1
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`UNITED STATES OF AMERICA
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`- - -
`HONORABLE MARIANA R. PFAELZER,
`SENIOR UNITED STATES DISTRICT JUDGE PRESIDING
`- - -
`
`CERTIFIED COPY
`
`CV 13-07245 MRP
`
`THE CALIFORNIA INSTITUTE OF
`TECHNOLOGY,
`
`PLAINTIFF,
`
`VS.
`HUGHES COMMUNICATIONS,
`INC., et al.,
`DEFENDANTS.
`______________________________)
`
`)))))))))))
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`MONDAY, APRIL 7, 2014
`P.M. SESSION
`LOS ANGELES, CALIFORNIA
`
`SHERI S. KLEEGER, CSR 10340
`FEDERAL OFFICIAL COURT REPORTER
`312 NORTH SPRING STREET, ROOM 402
`LOS ANGELES, CALIFORNIA 90012
`PH:
`(213)894-6604
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`0001
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`CALTECH - EXHIBIT 2013
`
`
`
`UNITED STATES OF AMERICA
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`- - -
`HONORABLE MARIANA R. PFAELZER,
`SENIOR UNITED STATES DISTRICT JUDGE PRESIDING
`- - -
`
`CERTIFIED COPY
`
`CV 13-07245 MRP
`
`THE CALIFORNIA INSTITUTE OF
`TECHNOLOGY,
`
`PLAINTIFF,
`
`VS.
`HUGHES COMMUNICATIONS,
`INC., et al.,
`DEFENDANTS.
`______________________________)
`
`)))))))))))
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`MONDAY, APRIL 7, 2014
`P.M. SESSION
`LOS ANGELES, CALIFORNIA
`
`SHERI S. KLEEGER, CSR 10340
`FEDERAL OFFICIAL COURT REPORTER
`312 NORTH SPRING STREET, ROOM 402
`LOS ANGELES, CALIFORNIA 90012
`PH:
`(213)894-6604
`
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`0001
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`CALTECH - EXHIBIT 2013
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`
`
`2
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`APPEARANCES OF COUNSEL:
`ON BEHALF OF PLAINTIFF:
`QUINN EMANUEL
`BY:
`JAMES R. ASPERGER, ESQUIRE
`MARK TUNG, Ph.D., ESQUIRE
`KEVIN P.B. JOHNSON, ESQUIRE
`865 SOUTH FIGUEROA STREET
`10TH FLOOR
`LOS ANGELES, CALIFORNIA 90017
`
`ON BEHALF OF DEFENDANT:
`WILMERHALE
`BY:
`DAVID C. MARCUS, ESQUIRE
`MATHEW HAWKINSON, ESQUIRE
`350 SOUTH GRAND AVENUE
`SUITE 2100
`LOS ANGELES, CALIFORNIA 90071
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`0002
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`3
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`LOS ANGELES, CALIFORNIA; MONDAY, APRIL 7, 2014
`P.M. SESSION
`- - -
`
`Calling item No. 1, The
`THE CLERK:
`California Institute of Technology versus Hughes
`Communications, Inc., et al.
`Counsel, please state your appearances.
`MR. ASPERGER:
`Good afternoon, Your Honor.
`Jim Asperger, of Quinn Emanuel, appearing on
`behalf of Cal Tech.
`And, Your Honor, with me is Mark Tung, who
`is on this case from our Silicon Valley office.
`He is
`in the process of submitting an application to be
`admitted, so isn't formerly admitted or on the case
`yet, but will be.
`That's fine.
`THE COURT:
`MR. ASPERGER:
`He is the person who is
`intimately familiar with the technology.
`THE COURT:
`All right.
`That's good.
`MR. MARCUS:
`Good afternoon, Your Honor.
`David Marcus from the Wilmer Hale firm on
`behalf of defendants.
`With me at counsel table is Matt Hawkinson
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`0003
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`4
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`from my firm.
`Also here is Kim Jessett from our client.
`THE COURT:
`All right.
`Now, let me start by
`saying to you, my mind's open about what we're going to
`do.
`So this a really important discussion we're having,
`and you can say whatever you want about how you want to
`proceed.
