ., and STACEY G. WHITE, ESQ.,
` Administrative Patent Judges
`
` On behalf of Starbucks Corporation:
` PATRICK J. McKEEVER, ESQ.
` MATTHEW BERNSTEIN, ESQ.
` Perkins Coie LLP
` 11988 El Camino Real, Suite 200
` San Diego, California 92130-3334
` (858) 720-5700
` pmckeever@perkinscoie.com
` mbernstein@perkinscoie.com
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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` A P P E A R A N C E S (Cont'd)
`
` On behalf of Ameranth, Inc.:
` MICHAEL D. FABIANO, ESQ.
` Fabiano Law Firm
` 12520 High Bluff Drive, Suite 300
` San Diego, California 92130
` (619) 742-9631
` mdfabiano@fabianolawfirm.com
` -- and --
` JOHN W. OSBORNE, ESQ.
` Osborne Law LLC
` 33 Habitat Lane
` Courtlandt Manor, New York 10567
` (914) 714-5936
` josborne@osborneipl.com
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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` A P P E A R A N C E S (Cont'd)
`
` On behalf of Apple Inc.:
` JAMES M. HEINTZ, ESQ.
` DLA Piper
` One Fountain Square
` 11911 Freedom Drive, Suite 300
` Reston, Virginia 20190-5602
` (703) 773-4000
` jim.heintz@dlapiper.com
` -- and --
` ROBERT C. WILLIAMS, ESQ.
` DLA Piper
` 401 B Street, Suite 1700
` San Diego, California 92101-4297
` (619) 699-2700
` robert.williams@dlapiper.com
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`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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` A P P E A R A N C E S (Cont'd)
`
` On behalf of Expedia, Inc.:
` GEORGE W. JORDAN, ESQ.
` Norton Rose Fulbright
` Fulbright Tower
` 1301 McKinney, Suite 5100
` Austin, Texas 78701
` (713) 651-5423
` george.jordan@nortonrosefulbright.com
`
`HENDERSON LEGAL SERVICES:
` JONATHAN WONNELL, RMR
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`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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` P R O C E E D I N G S
` JUDGE PETRAVICK: Good afternoon. This is
`Judge Petravick. With me on the phone is Judge Rice
`and Judge White. We're here for a conference call
`towards CBMs 2015-00080, 82, 91, 99, 96, 97 and CBM
`2016-0006 and 7.
` Could I know who's on the line from
`Petitioner for the 80/82 case? Apple?
` MR. HEINTZ: Yes, Your Honor. It's James
`Heintz. Also with me on the call is Robert Williams.
` JUDGE PETRAVICK: Do we have counsel for
`the Petitioners on the joined cases, 96 and 97?
` MR. JORDAN: Yes. This is George Jordan.
` JUDGE PETRAVICK: And from Petitioner
`Starbucks from the 91/99 cases?
` MR. McKEEVER: Yes, Your Honor. You have
`Patrick McKeever and Matt Bernstein for Starbucks.
` JUDGE PETRAVICK: And for the 6/7 cases?.
` MR. HEINTZ: That's also James Heintz and
`Robert Williams, Your Honor.
` JUDGE PETRAVICK: Ah. Thank you. And for
`the Patent Owner?
`
`202-220-4158
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
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` MR. OSBORNE: John Osborne and Michael
`Fabiano.
` MR. FABIANO: And we have a court reporter
`on the line as well, Your Honor. We'll file the
`transcript after it's received.
` JUDGE PETRAVICK: Thank you. And that
`was -- who was speaking?
` MR. FABIANO: Oh. This is Mr. Fabiano
`just chiming in to let you know that the court
`reporter is on the line.
` JUDGE PETRAVICK: Thank you.
` All right. We received the e-mail from
`Petitioner for Starbucks. So we will hear from you
`first.
` MR. McKEEVER: Thank you, Your Honor. I
`know we want to move things along pretty quickly. We
`were able to resolve some of the issues just shortly
`before the call. So what we have remaining really
`just relates to two slides.
` JUDGE PETRAVICK: Okay.
` MR. McKEEVER: So in the slides we
`submitted this morning there were ten. The last two
`
`202-220-4158
`
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`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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`slides are slides number 112 and 124.
` JUDGE PETRAVICK: Okay.
` MR. McKEEVER: And sorry. This is Patrick
`McKeever for Starbucks, obviously, just for the
`record.
` And so the same issue really applies to
`these two slides. Both of these slides raise issues
`and arguments that they were made in the patent owner
`response in these proceedings. And under the
`scheduling order and PTAB precedent, these arguments
`would have been waived.
