throbber
IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF TEXAS
`
`DALLAS DIVISION
`
`3:11—CV—00367—0
`
`DALLAS, TEXAS
`
`APRIL 3, 2013
`
`( ( ( ( ( ( ( ( (
`
`SUMMIT 6 LLC,
`
`P1aintiff,
`
`VERSUS
`
`RESEARCH IN MOTION CORP.,
`Defendants.
`
`VOLUME 4A
`TRANSCRIPT OF TRIAL
`
`BEFORE THE HONORABLE REED C. o'CONNOR
`
`UNITED STATES DISTRICT JUDGE, and a jury
`
`A P P E A R A N C E S:
`
`
`
`FOR THE PLAINTIFF:
`
`FOR THE PLAINTIFF:
`
`THEODORE STEVENSON, III
`McKooT Smith
`300 Crescent Court
`
`Suite 1500
`
`Da11as, TX 75201
`214/978—4000
`214/978—4044 FAX (fax)
`tstevenson@mck001smith.com.
`
`PHILLIP M. AURENTZ
`
`McKooT Smith PC
`
`300 Crescent Court
`
`Suite 1500
`
`Da11as, TX 75201
`214/978—4206
`214/978—4044 (fax)
`paurentz@mck001smith.com.
`
`ASHLEY N. MOORE
`
`McKooT Smith PC
`300 Crescent Court
`
`Suite 1500
`
`Da11as, TX 75201
`214/978—6337
`214/978—4044 (fax)
`amoore@mckoo]smith.com
`
`
`
`2O
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`25
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`Shawn M. McRoberts, RMR, CRR
`
`
`
`Federal 0""iciai Court Reporter
`
`Facebookv.
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`

`

`JOHN B. CAMPBELL
`
`McKooT Smith
`
`300 w 6th St.
`
`Suite 1700
`
`Austin, TX 78701
`512/692—8730
`512/692—8744 (fax)
`jcampbe11@mckooismith.com
`
`BRADLEY W. CALDWELL
`
`Ca1dwe11 Cassady Curry, P.C.
`1717 McKinney
`Suite 700
`
`Da11as, TX 75202
`214/593—7129
`214/978—4044 (fax)
`bca1dwe11©ca1dwe11cc.com
`
`FOR THE DEFENDANT:
`
`JAMES R. NELSON
`
`DLA Piper us LLP
`1717 Main St.
`
`Suite 4600
`
`Da11as, TX 75201—4605
`214/743—4512
`214/743—4545 (fax)
`jr.ne1son@d1apiper.com
`FOR THE DEFENDANT: MARK D.
`FOWLER
`
`
`
`DLA Piper LLP (us)
`2000 University Ave
`East Paio A1to, CA 94303
`650/833—2048
`650/833—2001 (fax)
`mark.fow1er@d1apiper.com
`
`CLAUDIA WILSON FROST
`
`DLA Piper LLP
`1000 Louisiana
`
`Suite 2800
`
`Houston, TX 77002
`713/425—8450
`713/300—6050 (fax)
`c1audia.frost@d1apiper.com
`
`ANDREW P. VALENTINE
`
`DLA Piper LLP (us)
`2000 University Avenue
`East Paio A1to, CA 94303—2214
`650—833—2000
`
`650—833—2001 (fax)
`andrew.va1entine@DLAPiper.com Facebookv.
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`Shawn M. McRoberts, RMR, CRR
`
`
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`Federal O
`”iciai Court Reporter
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`

`COURT REPORTER:
`
`SHAWN M. McROBERTS, RMR, CRR
`1100 Commerce Street, Room 1654
`Da11as, Texas 75242
`214/753—2349
`shawn_mcroberts@txnd.uscourts.gov
`
`Proceedings reported by mechanica1 stenography,
`produced by computer.
`
`transcript
`
`ERIK FUEHRER
`
`DLA Piper US LLP
`2000 University Avenue
`East Paio A1to, CA 94303
`650/833—2045
`650/833—2001 (fax)
`erik.fuehrer@d1apiper.com
`
`TODD S. PATTERSON
`
`DLA Piper LLP (US)
`401 Congress Ave
`Suite 2500
`
`Austin, TX 78701
`512/457—7000
`512/457—7001 (fax)
`todd.patterson@d1apiper.com
`
`
`
`
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`Shawn M. McRoberts, RMR, CRR
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`Federai O
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`