`
`The only thing is that I do have -- you
`already know this.
`I do have this procedure in mind
`where you don't get -- and this has happened many times
`before, where you don't get damages up front.
`That
`discovery we will put off.
`And whatever else you want
`to say about how you want to proceed is all right with
`me.
`We'll just discuss it.
`Now, maybe I should start with you,
`Mr. Tung, or you Mr. Asperger, one of the other of you.
`Let me, if one or the other who is going to
`answer the questions come up there.
`MR. ASPERGER:
`Your Honor, I'll go ahead and
`And then if you have any questions about the
`start.
`patents or technical questions, Mr. Tung will --
`THE COURT:
`That's fine.
`I do want to know about the technology.
`That's what I would like to know, to begin with.
`MR. ASPERGER:
`Then why don't I let Mr. Tung
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`0004
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`5
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`give you an explanation.
`Let's do that.
`THE COURT:
`Now, this not for wan of trial, Mr. Tung.
`This is just not at my papering.
`I just don't -- I
`mean, I appreciate the significance of it.
`But I don't
`know -- I'm not sure what I'm looking at.
`So if you
`would tell me, I'd be glad.
`MR. TUNG:
`Certainly, Your Honor.
`So if I understand what you want me to
`address, it's the context of the technology and what --
`certainly not its applications, but within the context
`in which the issues fall.
`So these patents all belong to a single
`And they address a method of encoding, a method
`family.
`and apparatus for encoding signals.
`So in a
`communication --
`That I do know.
`THE COURT:
`Okay, great.
`MR. TUNG:
`So in communication systems the objective is
`to get information from one place to another, and
`information is often coded in the form of bits of ones
`and zeroes.
`And so as part of that process, there is an
`encoding process that in this case these patents deal
`with building redundancy into your signal.
`So one of the challenges of a communication
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`0005
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`6
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`The medium through
`system is the communication channel.
`which these signals travel is often noisy, so what you
`receive at other end is not exactly what you
`transmitted, and so you have to figure out what you got,
`you know, what ones and zeroes you got.
`So one thing to make the communication more
`robust, that is to make it more impervious to noise, is
`to add additional bits which give you redundancy.
`The simplest example just to illustrate the
`point is a simple parity check.
`If, for example, you
`want to transmit the series 101 and you add another bit
`that tells you whether the sum of those bits is even or
`odd -- in this case 101, if you add the bits together,
`one plus zero plus one, you get 2, which is an even
`number, in which case you would add a zero to the end of
`that transmission, so you would transmit 1010.
`And, for example, the recipient got 1001 --
`sorry -- 1000, you know, it's the third bit was
`incorrect.
`You could tell from the last bit that said
`the sum has to be even that there was an error somewhere
`in the transmission.
`So the purpose of this parity bit is to give
`you that extra layer of redundancy.
`The encoding schemes described in these
`patents deal with a much more sophisticated system but
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`0006
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`7
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`They -- they illustrate how to
`
`the concept is the same.
`generate parity bits.
`THE COURT:
`MR. TUNG:
`
`I see.
`I can go into more detail, if you
`
`want.
`
`And I understand from what was
`THE COURT:
`filed that this is not a standard, is it?
`MR. TUNG:
`What do you mean that this is --
`THE COURT:
`Well, in some industries there
`will be a standard created.
`This patent has never been
`subjected to standardization.
`It's only just -- we're
`looking at it for the first time.
`MR. TUNG:
`Yes.
`So it's actually kind of a
`complicated question.
`You are correct that this patent was not
`submitted to a standards committee, so far as we know.
`THE COURT:
`And there isn't one, is there?
`MR. TUNG:
`There -- there is a standard that
`is -- that does, as far as our position is, that it
`practices the standard practices these patents.
`So
`there is a standard involved.
`THE COURT:
`I see.
`MR. TUNG:
`And -- but you're -- but the --
`THE COURT:
`But there is no administrative
`There's no standards agency.
`
`procedure.
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`0007
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`
`
`8
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`So there --
`MR. TUNG:
`I'm saying this badly.
`THE COURT:
`But we've had in here lots of standards.
`MR. TUNG:
`Right.