` And in fact these exhibits are not even --
`these exhibits are not even of record in the 91 and
`99 proceedings. And so we had no opportunity to
`respond to these because they were not in the patent
`owner response.
` JUDGE PETRAVICK: Okay.
` MR. McKEEVER: These exhibits were not
`cited in the patent owner response either.
` JUDGE PETRAVICK: These are from the 06
`case that was joined?
` MR. FABIANO: This is Mr. Fabiano.
`
`202-220-4158
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`www.hendersonlegalservices.com
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`Correct, Your Honor. They're from the 06 case and
`are cited and discussed in the 06 patent owner
`preliminary response.
` JUDGE PETRAVICK: And if I remember -- if
`I recall correctly -- and please correct me if I'm
`wrong -- when we joined the cases together we said we
`would consider the preliminary response arguments
`from the 06 and 07 case -- is that correct? --
` MR. FABIANO: Yes.
` JUDGE PETRAVICK: -- when we considered
`the arguments from the 91 and 99?
` MR. FABIANO: And of course -- we didn't
`file a patent owner response in that case. So that
`makes sense, Your Honor.
` JUDGE PETRAVICK: All right. Okay.
`Mr. McKeever, is that correct with your
`understanding?
` MR. McKEEVER: I was trying to pull up the
`order, Your Honor. I mean, I can't recall that the
`order said that, but I just don't recall off the top
`of my head. I'll try to pull it up right now. Our
`basis for the objection was that they were not cited
`
`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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`or discussed at all in the patent owner response and
`our understanding was that they had to be in the
`patent owner response, not the preliminary response,
`in order to be fair game for the hearing.
` JUDGE PETRAVICK: All right.
` MR. FABIANO: It's in a preliminary
`response for a case where we didn't get to file a
`patent owner response.
` JUDGE PETRAVICK: I'm going to take a
`minute and pause right now and look it up myself.
`The Panel will look it up. So just hold on for one
`minute.
` (Pause.)
` JUDGE PETRAVICK: All right. The two --
`the slides seem to relate to two exhibits that were
`additional in the 06 case that was joined. At this
`juncture we're going to let them be included in the
`demonstratives during the oral hearing.
` If we -- depending on how the case goes
`forward and if we need further information we'll ask
`for a short brief addressing those two additional
`exhibits from Petitioner Starbucks if needed, if
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`
`CBM2015-00091; 00099; 00080; 00082; 00096; 00097; CBM2016-00006; 00007
`Conference Call
`May 6, 2016
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`necessary, at a later time.
` MR. McKEEVER: Thank you, Your Honor.
` JUDGE PETRAVICK: Petitioner Starbucks, do
`you have any other issues?
` MR. McKEEVER: No issues that we've
`raised. Everything else has been resolved, Your
`Honor.
` JUDGE PETRAVICK: All right. Patent
`Owner, do you have any other issues with regards to
`the Starbucks petitions?
` MR. FABIANO: I'm sorry, Your Honor.
`You're asking -- you're asking Ameranth whether we
`have issues on the Starbucks slides? Yes, we do.
` JUDGE PETRAVICK: Yes. Okay. We will
`hear those now.
` MR. FABIANO: Okay. Slide 10 includes a
`photo and biographical information for one of
`Starbucks' experts, not something in their brief.
`There's also a paragraph excerpted below which is not
`in their brief. I understand that Starbucks has
`offered to switch out paragraph 15 for the -- what is
`it? 22, Patrick?
`
`202-220-4158
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`May 6, 2016
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` MR. McKEEVER: That's right.
` MR. FABIANO: Okay. I even got the number
`right. So, yeah, the excerpted paragraph and the
`excerpt's name is fine, but the photo and the
`biographical information don't come from the brief.
` JUDGE PETRAVICK: Mr. McKeever, do you
`need the photograph and biography information?
` MR. McKEEVER: We do not, Your Honor. We
`do have --
` JUDGE PETRAVICK: Will you remove them?
` MR. McKEEVER: Yeah. We'll remove them,
`Your Honor.
` JUDGE PETRAVICK: Okay. And the paragraph
`22 I'm assuming is okay with Patent Owner?
` MR. FABIANO: Yes. He cited 22 in his
`brief, so he's --
` JUDGE PETRAVICK: Okay. Is there another
`issue?
` MR. FABIANO: Not with that slide. Let me
`move to -- on 22 it's similar. There's illustrations
`in there that are -- that come from an exhibit but
`not from a brief. The one that's the first page of
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`the reference is okay, but the rest of it is not from
`the brief.
