UNITED STATES DISTRICT COURT
` DISTRICT OF VERMONT
`
`
`____________________________
`ARNOUSE DIGITAL DEVICES CORP. )
` VS ) CASE NO: 5:11-CV-155
` )
`MOTOROLA MOBILITY, INC.
`) HEARING ON MOTION TO
` DISMISS
`______________________________)
`
`BEFORE:
`
`APPEARANCES: LAWRENCE H. MEIER, ESQUIRE
` R. BRADFORD FAWLEY, ESQUIRE
`Downs Rachlin Martin PLLC
`P.O. Box 190
`Burlington, Vermont 05402
`Representing The Plaintiff
`
`HONORABLE CHRISTINA REISS
`CHIEF JUDGE
`
`
`
`
` SAMUEL HOAR, JR., ESQUIRE
`Dinse, Knapp & McAndrew, P.C.
`P.O. Box 988
`Burlington, Vermont 05402
`Representing The Defendant
` STEVEN D. MOORE, ESQUIRE
`Kilpatrick Townshend & Stockton, LLP
`1001 West Fourth Street
`Winston-Salem, North Carolina 27101
`Representing the Defendant
` February 8, 2012
`
`TRANSCRIBED BY: Anne Marie Henry, RPR
`P.O. Box 1932
` Brattleboro, Vermont 05302
`
`DATE:
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 1
`
`
` DISTRICT OF VERMONT
`
`
`____________________________
`ARNOUSE DIGITAL DEVICES CORP. )
` VS ) CASE NO: 5:11-CV-155
` )
`MOTOROLA MOBILITY, INC.
`) HEARING ON MOTION TO
` DISMISS
`______________________________)
`
`BEFORE:
`
`APPEARANCES: LAWRENCE H. MEIER, ESQUIRE
` R. BRADFORD FAWLEY, ESQUIRE
`Downs Rachlin Martin PLLC
`P.O. Box 190
`Burlington, Vermont 05402
`Representing The Plaintiff
`
`HONORABLE CHRISTINA REISS
`CHIEF JUDGE
`
`
`
`
` SAMUEL HOAR, JR., ESQUIRE
`Dinse, Knapp & McAndrew, P.C.
`P.O. Box 988
`Burlington, Vermont 05402
`Representing The Defendant
` STEVEN D. MOORE, ESQUIRE
`Kilpatrick Townshend & Stockton, LLP
`1001 West Fourth Street
`Winston-Salem, North Carolina 27101
`Representing the Defendant
` February 8, 2012
`
`TRANSCRIBED BY: Anne Marie Henry, RPR
`P.O. Box 1932
` Brattleboro, Vermont 05302
`
`DATE:
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 1
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`(The Court opened at 2:30 p.m.)
`THE CLERK: Your Honor, the matter before the
`Court is civil number 11-155, Arnouse Digital Devices
`Corporation versus Motorola Mobility, Inc.. Present on
`behalf of the plaintiff are Lawrence Meier and R. Bradford
`Fawley. Present for the defendant is Samuel Hoar, Junior.
`And we are here for a hearing on defendant's motion to
`dismiss.
`
`THE COURT: Mr. Hoar, you have filed today two
`motions for Pro Hac Vice.
`MR. HOAR: Well, one motion, two applicants, Your
`
`Honor.
`
`THE COURT: Two applicants. All right.
`MR. HOAR: One of whom is here. And I devoutly
`hope you'll grant the motion today because otherwise you're
`going to find the oral argument to be sadly lacking.
`THE COURT: All right. Well, if you wanted it
`granted today you should have filed it previously, but we're
`all here now so I have had enough time to review these. I
`understand they were filed in Burlington too; correct?
`MR. HOAR: They were filed, yeah, the hard copies
`were filed today. I only got the affidavits, actually I
`think I got the affidavits on Monday, Your Honor, but I
`spent yesterday in our Supreme Court.
`THE COURT: All right.