`TRIAL - VO 'Iume 4A — APRIL 3, 2013
`
`P R O C E E D I N G S.
`
`
`
`
`STfiVfiNSON:
`
`
`
`
`
` Tli COJRT: Yes
`
`
`M{. STfiVfiNSON:
`
`
`
`
`(jY MR. STfiVfiWSON)
`
`Good morning Mr. Ste
`
`
`May I
`
`resume Your Honor?
`
`, sir.
`
`Thank you.
`
`
`Good morning, Doctor Rhyne.
`
`venson.
`
`When we broke we were talking or beginning to talk about
`
`
`
`
` wanted to remind you and the jury
`the burden O" prOO", and I
`
`
`the burden O“ prOO" that
`
`about that with some questions about
`
`
`
`you have been applying and tha'
`
`:
`
`the jury will apply.
`
`You understand Unite
`
`Yes.
`
`d States patents are presumed valid.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`And that is because an examiner in the patent o
`
`
`
`
`
`
`
`
`examined the patent.
`
`
`That is part 0:
`
`the
`
`reason.
`
`And in a legal proce
`
`eding,
`
`a person or a company
`
`
`
`lenging the va'idity
`
` o: the patent bears the burden o:
`
`
`
`
`
`
`
`
`
`
`
`
`
`you understand,
`
`DOCtor Rhyne,
`
`
`that the burden o:
`
`
`proo:
`
`on Samsung to come
`
`‘orward with clear and convincing
`
`evidence
`
`
`to disprove the validity o:
`
`the patent.
`
`A.
`
`Q.
`
`Yes.
`
`And you understand that clear and convincing evidence is
`
`PAMELA J.
`WILSON, CSR RMR CRR TLI Communications
`U.S. DISTRICT COURT - 214.662.1557 IPR201500778
`TLIEx.2005
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`

`
`
`
`evidence that leaves the jury with a firm belief that Samsung
`
`Vol
`
`
`has proven the facts.
`
`A.
`
`Q.
`
`That is my understanding.
`
`
`
`And obviously the Court is going to insoruct
`
`
`
`,he jury on
`
`
`
`
`
`exactly the language to use for the burden O" prOO", but is
`
`
`that a: least an articulation o:
`
`
`
`
`the burden O“ prOO" you have
`
`heard for in cases you have worked on?
`
`
`
`
`
`
`
`" believe " have heard that language before.
`
`
`
`That is like the hand"ul o" bee bees on the scale instead
`
`
`
`But unlike Auto Trader or one of those sites -- Auto
`
`A.
`
`Q.
`
`
`o:
`
`A.
`
`
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`the single bee bee.
`
`
`I wasn't here to hear that analogy, but
`
`
`I have heard
`
`
`
`football analogies and other kinds 0: things.
`
`Q.
`
`
`I understand.
`
`Now, you understand that Samsung asserts that the Point2
`
`the PUF, was used before July 28, 1998.
`
`
`
`
`photo upload facility,
`
`A.
`
`Yes.
`
`Q.
`
`That is the proposition that Samsung has to prove by
`
`clear and convincing evidence.
`
`Yes.
`
`Let's talk about Point2 and Mr. Wright.
`
`You understand
`
`Point2 was essentially an equipment exchange site.
`
`Yes.
`
`More or less
`
`like classi-
`
`
`
` for bulldozers.
`
`Yes.
`
`
`
`
`
`Facebookv.
`PAMELA J.
`CSR RMR CRR flJComnmnmmbns
`WILSON,
`U.S. DISTRICT COURT — 214.662.1557 |PR2015-00778
`TLI Ex. 2005
`
`Page 5 of 14
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`