` JUDGE PETRAVICK: Mr. McKeever?
` MR. McKEEVER: Yeah. So on slide 22, the
`excerpt that shows the net hopper picture was
`included in our opening expert declaration and in a
`section of that declaration which was cited in the
`petition. And so that was cited, for example, in the
`99 petition at 25. And it cites to Exhibit 1003
`which is the Hallal declaration.
` The exact same picture on the right side
`is there in paragraph 66 of the Hallal declaration.
`I think I -- or we didn't address this one on the
`call yesterday.
` The other -- the one in the middle is just
`a cover of the document that includes the picture at
`the right. I'm happy to remove that one. But these
`pictures have been included in the -- you know, in
`the papers, namely the expert declaration and cited
`in the petition. So we didn't see what the issue was
`here.
` MR. FABIANO: Well, we agree that it's in
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`the expert declaration and not in the petition.
` JUDGE PETRAVICK: But it's cited in the
`petition?
` MR. McKEEVER: Yes. There's a citation in
`the 99 petition at page 25 to the section of the
`Hallal declaration that includes the picture, the net
`hopper kind of --
` JUDGE PETRAVICK: All right. Then this
`slide is fine and it can be included in the
`demonstratives.
` MR. FABIANO: All the remaining slides
`that we sent over, Your Honor, are the same issue.
`They've basically created claim charts in their
`demonstratives that were not in their briefs.
` JUDGE PETRAVICK: Are all the citations
`included in the briefs?
` MR. McKEEVER: So, Your Honor, the
`citations are to the briefs and to the declaration.
`So, yes. I mean, all we've done here -- there's no
`arguments on any of these slides. All we've done
`here is pointed to the excerpts of the papers and the
`expert declaration that address the different claim
`
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`May 6, 2016
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`limitations. There's no argument at all on any of
`these slides.
` JUDGE PETRAVICK: All right.
` MR. FABIANO: Well, they're claim charts,
`Your Honor. They're lining up the claims against
`purported prior art. And it's a claim chart that
`wasn't anywhere in their briefs.
` MR. McKEEVER: The citations are not to
`the prior art. The citations are to our papers. So
`there's not -- they're not a claim chart in the sense
`that we typically see them.
` JUDGE PETRAVICK: They are. They are just
`to the papers. So that's fine.
` MR. McKEEVER: Thank you, Your Honor.
` JUDGE PETRAVICK: Is there any other
`issues with regards to the Starbucks cases?
` MR. McKEEVER: Nothing from Starbucks,
`Your Honor.
` MR. FABIANO: No. Nothing from us, Your
`Honor. You've dealt with all of them.
` JUDGE PETRAVICK: All right. Now Apple.
`Petitioner for Apple?
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` MR. HEINTZ: Yes. Thank you, Your Honor.
`This is Jim Heintz again. With respect to the Patent
`Owner slide deck I'll start on slide 7.
` JUDGE PETRAVICK: Okay. Give me a minute
`to bring it up.
` MR. HEINTZ: Sure.
` JUDGE PETRAVICK: Okay.
` MR. HEINTZ: So this is a citation to
`their expert's declaration note 10. When we
`questioned Patent Owner about this he directed us to
`the 850 corrected patent owner response at note 33,
`and we didn't see anything at note 33 that cited to
`what's shown on this slide. And so for that reason
`we objected to it.
` MR. OSBORNE: This is John Osborne. I
`have an answer to that, Your Honor.
` JUDGE PETRAVICK: Mm-hmm. Go ahead.
` MR. OSBORNE: We got Mr. Heintz's response
`shortly ago and we've been dealing with these for
`many hours through the night. At any rate, I gave
`him the wrong slide and I think he'll be satisfied if
`I point him to the 325 response at note 18, page--
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`that's on page 35. That's with regard to this
`material on slide 7. So that's again 325 response
`note 18, page 35.
` MR. HEINTZ: Okay. I'll try to pull it up
`and see if it's there.
` MR. McKEEVER: Yeah. It's there, Jim.
` MR. HEINTZ: Okay. Thanks. With that
`note, we'll go to slide 14. So slide 14 is a
`citation to a part of the prosecution history that
`was not cited anywhere in their patent owner response
`or anywhere else we were able to find. There's also
`a new argument about menus and hospitality
`applications in the heading. And so neither the
`argument was made, nor the citation to the
`prosecution history shown on the slide appears in any
`of their papers.
` JUDGE PETRAVICK: Patent Owner?
