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` UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
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`Docket No. 3:11-CV-719
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` PARKERVISION, INC. :
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`Orlando, Florida
` Plaintiff :
`October 15, 2013
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`8:58 a.m.
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`QUALCOMM, INCORPORATED :
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` Defendant :
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`TRANSCRIPT OF JURY TRIAL
`DAY SIX
`BEFORE THE HONORABLE ROY B. DALTON, JR.
`UNITED STATES DISTRICT JUDGE
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`RPX-Farmwald Ex. 1011, p 1
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` UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
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`Docket No. 3:11-CV-719
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` PARKERVISION, INC. :
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`Orlando, Florida
` Plaintiff :
`October 15, 2013
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`8:58 a.m.
` v. :
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`QUALCOMM, INCORPORATED :
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` Defendant :
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`TRANSCRIPT OF JURY TRIAL
`DAY SIX
`BEFORE THE HONORABLE ROY B. DALTON, JR.
`UNITED STATES DISTRICT JUDGE
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`RPX-Farmwald Ex. 1011, p 1
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`APPEARANCES:
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`For the Plaintiff: Douglas A. Cawley
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` Joshua W. Budwin
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` Leah Buratti
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` Kevin Kneupper
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` Stephen D. Busey
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` Kevin Burgess
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`For the Defendant: Stephen C. Neal
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` Timothy S. Teter
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` John DeVault
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`Court Reporter:
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`Amie R. First, RPR, CRR
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`AmieFirst.CourtReporter@gmail.com
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`Proceedings recorded by mechanical stenography.
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`Transcript produced by Computer-Aided Transcription.
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`RPX-Farmwald Ex. 1011, p 2
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`P R O C E E D I N G S
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`THE COURT: Good morning.
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`ALL: Good morning.
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`THE COURT: Mr. DeVault, I appreciate your note.
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`I didn't get it, unfortunately, until this morning.
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`But in any event, why don't you all bring me up to
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`date on your discussions over the weekend and what
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`you've -- what agreement you've reached with respect to
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`proceeding.
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`MR. NEAL: Thank you, Your Honor.
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`And I apologize we were not able to get that to
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`you and your courtroom staff earlier.
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`We informed ParkerVision on Saturday that we
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`intended this morning to read in some very short paragraphs
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`from the stipulation. We have a handful of additional
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`exhibits to offer. And at that point, we are going to
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`rest.
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`ParkerVision initially indicated they would put on
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`a witness in rebuttal, but they then advised us yesterday
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`that they had decided not to do that.
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`So unless there's been a change, it is my
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`understanding that there will not be any further testimony
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`in the case and that both parties will rest this morning.
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`THE COURT: Good morning.
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`MR. CAWLEY: Good morning, Your Honor.
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`RPX-Farmwald Ex. 1011, p 3
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`That's essentially correct. One slight change.
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`We received notice that the defendant would be resting in
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`the middle of the morning on Sunday.
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`And then we initially indicated that we would call
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`a witness in rebuttal. But then the more we considered it,
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`we informed them about midday yesterday that we would not
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`be. And that's the reason why we didn't give any
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`notification to the Court until the middle of the
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`afternoon.
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`But Mr. Neal is correct that neither side intends
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`to call further witnesses in this phase of the case. And
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`other than some fairly minor housekeeping involving a
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`handful of exhibits that both sides want to make sure are
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`either in evidence or excluded, we're prepared to close
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`phase one.
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`THE COURT: Okay.
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`MR. NEAL: And I apologize. Mr. Cawley is right.
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`It was Sunday, not Saturday, that we notified them. The
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`holiday, for me.
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`THE COURT: How much time do you anticipate you'll
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`need with the jury in terms of your stipulations,
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`et cetera?
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`MR. NEAL: I think I have -- before the jury comes
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`in, I would like to move in a couple of exhibits. And I
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`think the stipulations will take five minutes, at most.
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`RPX-Farmwald Ex. 1011, p 4
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`THE COURT: Mr. Cawley, anything else from you?
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`MR. CAWLEY: We have no stipulations.
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`How many exhibits do we have that we're offering?
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`Oh, we're not offering any. We need no time in
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`front of the jury.
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`THE COURT: Okay. Let's talk a little bit about
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`the timetable and procedure for moving forward, then.
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`Obviously my jurors are here. So we ought to try to use
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`their time efficiently this morning. Whatever we need to
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`do with them, get done.
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`I have not finished the jury instructions, but
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`I've made some progress on them. But what I'd propose to
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`do, then, is let's get our jury back. Let's get the case,
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`phase one case, submitted to them as far as what we need
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`from them. And then maybe figure out where we are with
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`respect to jury instructions.
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`Do you have a set that you would be able -- later
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`on this morning would be able to have a rough draft?
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`I have a draft of the Court's instruction where
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`I've essentially worked through your joint submissions and
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`then identified where there are disputes.