`Q.
`
`All right. Well,
`
`
`I am going to stop the quest
`
`
`
`missing cookie right now.
`
`Okay.
`
`A.
`
`Q.
`
`
`
`
`Let me sort 0" shi"t gears,
`
`though, and talk abou'
`
`We may address the missing cookie a little bit la
`
`
`
`tes patent that you talked about at the end 0: your
`
`
`
`a product based on that patent.
`
`
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`25
`
`timony.
`
`Okay.
`
`Mattes,
`
`that was a Siemens patent, wasn't it?
`
`Yes, sir.
`
`
`And that is a German electronics manufacturer. Correct?
`
`Yes.
`
`And they make some consumer electronics. Right?
`
`
`They make a variety 0: electronic things.
`
`
`I have worked
`
`directly with them.
`
`Okay. And you showed the jury just the paper patent in
`
`testimony. Right?
`
`Yes.
`
`And you never brought
`
`in a Siemens product that practices
`
`patent. Correct?
`
`Yes,
`
`
`I did not.
`
`
`
`Do you know the model number or the name 0:
`
`the product
`
`actually practices that patent, sir?
`
`
`
`am not sure.
`
`
`I don't think they,
`
`to my knowledge, ever
`
`
`
`PAMELA J. WILSON, CSR RMR CRR TUCommummmmw
`U.S. DISTRICT COURT — 214.662.1557 |PR2015-00778
`TLI Ex. 2005
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`Page 6 of 14
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`

`Yeah,
`
`
`
`
`I have looked for one and couldn't find one so --
`
`Vol
`
`57
`
`
`
`
`looked for one,
`
`
`too, and couldn't find one.
`
`And you never heard them licensing this patent, have you?
`
`
`You looked for
`
`one,
`
`too.
`
`
`
`don't know anything about
`
`A.
`
`
`
`patent.
`
`
`the licensing history 0" this
`
`
`
`Q.
`
`Okay.
`
`So without something to -- you know,
`
`a product'
`
`lOOk at,
`
`we are just going to have to read this patent and
`
`
`
`
`
` Do you remember they had a switch on that
`
`
`
`to
`
`A.
`
`Q.
`
`figure out how this thing worked. Right?
`
`
`That is true 0:
`
`any time somebody uses a patent as a
`
`
`
`2O
`
`21
`
`22
`
`23
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`24
`
`25
`
`
`piece 0: prior art.
`
`
`So let's talk about it. And I read the patent.
`
`
`
`
`
`,o ge, you to confirm or deny my understanding 0:
`
`
` thing is.
`
`So basically it starts out at a telephone. Right?
`
`
`
`
`It is a phone and a camera, but it is a phone.
`
`
`Can you tell how big it is from the patent?
`
`
`Is it this
`
`or this big?
`
`
`Kind 0:
`
`looking at the antenna picture,
`
`
`" would think it
`
`was about this big;
`
`
`kind of like what we used to call the old
`
`brick cell phones,
`
`but about like that.
`
`Q.
`
`A.
`
`Q.
`
`And that telephone also had a camera with it. Right?
`
`Yes.
`
`That camera --
`
`phone?
`
`PAMELA J. WILSON, CSR RMR CRR TLI Communications
`U.S. DISTRICT COURT — 214.662.1557 |PR2015-00778
`TLIEx.2005
`
`Page 7 of 14
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`