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 2
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`MR. HOAR: I do apologize for the lateness in
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`THE COURT: All right. Any opposition to the
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`time.
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`motions?
`
`MR. FAWLEY: No, Your Honor.
`THE COURT: All right. The Court's going to grant
`the application for Pro Hac Vice admission for Stephen D.
`Moore and Matias Ferrario.
`MR. HOAR: Yes.
`THE COURT: Both are granted. And so we're going
`to proceed. So some thoughts I had before we hear your oral
`arguments is obviously I am wondering about the Court's
`power to take judicial notice of how a smartphone works,
`what it's composed of, how it docks in a docking station,
`what you call a lapdock. I don't think it seems to me to be
`very similar to the parts of a snowman. I didn't see any
`cases that I thought were comparable to that.
`With regard to the plaintiff's claim I didn't see
`disputed claim terms. I didn't see that there was an
`argument that a smartphone should be equated to another
`term. And so I was wondering where we got the dispute about
`claim construction necessitating a Markman hearing. And
`plaintiff has attached materials to its opposition. We
`wouldn't defeat a motion to dismiss on that basis, but it
`looks to me that we may be outside the pleadings.
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`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 3
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`The defendant nonetheless contends that a simple
`review of the patent which was attached to plaintiff's
`complaint would be enough for the Court to deduce that there
`was not a plausible claim for relief here. I did look at
`the patent. I was struck by, among other things, a summary
`of it, which described a computer that operated -- was about
`the size of a credit card. You could put it in your wallet
`and then, you know, you put it into a docking station
`neither of them kind of operated independently and wondered
`if plausibility was an issue here.
`So those are some preliminary thoughts. And I
`hope you'll address them in your arguments. And we'll start
`with the moving party which is the defendant.
`MR. MOORE: Thank you, Your Honor. Steve Moore
`from Motorola Mobility. Would you like me to argue from the
`podium?
`
`THE COURT: Where ever you are most comfortable is
`fine with me.
`MR. MOORE: Thank you. Your Honor, if I might I
`would like to address your first area of concern which is
`the question of judicial notice because this is a little bit
`different than a lot of 12(b)(6) motions where we're not
`contending that there's a failure to identify a product at
`issue which sometimes is the basis for these motions.
`We are really attacking the plausibility element
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`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 4
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`that is lacking here and it is required under the Supreme
`Court decisions.
`The judicial notice issue I think frankly is no
`longer on the table in view of the plaintiff's admission.
`The only thing, and I don't dispute that snowmans and
`smartphones aren't quite the same thing, but we're asking
`for judicial notice for a very narrow thing. That is, you
`know, not all the complex inter-weavings of a smartphone and
`how it might dock to various things, but the simple point
`that smartphones, just like any cell phone, have input and
`output means. All that means is they have keyboards, they
`have key pads, they have touch screens, speakers,
`microphones, buttons, otherwise they would simply be a brick
`that you couldn't talk into or send an e-mail from. That
`was the only simple point that we were asking the Court to
`take judicial notice of.
`I think that's mute now because in the plaintiff's
`response they have admitted that, as they must really, that
`this is the case, that the accused Motorola smartphones here
`have input and output means as indeed they do.
`THE COURT: So you're saying they made a judicial
`admission, the facts have been conclusively established
`because if we're still on a true issue of judicial notice I
`don't think you could find in this jurisdiction that it's
`commonly known that smartphones have input and output means.
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`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 5
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`I don't think that that's something that could be
`readily determined without reference or reference to the
`types of sources that we use like weather reports and
`calendars. So are we beyond judicial notice and judicial
`admission? Is that what you're saying?
`MR. MOORE: I believe we are in essentially a
`failure to dispute. Now, to be fair, we're not suggesting
`that like weather reports that there is such data on a
`smartphone. This is more a matter of common knowledge which
`I think is an appropriate subject for judicial notice.
`THE COURT: So you think what is the common
`knowledge? Because I don't have a smartphone. And so what
`is it that we all know?