`THE COURT:
`Controversies.
`MR. ASPERGER:
`Your Honor, if I may just
`interject on one point on this, and then Mr. Tung can
`explain in more detail.
`If I -- I think I understand the Court's
`question, and that is how might this relate to a --
`other standards setting.
`I am asking that.
`That's right.
`THE COURT:
`MR. ASPERGER:
`And Cal Tech has never been a
`part of any standard-setting organization.
`It's not
`part of any agreement; it had no communication with the
`standard-setting organization.
`There is a DVB-S2 standard out there.
`THE COURT:
`Yes, so I understand.
`MR. ASPERGER:
`To the extent that the
`defendants are practicing that or potentially other --
`engaged in other violations of Cal Tech's patents, that
`would give rise to our claims.
`And we believe that
`the -- that the way that they are practicing, their
`technology does violate our patents.
`THE COURT:
`Okay.
`I see.
`
`I finally do see.
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`0008
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`9
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`Thank you.
`
`Now, is there -- let's see how I
`All right.
`I just want to ask you is there a
`can put this to you.
`true controversy between you about whether there's
`infringement or not?
`Your Honor, if I might.
`MR. MARCUS:
`Yes.
`THE COURT:
`You notice that there is a doctrine of
`equivalence pleading here.
`MR. MARCUS:
`Yes, Your Honor, there will be
`a true dispute as to infringement.
`We would say that
`even though some of our products' coding and decoding
`are compatible with the standard, that does not mean
`they infringe the patents, because the standard is
`different from the patents.
`So there will be a
`true infringement --
`You're on the point I'm
`THE COURT:
`interested in:
`The standard is different than the
`patent.
`
`Yes, that's certainly
`MR. MARCUS:
`defendant's position, Your Honor.
`Plaintiffs think otherwise.
`THE COURT:
`Well, I'd like to know how you
`think that is going to be resolved.
`MR. MARCUS:
`Well, Your Honor --
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`0009
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`10
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`We're going to have a claim
`
`THE COURT:
`construction?
`Yes, Your Honor.
`MR. MARCUS:
`Oh.
`Well, and then what?
`THE COURT:
`Well, Your Honor if I might,
`MR. MARCUS:
`that's one reason that we -- not to go back over ground
`that's already been crossed.
`But one reason that we thought that it might
`make sense to stay fact discovery until we had claim
`construction was because this dispute about whether or
`not we're practicing the standard or not will depend in
`part on how --
`Is that the dispute, whether
`THE COURT:
`you're practicing the standard?
`MR. MARCUS:
`Yes.
`THE COURT:
`Is that it?
`MR. MARCUS:
`One moment, Your Honor.
`THE COURT:
`And you're not going to say
`anything that affects your rights.
`MR. MARCUS:
`No, that's right, Your Honor.
`I just wanted to get it right.
`We -- the question is whether the patents
`cover the standard.
`We say they don't.
`And so we're
`not practicing the patent under the allegations of the
`complaint or otherwise.
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`0010
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`11
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`You are practicing the standard.
`THE COURT:
`Some of our products are
`MR. MARCUS:
`compatible with the standard.
`Yes, Your Honor.
`THE COURT:
`I see.
`That's just exactly
`where I want to go.
`Now, do you agree with that?
`MR. ASPERGER:
`Your Honor --
`THE COURT:
`I mean, we're just defining the
`
`dispute.
`
`Yes.
`Right.
`MR. ASPERGER:
`The dispute, one of the disputes, Your
`Honor, is in fact whether or not they are practicing the
`standard that violates our patents.
`We believe, based upon the publicly
`available information, they're practicing the standard.
`We believe --
`THE COURT:
`infringing --
`And, therefore, they are
`MR. ASPERGER:
`And we believe, based upon the plain
`infringing.
`language of the patents, there is a very strong case of
`infringement, Your Honor, and so that's a major factual
`dispute.
`
`And, therefore, they are
`
`THE COURT:
`
`Well, that does make it a lot
`
`clearer.
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`0011
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`12
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`Now, you don't need any discovery to have a
`claim construction, do you?
