`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`CORE WIRELESS LICENSING, )( Civil Docket No.
`S.A.R.L. )( 2:14-CV-911-JRG-RSP
` )( MARSHALL, TEXAS
`VS. )(
` )(
`LG ELECTRONICS AND LG )( March 21, 2016
`ELECTRONICS MOBILECOMM USA, )( 8:29 a.m.
`INC. )(
`
`TRANSCRIPT OF JURY TRIAL
`
`BEFORE THE HONORABLE RODNEY GILSTRAP
`
`UNITED STATES DISTRICT COURT
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`APPEARANCES:
`
`FOR THE PLAINTIFF: Mr. John C. Hueston
`Mr. Douglas J. Dixon
`Mr. Michael J. Stephan
`HUESTON & HENNIGAN, LLP
`620 Newport Center Drive
`Suite 1300
`Newport Beach, California 92660
`
` Mr. Alexander C. Giza
`Mr. Marshall A. Camp
`Mr. Padraic Foran
`HUESTON & HENNIGAN, LLP
`523 W. 6th Street
`Suite 400
`Los Angeles, California 90014
`
`
`
`
`COURT REPORTER: SHELLY HOLMES, CSR, TCRR
` Official Court Reporter
` United States District Court
` Eastern District of Texas
`
`Marshall Division
` 100 E. Houston, Suite 125
` Marshall, Texas 75670
` (903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on CAT system.)
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`IPR2015-01898 & IPR2015-01899
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`APPEARANCES CONTINUED:
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`FOR THE PLAINTIFF: Ms. Elizabeth L. DeRieux
`CAPSHAW DERIEUX, LLP
`114 E. Commerce Avenue
`Gladewater, Texas 75647
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`
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`FOR THE DEFENDANTS: Mr. Richard D. Harris
`Mr. Cameron M. Nelson
`Mr. Herbert H. Finn
`GREENBERG TRAURIG, LLP
`77 West Wacker Drive
`Suite 3100
`Chicago, Illinois 60601
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`Mr. Nicholas A. Brown
`GREENBERG TRAURIG, LLP
`4 Embarcadero Center
`Suite 3000
`San Francisco, California 94111
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`Mr. Stephen M. Ullmer
` GREENBERG TRAURIG, LLP
` 1200 17th Street, Suite 2400
` Denver, Colorado 80202
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`Mr. Kevin S. Kudlac
`GREENBERG TRAURIG, LLP
`300 West 6th Street
`Suite 2050
`Austin, Texas 78701
`
`Mr. J. Mark Mann
`Mr. G. Blake Thompson
`MANN TINDEL & THOMPSON
`300 W. Main Street
`Henderson, Texas 75652
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`The jury is excused for recess at this time.
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`COURT SECURITY OFFICER: All rise.
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`(Jury out.)
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`THE COURT: All right. The Court stands in recess.
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`(Recess.)
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Be seated, please.
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`Counsel, let me review with you a little bit of the
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`history of today's portion of the trial so that I can be clear
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`with everyone as to where we started this morning and where we
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`are now.
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`Previously this morning, after the inventor,
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`Mr. Martyn, testified, I met with counsel in chambers. And at
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`that time, I raised with counsel the possibility that there
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`might be an 02 Micro situation requiring additional
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`construction of disputed or potentially disputed terms by the
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`Court.
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`We discussed "unlaunched," and we discussed "reached
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`directly," both of them coming from Claim 1 of the '020 patent
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`and Claim 2 of the '476 patent.
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`The Plaintiff indicated to me in chambers that they
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`did not believe an 02 Micro situation existed. Defendants
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`indicated in chambers that they thought there might be an 02 --
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`02 Micro issue and that they thought as late as last week that
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`there possibly could be one in this trial, but they weren't
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`sure how to raise it.
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`Therefore, they did not bring it to the Court's
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`attention until the Court raised it this morning in chambers
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`after Mr. Martyn testified. The Defendants asked the Court to
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`revisit the issue after Dr. Zeger testified. And with the
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`agreement of the Plaintiff, the Court proceeded to let
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`Dr. Zeger testify. He has now given his direct testimony.