`Okay.
`
`Yes.
`
`
`
`they
`
`
`
`am going to hand the
`
`AL?
`
`Yeah.
`
`Yes, sir
`
`And you could
`
`
`
`
`a switch and put it into --
`
`jlip Lha the mode switch.
` a one, but ye
`
`You are
`
`talking about
`
`
`
`di""eren
`
`s,
`
`they did.
`
`
`
`And the letters don't match up phonetically to what
`
`
`are referring
`
`to, because
`
`
`
`think the letters carried over
`
`
`
` from German,
`
`A.
`
`Right.
`
`probably.
`
`
`
`
`%u':
`
`thought you were talking about
`
`the trigger
`
`with or the shutter switch.
`
`
`
`switch.
`
`
`
`do
`
`remember the
`
`Q.
`
`So what you do is i:
`
`is you have a
`
`between camera mode and
`
`little switc :6
`
`You are talking about
`
`the mode
`
`y have that.
`
`you have this Siemens phone camera
`
`h on it,
`
`and you can switch it in
`
`lephone mode.
`
`Right?
`
`
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
` IJt you at lea
` S:
`
`That is my impression,
`
`yes.
`
`A.
`
`Q.
`
`
`I COUISG,
`
`0
`
`you
`
`And when you would have it in camera mode,
`
`a 0“
`
`the ,ele
`
`phone. Right?
`
`are locked ou
`
`A.
`
`
`
`don't
`
`Q.
`
`Okay.
`
`
`
`think
`
`thao is
`
`,rue.
`
`had to switch it in between.
`
`Right?
`
`A.
`
`
`
`"5
`
`Those were
`
`you wanted to talk
`
`
`,he ,wo options
`
`
`
`
`
`
`
`STfiVfiNSON:
`
`or i:
`
`you wanted to take a picture.
`
`that you had.
`
`And could we put up
`
`
`3X 2544,
`
`please?
`
` approach, Y
`
`our Honor?
`
`
`
`PAMELA J.
`U.S. DISTRIC
`
`Facebookv.
`CSR RMR CRR flJComnmnmmbns
`WILSON,
`214.662.1557 IPR201500778
`T COURT -
`TLIEx.2005
`
`Page 8 of 14
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`TLI Communications
`IPR2015-00778
`TLI Ex. 2005
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`

`

`
`
`,his patent and a red marker.
`witness a copy or
`
`
`
`
`THfi W TWfiSS:
`
`Thank you.
`
`
`
`
`
`jY MR. STfiVfiWSON) Let's go look at how this worked.
`
`
`
`
`
`MR. STfiVfiNSON:
`
`tent, please?
`
`
`
`
`
`Can we turn to column 6,
`
`line 13, o:
`
`So let's talk about how Mattes
`
` jY M&. STfiVfiNSON)
`
`
`It says,
`
`
`"The telephone unit TE can be used as a
`
`
`
`worked.
`
`normal
`
`
`
`
`
`telephone to make calls or as an image recording device
`
`
`
`with its expanded ‘unctiona'ity.
`
`
`one development 0:
`
`the invention,
`
`
`It is provided, according to
`
`to provide a mode key MT by
`
`
`
`
`which the operating mode or
`
`,he telephone is switched such as
`
`between operations as a normal
`
`telephone or as an image
`
`pick—up and transmitting unit according to the present
`
`communication system."
`
`
`Do you see that?
`
`A.
`
`Yes.
`
`'t is clear we have got
`
`to switch between the two
`
`
`
`modes on this thing. Right?
`
`
`
`2O
`
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`25
`
`A.
`
`
`
`
`"5 you want
`
`to talk on the phone or you want
`
`to have an
`
`
`
`
`
`those are the two options.
`
`image capture and transmit,
`
`
`
`Q.
`
`Right.
`
`camera, what it is really doing is you can't talk on the phone
`
`So,
`
`in other words, when you switch over to
`
`
`
`
`
`anymore.
`
`
`It is using that transmitter to send your images
`
`somewhere else. Right?
`
`A.
`
`Yes.
`
`Q.
`
`Okay.
`
`PAMELA J. WILSON, CSR RMR CRR NJ
`U.S. DISTRICT COURT - 214.662.1557
`
`Facebookv.
`Conununmafions
`IPR201500778
`TLIEx.2005
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`