` MR. OSBORNE: This falls into the category
`of the one we just discussed except I can't find the
`correct cite. I saw this with my own eyes at some
`point this morning but I can't find it again right
`now. I must have given him the wrong slide. But I
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`know we said it somewhere and I thought it was in the
`request for reconsideration. But again, I can't find
`it right now. I think I can find it later and
`provide it to Mr. Heintz. That's the best I can do
`right now.
` JUDGE PETRAVICK: Is that all right with
`you, Mr. Heintz? If Mr. Osborne cannot provide you
`with the cite then the slide has to be removed; if he
`can provide you with the cite it can stay?
` MR. HEINTZ: Yes, that's fine with me,
`Your Honor.
` All right. With that we'll move to slide
`21. So, Your Honor, this is a cite from the Weaver
`deposition transcript. This deposition transcript
`was not cited in any of Patent Owner's papers. And
`so for that reason we object to it.
` JUDGE PETRAVICK: Mr. Osborne, was this
`cited in your papers?
` MR. OSBORNE: No, it was not. This is a
`little bit of a -- not an odd, but it's a situation
`we think is worthy in addressing. And this applies
`to slides 21, 25, 26 and 27. They are excerpts from
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`the deposition testimony of Patent Owner's declarant.
`We believe -- and I think if -- any fair assessment
`would show that Apple mischaracterized Dr. Weaver's
`testimony in his reply and Ameranth believes it is
`appropriate and necessary for Ameranth to use these
`slides to explain those mischaracterizations.
` We don't believe the Board would want to
`come to an incorrect conclusion as to what Dr. Weaver
`actually said, so that's the reason we proposed these
`four --
` JUDGE PETRAVICK: You're telling me that
`it's not cited in your papers?
` MR. OSBORNE: No, it is not. But it is --
` JUDGE PETRAVICK: Okay. Then it needs to
`be removed. I'm sorry. Let me ask you one more
`question. Was it cited by the Petitioner in their
`reply?
` MR. OSBORNE: They cited other portions of
`the testimony that are at odds with these portions
`and show those other portions to have been
`mischaracterized.
` JUDGE PETRAVICK: You need to remove the
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`slide.
` MR. OSBORNE: Okay. Thank you, Your
`Honor.
` JUDGE PETRAVICK: And you said the same
`issues for the 21, 22, 25 and 27?
` MR. OSBORNE: No, no, no.
` JUDGE PETRAVICK: Oh. I'm sorry --
` MR. OSBORNE: Jim, correct me if I'm
`wrong, but I think it's 21, 25, 26 and 27.
` MR. McKEEVER: I believe that's correct.
`Yes.
` MR. OSBORNE: Those four.
` JUDGE PETRAVICK: A question for my
`colleague. Did you file observations on this
`testimony?
` MR. OSBORNE: No, we did not. But we
`understand that it's not permissible to file
`observations of your own witness' testimony.
` JUDGE PETRAVICK: All right. Thank you.
` MR. OSBORNE: So basically what that
`means, Your Honor, is that anybody that gets the last
`word can mischaracterize testimony and that's the
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`record testimony. We just don't believe that's
`proper.
` JUDGE PETRAVICK: Mr. Osborne, you need to
`remove the slide from the --
` MR. OSBORNE: Will do.
` JUDGE PETRAVICK: The Board is capable of
`reading testimony themselves and determining whether
`something is a mischaracterization or not.
` MR. OSBORNE: We appreciate that.
` MR. HEINTZ: Okay, Your Honor. If you're
`ready I'll proceed with the next slide then.
` JUDGE PETRAVICK: Mm-hmm.
` MR. HEINTZ: This is slide 82. And this
`is a cite to prosecution history which when we asked
`counsel for Patent Owner about this he pointed us to
`the request for reconsideration in the 325 CBM at
`page 12 and we just don't see that prosecution
`history cited there.
` MR. OSBORNE: This is the same issue as
`with regard to slide 14. If I can locate that slide,
`which I'm fairly certain I can, it applies to both
`14 -- slides 14 and 82.
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` JUDGE PETRAVICK: That's fine.
` MR. HEINTZ: Okay. Let's move to slide
`97. So, Your Honor, there's a call-out here that
`reads "API," in paren "zero" and some other
`information. And the objection to the slide is on
`the basis of those words that -- whatever they
`mean -- that appear in that call-out. We've never
`seen that before. This appears to be some new
`alteration of an exhibit of some kind that's never
`been cited anywhere, and for that reason we object to
`it.
` JUDGE PETRAVICK: Mr. Osborne, was this
`call-out in the substantive papers?