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`And the Court is persuaded that an 02 Micro situation
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`does, in fact, exist. There's no need to go through the
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`cross-examination of Dr. Zeger to reach that conclusion, and
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`that under 02 Micro and its progeny, the Court has an
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`obligation to provide further claim construction with regard to
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`these terms to the parties.
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`I intend to discharge that obligation. I'm going to
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`afford both sides an opportunity to offer very brief and
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`concise argument on these two terms. The time that we're
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`spending is going to be equally chargeable to the parties as a
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`part of the trial time.
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`I'm not -- I'm not casting fault with why this was
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`not raised earlier; I'm merely making it very clear on the
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`record it wasn't raised earlier, and it now must be disposed of
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`so that we can proceed with the trial.
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`I've reviewed the treatment of these terms in the
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`file history. I've reviewed any other materials available to
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`me.
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`If the Plaintiff would care to offer any argument on
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`the term "unlaunched" or the term "reached directly," I'd be
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`happy to hear it.
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`Does Plaintiff have any argument on these terms to
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`present to the Court?
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`MR. GIZA: Yes, Your Honor.
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`Would you like me to present some slides that show
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`some of the evidence of the file history or --
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`THE COURT: Counsel, I'll let you present your
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`argument. I'd ask that you do it from the podium.
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`MR. GIZA: Yes, Your Honor.
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`THE COURT: I want you to understand that the time
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`you use is going to be charged to your trial time, but I want
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`you to have an opportunity to present to the Court what you
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`think is the most compelling case for your view of these terms
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`and what is an appropriate construction for them.
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`So that -- so with that, Mr. Giza, let me hear from
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`you.
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`please?
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`MR. GIZA: Thank you, Your Honor.
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`Mr. Wietholter, could you cue up Dr. Zeger's slides,
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`Can we go to Slide 60, please?
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`Your Honor, the claim term "launched" and
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`"unlaunched" show up in two places in the patent in the claims.
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`First, in Element [1e]: Each function in the list
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`being selectable to launch the first application and initiate
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`the selected function.
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`And then in [1f]: Wherein the application summary
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`window is displayed while the application is in an unlaunched
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`state.
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`So we have "launched" and "unlaunched." Obviously,
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`that's just opposite. I think we can all agree on that.
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`In terms of understanding what "launch" means, I do
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`believe that the plain and ordinary meaning applies, but to the
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`extent we go to claim construction, we first should look at the
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`specification, the patent itself.
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`So in the specification, this is at Column 2, I
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`believe, at the bottom of Column 2. I'll give you a cite, Your
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`Honor. Column 2, Lines 61 to 64.
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`And here in the patent, the term "launch" is actually
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`used. It says: Launch a main view.
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`So "launch" is equated to something you can see, a
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`view, a view which shows. It's quite clear that it's something
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`that's visible.
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`If we go to the next slide, just on the very next
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`line, it uses the term "launch" again, and it says: Launch the
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`appropriate summary window.
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`Again, visible.
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`If we go to the third slide, this is the third use of
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`"launch" in the patent, and it says: Once the summary window
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`is launched, core data/functionality is displayed.
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`So, again, a window is launched. You can see it.
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`The core data/functionality is displayed. That's the context.
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`And I think that is the plain and ordinary meaning of "launch."
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`It's something you can see in this context.
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`To be sure, we'd have to look at the file history.
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`So let's go to Slide 68, Mr. Wietholter.
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`So it's mentioned several times in the file history,
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`and I expect that LG will show you some examples as well. But
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`it's somewhat equivocal. Let's look at -- let's see, I've got
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`a Bates number, this is one of the responses in the file
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`history.
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`And the applicant is saying: However, it is only
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`ever displayed within a running instance of the program, i.e.,
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`when the program is in a launched state.
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`So, again, the equation between "displayed" and
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`"launched," it's the same argument.
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`If we go to the next slide.