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`And in some areas, there's arguments to be had
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`with respect to some of the pending jury instructions. But
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`we could spend the morning hopefully getting those
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`resolved, get settled on jury instructions, and kind of see
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`RPX-Farmwald Ex. 1011, p 5
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`where we are.
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`I want to try to figure out what time we'll need
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`so I can tell the jury a solid time to come back for
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`closings.
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`MR. NEAL: Right. My sense, Your Honor, is that
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`we are -- even the parties, before Your Honor has taken it
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`in your hands, are mighty close on the jury instructions.
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`And the very few issues that remain could be resolved
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`fairly quickly.
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`The verdict form still needs to be resolved. We
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`have an alternative form that we have not shared with
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`either Mr. Cawley or the Court yet, because we just pulled
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`it together.
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`It is a form that would simplify a lot of that
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`grid kind of stuff that's in the form we submitted that I
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`would love to see us simplify.
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`Our version, though, assumes that the case would
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`and should be restricted to the Magellan products only
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`because the Magellan products are the only products for
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`which we think there is any proof whatsoever.
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`The only proof with respect to anything else is a
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`stack this high of those yellow confidential schematics
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`that I don't think anybody should let the jury speculate
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`about.
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`All of that obviously assumes that Your Honor is
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`RPX-Farmwald Ex. 1011, p 6
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`going to take the JMOL under advisement.
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`The other thing we need to do very briefly is
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`renew our JMOL motions. Unless the Court has questions,
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`we're content to rely on the paper motions that we filed
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`rather than take the Court's time to reargue.
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`I would think that once we rest, we do get all of
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`that done in an hour, hour and a half. But I defer to
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`Your Honor and to Mr. Cawley's perspective, too.
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`THE COURT: Well, I guess what I'm thinking is
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`that, you know, I don't want to bring the jury back and
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`have them wait. But it sounds to me like if we had the
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`jury come back at 1:30 or 2:00 this afternoon, that we
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`might be able to go directly into closing, finish our
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`business here this morning, and give you all an opportunity
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`to get your -- you know, your final thoughts collected with
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`respect to the closing and get phase one to the jury, then,
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`this afternoon.
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`Does that sound reasonable to you all?
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`MR. NEAL: It does, Your Honor. I would think we
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`could have them back at 1:30, and that would give us plenty
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`MR. CAWLEY: I agree, Your Honor.
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`THE COURT: Thank you all for your work on that.
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`Is our jury up here? They are.
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`Why don't we bring our jury back then.
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`RPX-Farmwald Ex. 1011, p 7
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`MR. NEAL: I apologize for interrupting. Before
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`we bring the jury in, can I move just a few exhibits?
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`THE COURT: Yes.
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`MR. NEAL: I would move in, at this time, DX-469,
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`DX-491, DX-714, DX-718, DX-1652, and DX-1736.
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`Those are unobjected to.
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`THE COURT: All right. Those will be received
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`without objection.
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`(Defendant's Exhibits 469, 491, 714, 718, 1652,
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`and 1736 were received in evidence.)
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`MR. NEAL: And I would also move in DX-744 and
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`DX-1709. Those are objected to, Your Honor, on hearsay
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`grounds. They are internal Emails at Qualcomm. They are
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`being offered only for state of mind and not for the truth
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`of the matter asserted.
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`So I don't think the hearsay objection stands.
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`And I'd be happy to hand Your Honor copies of these two, if
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`you would like.
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`They are in some respects just filling in part of
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`this whole ParkerVision/Qualcomm back-and-forth story. But
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`they are later in time. They are 2005 and 2006, at about
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`the time that we were accused of infringing. And they
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`reflect discussions at that point in time about the
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`technology that's at issue.
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`THE COURT: If you have extra copies there, it
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`RPX-Farmwald Ex. 1011, p 8
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`will save me from flipping through the binders to find
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`them.
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`MR. NEAL: May I approach?
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`THE COURT: Yes. Thank you.
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`All right. So we're on DX-744 and 17 -- DX-1709.
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`MR. KNEUPPER: That's correct, Your Honor. And
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`ParkerVision objects on hearsay grounds.
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`And the applicable section here is 8033, which
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`does say that you can offer a statement of the declarant's
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`then existing state of mind.
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`But these are statements where it specifically
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`says, but not including a statement of memory or belief to
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`prove the facts remembered or believed.
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`These are both, as you can see, Emails from 2005
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`and 2006. And they're referring to past memories of what
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`happened in the '99-2000 negotiations.
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`And in particular, you can sort of tell from the
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`-- you know, the language in both. On 744, it talks about
`
`09:06:48
`
`19
`
`the previous role, as my team didn't have a good experience
`
`09:06:52
`
`20
`
`with these guys in my previous role. Might, of course, be
`
`09:06:56
`
`21
`
`different this time.
