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`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-800 SS
`)
`vs.
`) Austin, Texas
`)
`DOT HILL SYSTEMS CORP.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-895 SS
`)
`vs.
`) Austin, Texas
`)
`ORACLE CORPORATION
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-1025 SS
`)
`vs.
`) Austin, Texas
`)
`HUAWEI TECHNOLOGIES CO., )
`) October 6, 2014
`LTD., ET AL
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-148 SS
`)
`vs.
`) Austin, Texas
`)
`CISCO SYSTEMS, INC.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-149 SS
`)
`vs.
`) Austin, Texas
`)
`NETAPP, INC.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-150 SS
`)
`vs.
`) Austin, Texas
`)
`QUANTUM CORPORATION
`) October 6, 2014
`__________________________________________________________
`
` CROSSROADS EXHIBIT 2029
`Oracle Corp., et al v. Crossroads Systems, Inc.
` IPR2014-01207 and IPR2014-1209
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-800 SS
`)
`vs.
`) Austin, Texas
`)
`DOT HILL SYSTEMS CORP.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-895 SS
`)
`vs.
`) Austin, Texas
`)
`ORACLE CORPORATION
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 13-CA-1025 SS
`)
`vs.
`) Austin, Texas
`)
`HUAWEI TECHNOLOGIES CO., )
`) October 6, 2014
`LTD., ET AL
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-148 SS
`)
`vs.
`) Austin, Texas
`)
`CISCO SYSTEMS, INC.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-149 SS
`)
`vs.
`) Austin, Texas
`)
`NETAPP, INC.
`) October 6, 2014
`__________________________________________________________
`CROSSROADS SYSTEMS, INC. ) Docket No. A 14-CA-150 SS
`)
`vs.
`) Austin, Texas
`)
`QUANTUM CORPORATION
`) October 6, 2014
`__________________________________________________________
`
` CROSSROADS EXHIBIT 2029
`Oracle Corp., et al v. Crossroads Systems, Inc.
` IPR2014-01207 and IPR2014-1209
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`TRANSCRIPT OF MARKMAN HEARING
`BEFORE SPECIAL MASTER KARL O. BAYER
`Volume 1 of 2
`
`2
`
`APPEARANCES:
`For the Plaintiff:
`
`For Dot Hill Systems:
`
`For Oracle Corporation:
`
`Mr. John L. Adair
`Ms. Elizabeth Brown Fore
`Mr. Scott Crocker
`Mr. Stuart Shapley
`Mr. Steven R. Sprinkle
`Sprinkle IP Law Group
`1301 West 25th Street, Suite 408
`Austin, Texas 78705
`Ms. Susan K. Knoll
`Wong, Cabello, Lutsch, Rutherford
`& Brucculeri
`20333 SH 249, Suite 600
`Houston, Texas 77070
`Mr. R. Floyd Walker
`Floyd Walker Law Firm
`1818 West 38th Street
`Austin, Texas 78731
`
`Mr. David H. Bahler
`Norton, Rose, Fulbright
`98 San Jacinto Boulevard, Suite 1100
`Austin, Texas 78701
`Mr. John A. Suppes
`Cooley, LLP
`One Freedom Square
`11951 Freedom Drive
`Reston, Virginia 20190
`
`Mr. Jared Bobrow
`Mr. Aaron Y. Huang
`Weil, Gotshal & Manges
`201 Redwood Shores Parkway
`Redwood Shores, California 94065
`Ms. Elizabeth S. Weiswasser
`Weil, Gotshal & Manges
`767 Fifth Avenue
`New York, New York10153
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`3
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`(Appearances Continued:)
`For Oracle Corporation:
`
`For Huawei Technologies:
`
`For Cisco Systems
`And NetApp, Inc.:
`
`Mr. Travis Barton
`Mr. Patton G. Lochridge
`McGinnis, Lochridge & Kilgore
`One American Center
`600 Congress Avenue, Suite 2100
`Austin, Texas 78701
`Mr. Scott M. Richey
`Steptoe & Johnson
`1330 Connecticut Avenue, NW
`Washington, D.C. 20036
`Mr. Adam H. Sencenbaugh
`Haynes and Boone
`112 East Pecan Street
`San Antonio, Texas 78205
`Mr. John W. Turner
`Haynes and Boone
`2323 Victory Avenue, Suite 700
`Dallas, Texas 75219
`Mr. Joseph A. Powers
`Duane Morris
`30 South 17th Street
`Philadelphia, Pennsylvania 19103
`Mr. Matthew C. Gaudet
`Duane Morris
`1075 Peachtree Street NE, Suite 2000
`Atlanta, Georgia 30309
`Mr. Patrick S. Salceda
`Duane Morris
`2475 Hanover Street
`Palo Alto, California 94304
`Ms. Elizabeth O. Klein
`Durie Tangri
`217 Leidesdorff Street
`San Francisco, California 94111
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`Proceedings reported by computerized stenography, transcript
`produced by computer.