`
`And other information.
`
`Q.
`
`Right.
`
`So what happens is when you go to take a picture,
`
`A.
`
`Q.
`
`me.
`
`it then goes ahead and transmits your image. Right?
`
`
`i believe that is the case.
`
`
`
`
`Now, let's turn back to Figure 2 of the patent.
`
`Let's go to Figure 3,
`
`
`then I am going to go back
`
`
`
`Figure 2.
`
`
`Figure 3 is a flowchart. Right?
`
`A.
`
`Q.
`
`Yes.
`
`Figure 3 shows you what
`
`the camera does,
`
`the steps it can
`
`do in the order it can do them. Right?
`
`Yes.
`
`A.
`
`Q.
`
`
`So it is basically walking through the process 0:
`
`5 taking
`
`a photo and getting it sent 0
`
`
`
`
`
`
`she phone in this flowchart.
`
`
`
`The transmission unit is the phone part. Right?
`
`
`
`Fair?
`
`A4
`
`Q.
`
`Yes.
`
`
`
`The first s
`
`,ep the patent tells you is to record
`
`an
`
`image--that is,
`
`taking a picture with the phone. Right?
`
`A.
`
`Q.
`
`Yes.
`
`
`After you do that,
`
`then it stores it in digital
`
`
`
`the camera.
`
`A.
`
`Q.
`
`Yes.
`
`Then transmits data containing the digital image to a
`
`server via the transmission unit.
`
`Yes.
`
`A.
`
`Q.
`
`PAMELA J. WILSON, CSR RMR CRR TUCommummmmw
`5—00778
`U.S. DISTRICT COURT - 214.662.1557 PRZM
`TLI Ex. 2005
`100f14
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`

`A.
`
`Q.
`
`
`It is the wireless part of the phone.
`
`Okay.
`
`
`
`It doesn't say anything in here in this ‘lowchart
`
`
`
`about selecting which images to transmit, does it?
`
`A.
`
`
`I
`
`think the
`
`way this reads is you transmit the one you
`
`
`
` "t says "containing digital image," so
`just took an image 0'.
`
`it is the one you just took.
`
`
`
`
`
`there was a screen on Mattes.
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`Q.
`
`Qight. Basically it sends them all.
`
`
`
`
`
`Every time you take one it sends one.
`
`Q.
`
`Okay.
`
`
`
`Do you think you would want all of the pictures
`
`
`you take being immediately transmitted out? Don't answer
`
`that. Don't answer that.
`
` Let's go back to the previous page.
`
`
`I withdraw that question.
`
`
`
`Figure 2?
`
`Figure 2.
`
`Okay.
`
`And here is
`
`
`where the red pen comes in. Did the
`
`telephone unit 0
`
`f Mattes have a screen upon which you could
`
` :ures?
`
`look at your piC'
`
`A.
`
`
`
`I have wondered about that and I don't see one that tells
`
`
`
`could use the viewfinder in some way, i; it
`
`
`
`
`were not just like an optical viewfinder but an
`
`you, unless they
`
`
`
`
`
`electronic -- I don't know the answer to that.
`
`The
`
`possibility exists, but
`
`
`I don't know for sure.
`
`
`
`Q.
`
`There is sure not clear and convincing evidence that
`
`PAMELA J. WILSON, CSR RMR CRR TUCommummmmw
`U.S. DISTRICT COURT — 214.662.1557 |PR2015-00778
`TLIEx.2005
`
`Page 11 of 14
`
`Facebookv.
`
`Facebook v.
`TLI Communications
`IPR2015-00778
`TLI Ex. 2005
`Page 11 of 14
`
`