`
`09:06:58
`
`22
`
`1709 is from 2005 and says, on ParkerVision, we've
`
`09:07:03
`
`23
`
`dealt with them in the past.
`
`09:07:05
`
`24
`
`And QCT spends quite a bit of time in the 2000
`
`09:07:10
`
`25
`
`time frame. We have not found their technology to be
`
`RPX-Farmwald Ex. 1011, p 9
`
`
`
` 10
`
`09:07:13
`
` 1
`
`viable.
`
`09:07:14
`
` 2
`
`In particular, Your Honor, because we're not
`
`09:07:15
`
` 3
`
`getting to cross-examine any witnesses on this, they're not
`
`09:07:18
`
` 4
`
`even offering any Qualcomm fact witnesses, that adds to the
`
`09:07:21
`
` 5
`
`owner liability of these documents.
`
`09:07:23
`
` 6
`
`In particular, also because we believe there's a
`
`09:07:25
`
` 7
`
`number of documents in the 1999-2000 time frame that
`
`09:07:28
`
` 8
`
`contradict these memories from five or six years later that
`
`09:07:31
`
` 9
`
`they're trying to use, as Mr. Neal said, to fill in the
`
`09:07:34
`
`10
`
`gaps on the prior negotiations.
`
`09:07:36
`
`11
`
`THE COURT: Let me have a minute to read through
`
`09:07:38
`
`12
`
`these. I think I understand the parties' positions.
`
`09:07:41
`
`13
`
`All right. I'm going to sustain the objection to
`
`09:11:21
`
`14
`
`744 and 1709 principally, Mr. Neal, because these are
`
`09:11:26
`
`15
`
`essentially Qualcomm -- I presume they are being offered as
`
`09:11:30
`
`16
`
`Qualcomm business records.
`
`09:11:31
`
`17
`
`And they are really self-serving documents
`
`09:11:34
`
`18
`
`supporting Qualcomm's position in the case with respect to
`
`09:11:37
`
`19
`
`the ParkerVision architecture.
`
`09:11:40
`
`20
`
`And I don't find, in view of their timing after
`
`09:11:42
`
`21
`
`the '98-'99 records, that -- if these were being offered by
`
`09:11:47
`
`22
`
`ParkerVision, I would have a different view. But in view
`
`09:11:49
`
`23
`
`of the fact they are being offered by Qualcomm in support
`
`09:11:52
`
`24
`
`of your position in the case, I don't think they warrant
`
`09:11:54
`
`25
`
`admission.
`
`RPX-Farmwald Ex. 1011, p 10
`
`
`
` 11
`
`09:11:54
`
` 1
`
`So I'm going to sustain the objection.
`
`09:11:56
`
` 2
`
`MR. NEAL: All right. Thank you, Your Honor.
`
`09:11:57
`
` 3
`
`THE COURT: You're welcome.
`
`09:11:58
`
` 4
`
`MR. NEAL: And one last housekeeping matter, and
`
`09:12:01
`
` 5
`
`thinking about the jury's time, after I rest and before
`
`09:12:05
`
` 6
`
`Mr. Cawley stands up to rest, I'm told that as a technical
`
`09:12:09
`
` 7
`
`matter, I need to renew a JMOL motion.
`
`09:12:13
`
` 8
`
`And we have filed document 398, which is our
`
`09:12:17
`
` 9
`
`motion on infringement, and 399, which is our motion on
`
`09:12:20
`
`10
`
`validity.
`
`09:12:21
`
`11
`
`And I'm wondering whether it can just be deemed
`
`09:12:25
`
`12
`
`that those will be effectively made and filed as of the
`
`09:12:29
`
`13
`
`time I say I rest.
`
`09:12:30
`
`14
`
`THE COURT: Yes. Yes. I'll consider your JMOL
`
`09:12:33
`
`15
`
`motions to have been timely made at the appropriate
`
`09:12:35
`
`16
`
`interlude in the case without you having to stand and raise
`
`09:12:38
`
`17
`
`them orally since I have your papers.
`
`09:12:40
`
`18
`
`MR. NEAL: Thank you, Your Honor.
`
`09:12:42
`
`19
`
`THE COURT: You're welcome.
`
`09:12:43
`
`20
`
`MR. CAWLEY: And may I have the same --
`
`09:12:45
`
`21
`
`THE COURT: Yes. Both parties' motions for
`
`09:12:47
`
`22
`
`judgment as a matter of law will be deemed as appropriately
`
`09:12:50
`
`23
`
`raised at the appropriate time in the proceedings based on
`
`09:12:54
`
`24
`
`the submission of the papers.
`
`09:12:55
`
`25
`
`Anything else we need to take up before we bring
`
`RPX-Farmwald Ex. 1011, p 11
`
`
`
` 12
`
`09:12:58
`
` 1
`
`the jury back?