`Your Honor, I would start
`MR. ASPERGER:
`with the question slightly differently, because I --
`based upon our read of the patents and our read of the
`standards they are practicing, we don't believe we need
`a claim construction, because the plain language is
`clear.
`
`We do need discovery on other issues that
`relate directly to infringement.
`What are -- what's
`their technology.
`Tell me which ones.
`THE COURT:
`Because leaving out the money, leaving out
`the financial issue -- I know you'd rather have them.
`But I'd rather not do that right now.
`What I want to get to is the question of
`infringement.
`Correct, Your Honor.
`MR. ASPERGER:
`And so as a starting point, we have
`identified from the publicly available information and
`have some preliminary discovery responses that
`identifies products of the defendants that practice the
`DVB-S2 standard.
`Yes.
`THE COURT:
`MR. ASPERGER:
`In addition, we need to
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`0012
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`13
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`receive on the issue of infringement a number of
`documents that would relate to the technology -- how
`they're are practicing it, what chips they're using, and
`a host of other things.
`And I can give the Court a much
`more detailed list of that.
`But those types of document request have
`been made in discovery that we have previously
`propounded.
`
`I saw some of them.
`I saw them.
`THE COURT:
`Now, let he ask you, Mr. Asperger, do you
`know right now, as you're standing there, that there are
`differences of -- in dispute.
`There are differences,
`there is a dispute about claim terms?
`MR. ASPERGER:
`From what I understand, Your
`Honor, is the defendants' position -- and obviously I
`don't want to speak for them -- is they believe there
`are some disputes as to what the claims mean.
`We believe they are clear.
`But we haven't,
`as you know, haven't received anything from them about
`their interpretations yet.
`So that needs to -- we need
`to have that reciprocal discovery from them to have an
`appreciation and understanding of where that dispute is
`coming --
`
`Well, you would have that if --
`THE COURT:
`well, what do you say about that?
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`0013
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`
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`14
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`Could I do the -- could the Court do the
`claim construction without any discovery?
`I
`MR. MARCUS:
`Absolutely, Your Honor.
`mean, there are going to be certain terms that I think
`will be dispute over what those terms should mean.
`THE COURT:
`Are those in the standard?
`MR. MARCUS:
`Some of them -- I mean, right,
`the question's going to be how did the claim terms map
`to the standard.
`And that's going to be really a
`question of law for the Court in construing those claim
`terms and determining whether the claim terms mapped the
`standard.
`
`So the words may not be the same, and I
`think the Court is going to have to construe the terms
`of the patent.
`You're going to -- from your
`THE COURT:
`side, you're going to stay what the standard is?
`MR. MARCUS:
`Say that again, Your Honor.
`THE COURT:
`You're going to tell the Court
`what the standard is?
`Absolutely.
`MR. MARCUS:
`The standard is publicly available.
`THE COURT:
`That's what I thought.
`MR. MARCUS:
`Yes.
`THE COURT:
`But you're going to take the
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`0014
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`15
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`terms from the standard and tell the Court what your
`construction of those terms are.
`We will take
`MR. MARCUS:
`No, Your Honor.
`the terms from the patents and tell the Court what
`those -- we'll argue about what those mean.
`The Court
`will decide, and then we'll see whether -- how and
`whether that maps with the standard.
`That
`And the Court is absolutely right.
`does not have anything to do with discovery from Hughes
`or from any of the defendants.
`THE COURT:
`Well, now can you talk about
`
`that point.
`
`Your Honor I can start, and
`MR. ASPERGER:
`then I will turn it over to Mr. Tung.
`THE COURT:
`Okay.
`MR. ASPERGER:
`But just to back up for a
`minute, we need to get much more detailed information
`about their products to understand how they're
`practicing the technology and to make our infringement
`case.
`
`But that is
`The DVB-S2 standard helps.
`certainly not -- that does not cover all of the issues
`that are highly relevant to the issue of infringement.
`For example, we need documents --
`THE COURT:
`No, I agree with you about that.
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`0015
`
`
`
`16
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`Let's assume that we started out with the
`claim construction, and then you have discovery on
`infringement.
`And for that question to
`MR. ASPERGER:
`be -- the answer to that question, Your Honor, is that
`doesn't work, because we need to get the information
`about how they're practicing the technology first.