`
`For Quantum Corporation:
`
`Court Reporter:
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`I N D E X
`Direct
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`Cross
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`Redirect Recross
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`33
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`97
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`125
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`E X H I B I T S
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`Offered
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`Admitted
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`Witnesses:
`
`John V. Levy
`
`Randy H. Katz
`
`Plaintiff's
`#P-10 through 13
`#P17 through 23
`#P-26
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`Defendants'
`#A
`#C
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`MR. BAYER: This might take a few minutes just to
`introduce everybody. All right. Why don't we try to announce as
`many people as we can, and so, briefly, what their roles are.
`And let's go over counsel table first and chairs behind there,
`and then, the audience, and let's make sure everybody's okay with
`whoever's here.
`So, Mr. Sprinkle, we'll start with you.
`MR. SPRINKLE: Good morning, your Honor.
`Steve Sprinkle for the Plaintiff Crossroads. I have
`counsel -- do you want everyone to introduce themselves?
`MR. BAYER: You can -- to the extent you can remember
`all of them, this is pretty flashy, you know --
`MR. SPRINKLE: I'll do what I can.
`MR. BAYER: -- in my declining years. And Mr.
`Lochridge would have the same problem on the other side.
`MR. LOCHRIDGE: Who?
`MR. SPRINKLE: Well, I think I can make at least make
`it around counsel table.
`John Adair from Sprinkle IP Law, also for the Plaintiff
`Crossroads, Elizabeth Fore, also for Crossroads, Stuart Shapley,
`also for Crossroads, and Floyd Walker for Crossroads.
`MR. BAYER: I'm sorry the last name?
`MR. SPRINKLE: Floyd Walker.
`MR. BAYER: Walker. Okay. And in -- on the friends of
`the bride over here side, who do we have?
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`MR. CROCKER: Scott Crocker here with Sprinkle Law
`
`Group.
`
`MS. KNOLL: Susan Knoll with Wong Cabello.
`MR. KROUB: Good morning, your Honor.
`Gaston Kroub from Kroub, Silbersher & Kolmykov in New
`York, and I'm here with my clients who are investors in
`Crossroads.
`MR. LEVY: John Levy, expert for the plaintiffs.
`MR. BARTON: Travis Barton, counsel for Oracle. Good
`
`morning.
`
`MR. BAYER: Good morning. Who else?
`MR. BRANCH: Eric Branch with McGinnis Lochridge.
`MR. BAYER: Okay.
`MR. GLADMAR: Mike Gladmar from New York Plans
`Securities.
`MR. DUFF: Jamie Duff with Bluestein Investments.
`MR. BAYER: All right. Let's take it from this side.
`MR. LOCHRIDGE: Pat Lochridge for Defendant Oracle, and
`here to help out with any technical issues they might have.
`MR. BOBROW: Good morning, your Honor.
`Jared Bobrow with Weil Gotshal representing Oracle.
`And with me, Aaron Huang, right here, Liz Weiswasser, also from
`my firm, and then, EunHae Park and Rachel Wire are present from
`Oracle inhouse.
`MR. BAYER: Okay.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`MR. BOBROW: Of course, Pat Lochridge, Travis Barton.
`
`Thank you.
`
`MR. GAUDET: Good morning, your Honor.
`Matt Gaudet with Duane Morris for Cisco and NetApp. We
`will -- for Cisco and NetApp, I'll handle part of the argument
`and the examinations. My partner, Joe Powers, will handle part,
`as well. And Patrick Salceda, Mr. Powers' left, will handle
`part, as well. So you'll be hearing from us.