`
`09:12:59
`
` 2
`
`Let me give these back to you, Mr. Neal.
`
`09:13:04
`
` 3
`
`MR. NEAL: Thank you.
`
`09:13:09
`
` 4
`
`MR. CAWLEY: I'm sorry, Your Honor. We at some
`
`09:13:14
`
` 5
`
`point will want to make an offer of proof on the exclusion
`
`09:13:18
`
` 6
`
`of the '99 negotiation documents that Your Honor ruled on
`
`09:13:21
`
` 7
`
`on Friday.
`
`09:13:22
`
` 8
`
`THE COURT: Right.
`
`09:13:23
`
` 9
`
`MR. CAWLEY: But since that relates to phase two
`
`09:13:25
`
`10
`
`of the trial, I'm assuming that we can go ahead and close
`
`09:13:28
`
`11
`
`without doing that. But if Your Honor feels that we should
`
`09:13:31
`
`12
`
`do that before we close, then, of course, we're ready to do
`
`09:13:35
`
`13
`
`that.
`
`09:13:36
`
`14
`
`THE COURT: Right. We've got a couple of
`
`09:13:37
`
`15
`
`procedure things and evidentiary things that we'll need to
`
`09:13:40
`
`16
`
`talk about, the timing of that related to phase two.
`
`09:13:43
`
`17
`
`Let's go ahead and get the jury at work on this
`
`09:13:46
`
`18
`
`phase of the case. And then we'll take those up.
`
`09:13:48
`
`19
`
`I haven't had a chance to read your submission yet
`
`09:13:51
`
`20
`
`with respect to Mr. Benoit, but I know that it's been
`
`09:13:54
`
`21
`
`filed. I'm aware of it. I just haven't had a chance to
`
`09:13:57
`
`22
`
`review it yet.
`
`09:13:58
`
`23
`
`Let's bring our jury back, Mr. Fiorenza.
`
`09:14:03
`
`24
`
`(Jury entered the courtroom at 9:14 a.m.)
`
`09:14:27
`
`25
`
`THE COURT: Welcome back, ladies and gentlemen. I
`
`RPX-Farmwald Ex. 1011, p 12
`
`
`
` 13
`
`09:14:28
`
` 1
`
`hope you all had a restful three-day weekend. Nice to see
`
`09:14:33
`
` 2
`
`you back here looking fresh and rested.
`
`09:14:35
`
` 3
`
`Let me ask you this. First, were all of you able
`
`09:14:37
`
` 4
`
`to follow my instructions not to discuss the case either
`
`09:14:40
`
` 5
`
`amongst yourselves or with anyone else?
`
`09:14:42
`
` 6
`
`JURY: Yes.
`
`09:14:42
`
` 7
`
`THE COURT: And were all of you able to avoid any
`
`09:14:45
`
` 8
`
`exposure to any media coverage about the case?
`
`09:14:47
`
` 9
`
`JURY: Yes.
`
`09:14:48
`
`10
`
`THE COURT: All right. Over the course of the
`
`09:14:49
`
`11
`
`weekend, the parties have worked cooperatively together in
`
`09:14:52
`
`12
`
`an effort to try to use your time efficiently. And I have
`
`09:14:56
`
`13
`
`some good news for you in that the parties are going to
`
`09:14:58
`
`14
`
`make some submissions to you this morning.
`
`09:14:59
`
`15
`
`But they've advised me that based on some
`
`09:15:02
`
`16
`
`agreements they've reached between themselves and some
`
`09:15:04
`
`17
`
`stipulations of fact that they're going to publish to you,
`
`09:15:06
`
`18
`
`that we've concluded the presentation of evidence on the
`
`09:15:10
`
`19
`
`first phase of the case.
`
`09:15:11
`
`20
`
`So what we're going to do this morning is let the
`
`09:15:13
`
`21
`
`parties finish up; get any other exhibits they need
`
`09:15:17
`
`22
`
`introduced, any other stipulations published to you all;
`
`09:15:21
`
`23
`
`then I'm going to excuse you.
`
`09:15:23
`
`24
`
`I'm going to take up some matters with the lawyers
`
`09:15:26
`
`25
`
`and have you all come back at 1:30 this afternoon, at which
`
`RPX-Farmwald Ex. 1011, p 13
`
`
`
` 14
`
`09:15:30
`
` 1
`
`time the lawyers will be prepared to make their closing
`
`09:15:33
`
` 2
`
`arguments to you on the first phase of the case.
`
`09:15:35
`
` 3
`
`As I mentioned to you when we started out, I have
`
`09:15:37
`
` 4
`
`divided the case into several phases or stages. But we're
`
`09:15:40
`
` 5
`
`going to get to the end of the first phase of the case and
`
`09:15:43
`
` 6
`
`submit that to you for some decisions later on this
`
`09:15:46
`
` 7
`
`afternoon.