`MR. MOORE: That, that phones have things that
`allow you to input data and receive data from them. And,
`frankly, whether they are smartphones or not. To make a
`phone-call you have to be able to push some buttons and hear
`and talk. But I do think we're beyond that. I think we're
`in the point now where that's not a contested issue. They
`have admitted, and we cited this in our reply papers, that
`they have admitted on Pages 3 and 6 of their opposition that
`they do not dispute that the smartphones at issue include
`output, input and output means.
`THE COURT: But taking that fact then I would have
`to look and do kind of a quick claim construction and say, a
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 6
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`ha. And some of these claims there isn't any, this input,
`output is a part of it and therefore as a matter of law -- I
`mean it doesn't really take you home on that point.
`It's not like the statute of limitations where
`somebody says, yes, I suffered my injury and I knew of it on
`X. date and we can clearly say it's outside the statute of
`limitations. So assuming we all agree based on the alleged
`judicial admission what would the Court have to do next to
`find plausibility? Wouldn't it have to go into claim
`construction of the patent?
`MR. MOORE: Well, with all due respect, we don't
`think the claim construction is required. These claims all
`clearly require that the portable computers, which are the
`smartphones, and that much is clear from the complaint. The
`complaint specifically alleges that the smartphones at issue
`here are what Arnouse contends to be the portable computers
`of the claim.
`And so if we look at the claims then it's quite
`clear that they all require that the portable computer not
`have input and output means. They do it in slightly
`different language. But Claim 1, for instance, says that
`the portable computer must be without input and output
`means. Claim 8 says that the portable computer must exclude
`means for a user to interact with the computer. And Claim
`15 is similar. And those are the three independent claims
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 7
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`of the patent.
`And so, no, we don't believe a claim construction
`is required because it's plain on its face. They are
`admitting that an element of this patent, a critical element
`of this patent is not there. And, of course, under the all
`elements rule of infringement if only one element of a claim
`is missing there can be no infringement as a matter of law.
`They are admitting that one element is missing of
`each of the independent claims. There can be no
`infringement of those claims and, therefore, no infringement
`of any other claims because, of course, to infringe a
`dependent claim you must first infringe the independent
`claim.
`
`THE COURT: All right. Anything else that you
`want to say about ruling on this as a motion to dismiss as
`opposed to a converted motion for summary judgment?
`MR. MOORE: I think it's that simple, frankly,
`Your Honor. There are some other theories that the
`plaintiff advocated. And those are not in its complaint.
`And so I would like an opportunity to address those either
`now or after plaintiff argues, but I think I can do so
`quickly now if you would like to hear that now.
`THE COURT: Sure.
`MR. MOORE: The other -- and so the argument that
`the plaintiff has raised is that well, these, these input
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 8
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`and output means, sure, they have them, but when you dock
`the computer you don't use them.
`And, again, we go back to the plain language of
`the claim. The claim says you can't have them not you can
`have them you just don't use them when it's docked. It says
`quite clearly you cannot have them. They admit they have
`them.
`
`The second theory that they put, and this, again,
`is in their opposition not in the complaint anywhere, but in
`the opposition that they put in some evidence and suggestion
`that they went through and disabled the screen of one of
`these devices and that when they docked it even though the
`screen didn't work on its own when they docked it it did
`work.
`
`And, frankly, I think that point is disposed of by
`the High Tech Medical case, among many others in the federal
`circuit, which quite clearly holds, and we quote it in our
`brief, but it essentially holds that you can't show
`infringement with a device that doesn't infringe by
`modifying it to infringe. And that's a pretty common sense
`rule. If my device that I make and sell does not infringe
`then I don't infringe. If you go make it infringe well
`maybe you infringed, but I certainly don't infringe. And
`that's a pretty accepted principle of federal circuit law.
`And so that's effectively what they are trying do
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 9
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`with this second pleaded theory. And it just doesn't work
`because not only do they not plead it they would have to
`plead that someone has actually done it, which they haven't.