`

`A.
`
`
`I don't think tha'
`
`:
`
`the Ma
`
`ttes patent tells you o:
`
`way to preview the pic
`
`cure tha
`
`a you took.
`
`
`
`
`
`Q.
`
`All right. Well,
`
`
`i was going to ask you to circle that
`
`screen,
`
`but since we can't
`
`
`find one
`
` i will let the red pen go
`
`unused.
`
`A.
`
`Q.
`
`That is fine.
`
`
`
`All right,
`
` Doctor
`
`thne.
`
`Let me take a quick look at my
`
`may be about
`
`wrapped up with you,
`
`other than
`
`
`
`
`
`the Court is going to
`
`
`notes and I
`
`think one issue
`
`
`
` take up.
`
`
` jile name that was in the
`
`
`
`think that
`
`is it.
`
`Than
`
`
`k you, Doctor Rhyne.
`
`TH: COURT:
`
`We will
`
`take it up at a break.
`
`R 13 RilCT
`
`
`
`fiXAM NAT ON
`
`
`
` 1rickson:
`Dy Mr.
`
`Q.
`
`All right.
`
`during this trial,
`
`
`Doctor Rhyne,
`
`
`after everything you have seen
`
`
`
`
`
`F's
`‘rom Plainti
`including the questions
`
`counsel,
`
`based on all the evidence you reviewed what is your
`
`opinion regarding c'
`
`
`aims 38 and the dependent claims of the
`
`
`
`
`
`'482 patent?
`
`
`
`A.
`
`Q.
`
`
`I
`
`think they are still invalid by
`
`Now,
`
`we didn't hear any questions
`
`
`these two references.
`
` from counsel about what
`
`
`
`think is
`
`the elephant
`
`in the room,
`
`and that is the Hoss
`
`piCture on
`
`
`
`thao the
`file name 0:
`
`the Wayback Machine.
`
`The testimony that you heard
`
` what do you recall
`
`that picture —— Well,
`
`
`
`the file name on
`
`thao picture?
`
`
`
`aboat
`
`
`
`A.
`
`That is in keeping with
`
`the
`
`Facebookv.
`PAMELA J.
`CSR RMR CRR flJComnmnmmbns
`WILSON,
`U.S. DISTRICT COURT -
`214.662 .15 57 |PR2015-00778
`TLI Ex. 2005
`
`Page120f14
`
`
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Facebook v.
`TLI Communications
`IPR2015-00778
`TLI Ex. 2005
`Page 12 of 14
`
`

`

`A.
`
`
`I don't understand that.
`
`
`I don't know the architecture
`
`Vol
`
`164
`
`by which the Facebook uploader works.
`
`Q.
`
`And that is because you haven't had the oppor
`
`
`
`uy to
`
`
`
`(Lunch recess.)
`
`
`
`
`
`
`
`look at their confidentia'
`
`
`information and study it. Right?
`
`
`A. Well, and I haven't found any public information about it
`
`
`
`either.
`
`Q.
`
`Okay.
`
`
`information,
`
`A.
`
`
`I do.
`
`You know that Doctor Jones did study Facebook's
`
`though. Right?
`
`
`
`Q.
`
`And, sir, when you sent the message to Facebook, you
`
`
`didn't provide in your report the size 0:
`
`
`the image after it
`
`
`was sent but before it made it to the server. Right?
`
`A.
`
`That is correct.
`
`
`THE COURT: We will take our lunch break here.
`
`So ladies and gentlemen, we will take about an hour. We
`
`will get you back here around 1:30, we will get you right in
`
`the courtroom, and we will keep moving through the case.
`
`
`
`'or al' 0" your hard work, and we will see
`
`
`
`
`
`Thank you so much
`
`you in an hour.
`
`(Whereupon,
`
`
`the jury left the courtroom.)
`
`
`THE COURT: Okay.
`
`
`
`
`"f you would remember my previous
`
`instructions.
`
`PAMELA J. WILSON, CSR RMR CRR TLI Communications
`U.S. DISTRICT COURT — 214.662.1557 PRmnsoons
`TLIEx.2005
`
`Page130f14
`
`Facebookv.
`
`
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Facebook v.
`TLI Communications
`IPR2015-00778
`TLI Ex. 2005
`Page 13 of 14
`
`

`

`
`
`
`
`
`
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`Facebookv.
`PAMELA J. WILSON,
`CSR RMR CRR flJComnmnmmbns
`U.S. DISTRICT COURT - 214.662.1557 |PR201500778
`TLIEx.2005
`
`Page14of14
`
`Facebook v.
`TLI Communications
`IPR2015-00778
`TLI Ex. 2005
`Page 14 of 14
`
`

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