`
`09:15:47
`
` 8
`
`So that's good news. And so I appreciate the
`
`09:15:49
`
` 9
`
`lawyers' hard work in that respect.
`
`09:15:51
`
`10
`
`Mr. Neal, let me look to you, then, for Qualcomm's
`
`09:15:56
`
`11
`
`next submission or stipulation that you want to publish to
`
`09:15:58
`
`12
`
`the jury.
`
`09:15:59
`
`13
`
`MR. NEAL: Thank you very much, Your Honor.
`
`09:16:02
`
`14
`
`Ladies and gentlemen, at this point, I'm going to
`
`09:16:04
`
`15
`
`read four short paragraphs from the same stipulation of
`
`09:16:07
`
`16
`
`facts that Mr. Cawley read to you from last week, but they
`
`09:16:11
`
`17
`
`are very short.
`
`09:16:13
`
`18
`
`Number 72, the article "Subharmonic Sampling of
`
`09:16:20
`
`19
`
`Microwave Signal Processing Requirements," Microwave
`
`09:16:25
`
`20
`
`Journal, 1992, by Peter Weisskopf, was published in May of
`
`09:16:30
`
`21
`
`1992.
`
`09:16:31
`
`22
`
`The Weisskopf article pre-dates the asserted
`
`09:16:34
`
`23
`
`claims of the patents-in-suit.
`
`09:16:36
`
`24
`
`Number 73, the article "A Mixer Computer-Aided
`
`09:16:42
`
`25
`
`Design Tool Based in the Time Domain," 1988, IEEE MTT-S
`
`RPX-Farmwald Ex. 1011, p 14
`
`
`
` 15
`
`09:16:52
`
` 1
`
`Digest, pages 1107 through 1110 by Polly Estabrook and
`
`09:17:00
`
` 2
`
`Bruce Lusignan ("Estabrook I") was published in 1989.
`
`09:17:07
`
` 3
`
`The Estabrook article -- the Estabrook I article
`
`09:17:12
`
` 4
`
`pre-dates the asserted claims of the patents-in-suit.
`
`09:17:15
`
` 5
`
`Number 74, the article "The Design of a Mobile
`
`09:17:19
`
` 6
`
`Radio Receiver Using a Direct Conversion Architecture,"
`
`09:17:24
`
` 7
`
`1988 IEEE Vehicular Technology Conference, IEEE 38th,
`
`09:17:35
`
` 8
`
`June 1989, by Polly Estabrook and Bruce Lusignan,
`
`09:17:39
`
` 9
`
`("Estabrook II") was published in 1989.
`
`09:17:43
`
`10
`
`The Estabrook II article pre-dates the asserted
`
`09:17:46
`
`11
`
`claims of the patents-in-suit.
`
`09:17:47
`
`12
`
`And then, finally, paragraph 83, the reference
`
`09:17:52
`
`13
`
`"Practical RF Design Manual," by Doug DeMaw, was published
`
`09:17:59
`
`14
`
`in 1982.
`
`09:18:00
`
`15
`
`The DeMaw reference pre-dates the asserted claims
`
`09:18:05
`
`16
`
`of the patents-in-suit.
`
`09:18:06
`
`17
`
`And with that, Your Honor, Qualcomm rests.
`
`09:18:09
`
`18
`
`THE COURT: All right. Thank you, Mr. Neal.
`
`09:18:10
`
`19
`
`And, Mr. Cawley, does the plaintiff have any
`
`09:18:13
`
`20
`
`rebuttal evidence at this time?
`
`09:18:15
`
`21
`
`MR. CAWLEY: No, Your Honor. The plaintiff rests
`
`09:18:16
`
`22
`
`in this phase.
`
`09:18:17
`
`23
`
`THE COURT: All right. Thank you.
`
`09:18:19
`
`24
`
`All right. Ladies and gentlemen, I apologize for,
`
`09:18:26
`
`25
`
`I guess, the slight misuse of your time of having you come
`
`RPX-Farmwald Ex. 1011, p 15
`
`
`
` 16
`
`09:18:29
`
` 1
`
`in early this morning, only to have you go out and come
`
`09:18:32
`
` 2
`
`back at 1:30. But I can tell you that these are obviously
`
`09:18:36
`
` 3
`
`very positive developments from a timing standpoint. So
`
`09:18:39
`
` 4
`
`hopefully you will forgive us in that respect.
`
`09:18:42
`
` 5
`
`I have some matters that I have to take up with
`
`09:18:44
`
` 6
`
`the lawyers that relate to the formulation and the final
`
`09:18:47
`
` 7
`
`iteration of the jury instructions that I will be reading
`
`09:18:51
`
` 8
`
`to you all after the lawyers' closing arguments this
`
`09:18:54
`
` 9
`
`afternoon.