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`Here's another part of the file history. This is
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`where they're distinguishing some prior art, but they're
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`talking about "displayed" and "launched."
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`And it says: The applicant underlines that when the
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`main menu of Figure 6A is displayed, that happens when the mail
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`application has already been launched.
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`So it's equating "launched" to being displayed, to
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`being visible.
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`The next sentence: It follows that the main menu
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`cannot be displayed when the mail application is in an
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`unlaunched state.
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`So it's not displayed when it's in an unlaunched
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`state. I think that lines up exactly with the infringement
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`evidence that we presented to the jury in the last session.
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`If we can go to the last slide, this is just
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`another -- a little bit of additional support. In this
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`excerpt, this is LG's Document 62, and the Bates number is
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`LG 3697.
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`And it says: The menus are available within a
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`launched application.
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`And, again, menus are something that's visible, and
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`it's equating that to something in a launched application.
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`So I think it's consistent throughout that the
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`patent -- the use of the patent -- the use of the term
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`"launched" in the patent and the file history is equated to
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`something that's visible, something that's displayed, and
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`that's the construction.
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`Dr. Zeger's testimony in his deposition -- and I can
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`read to you -- in his deposition, he was asked -- well, it's
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`kind of messy so I'll read it all in for you, Your Honor.
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`QUESTION: So an unlaunched state could be --
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`MR. GIZA: Oh, I'm sorry. I'll give you the cite.
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`MR. BROWN: Thank you.
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`MR. GIZA: Page -- I'm starting at Page 213, Line 16,
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`and I'm reading through to Page 214, Line 5, to get the
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`question and answer.
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`QUESTION: An unlaunched state could be -- well, I
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`want to understand what you -- I want to understand what you
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`mean by "negation" because it sounds like a false
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`contrapositive to me.
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`ANSWER: No, it's not. The launched is the logical
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`end of two things. It could be executing code, and it has to
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`be executing code, and it has to be visible to the user.
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`So, I mean, if you want me to get mathematical about
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`it, we could use -- we could use De Morgan's law and the
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`negation of that and is not something and not something else.
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`QUESTION: Right.
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`ANSWER: So it's either not executing code or not
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`visible to the user. That's what unlaunched would be.
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`MR. GIZA: So I think that's entirely consistent with
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`what we're presenting. It focuses on what's visible. If
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`something's visible, obviously, it's executing code. But our
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`expert, of course, goes into a little more detail because he's
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`more detailed.
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`THE COURT: All right. Let me hear Defendants'
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`position on unlaunched state. And I indicated earlier this
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`language comes from -- well, to be clear, this language comes
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`from Claim 1 of both the '020 and the '476 patent.
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`Mr. Brown, what's Defendants' position on unlaunched
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`state?
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`MR. BROWN: Your Honor, before I begin, I'd like to
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`ask that Dr. Zeger be excluded from the courtroom while I make
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`this presentation to the Court. The subject matter of it would
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`be reflected in the cross-examination. I'd prefer to not
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`display that to him while I'm making the argument to the Court.
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`THE COURT: I'm not sure that's going to be the
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`problem you think it is, but out of an abundance of caution,
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`I'll ask Dr. Zeger to exit the courtroom until he's recalled.
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`THE WITNESS: Okay.
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`THE COURT: If you'll just wait outside, Dr. Zeger.
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`THE WITNESS: Okay.
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`THE COURT: We'll have you back in here shortly.
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`(Dr. Zeger leaves the courtroom.)
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`THE COURT: All right, Mr. Brown. Proceed.
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`MR. BROWN: The first point, Your Honor, is that the
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`patents use the word "displayed" in the claims when they mean
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`displayed or visible, and they use a distinct and different
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`word, "launched" and "unlaunched." There's a presumption that
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`those words mean different things. That's our first point.
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`Our next point is based on the file history. And I'd
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`like to show the Court where the unlaunched state was added to
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`the claims by the applicant.
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`If we can put up Exhibit LGX-62, which is the file
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`history, and if we can turn to Page 169.
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`This is an office action.