`MR. RICHEY: Good morning, your Honor.
`Scott Richey from Steptoe & Johnson. I'm representing
`Huawei and I'm here with my client, Jian Li.
`MR. BAHLER: Good morning, your Honor.
`Dave Bahler representing Dot Hill.
`MS. KLEIN: Good morning.
`Elizabeth Klein with Durie Tangri representing Quantum
`Corporation.
`MR. SUPPES: Good morning.
`Adam Suppes with Cooley representing Dot Hill.
`MR. BAYER: Okay. And who did we miss on -- oh, you've
`got one more here.
`MR. TURNER: Good morning, your Honor.
`John Turner with Haynes and Boone. We are representing
`Cisco, NetApp and Quantum, as well, with counsel.
`MR. BAYER: Okay.
`MR. SENCENBAUGH: Your Honor, Adam Sencenbaugh with
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Haynes and Boone, as well.
`MR. BAYER: Then we have a few more on the groom side.
`MR. KATZ: Randy Katz, witness -- expert witness for
`the defense.
`MS. YI: Good morning, your Honor.
`Xiao Yi (phonetic) for Cisco.
`MR. BAYER: All right. Well, I think that's everybody.
`And I believe, it's my understanding, we reached an agreement on
`procedure late Friday afternoon, and I don't know if -- I did not
`-- I failed to print it out. So hopefully the clerk -- do you
`have -- okay.
`First of all, am I correct, we have an agreement as to
`how we're proceeding?
`MR. SPRINKLE: Yes.
`MR. BOBROW: Yes, we do.
`MR. BAYER: Okay. Great.
`Then let me talk a little bit about timing, just so
`everybody -- typically I'll take a short midmorning break.
`Typically try to break around noon, and it would be great if we
`could hold it to an hour, but being downtown, it might slip to an
`hour and a half. And then, usually try to start slowing down by
`5:00 and try to have a break by 5:30.
`Now, that's all subject to where you are in your direct
`and cross-examination. I don't want to break the flow. We can
`work later, we can break earlier if we're making good time, but
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`that's generally the way we're going to proceed. I'll remind
`everybody that although we've had a good tutorial in this one,
`it's as if it never occurred. Just so you can't refer back to
`that. And I think that's it. I've had a lot of good briefing on
`this one.
`
`So I guess -- I can remember from the agreement, there
`was an agreed opening for me to view? Is that correct? Okay.
`MR. SPRINKLE: I believe we were going to a preliminary
`
`matter.
`
`MR. BAYER: Okay.
`MR. SPRINKLE: And admit evidence.
`MR. GAUDET: Your Honor, we just had a handful of
`objections that we thought maybe we should take care of first.
`MR. BAYER: Okay.
`MR. GAUDET: And I believe that Ms. Fore filed this
`morning or Crossroads filed this morning.
`MS. FORE: It has not been filed.
`MR. GAUDET: Has not been filed. Your Honor, if we may
`we'll hand up a copy of a to-be-filed Joint Exhibit list. It's
`got everything in one place. May I approach?
`MR. BAYER: You may.
`MS. FORE: Would you like two copies?
`MR. BAYER: Actually, just as a routine, it's best if I
`can have a copy, if the law clerk can have a copy, and if the
`courtroom deputy can have a copy, as well.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`MR. GAUDET: And the way that this list is structured,
`I believe, is the Joint Exhibits begin on page 1.
`MR. BAYER: Wait a minute. I'm still flipping through.
`The signature -- I'm up to page 7, I'm up to page 8 with the
`signatures.
`MR. GAUDET: Once you get through the eight pages of
`who we are --
`MR. BAYER: Yeah.
`MR. GAUDET: -- absolutely, then the new page 1 is
`where the Exhibit A to that is the Joint Exhibits, and, of
`course, there are no objections to that.
`MR. BAYER: And do we already have a notebook for that?
`MR. GAUDET: Your Honor, we've got -- unfortunately,
`we've got more than just a notebook. There are boxes of exhibits
`that are there. There are boxes that I believe are there for the
`witness. Do I have that correct?
`MS. FORE: Yes. We've set the boxes for the witness
`with respect to the Joint Exhibits as well as Plaintiff's
`Exhibits that there were no objection to. So those are in the
`witness stand. You've got two sets here that we could
`distribute, and then, there's another set over there.