`
`09:18:54
`
`10
`
`That's going to take us probably the bulk of the
`
`09:18:57
`
`11
`
`morning. So if -- with your understanding, I'm going to
`
`09:19:00
`
`12
`
`excuse you with my same instructions.
`
`09:19:02
`
`13
`
`So even though we've concluded the evidence
`
`09:19:05
`
`14
`
`portion of phase one of the case, there is more to come.
`
`09:19:07
`
`15
`
`And obviously the closing arguments that the lawyers will
`
`09:19:11
`
`16
`
`give you and my instructions on the law will happen this
`
`09:19:14
`
`17
`
`afternoon as it relates to phase one.
`
`09:19:16
`
`18
`
`I'm going to remind you not to discuss the case
`
`09:19:19
`
`19
`
`amongst ourselves or with anyone else. I'm going to excuse
`
`09:19:22
`
`20
`
`you and ask you to be back, ready to go, at 1:30.
`
`09:19:25
`
`21
`
`Our schedule for this afternoon will be when you
`
`09:19:26
`
`22
`
`come back at 1:30, the lawyers will give you their closing
`
`09:19:30
`
`23
`
`arguments. I'll give you my instructions on the law as it
`
`09:19:32
`
`24
`
`relates to the issues that you're to decide in phase one.
`
`09:19:35
`
`25
`
`And then you'll be at liberty to retire and begin your
`
`RPX-Farmwald Ex. 1011, p 16
`
`
`
` 17
`
`09:19:39
`
` 1
`
`deliberations on those issues.
`
`09:19:40
`
` 2
`
`So we're moving along more rapidly than I had
`
`09:19:44
`
` 3
`
`thought we would, which is always good news. And I
`
`09:19:47
`
` 4
`
`appreciate your attention. And, again, I'm sorry to bring
`
`09:19:50
`
` 5
`
`you in early this morning, only to have you spend a few
`
`09:19:53
`
` 6
`
`hours waiting.
`
`09:19:53
`
` 7
`
`But in the grand scheme of things, it's a good
`
`09:19:56
`
` 8
`
`development. So I'll excuse you now with those
`
`09:19:59
`
` 9
`
`instructions and see you back here ready to go at 1:30.
`
`09:20:03
`
`10
`
`(Jury exited the courtroom at 9:20 a.m.)
`
`09:20:28
`
`11
`
`THE COURT: In terms of efficient use of our time,
`
`09:20:31
`
`12
`
`I know you all have had some conversations about jury
`
`09:20:34
`
`13
`
`instructions and are farther along, at least in your
`
`09:20:38
`
`14
`
`agreements, it sounds like, than I'm currently privy to.
`
`09:20:41
`
`15
`
`I think it might be a good idea if we took a
`
`09:20:44
`
`16
`
`ten-minute break, let me get my notes together on the
`
`09:20:47
`
`17
`
`instructions, and distribute out to you all what I have
`
`09:20:50
`
`18
`
`prepared, at least to this point.
`
`09:20:52
`
`19
`
`You can look through that and let me know of those
`
`09:20:54
`
`20
`
`that I have marked as disputed, some of those may have --
`
`09:20:58
`
`21
`
`may be mooted now by your agreement.
`
`09:21:00
`
`22
`
`So why don't I take -- let's take a 15-minute
`
`09:21:04
`
`23
`
`recess. Let me distribute my work product to you all.
`
`09:21:08
`
`24
`
`I'll give you all a chance to work through it.
`
`09:21:11
`
`25
`
`Then you give Miss Flick an indication when 15
`
`RPX-Farmwald Ex. 1011, p 17
`
`
`
` 18
`
`09:21:13
`
` 1
`
`minutes is up. I'll come back to the bench and see if we
`
`09:21:17
`
` 2
`
`can't work through what we have left.
`
`09:21:19
`
` 3
`
`Does that sound like a reasonable plan to you all?
`
`09:21:20
`
` 4
`
`MR. NEAL: Yes, Your Honor.
`
`09:21:21
`
` 5
`
`MR. CAWLEY: Yes, Your Honor.
`
`09:21:22
`
` 6
`
`Before I forget, and I'm liable to forget it, can
`
`09:21:23
`
` 7
`
`I confirm we have 45 minutes per side for the closing? And
`
`09:21:27
`
` 8
`
`may I reserve ten minutes of that for rebuttal?
`
`09:21:30
`
` 9
`
`THE COURT: Yes, you may. And I'm happy to have
`
`09:21:32
`
`10
`
`Miss Flick keep the time, or you can keep the time there,
`
`09:21:35
`
`11
`
`or both. I know some lawyers don't like to be interrupted
`
`09:21:38
`
`12
`
`from up here. So whatever is your preference.
`
`09:21:41
`
`13
`
`Miss Flick will give you a high sign at 15 minutes
`
`09:21:44
`
`14
`
`remaining, if you like, or you can count on your team to do
`
`09:21:48
`
`15
`
`it.