` MR. FABIANO: This is Mr. Fabiano. I'll
`take this one, Your Honor, if the Court will please.
`Number one, it's not an altered exhibit. It's a
`demonstrative. The exhibit is what the exhibit is.
`Number two, this particular --
` JUDGE PETRAVICK: Does the exhibit come
`from -- have this call-out on it?
` MR. FABIANO: This call-out is discussed
`in the surreply in the --
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` JUDGE PETRAVICK: I'm hearing no, that
`it's not in the exhibit on pages 56 through 64. Is
`that correct?
` MR. FABIANO: Oh, no, no. The call-out
`does come from the exhibit. It's a pullout of
`something from the exhibit.
` JUDGE PETRAVICK: Okay.
` MR. FABIANO: And the pullout, the content
`of what's been pulled out is discussed in the
`surreply in the 80 case at page 3.
` JUDGE PETRAVICK: And the surreply on page
`3?
` MR. FABIANO: Right.
` JUDGE PETRAVICK: Counsel for Apple, do
`you agree with that?
` MR. HEINTZ: I don't know, Your Honor,
`because we tried to meet and confer about this last
`night and were not given that information. This is
`the first I'm hearing of this. So I'm going to
`attempt to check it right now.
` I'm at page 3. Can you, Mike or John,
`point me to where on page 3 we're talking about?
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` MR. FABIANO: I believe it's closer to the
`bottom of the page, Jim. If you can't find it I'll
`pull it up on my computer myself.
` MR. HEINTZ: I don't see anything like
`with "API (0)" on it. So no, I don't see it on
`page 3 of your surreply in the 80 petition.
` MR. FABIANO: Hold on. Let me pull it up.
` Yeah. The last full paragraph there, the
`last sentence quoted specifically refers to the
`exhibit that's on the slide and to the column in the
`portion that's called out.
` MR. HEINTZ: So I'm at a loss. From what
`I can see on my hard copy here, I don't see the words
`"API (0)" and "communications control module." That
`doesn't seem to be what's being pointed to at the
`exhibit. And I don't see like an "API (0)" on page
`3. So I'm not understanding what -- where this
`report is.
` MR. FABIANO: The zero and the V go to the
`annotation below. The zero and the V are not there.
`We can take out the zero and the V and then you'd
`have it verbatim.
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` MR. HEINTZ: Well, I mean, API -- and I
`assume this is something like the application program
`interface in your claims. I don't see API on your
`exhibit. And you're saying --
` MR. FABIANO: Sure you do.
` MR. HEINTZ: I see API on the exhibit?
` MR. FABIANO: Let me pull up a much larger
`copy of the exhibit than the one that's on the
`slide --
` MR. HEINTZ: Okay.
` MR. FABIANO: -- if you give me just a
`minute. If you want you can move on to the other
`ones while I'm digging up this page.
` MR. HEINTZ: All right. Let's see. I
`believe the next one is 101. And this is the same
`kind of issue. There is this call-out on 101 that I
`don't believe appears at Exhibit 25 at pages 11 to 12
`as indicated. And I don't -- so for that reason it's
`objectionable.
` JUDGE PETRAVICK: Okay.
` MR. FABIANO: No. The part that's quoted
`is in that exhibit. The part that is not quoted, "Is
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`not licensed to patents," that is what is not quoted.
` MR. HEINTZ: Okay.
` MR. FABIANO: The other quotes are in the
`exhibit.
` MR. HEINTZ: At least the first bullet
`point is not. Is the idea that you're going to
`remove the first bullet point then?
` MR. FABIANO: No. But the first bullet
`point doesn't even purport to be an excerpt from the
`exhibit. The ones that are are in quotes.
` MR. HEINTZ: Okay. So I don't remember --
`this is an argument --
` MR. FABIANO: I mean, if we used that word
`"licensed" -- if we used that first bullet point and
`just took it outside the bubble, is that fine?
` MR. HEINTZ: I'm at a loss. I don't
`remember any proof, any statement anywhere that says
`these licenses are to all --
` JUDGE PETRAVICK: Excuse me. I've
`reviewed a couple of these now. You can take the
`call-outs out. Demonstratives are just there to aid
`you in your argument. You can tell us whatever you
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`want in your argument and if you just copy what's in
`the exhibit then there won't be any dispute.
` They're not evidence in the --
`demonstratives are not evidence in the record. Just
`remove the call-outs. You can copy whatever is in
`the exhibit onto the slide. But just remove the
`call-outs. You can point those out to us while we
`are in the hear
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