`MR. GAUDET: And, likewise -- and, likewise, there is a
`binder with the Defendants' Exhibits and because there's one --
`MR. BAYER: I have a little white notebook here. I was
`so encouraged that this was all the exhibits agreed upon jointly
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`by both sides.
`MR. GAUDET: Absolutely.
`MR. BAYER: Silly me.
`MR. GAUDET: The defendants are the encouraging ones.
`But there really is just two sets of objections. And I suppose
`before we get to the objections, let me perhaps jointly move into
`evidence all of the Joint Exhibits on page -- on Exhibit A, I
`should say, all the Joint Exhibits, and then, all of Defendants'
`Exhibits, which are shown on Exhibit C. So that would be --
`MR. BAYER: Exhibit C -- and when we're referring to
`exhibits here, it's to the Plaintiff's and Defendants' Exhibit
`List for the Markman Hearing.
`MR. GAUDET: That's correct.
`MR. BAYER: Dated October 5th, 2014.
`MR. GAUDET: That's correct.
`MR. BAYER: So, Mr. Sprinkle, are you -- plaintiffs
`okay with A -- everything on A and everything on C coming in?
`MR. SPRINKLE: Let me just make sure that's correct.
`Yes, your Honor.
`MR. GAUDET: Okay.
`MR. BAYER: So I'm not going to read them all off here,
`since this is pretty clear. But at some point, during the day,
`on one of our breaks, let's just make sure y'all continue to work
`with the courtroom deputy on housekeeping kind of stuff like this
`to make sure we know what's been admitted and what hasn't. We'll
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`go ahead and everything on Exhibit A and Exhibit C, though, is
`now admitted.
`MR. GAUDET: We'll do that. And once we have this
`paper on file, we'll also reflect on the record what the filing
`docket number is.
`MR. BAYER: Okay.
`MR. GAUDET: With respect to the Plaintiff's Exhibit
`list, there are just two groups of objections, and I think they
`ride or fall together.
`MR. BAYER: This is Exhibit B?
`MR. GAUDET: This is now Exhibit B. Yes. The first
`group is Exhibits P-1 through Exhibits P-8, and each of these is
`either a claim construction order, or a report and
`recommendation, or a transcript, something relating to a prior
`claim construction proceeding in this case. For example, the
`3Par or Dot Hill litigation. And our objection to this has to do
`with the nature of us being here for an evidentiary proceeding,
`which is simply under the Phillips protocol, that's not evidence.
`Now, we're not saying they can't argue in their briefs
`that it should have the same effect of a non-binding prior
`opinion that may or may not be persuasive, but it's not evidence,
`and so, it shouldn't be admitted. That's our position there,
`your Honor.
`MS. FORE: And as a preliminary matter, I'd like to ask
`that the unobjected-to Plaintiff's Exhibits, which are P-10
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`through P-13 and P-17 through P-23, as well as P-26, be admitted
`into evidence at this time.
`MR. BAYER: P-10 through 13, P-17 through 23, and P-26?
`MS. FORE: That's correct.
`MR. GAUDET: No objection.
`MR. BAYER: All right. So P-10 through 13, P-17
`through 23 and P-26 are all admitted.
`MS. FORE: And with respect to the objections with --
`regarding the Court's previous claim construction orders and
`reports and recommendations, I didn't hear from defendants a
`reason why -- a legal reason why they should be kept out. They
`are relevant. They are not unfairly prejudicial. This is a
`bench hearing. There is no jury.
`So I don't -- I have not yet heard from defendants any
`rationale for keeping them out. When they originally told us on
`Thursday that they were going to move to -- or that they were
`going to object to the admission of these documents, what they
`said was it was a Rule 401, 402 and 403 objection. So relevancy
`and unfair prejudice. They are relevant. Courts in the Western
`District of Texas have held that the courts will apply brief
`deference to their prior claim construction rulings when
`construing the same patents in the same claim terms.
`So they are relevant to the proceedings today. In
`addition, again, because there is no jury, the Fifth Circuit has
`held that with respect to bench trials, 403 is inapplicable. So
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`I haven't heard a reason yet from defendants to keep it out.