`But even if they could plead that it wouldn't state a claim
`for relief against Motorola because they admit that Motorola
`doesn't disable these things. Why would it? You couldn't
`use the phone if you disabled them.
`So that's -- on the motion to dismiss I think
`that's, that's frankly the main issues. I mean I do have,
`if the Court is inclined to look beyond that I would like
`the opportunity to address kind of where we go from here.
`THE COURT: All right. Well, let's talk about
`where we go from here because I told you in my preliminary
`remarks I have some hesitation on the idea that this is
`something that judicial notice plus judicial admission,
`implausibility, you know, almost as a matter of law based on
`the patent. I think that's more aggressive than I have seen
`courts handling this type of issue.
`So one possible option is conversion to a motion
`for summary judgment, but then I anticipate that I will hear
`from the other side that they need discovery. I'm not so
`sure that discovery is needed. And I think that if we had a
`statement of facts that the parties could agree to it may be
`something that could be resolved as a matter of law. Maybe
`not. So let's hear from you on that issue.
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 10
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`MR. MOORE: Sure. Thank you. I don't dispute
`that this is an aggressive motion and, frankly, I don't file
`these in every case but not every case, in our view, is this
`clear-cut. What we don't want, what Motorola doesn't want
`is to have a long, expensive discovery proceeding.
`To be clear we think the case can be resolved on
`the motion to dismiss. Should the Court not agree with that
`though we think it should be streamlined. And we're
`prepared, you know, we're not, we're not here as a typical
`defendant that wants to delay the resolution of the case.
`We are prepared to move forward quickly because I think
`there are a number of factual mis-statements in the
`additional materials that plaintiff has submitted that can
`be quite readily determined to be the case.
`I don't think there's really a need for much claim
`construction here. If they've got some arguments we can
`certainly entertain that, but what we would want is a very
`quick resolution towards a summary judgment motion.
`If there is some limited discovery the plaintiff
`feels they need we're not saying that we would necessarily
`refuse it. We don't really see that need here because they
`have the device. They've obviously worked with it. I don't
`know what more we can tell them. These aren't issues of
`what's down in the guts of the machine. This is whether
`these buttons and screens work when you do different things
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`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 11
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`to them.
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`But having said that if there is some limited
`information, we just don't want this to turn into a big,
`long, expensive discovery exercise with all of this E.
`discovery and everything that typically goes on in these
`patent cases and want to get to the heart of the issue
`quickly.
`
`Frankly, Your Honor, I could, I could go into more
`detail. We actually brought one of these devices. And I
`can show you how some of these factual statements in the
`response brief are just not correct. And I recognize that's
`far beyond where, you know, what's appropriate on a motion
`to dismiss. I'd be happy to do that as kind of illustrate
`more what we're doing here. And I'd make that offer if the
`Court's interested. But that does take us a bit further
`down the road from an initial motion to dismiss hearing.
`THE COURT: So let me, I deduce that you're
`telling me that if the Court is inclined to dismiss the or
`deny the motion to dismiss you would prefer that it be
`converted to a motion for summary judgment and fact
`discovery proceed solely with regard to that motion. Do you
`anticipate that you would need any expert testimony?
`MR. MOORE: I tend to doubt it. I mean we might
`need some testimony about how the device works. Whether
`that's in the form of an expert or a fact witness probably
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`it could go either way. I don't know how the plaintiff
`would characterize the individual who put in their
`affidavit. If they are going to say he's an expert then,
`yes, maybe we need some one to say he's an expert just so
`we're on an equal playing field.
`At the end of the day this is all about how this
`thing works. And that's what we would need to demonstrate.
`Frankly, I can demonstrate that to you right now. So I --
`THE COURT: But then I'm already outside the
`pleadings. And that's my concern is --
`MR. MOORE: Sure.
`THE COURT: -- that assuming all of us are not
`familiar with exactly how a smartphone and a lapdock operate
`we're going to already be outside the pleadings. And that's
`a problem.