`And with respect to the specific claims,
`Mr. Tung can explain to you that issue in more detail.
`MR. TUNG:
`So, Your Honor, in addition to
`looking at how the standard meets the claims, some of
`the claim language goes to specific implementations, and
`that's why we need their documents.
`For example, in the '781 patent if you look
`at Claim 5 --
`Read it to me.
`THE COURT:
`-- it says that the method of
`MR. TUNG:
`Claim 2 wherein performing the first encoding operation
`comprises transforming the -- at least some of the
`information bits via a low-density generator matrix
`transformation.
`That's a specific type of transformation.
`And we want to see that -- we want to have discovery so
`that we can show that the defendants used that type of
`transformation.
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`0016
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`
`
`17
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`Let me ask you something.
`THE COURT:
`Would your view of the construction of any
`words in there differ or change because of what you
`would see when you look at the infringement material in
`discovery?
`
`But the answer is that it could,
`
`MR. TUNG:
`and here's what I mean.
`The reason we want to understand the
`operation of the defendants' products is it may help
`frame the issue in claim construction.
`Claim construction is a process in which we
`draw lines of what the terms mean to define the scope.
`THE COURT:
`Oh, I certainly --
`MR. TUNG:
`So --
`THE COURT:
`I know that.
`MR. TUNG:
`Right.
`THE COURT:
`But you know now what you want
`to see that term mean, don't you?
`Right now you know because you understand
`the patent and you have talked with the inventors.
`You
`know what they meant by that, and you know what you want
`the construction to be.
`Well, we think that it can be
`MR. TUNG:
`understood according to its plain meaning.
`So yes, in
`that sense we do.
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`0017
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`
`
`18
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`That's what you're going to say.
`THE COURT:
`That's right.
`MR. TUNG:
`When you put those comparisons
`THE COURT:
`of the terms, what they want and what you want, you're
`going to say inevitably the plain meaning says this.
`You're going to recommend that the plain
`meaning is what it is.
`And they're going to recommend
`that it's different than that.
`MR. TUNG:
`And that's my expectation of what
`And I can say for what we want, the plain
`they want.
`meaning is probably what we're going to go with.
`THE COURT:
`It always is.
`I mean, it's
`inevitable, the plain meaning is what you're going to be
`propounding.
`
`that.
`
`Yeah, and we do -- we do believe
`
`MR. TUNG:
`That's right.
`You deal with it, don't you?
`THE COURT:
`MR. ASPERGER:
`Yes, Your Honor.
`THE COURT:
`The patentee is always going to
`argue it's the plain meaning.
`MR. ASPERGER:
`Well, in this case we
`In --
`certainly believe that is the case, Your Honor.
`THE COURT:
`And they're going to take a
`contrary position.
`MR. ASPERGER:
`
`Right.
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`And you're going to agree or
`THE COURT:
`Now, none of that takes any discovery, does
`
`disagree.
`it?
`
`And
`
`Well, the context does.
`MR. ASPERGER:
`to the extent the Court's standing order asks us to
`choose and limit which claims we're going to rely on,
`it's very important for us to understand the operations
`of the technology and to be able to decide how we're
`going to narrow those -- that selection under the
`Court's order.
`But here is my objective,
`THE COURT:
`Mr. Asperger.
`I want to do this efficiently, right to
`the point, and with the least amount of expenditure on
`either side.
`
`And what I am saying to you, put it very
`plainly, is that you are representing the holders of the
`patent.
`
`The reason that I perceive that we should do
`it rapidly is because at this initial stage you're going
`to take the position that it says what it says, and
`anybody could read it and see that.
`And they're going to take the contrary
`position on the places where they think it's important.
`And what you know about what they're doing really
`doesn't make any difference.
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`Because if the claim construction results in
`a ruling that if the plain meaning is what it -- in
`other words, if the ruling would be that entirely for
`you that the plain meaning says this and that's what it
`is, then you could ask about how they're getting within
`that meaning.
`Well, here's why I look at a
`MR. ASPERGER:
`little differently in terms of efficiency, Your Honor.