`
`09:21:49
`
`16
`
`MR. CAWLEY: Thank you, Your Honor.
`
`09:21:49
`
`17
`
`MR. NEAL: I take it even though I have the burden
`
`09:21:51
`
`18
`
`on validity, Mr. Cawley still gets the last word, that
`
`09:21:54
`
`19
`
`there is not an increment of time that I can use for
`
`09:21:57
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`20
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`rebuttal on validity?
`
`09:21:58
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`21
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`THE COURT: That's correct. I'm going to ask you
`
`09:22:00
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`22
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`to incorporate your invalidity and infringement arguments
`
`09:22:04
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`23
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`both into your single presentation.
`
`09:22:05
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`24
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`MR. NEAL: I also understand that this lectern
`
`09:22:08
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`25
`
`moves. Is it all right with Your Honor if before closing
`
`RPX-Farmwald Ex. 1011, p 18
`
`
`
` 19
`
`09:22:11
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` 1
`
`we rotate it so it's facing the jury box?
`
`09:22:14
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` 2
`
`THE COURT: Yeah, it's fine. I think the only
`
`09:22:15
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` 3
`
`reason we didn't do it before is I was concerned about your
`
`09:22:16
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` 4
`
`pulling your wires loose.
`
`09:22:18
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` 5
`
`Yeah, you can reposition that. And we've got
`
`09:22:20
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` 6
`
`enough time probably between now and then that if the wires
`
`09:22:22
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` 7
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`pull out, we can plug them back in.
`
`09:22:25
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` 8
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`MR. NEAL: Thank you, Your Honor.
`
`09:22:27
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` 9
`
`(Recess at 9:22 a.m.)
`
`10:09:54
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`10
`
`THE COURT: All right. Why don't you all update
`
`10:09:56
`
`11
`
`me on your progress through the instructions that at least
`
`10:10:02
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`12
`
`I thought were in dispute when I began to work on my
`
`10:10:05
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`13
`
`proposal that hopefully you all have had a chance to, at
`
`10:10:08
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`14
`
`least, skim through.
`
`10:10:12
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`15
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`MR. TETER: So, Your Honor --
`
`10:10:14
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`16
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`THE COURT: Mr. Teter?
`
`10:10:15
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`17
`
`MR. TETER: Yes, thank you, Your Honor.
`
`10:10:17
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`18
`
`THE COURT: You're going to need to make sure you
`
`10:10:18
`
`19
`
`use the microphone. I don't mind if you stay there, but
`
`10:10:22
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`20
`
`you need to use the microphone.
`
`10:10:24
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`21
`
`MR. TETER: My apologies, Your Honor.
`
`10:10:24
`
`22
`
`So there are quite a few of the instructions that
`
`10:10:27
`
`23
`
`are no longer relevant in view of the way the proof came in
`
`10:10:30
`
`24
`
`and what both sides have done.
`
`10:10:32
`
`25
`
`So at least I believe the instructions with
`
`RPX-Farmwald Ex. 1011, p 19
`
`
`
` 20
`
`10:10:37
`
` 1
`
`respect to contributory infringement, which I believe
`
`10:10:40
`
` 2
`
`ParkerVision has dropped, and the instructions with respect
`
`10:10:43
`
` 3
`
`to obviousness, which we did not argue -- we presented
`
`10:10:47
`
` 4
`
`anticipation -- we can remove all of them.
`
`10:10:56
`
` 5
`
`So I can go through the list of instructions that
`
`10:10:57
`
` 6
`
`I believe have been mooted.
`
`10:10:59
`
` 7
`
`THE COURT: Okay. Let me catch up with you. Let
`
`10:11:01
`
` 8
`
`me ask Miss Buratti, how are you?
`
`10:11:05
`
` 9
`
`MS. BURATTI: We agree, Your Honor, that
`
`10:11:07
`
`10
`
`contributory and obviousness instructions can be dropped.
`
`10:11:09
`
`11
`
`We also believe that the instructions regarding
`
`10:11:16
`
`12
`
`date of conception can be dropped, and the references that
`
`10:11:21
`
`13
`
`Qualcomm's --
`
`10:11:22
`
`14
`
`THE COURT: Date of conception. Okay, before I
`
`10:11:24
`
`15
`
`move on to date of conception, let me locate in my packet
`
`10:11:28
`
`16
`
`of instructions the ones relating to obviousness.
`
`10:11:36
`
`17
`
`MR. TETER: Would you like the numbers, Your
`
`10:11:38
`
`18
`
`Honor?
`
`10:11:38
`
`19
`
`THE COURT: Yes. Do you have them handy?
`
`10:11:41
`
`20
`
`MR. TETER: Sure. So obviousness is 23,
`
`10:11:43
`
`21
`
`instruction 23 for Your Honor. And then 24 is also related
`
`10:11:49
`
`22
`
`to obviousness. It's the scope and content of the prior
`
`10:11:54
`
`23
`
`art.