`MR. MOORE: I understand. I make that offer only
`for illustrative purposes not for any evidentiary purpose.
`But I know that's a long answer to your last question. We
`may need an expert if only to rebut their expert. I don't
`think frankly we need one, but if they are going to say they
`have an expert and try to give that some greater weight then
`we would probably want to do the same thing.
`But, again, this is a pretty limited inquiry here.
`It's whether -- I think under their theory the question is
`whether when you plug the phone into the lapdock the input
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`and output means still work. And I think it's, it's clear
`they do because I've done it, including at Mr. Hoar's office
`an hour or two hours ago. At least some of them do work.
`And so that's the question we're wrestling with.
`And I think if you look at their opposition papers
`there's some very careful statements there about how well,
`the screen doesn't work, but they don't mention anything
`about the speakers, the microphone or the buttons, whether
`they work when it's docked. And, in fact, they do.
`THE COURT: Well, I've got the once it's docked it
`becomes part of the docking station and they operate as a
`single unit. I wasn't sure whether the patented device had
`any utility on its own. And I looked at the pictures and I
`couldn't really tell if there was a way to use the patented
`device like you would a smartphone. Any thoughts on that?
`MR. MOORE: Oh, absolutely, Your Honor. And if I
`might borrow my adversary's document. This is the -- these
`are the claims. And that's exactly what now, of course,
`they haven't highlighted that part, but that's what the
`parts of the claim say is that they cannot.
`Is that the portable computer, the smartphone, is
`in claim one, without input and output means they are
`interacting directly therewith. So that's a pretty clear
`statement that on its own to be a portable computer under
`this patent you can't do anything with it.
`
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`THE COURT: Well, I've got the portable computer
`part. I was thinking about -- and I'm definitely giving you
`a layman's description because I focused on the summary
`which says, you know, this is going to be a portable
`computer that's going to act as the brains of the body, you
`know, with any luck it's going to be the size of a credit
`card, you can put it in your wallet, you're going to then
`dock it and it's going to operate as a computer.
`My question is, does that credit card like device
`have an ability to, a utility on its own is it your
`understanding?
`MR. MOORE: No, not under the patent. And that's
`because it cannot have input and output. To be sure that
`credit card device, or whatever the portable computer might
`be, has stuff inside it, it has memory, it has flash memory,
`it might have software on it, but you can't see it. You
`can't use it. And that's quite clear why they got the
`patent in the first place because there's plenty of other
`patents about, about devices that you can use and then you
`dock them onto something else and you just use a bigger
`screen or a bigger keyboard. But this is a very specific
`reason they got the patent was this language, without input
`and output means for interacting directly therewith.
`So when you have a portable computer you can't do
`anything about it. I mean you carry it with you, you take
`
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`it somewhere, plug it in and then you can use it. And
`that's the idea of the patent that the patent office
`granted. And that's quite clear in the history.
`THE COURT: But to get to that point I have to
`read your, your history of the patent application, which is
`also outside the pleadings, where the examiner says, no,
`this is going to be an infringement against, I don't know if
`it's called the Hogdahl patent unless X., Y. or Z. and
`things were changing so that's your argument, but I would
`have to look to those documents to find it; correct?
`MR. MOORE: With all due respect, we think that's
`powerful evidence supporting it, but I don't think you need
`to. First of all, the claim is clear on its face. Without
`input and output means they are interacting directly
`therewith.
`Second of all, on the motion to dismiss context,
`and we've cited some law in our brief on this, a patent
`filed history, application history is a matter of public
`record over which the Court can take judicial notice. And
`there's a number of authorities on that point. So you can
`look at that in the context with the motion to dismiss.
`Now, to be sure, we do fully contend that, you
`know, if it's not clear enough from Claim 1 it becomes
`abundantly clear from reading the file history of the patent
`that that's the only reason this patent was ever granted to
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 16
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`begin with was because the patent office said you need to be
`different from Hogdahl. And how they said they were
`different was that they didn't have input and output means
`on their portable computer that you use independently of the
`docking station.
