`
` 1 IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF TEXAS
` 2 TYLER DIVISION
`
` 3
` VIRNETX, INC. )
` 4 DOCKET NO. 6:10cv417
` -vs- )
` 5 Tyler, Texas
` ) 8:49 a.m.
` 6 APPLE, INC. November 5, 2012
`
` 7
` 8 TRANSCRIPT OF TRIAL
` MORNING SESSION
` 9 BEFORE THE HONORABLE LEONARD DAVIS,
` UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY
` 10
`
` 11
`
` 12 A P P E A R A N C E S
`
` 13
`
` 14 FOR THE PLAINTIFFS:
`
` 15
` MR. DOUGLAS CAWLEY
` 16 MR. BRADLEY W. CALDWELL
` MR. JASON D. CASSADY
` 17 MR. JOHN AUSTIN CURRY
` McKOOL SMITH
` 18 300 Crescent Court, Ste. 1500
` Dallas, TX 75201
` 19
`
` 20
`
` 21 COURT REPORTERS: MS. JUDITH WERLINGER
` MS. SHEA SLOAN
` 22 shea_sloan@txed.uscourts.gov
`
` 23
`
` 24 Proceedings taken by Machine Stenotype; transcript was
` produced by a Computer.
` 25
`
`VIRNETX EXHIBIT 2004
`New Bay Capital v. Virnetx
`Case IPR2013-00376
`
`
`
` 2
`
` 1 FOR THE PLAINTIFF:
`
` 2 MR. ROBERT M. PARKER
` MR. ROBERT CHRISTOPHER BUNT
` 3 PARKER BUNT & AINSWORTH
` 100 East Ferguson, Ste. 1114
` 4 Tyler, TX 75702
`
` 5
`
` 6
`
` 7
`
` 8
` FOR THE DEFENDANT:
` 9
` MR. DANNY L. WILLIAMS
` 10 MR. TERRY D. MORGAN
` MR. RUBEN S. BAINS
` 11 MR. CHRIS CRAVEY
` MR. MATT RODGERS
` 12 MR. DREW KIM
` MR. SCOTT WOLOSON
` 13 WILLIAMS, MORGAN & AMERSON, P.C.
` 10333 Richmond, Ste. 1100
` 14 Houston, TX 77042
`
` 15
` MR. ERIC ALBRITTON
` 16 MR. STEPHEN E. EDWARDS
` MS. DEBRA COLEMAN
` 17 MR. MATTHEW C. HARRIS
` ALBRITTON LAW FIRM
` 18 P.O. Box 2649
` Longview, TX 75606
` 19
`
` 20 MR. JOHN M. DESMARAIS
` MR. MICHAEL P. STADNICK
` 21 DESMARAIS, LLP - NEW YORK
` 230 Park Avenue
` 22 New York, NY 10169
`
` 23
`
` 24
`
` 25
`
`
`
`
` 3
`
` 1 P R O C E E D I N G S
` 2 (Jury out.)
` 3 THE COURT: All right. I understand
` 4 there's a matter to take up before the jury comes in; is
` 5 that correct?
` 6 MR. DESMARAIS: Yes, Your Honor.
` 7 Good morning. John Desmarais for Apple.
` 8 Last night, VirnetX disclosed a new document that they
` 9 want to use in their direct testimony of their expert,
` 10 who's going to testify today, Mr. Jones -- or Dr. Jones.
` 11 It's a slide presentation, they say, was
` 12 given by Dr. Kiuchi back in 1996. Turns out VirnetX has
` 13 had this presentation in their possession since May of
` 14 this year, during discovery in this case, and two months
` 15 before they served their validity expert report.
` 16 Yet it's not discussed in their validity
` 17 expert report. Their expert never relied on it, and he
` 18 put forward no opinions about it in his report, and it's
` 19 not on their trial exhibit list.
` 20 So despite having it since May and during
` 21 discovery, they sent it to us for the first time
` 22 Saturday night, two days ago, right before the last day
` 23 of trial at 11:00 p.m.
` 24 I don't understand the set of circumstances that it
` 25 would be appropriate for them to now use that
`
`
`
` 4
`
` 1 affirmatively with their expert on direct when it's
` 2 not on their exhibit list, wasn't produced in discovery,
` 3 and he didn't rely on it in his expert report.
` 4 More than that, just going to the merits,
` 5 it's not relevant to any issue in the case. As Your
` 6 Honor is well-aware at this point, our invalidity theory
` 7 is anticipation over the Kiuchi publication. And Dr.
` 8 Alexander's entire direct testimony was about what that
` 9 published article discloses.
` 10 He wasn't reading in outside materials.
` 11 He wasn't combining references. So it's not relevant to
` 12 the issue of whether the Kiuchi publication anticipates
` 13 these patents, whether or not Dr. Kiuchi at some other
` 14 point gave a presentation about his specific
` 15 implementation.
` 16 It's prejudicial. It's not relevant to
` 17 the issues in this case. And it certainly shouldn't be
` 18 allowed to be used in VirnetX' direct case.
` 19 The document is -- on the evidentiary
` 20 issues, it's a hearsay document. It's not authentic.
` 21 There's no proof of it. No witness testified about it.
` 22 So anything the expert said about it would be hearsay
` 23 anyway.
` 24 But more importantly, the speculative
` 25 opinions that Dr. Jones would be offering, we would be
`
`
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