`THE COURT:
`I don't know if I'm really
`making -- was I clear to you?
`MR. ASPERGER:
`You absolutely were.
`THE COURT:
`All right.
`MR. ASPERGER:
`And I understand what the
`Court is saying.
`And it's hard for me to evaluate in
`the abstract without knowing what their positions are
`going to be.
`But the one thing --
`THE COURT:
`No, you are going to disagree --
`MR. ASPERGER:
`Right.
`We are going --
`THE COURT:
`-- with their position.
`The plaintiff always says you can just read
`this patent and see that the words say this.
`And they
`are going to say we have a dispute about what the words
`mean.
`
`MR. ASPERGER:
`they've articulated that --
`
`Yes.
`
`And we've had --
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`They have already, of course.
`THE COURT:
`MR. ASPERGER:
`-- prior to today, Your
`
`Honor.
`
`But the way that I look at it, Your Honor,
`from the standpoint of efficiency is when you step back,
`there are going to be disputed issues of fact on
`infringement whatever the claim construction --
`THE COURT:
`Oh, yes, of course.
`MR. ASPERGER:
`And so to delay the discovery
`of documents and information to -- relevant to
`infringement in the bigger picture will delay things
`significantly, because we will just be that much further
`behind from the standpoint of timing.
`THE COURT:
`All right.
`MR. ASPERGER:
`So --
`THE COURT:
`Mr. Marcus.
`I'm not interested in who wins or loses
`I am only interested in getting the claim
`here.
`construction done right up front.
`MR. MARCUS:
`We agree with that, Your Honor.
`And in terms of time, we have a claim construction
`hearing.
`I think the Court set it for September 10th.
`So within six months we'll now know what the
`
`claims mean.
`
`THE COURT:
`
`I think that's altogether really
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`too long.
`
`Very well, Your Honor.
`MR. MARCUS:
`Would you like the parties to meet and
`confer on a somewhat shorter schedule?
`THE COURT:
`I'm going to set a shorter
`
`schedule.
`
`Very well, Your Honor.
`MR. MARCUS:
`Your Honor, I was just going
`MR. ASPERGER:
`to -- the one thing I was going to add to amplify on the
`point is that their having the claim construction is not
`necessarily -- if we had the claim construction first
`that wouldn't necessarily resolve all of the issues.
`THE COURT:
`No, it wouldn't.
`MR. ASPERGER:
`Not just the infringement but
`also the interpretation issues.
`Because oftentimes, as
`this Court is well aware, when you get into the actual
`facts and the operation of the technology, that can have
`an impact because of the nuances and the technical
`issues that come out about -- that bear on claim
`construction and there can still be construction issues
`down the line.
`No, I don't agree with that.
`THE COURT:
`I really think that -- I agree that's a
`But in a case like this where I agree with
`possibility.
`you that time is not making this easier or better, and
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`time would be saved by limiting the scope of the
`And
`controversy, I'd be inclined to do it right away.
`let's say certainly get all the briefing in by June.
`MR. ASPERGER:
`So it's the Court's decision
`we do the claim construction and simultaneously --
`THE COURT:
`We can do it even before that.
`MR. ASPERGER:
`And then we would
`simultaneously proceed with getting documents on the
`infringement issue.
`Right.
`THE COURT:
`Given the construction of the term then you
`go and take discovery.
`Now, I'm doing -- I'm saying this because --
`now sometimes that doesn't work.
`But in a case like
`this I am pushing toward the idea that in order to
`understand exactly where the infringement issues are we
`should have a claim construction.
`MR. MARCUS:
`Your Honor, from our
`prospective --
`THE COURT:
`MR. MARCUS:
`
`Yes.
`-- we agree with that, Your
`
`Honor.
`
`And we also agree that at the very least a
`claim construction is going to move everybody's
`understanding of the case dramatically forward in terms
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`of understanding where they stand.
`it.
`
`No question about
`
`If you
`Well, things happen.
`THE COURT:
`don't do that, then things happen in the interim that
`affect infringement.
`I mean, practically they occur.
`MR. ASPERGER:
`Yeah.