`So that's where I say all this becomes a legal
`issue. Ultimately, I mean, claim construction, frankly, is
`a legal issue. If the facts are undisputed here that we
`don't have input or that we do have input and output means
`in our smartphone then it's just a legal question of what
`does that mean. If you have input and output means in your
`smartphone does that mean you can infringe this claim or
`not.
`
`So I actually don't -- that's where I get back to
`saying I don't think there's truly genuinely disputed issues
`of material fact here in view of their admission. And,
`frankly, it's an admission they have to make.
`But I don't dispute Your Honor's point that it may
`be more comfortable to do more of the wholesome claim
`construction analysis. We are suggesting it can be done on
`the motion to dismiss stage but if Your Honor would prefer
`we would, you know, rather than undergoing a full and
`expensive discovery period we would rather just proceed
`right to that next.
`THE COURT: Okay. Thank you. Let's hear from the
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 17
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`plaintiff.
`MR. MOORE: Thank you.
`MR. FAWLEY: Good afternoon, Your Honor.
`THE COURT: Good afternoon.
`MR. FAWLEY: I think Motorola's led us on a bit of
`a wild goose chase and made this much more complicated than
`it needs to be. And I don't think you need to look outside
`the pleadings, convert this to summary judgment or really
`get into a claim construction in order to decide this motion
`to dismiss.
`Motorola has focused its dismissal claim on the,
`on the, and its argument, on the attributes of its
`smartphone as a stand-alone device. That is misleading and
`it's immaterial to this case for two reasons. Number one,
`Paragraph 13 of the amended complaint only accuses
`Motorola's reader of infringement. And I'm going to get
`into this in more detail in a second.
`The second reason is that Paragraph 12 of the
`complaint accuses the combination of a smartphone and the
`reader of infringement, not a stand-alone smartphone. We're
`not alleging that the ATRIX Smartphone standing alone
`infringes Arnouse's patent. And I think the best thing to
`do, if I could, is to look, direct the Court's attention to
`the patent itself and the claims which counsel has put up on
`the Elmo. And as the Court I'm sure is aware there are
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 18
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`three independent claims in this patent. Claim 1, Claim 8
`and Claim 15.
`And I would like to focus on Claim 1 initially.
`If we just look at what it says there it says, the invention
`claimed is, one, a reader configured to interact with a
`portable computer that has certain attributes. A portable
`computer without input and output means for interacting
`directly therewith, the reader comprising, and then there's
`a further description.
`So the question then is whether or not the reader,
`the ATRIX Lapdock, is configured to interact with the
`portable computer that does not have I-O. Motorola's motion
`says nothing about the attributes of the ATRIX Lapdock
`Reader. It doesn't assert that the reader is not configured
`to interact with the portable computer without I-O means.
`It only claims its smartphones do have input-output means.
`That's interesting, but so what. The complaint in Claim 1,
`again, is only addressed to the reader.
`THE COURT: All right. But other parts are
`directed to other. I mean 15, for example, is not just
`directed exclusively.
`MR. FAWLEY: That's correct. I have separate
`arguments for Claim 15. And I mis-spoke when I said the
`complaint. I meant Paragraph 13 of the complaint is only
`addressed to the reader.
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 19
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`And so the question is has Motorola established or
`even claimed that its reader is not configured to interact
`with a portable computer without I-O means. I've scoured
`their papers and the answer is no. Thus the complaint
`states a claim for infringement.
`And also whether the Court takes judicial notice
`of the attributes of a smartphone as a stand-alone device is
`irrelevant to the motion as it relates to the complaint in
`Paragraph 13.
`We would really only have an issue to debate if
`the Court were to be invited by Motorola to take judicial
`notice of the attributes of the reader which Motorola has
`not asked the Court to do. And the same arguments go for
`Independent Claim 8. A reader configured to interact with
`at least one hand-held portable computer that has certain
`attributes. And the same argument goes for each claim
`that's dependent of Claims 1 and 8.