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`If you can call out the date -- that is 8/22/2007,
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`and if we can turn to Page 171, which is the beginning of this
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`office action. And if we zoom in on the art that was cited
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`here.
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`You can see that there are three references. The one
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`I'm going to focus on here is the Richard reference.
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`If we can now turn to Page 189.
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`This is a response -- excuse me -- a reply and
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`amendment to that office action, the 8/22/2007 office action.
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`It's dated December 26, 2007.
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`If we can turn to the next page, Page 190, and zoom
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`in on the top of the page.
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`The Court can see that at this point in response to
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`that office action, which included the Richard reference, that
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`the unlaunched state limitation is added to the claims.
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`I'd now like to show the Court the Richard reference.
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`That is Exhibit LGX-75. This is a patent to IBM. And if we
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`can turn to Page 8.
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`Can we rotate that?
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`Your Honor, as you can see, this is -- oop. That
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`wasn't very elegant. But this is App B up in this corner. And
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`you can see there's a start button, and there's the bar along
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`the bottom of the screen that you can use to switch between
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`applications. You can see there's App B, and there's App A.
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`So right now in this figure, you're looking at App --
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`App B, and there is this document untitled B opened within
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`App B. And you can switch from App B to App A by tapping on
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`that App A button on the bottom.
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`And if we can show Figure 4 of this patent, which is
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`Page 5.
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`Rotate it.
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`You'll notice, Your Honor, this is prior art. This
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`is the problem that this patent was addressing.
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`And what it says is: When you switch from App A to
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`App B, and then within App B, you have these three documents
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`opened, Untitled A, Untitled B, Untitled C, you then have to
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`take an extra step to get to the document you want. If you go
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`to this window menu and drop it down, then you have to select
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`Untitled A, B, or C to get to it.
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`And so what the patent -- the Richard patent
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`proposes, Your Honor, if we can turn now to Figure 6, which is
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`at Page 7 of the document, it proposes consolidating those
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`multiple steps so that when you are in App A, as you can see at
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`the top of Figure 6, you could go over and click on the arrow
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`522 to pull up this window.
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`And then you could immediately there select from
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`within the documents that were opened within App B so that when
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`you picked one, you would be taken immediately to that document
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`that was opened within App B.
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`And you can see here it says Untitled B there. If we
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`can now go to the next page, Figure 7, which is Page 8, you can
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`see we were taken immediately to the document Untitled B within
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`App B. So that's what -- that's what Richard shows.
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`So now let's go back to the file history, LGX-62, and
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`let's go to Page 197.
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`This is within, Your Honor, the office action that I
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`showed you earlier -- excuse me -- the -- the reply and
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`amendment that I showed you earlier, the one dated
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`December 26th, 2007, where the applicant added the phrase --
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`the limitation: Wherein the application summary window is
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`displayed while the application is in an unlaunched state.
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`And this is what they said on -- about the Richard
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`reference in that amendment. They said that Richard describes
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`the pop-up menu on the task bar 510. That was the one that I
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`described to you.
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`They go on to say that the menu items within that
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`pop-up menu correspond to open windows within a single
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`application to which the entire menu relates, App B.
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`They go on to say the main menu describes in Richard
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`is therefore merely a menu of open windows within a single
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`application, i.e., a launched application.
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`And here's the key sentence, Your Honor: It follows
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`from the fact that the windows are open within the application
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`that the application must be running and, therefore, has been
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`launched.
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`Now, if you remember, Your Honor, Richard had two
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`running applications. And when you were in App A and before
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`you went to App B, you couldn't see App B. It was not visible.
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`This argument that they have made where they added
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`unlaunched, and they distinguished it on the basis that the
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`application, even though it wasn't physical, because it had
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`windows open within the not visible application, because the
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`application must be running and, therefore, has been
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`launched -- that's how they distinguish it -- that argument
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`that they made is squarely inconsistent with the position that
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`has been taken by Dr. Zeger.
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`You will hear, Your Honor, that Dr. Zeger's position
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`is, if it is not visible, it is therefore unlaunched. And he
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`will testify on cross-examination that that is true even if the
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`application is still running.