`And, Your Honor, where
`I have a disagreement with what Mr. Marcus is saying and
`where I would ask the Court to consider -- I would ask
`the Court to move, consider moving on parallel tracks,
`because at this point we've identified 20 or so products
`that we believe infringe the technology.
`There are multiple different types of
`documents that would relate to their standards, the
`chips they use, the source code of the chips, and other
`technical issues that are going to be -- bear on the
`issue of infringement whatever the Court's decision at
`the claim construction hearing.
`And so if the Court wants to move things
`along more quickly by having a claim construction
`hearing to keep our eye on the big picture, moving the
`case forward more quickly, I would respectfully suggest
`that we should also simultaneously move forward on
`getting our discovery on the infringement issues.
`THE COURT:
`I know what you're saying.
`I have to think about that for a minute.
`
`But
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`It's
`
`Now, tell me, Mr. Asperger, about the reason
`you have this doctrine of equivalence thought is you
`want to cover all the bases.
`We
`MR. ASPERGER:
`Absolutely, Your Honor.
`haven't had insight into their technical specifications
`and the operations of their products, obviously.
`THE COURT:
`I don't even -- one of the
`things I want to tell you now is I can't imagine, I just
`can't imagine now you would have a doctrine of
`equivalence claim on something like this.
`But I don't rule it out.
`It's there.
`just that I just can't imagine it.
`Maybe you'll be -- I'm raising it now so
`that you will know that.
`MR. ASPERGER:
`
`Yeah, I appreciate that.
`
`And
`
`once --
`
`way:
`
`I keep thinking about it this
`THE COURT:
`Either they're infringing or they're not.
`Is that wrong?
`No, I think that's right,
`MR. ASPERGER:
`And to put it more perspective from our
`Your Honor.
`side, we know what our patents say and we understand how
`--
`
`I know what your patents say.
`THE COURT:
`MR. ASPERGER:
`Right.
`And so we certain
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`26
`
`publically available information.
`THE COURT:
`You certainly do.
`MR. ASPERGER:
`And are working from that.
`THE COURT:
`You have and they have public
`I mention that only because that's why I
`information.
`think a claim construction would be helpful.
`Now, a claim construction is only as good as
`the finality with which it is rendered.
`But that
`doesn't mean that it's chipped in stone, so we could
`make adjustments as we go along.
`I felt
`I'm fascinated by the standard.
`pretty sure that that was here in the problem.
`May I just ask him about the standard a
`little bit more?
`MR. MARCUS:
`THE COURT:
`organization, is there?
`There is a standard setting
`MR. MARCUS:
`organization that developed the standard.
`But I think what Cal Tech is saying is they
`didn't participate.
`THE COURT:
`MR. MARCUS:
`THE COURT:
`
`They didn't participate.
`Right, Your Honor.
`How long has the standard been
`
`Yes, Your Honor.
`There is no standard setting
`
`in effect?
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`At least six years, Your Honor.
`MR. MARCUS:
`Tell me, Mr. Marcus, is there
`THE COURT:
`somebody who polices it, so to speak?
`MR. MARCUS:
`I think the real question is
`products have to adhere to the standard to be compatible
`with other products.
`THE COURT:
`MR. MARCUS:
`
`Of course.
`So it's sort of self-policing,
`
`if you will.
`
`Well, of course.
`THE COURT:
`And then does that standard change
`periodically?
`I believe it has changed.
`MR. MARCUS:
`There was a prior standard.
`But this one, the DVB-S2,
`had been in effect for approximately six years.
`THE COURT:
`Oh.
`MR. MARCUS:
`There was a prior standard,
`
`Your Honor.
`
`And it's international?
`THE COURT:
`I believe there's an analogous
`MR. MARCUS:
`international standard called ETSI.
`THE COURT:
`All right.
`Well, now, are we talking here about
`something that is in any way where an issue having to do
`with a protective order would be a serious problem?
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`
`I don't see protective order
`MR. MARCUS:
`The parties were able to come to an agreement
`issues.
`on the protective order, Your Honor.
`THE COURT:
`Is that right?
`MR. MARCUS:
`We have a stipulated protective
`
`order.
`
`Yes, Your Honor, we filed
`
`MR. ASPERGER:
`that late Friday.