`So, in short, regardless of how Motorola's phone
`works or for that matter really how they interact with the
`ATRIX Reader Paragraph 13 of the complaint states a claim
`that the reader infringes.
`Now, let's look at the complaint in Paragraph 12
`in Independent Claim 15. Those are directed to infringement
`of a computing system. Those are the first words of Claim
`15. A computing system comprised of a combination of the
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 20
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`smartphones and the reader. Well, a system doesn't exist
`until there's a connection or a combination. And I looked
`at Websters before I came today. System is defined as a
`group of devices forming a network serving a common purpose
`or a group of items forming a unified whole.
`So until you have a connection or a combination
`you simply have two separate devices. You have a smartphone
`and you have a reader, but that's not what Claim 15 is
`about. Claim 15 clearly talks about a computing system
`comprised of two devices.
`THE COURT: But one of those devices is the
`portable computer that excludes means for a user to interact
`directly with the portable computer.
`MR. FAWLEY: Yes. But Motorola has submitted
`nothing to the Court to suggest that once there is a
`combination, once its smartphone is combined with the reader
`it lacks I-O or has I-O. It never addressed that issue.
`THE COURT: Well, it says, I can, you know, we
`can, we can show you that it isn't true that once you dock,
`for lack of a better word, the smartphone, it loses all its
`capability to receive input and output. I don't believe --
`they are saying, no, it still has some functions that it can
`use that takes us outside of the pleadings as well. But
`you're saying as a matter of law there's no -- there is
`infringement based on this. And I'm wondering how you get
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 21
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`there with your portable computer having no means for a user
`to interact directly with the portable computer. And they
`say everybody knows you have a means of interacting directly
`with a smartphone.
`MR. FAWLEY: Well, we get there because the
`complaint has to be construed in the light most favorable to
`the plaintiff. And based on the complaint and the patent
`which is attached to it, and without taking judicial notice
`of a smartphone, there's nothing in front of the Court to
`suggest that once the smartphone and the ATRIX Reader are
`combined the phone has input-output means other than, as we
`have alleged, through manipulation of the reader. That's
`what the, that's what the patent says and that's what our
`complaint alleges.
`THE COURT: So I'm with you there, but I guess
`you, I was distracted by you saying you don't need to take
`judicial notice to decide the claim in this case, you don't
`need to do any of this, none of this is necessary. And I
`think to get to where you're going about plausibility I
`would have to know something about how a smartphone operates
`independently and also when docked.
`MR. FAWLEY: Well, the complaint, if we can, --
`THE COURT: I'm looking at it.
`MR. FAWLEY: If we can look at Paragraph 12, which
`is the one I'm focused on right now, we allege Motorola has
`
`Petitioner Motorola Mobility LLC - Exhibit 1011 - Page 22
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`directly infringed and is still directly infringing by
`making, offering for sale and selling the smartphones and
`the lapdocks together which in combination embody the
`subject matter include each and every element of one or more
`claims of the '484 patent.
`And it's true we didn't link Paragraph 12 to
`Independent Claim 15 and the dependent claims that followed
`from it, but this is notice pleading. This is not a fraud
`claim. This is a typical patent complaint. If, if that's
`the problem with the complaint I'm certainly willing to
`amend the complaint to specifically identify the
`relationship between Paragraph 13 and, dependent, excuse me,
`Independent Claim 15 and similarly to link Paragraph 12 of
`the complaint to Claims 1 and 8 if that's the issue. But I
`think as, as it's framed we do, we do state a claim when
`seen in the light most favorable. And Motorola has
`submitted nothing to the Court other than to argue that its
`smartphones as stand-alone devices have input and output
`means.
`
`We don't dispute that. Of course they do. It's
`not an issue. It's irrelevant. It's immaterial. We don't
`claim to have invented the smartphone. What we claim to
`have invented is the reader which can work with -- which
`must work, be able to work with certain portable computers.
`THE COURT:
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