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`That position that what matters is visibility and not
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`whether or not the application is running is squarely
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`inconsistent with what they said in the file history about
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`Richard.
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`There's more, Your Honor. I can show you in the file
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`history, if we scroll down on this page, here they're
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`distinguishing the Arcuri reference. And you saw this in
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`Plaintiff's slides.
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`I'll point out, Your Honor, that what they say about
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`Arcuri is that it's only ever displayed within a running -- and
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`then they italicize "running," instance of the program, i.e.,
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`only when the program is in a launched state. And they
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`italicized "launched."
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`Your Honor, they're -- I would submit that is clearly
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`equating "running" with "launched." And it is not, as
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`Plaintiff would have you believe, equating "displayed" with
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`"launched."
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`If we could turn to the next page, which is Page 198.
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`And if we can scroll down and pull out this paragraph with the
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`underlying purpose.
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`So this paragraph, Your Honor, describes the
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`underlying purpose of the application summary window of the
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`present invention. And it goes on to explain that the
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`advantage -- I'm at this line here.
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`This advantage cannot be achieved if the application
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`summary window is not displayed until after the application is
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`already running, not -- not visible, running.
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`And they then conclude, the benefit of the invention
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`cannot be achieved using only the teaching of Richard,
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`et cetera.
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`Your Honor, it's our position that they clearly
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`stated in the file history when they add this limitation and
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`when they distinguished the prior art using the unlaunched
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`state limitation that what it meant was that it was -- that
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`"unlaunched" meant "not running" and that "launched" meant
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`"running" and that the reason that they were different from the
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`Richard reference is that in the Richard reference, you could
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`tell that even though the application for App B was not
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`visible, you could tell that it was running because it had
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`three open windows within it.
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`And that is why they added the unlaunched limitation
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`at this point in time to distinguish that reference.
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`THE COURT: All right. The next term I want to hear
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`argument on is "reached directly."
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`Mr. Giza, I'd like to hear from the Plaintiff on
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`this, if you have argument to offer.
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`MR. GIZA: Your Honor, may I respond to that very
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`briefly? I just want to talk about it briefly.
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`THE COURT: Very briefly.
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`MR. GIZA: Thank you.
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`THE COURT: Counsel, this is something unexpected.
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`I'm trying to comply with the authority given from me from the
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`Federal Circuit. I'm trying to afford you a reasonable
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`opportunity to present your arguments.
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`But we do have a jury waiting in the jury room. That
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`is not my fault, and I do not intend this to go on too much
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`longer. So we'll all have to live with the context that we
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`find ourselves in.
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`But go ahead, Mr. Giza.
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`MR. GIZA: Thank you, Your Honor.
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`I really just want to make one point with regards to
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`Richard. They point out Richard and they say, Richard, it's
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`not visible; it's not running. Your Honor, it's visible right
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`here. It's visible.
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`This is a totally different kind of system. This is
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`a computer, right? I think you might recall the old Windows
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`version, and every time you have a program that's launched, it
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`opens up a little -- it opens a window in the menu bar at the
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`bottom there. And when it's not launched, it's not there. You
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`find -- you access it from a different point.
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`But the main point is, when you're looking at this
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`window, it's clear that Application B is launched. It's
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`visible, and there is code running.
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`So that's entirely consistent with this -- we're
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`looking at Figure 6 of the Richard patent, by the way, Your
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`Honor. This is Figure -- this is Exhibit LGX-75.
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`And so this is entirely consistent with what the
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`applicants in the file history said that Richard is different
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`because Application B is visible and running.
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`THE COURT: All right. Let me hear your argument on
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`"reached directly."
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`MR. GIZA: Your Honor, on "reached directly," we
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`believe that the plain and ordinary meaning applies. Claim
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`language simply says it's reached directly. It doesn't specify
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`anything beyond that.
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`The patent describes -- actually, can we put up
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`Column 2, Lines 55 to 65, I think? There's a whole -- starting
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`from the detailed description.