`
`10:11:54
`
`24
`
`25, these begin on Your Honor's page 42, I
`
`10:12:01
`
`25
`
`believe.
`
`RPX-Farmwald Ex. 1011, p 20
`
`
`
` 21
`
`10:12:01
`
` 1
`
`THE COURT: All right. I'm with you now.
`
`10:12:03
`
` 2
`
`MR. TETER: So 23 would be out. 24 on page 45
`
`10:12:07
`
` 3
`
`would be out.
`
`10:12:09
`
` 4
`
`THE COURT: Right.
`
`10:12:11
`
` 5
`
`MR. TETER: 25 on page 46 through page 48 would be
`
`10:12:14
`
` 6
`
`out.
`
`10:12:18
`
` 7
`
`Also, we no longer would need 26, ordinary skill
`
`10:12:21
`
` 8
`
`in the art.
`
`10:12:25
`
` 9
`
`And 27 on page 50, secondary considerations of
`
`10:12:29
`
`10
`
`nonobviousness, all the way through 51 would also be out.
`
`10:12:37
`
`11
`
`THE COURT: Okay. Do you agree with that,
`
`10:12:39
`
`12
`
`Miss Buratti?
`
`10:12:40
`
`13
`
`MS. BURATTI: Yes, Your Honor.
`
`10:12:41
`
`14
`
`THE COURT: Okay. And now, I know I had some
`
`10:12:43
`
`15
`
`notes on this, whether or not the date of conception was
`
`10:12:46
`
`16
`
`still being litigated.
`
`10:12:48
`
`17
`
`It sounds like you all are in agreement that the
`
`10:12:51
`
`18
`
`date of conception is no longer at issue; is that right?
`
`10:12:55
`
`19
`
`MR. TETER: That's right, Your Honor.
`
`10:12:56
`
`20
`
`THE COURT: It would be number 19?
`
`10:12:59
`
`21
`
`MR. TETER: Number 19 and number 20. So number 20
`
`10:13:01
`
`22
`
`is corroboration, which deals with the date of invention
`
`10:13:05
`
`23
`
`dispute.
`
`10:13:05
`
`24
`
`THE COURT: Right.
`
`10:13:05
`
`25
`
`MR. TETER: That one goes all the way to page 38.
`
`RPX-Farmwald Ex. 1011, p 21
`
`
`
` 22
`
`10:13:12
`
` 1
`
`MS. BURATTI: We're in agreement, Your Honor.
`
`10:13:12
`
` 2
`
`THE COURT: All right. Thank you.
`
`10:13:21
`
` 3
`
`MR. TETER: So, Your Honor, that would leave the
`
`10:13:23
`
` 4
`
`contributory parts, and I can show you where those are.
`
`10:13:35
`
` 5
`
`THE COURT: That's on page 29?
`
`10:13:37
`
` 6
`
`MR. TETER: Correct, Your Honor. And then there's
`
`10:13:38
`
` 7
`
`also a reference on page 9. Since you're on page 9, it's
`
`10:13:56
`
` 8
`
`in that penultimate paragraph.
`
`10:13:59
`
` 9
`
`THE COURT: Right. ParkerVision also contends?
`
`10:14:01
`
`10
`
`MR. TETER: Right. The first half of that
`
`10:14:03
`
`11
`
`sentence is fine. It's where it starts, on the third line,
`
`10:14:05
`
`12
`
`and it's contributing. From the "and it's contributing"
`
`10:14:09
`
`13
`
`all the way to the period, I think should be struck.
`
`10:14:15
`
`14
`
`THE COURT: Miss Buratti?
`
`10:14:16
`
`15
`
`MS. BURATTI: I'm sorry, what page?
`
`10:14:17
`
`16
`
`THE COURT: Page 9 of the Court's instructions.
`
`10:14:19
`
`17
`
`That's instruction number 6, summary of contentions.
`
`10:14:23
`
`18
`
`MS. BURATTI: That's right. We agree, Your Honor.
`
`10:14:25
`
`19
`
`THE COURT: All right. So the penultimate
`
`10:14:26
`
`20
`
`paragraph then should read, ParkerVision also contends that
`
`10:14:30
`
`21
`
`Qualcomm is inducing its customers and/or end users to
`
`10:14:34
`
`22
`
`directly infringe the asserted patents -- asserted claims
`
`10:14:38
`
`23
`
`of the patents-in-suit.
`
`10:14:43
`
`24
`
`MR. TETER: Correct, Your Honor.
`
`10:14:44
`
`25
`
`THE COURT: Period? Period after patents-in-suit?
`
`RPX-Farmwald Ex. 1011, p 22
`
`
`
` 23
`
`10:14:53
`
` 1
`
`MR. TETER: That's our understandin
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