`Yes.
`THE COURT:
`MR. ASPERGER:
`And we reached agreement on
`
`all terms.
`
`that?
`
`THE COURT:
`
`But there is no problem with
`
`No problem with the protective
`
`MR. MARCUS:
`order, Your Honor.
`Well, then tell
`All right.
`THE COURT:
`me -- this has been relatively helpful.
`The -- remind
`me, will you Mr. Asperger, what are the dates of
`the patents?
`
`There are four patents, Your
`THE COURT:
`There is a -- the '710 patent was filed on
`Honor.
`May 18, 2001, and was issued on October 3, 2006.
`THE COURT:
`Yes.
`MR. ASPERGER:
`The '032 patent was filed on
`October 3, 2006, and issued on September 2, 2008.
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`29
`
`The '781 patent was filed on June 30, 2008,
`issued on May 29, 2011.
`And than the last of the continuation
`patents, the '833 patent, was filed on March 28, 2011,
`and issued on October 9, 2012.
`THE COURT:
`Now, just give me an answer to
`this question.
`Hughes has been doing whatever they are
`doing ever since the time the patents were -- the
`applications were filed, right?
`MR. ASPERGER:
`We don't know exactly what
`they've been doing.
`But they certainly -- they've been
`in -- working with these products since whenever they
`started, whenever the standard started.
`THE COURT:
`Quite a long time.
`MR. ASPERGER:
`For a while.
`And then we
`just recently received our last patent in October of
`2012.
`
`That's what I understand.
`THE COURT:
`Yes, Your Honor.
`To put it a
`MR. MARCUS:
`little bit more of a point on it, the plaintiff first
`asserted that Hughes was infringing the patents, I
`think, in 2007.
`That's what I'm getting at.
`THE COURT:
`And as the Court also won't be
`MR. MARCUS:
`surprised as the two leader issue patents came into
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`being, those patents are broader than the original two
`patents that they stem from, which is something that I
`know we've seen before.
`Your Honor, we would -- I
`MR. ASPERGER:
`think we would disagree on whether they're broader or
`not.
`There are --
`Mr. Asperger, I think that's a
`THE COURT:
`fair comment.
`I think from your standpoint that would
`be one of the things that we'd look into is claim
`construction.
`That's almost why I started the
`conversation with you.
`I think
`I think we're going to do that.
`we're going to have the -- I think we're going to have
`the claim construction first.
`Now, I hate to keep doing this, but I want
`to get it clearly in my mind.
`Now, you are presently,
`Mr. Marcus, as you say, following the standard.
`MR. MARCUS:
`Yes.
`At least some of our
`products are compatible with the standard, absolutely,
`Your Honor.
`
`THE COURT:
`MR. MARCUS:
`THE COURT:
`talking about.
`MR. MARCUS:
`
`And some are not?
`That's right, Your Honor.
`And that's what Mr. Asperger is
`
`Right.
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`31
`
`We are going to have
`All right.
`THE COURT:
`the claim construction earlier.
`So how's June?
`And
`back up to whatever you're going to brief.
`MR. MARCUS:
`Your Honor, in principle is
`If the parties could meet and confer on a
`fine.
`particular date and then back into a briefing schedule.
`THE COURT:
`Of course.
`Of course, you can.
`MR. MARCUS:
`We'll get back to the Court
`very promptly.
`Now, all we're
`All right.
`THE COURT:
`And
`concentrating on is ten terms.
`You agree to them.
`you can have the date that you work out with Isabel for
`the hearing, and then you can back up to whatever you
`are going to do.
`Now, Mr. Asperger, I want to do this
`because -- and I think you are quite right about what
`you say.
`You should get this over with.
`I mean, this
`is one case in which we should get a ruling early, and
`you should have the opportunity to have discovery.
`So when you're talking about this to each
`other, you might think about dates for that.
`MR. ASPERGER:
`Your Honor, the one concern I
`have with the schedule is that at this point we haven't
`received any documents in response to our request from
`the defendants.
`We're only received objections.
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`0031
`
`
`
`32
`
`I
`
`And as I mentioned earlier, it's very
`important for us to understand the operations of their
`
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