`MR. BAYER: Is -- who's going to be relying on -- is
`there a witness that will be relying on P-1 through P-8 to form
`an expert opinion or a lay opinion? I think their objection is
`-- just to analogize it with, say, a case from the United States
`Supreme Court, what I'm hearing them say is, have at it in the
`briefing, cite to it, it's a public document and argue it, but
`it's not evidentiary in nature.
`Now that -- I don't want to put words in their mouth,
`but I guess I'm interested, is some witness needing to rely on
`them some way, shape or form?
`MS. FORE: There will not be a witness that relies on
`that, no; but at the same time, again, I don't see any reason why
`they should be kept out.
`MR. BAYER: Well, there's a second -- there's one I can
`think of. Are they all publicly filed, unsealed documents?
`MS. FORE: Yes, they are.
`MR. BAYER: Well, let's do this. My general
`inclination is to actually not have them as evidence, but as the
`evidence unfolds, if I think -- if counsel thinks there's some
`reason now that the door's been opened, it has become evidentiary
`in nature, somebody needs to rely on it, let's sort of treat it
`like a motion in limine and raise it then again. But right now,
`my inclination would be, have it at, use them in any way, shape
`or form. They're author -- as a matter of fact, some of them may
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`be very authoritative. Not that I've seen this patent before.
`So that's my thoughts on it right now.
`MS. FORE: Okay. Understood. Thank you.
`MR. BAYER: Now, that -- Ms. Fore, wait, before you
`leave, we still have a few gaps in your Plaintiff's Exhibit B
`list. Will those come up later?
`MS. FORE: Yes, your Honor. With respect to the
`non-claim -- previous claim construction orders, we will -- we
`intend to raise those issues as they come up throughout the day,
`today and tomorrow.
`MR. BAYER: All right. Thanks.
`MR. GAUDET: There was the second group that I think we
`can deal with collectively from Exhibit B, and that is the --
`it's P-24 and P-25, which are the deposition transcripts of Dr.
`Levy and Dr. Katz. Those are the two experts that are here today
`to testify live. And the objection is simply the transcript
`itself is hearsay. The witnesses are here, they're going to take
`the stand, of course. The deposition transcripts are fair game
`for impeachment purposes, but with the witness that's here live
`to testify in an evidentiary hearing, the transcript themselves
`are hearsay, and should not be admitted in their own right.
`And the same objection carries forward for P-27 through
`P-29, and those were just handwritten notes that were, in effect,
`part of the deposition transcript and, again, they're -- the
`witnesses are here. They can certainly be used for impeachment,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`but in the first instance, they're hearsay.
`MS. FORE: Again, your Honor, with respect to those
`exhibits, we think it's more important to raise those issues as
`they come up throughout the day, today and tomorrow.
`MR. BAYER: Okay. Let's do that. Right now, we're not
`going to admit them en masse, okay? Any other preliminary
`matters here before we get going?
`MR. TURNER: Yes, your Honor. John Turner.
`One other item. An agreement, I think, we'd like to
`put on the record, if we can.
`The parties intend to follow a procedure of not
`conferring with the testifying experts about the substance of
`their testimony during agreed breaks. However, given that we are
`doing this in a two-day process, we discussed allowing parties to
`speak with their own experts this evening, after the day's
`testimony is concluded, only about upcoming issues, not about
`past testimony given on previous claim terms.
`And I believe we have -- counsel can confirm if I've
`expressed that the right way. We don't intend to allow that to
`permit attorneys to talk to experts about the previous day's
`testimony or to try to discuss that testimony, only about
`upcoming testimony.
`MR. SPRINKLE: Yeah. I think that expresses it. I
`mean, I guess to say in my own words, right, with respect to the
`terms that have been testified to today, the parties would not be
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`allowed to talk to their experts about those terms -- those claim
`terms and that testimony.
`And to the extent that terms are coming up for the
`following day and they have overlapping issues -- because the
`claim terms are sometimes interrelated -- the parties will not be
`speaking to their experts about those overlapping issues, either
`to the extent there's going to be testimony that doesn't relate
`to anything that's been raised during day one, we were going to
`be able to talk. We have agreed that we are okay with allowing
`the other side to talk to their experts about that.
`MR. TURNER: I believe that expresses it correctly.
`MR. BAYER: All right. Great. Thanks. Anything else?
`I'm not in the habit of keeping time. I don't have a
`chess clock. I will do that if people want me to do that, but
`I'm basically hoping each side will keep track of the time. And
`if it becomes too lopsided by the end of the day, bring it to my
`attention. Let's touch base at the end of the day, see how we're
`doing on allocation of time.
`Mr. Sprinkle, you may proceed.
`MR. SPRINKLE: Thank you, your Honor.
`May Ms. Fore approach?
`MR. BAYER: Oh, sure.
`MS. FORE: I have some slides.
`MR. BAYER: Okay. So let me do just one little bit of
`housekeeping here. The way I'm going to treat all of the slides
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`and audiovisual aids today, unless you tell me otherwise, I'm
`going to just treat them as demonstrative aids and not as
`evidentiary in nature. If that's acceptable to the defendants,
`will that be okay?
`MR. BOBROW: Yes, it is, your Honor. Thank you.
`MR. BAYER: Mr. Sprinkle, is that okay with you?
`MR. SPRINKLE: Yes, your Honor.
`MR. BAYER: Okay.
`MR. SPRINKLE: So as you mentioned earlier, the parties
`have agreed to a format today. The format will start with an
`opening for both sides. And what we have done is we will on each
`of the sections of terms, if there's sets of terms that come, we
`will approach, with your permission, and give you those portions
`of demonstratives that we'll be going over at that time.
`MR. BAYER: Okay.
`MR. SPRINKLE: So with respect to page 2 of the
`demonstrative set that you currently have in front of you, so, as
`you know, this case is about this 972 patent family. You've seen
`this slide on plenty of occasions. The patents that we're
`interested in today are these four patents, which are
`continuations of the parent 972 patent. Refer to them by their
`last three numbers 035, 147, 041 and 311 patents.
`As you are aware, all of the specifications, drawings
`between these patents are the same. It's the claims that are
`different. And here, on slide 3, I just put up, you know, just
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`to go over, give you a visual to how we're going to handle this
`today. We're going to do our openings and then, go to each of
`the claim terms. The parties have agreed that we will do our
`direct examination, plaintiffs first, cross the plaintiff's
`expert, direct of defendants' expert, cross of defendants'
`expert, and then, plaintiff and defendant will then put on their
`presentation with their demonstratives with respect to those
`claim terms.
`And here's how the terms have been divided up. The
`Group 1 terms, the storage router and allowing access using
`native low level block protocol. Group 2, mapping, access
`controls and supervisor unit. Group 3 will be remote. Group 4
`has a series of terms and we'll run through all those. And Group
`5 will be issues with respect to the 311 patent that are unique
`to one of the defendants who's been sued on that patent.
`Moving to slide 4, one of the issues that came up
`earlier is these patent -- these patent claim terms have been
`construed previously on several occasions. What I've put up here
`is a chart to reference, kind of show what claim terms have been
`previously construed that are being construed today. It's on
`slide 4. There have been three prior Markman orders issued by
`this court: One is Chaparral; one in Dot Hill; and one is 3Par
`litigation. And then, of course, we have a series of terms
`today -- today and tomorrow.
`Out of all of the terms we're looking to construe today
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`and tomorrow, there are only four of them -- sorry, three of them
`that have never been construed before. Three claim terms that
`have never been construed before. There are four claim terms
`that have previously been construed by this court on several
`occasions, and you can just run through the rows to see where
`they have been construed in prior hearings, prior orders.
`And there's a set of five claim terms that not only
`have been previously construed, but the arguments being raised in
`this hearing have been previously rejected by this court. So the
`arguments the defendants are raising on these five terms have --
`not only have claim terms been previously construed, but the
`arguments they are making for the constructions they're proposing
`have been previously rejected. And we'll go through those as we
`go through the presentation.
`We'll talk about the problems with defendants'
`constructions. And so, I guess I should point out that with
`respect to all of the claim terms on page 4, all the claim terms
`on the right-hand column that we're going to construe over the
`next two days, Crossroads has proposed constructions that this
`court has previously adopted. For all of them, except one, they
`match the most recent 3Par order. One of the claim terms that
`we're proposing was adopted in Chaparral.
`So here's the problems on slide 5, just move on to
`generally the problems with the defendants' construction. So
`lots of what happens with constructions is the parties agree, for
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEX
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