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`So just to give the context, if we look at -- if you
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`look at Line 58, okay, it's talking about "reached directly,"
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`right?
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`So if we start up at Line 56, it says "a snapshot
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`view." That's the App Snapshot or the application summary
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`window, which brings together in one summary window a limited
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`list of functions and commonly accessed stored data, which
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`itself can be reached directly from a main menu. That's the
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`context here.
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`So we go down and it says: For example, a user can
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`get to the summary window in just two steps. First, launch a
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`main view, which shows the various applications; then launch
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`the appropriate summary window.
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`So it says two steps here, but really what we're
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`looking at is the step from the main view to the application
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`summary window. And that's one step.
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`And that's the concept of "reached directly" here.
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`It's not limited by how you get there. So there's a couple of
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`examples in the specification as well.
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`Can we go to Column 3 and Lines 35 to 45?
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`Okay. So at Lines 38, Your Honor, it says: Other
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`selection processes could be used, parenthetical, to access the
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`App Snapshot.
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`Okay. So we're clearly talking about how we're
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`accessing the App Snapshot. And it's talking about voice
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`activation, softkey selection.
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`Voice activation, there's no need to be touching the
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`screen. All it needs to be is that it's visible. But you
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`don't have to be touching the main menu and -- and moving your
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`finger around on it or something like that, which is apparently
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`what LG is arguing. It can be any of those ways.
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`Even more clear is Column 5, at the top, Line 5 and
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`6, so here it's talking about an example in the contacts
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`manager. And it says: The App Snapshot opens, and then a
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`parenthetical: Using whatever mechanism is implemented.
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`The patent is agnostic about how you get there. The
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`point is that you can get there quickly and easily. It's all
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`consistent with this being a user interface patent.
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`And it says you get there in one step. That's really
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`what the issue is. It doesn't matter the mechanism.
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`THE COURT: All right.
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`MR. GIZA: Thank you, Your Honor.
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`THE COURT: Thank you, Mr. Giza.
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`Mr. Brown, you have responsive argument?
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`MR. BROWN: I do, Your Honor.
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`THE COURT: You believe there is a dispute between
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`the parties as to this term?
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`MR. BROWN: I do, Your Honor. I believe it is
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`focused on the particular words "main menu," in fact. I
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`think --
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`THE COURT: Go ahead and make your argument.
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`MR. BROWN: So I just -- I want to show the Court --
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`and I know Court's just read this. I will not belabor through.
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`The dispute at the claim construction hearing on this
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`phrase was about this notion that the main menu is displayed
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`together with the main menu. LG made that argument at claim
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`construction.
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`That argument was rejected by Judge Payne. This is a
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`different issue. Our position at this point, Your Honor, is
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`that what "reached directly from the main menu" means is that
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`it needs to be reached from the main menu without an
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`intervening step.
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`We're not trying to argue, as Mr. Giza just
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`suggested, that the patent specifies some particular way of
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`doing that. What we're saying is it's directly from the main
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`menu, it means from the main menu without an intervening step.
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`And really the focus, Your Honor, is on the term
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`"main menu."
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`If you can put up LGX-60, Page 3, which is the
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`figures.
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`Your Honor, you can see here that there is a status
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`bar at the top of each of these screens. Beneath that in each
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`of the screens is the word "launcher." And at the bottom is
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`the word "phone." There's no arrow at the status bar. It's
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`not indicated in any way in the patent.
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`And if we could put up LGX (sic) Page 5, Column 4 and
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`zoom in beginning at the paragraph at Line 24.
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`The specification states what the main list is. I
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`don't think there would be any disagreement that this is
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`referring to the main menu.
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`And it says: There will typically be one item --
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`when the App Snapshot opens, there will typically be one item
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`in the main list above and below it to preserve context, to
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`reduce any feeling of having gone somewhere else.
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`And then it goes on to say: Hence, in Figure 2, the
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`term "launcher" remains at the top of the screen, and the word
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`"phone" and its associated icon remain at the bottom.
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`Your Honor, what that's saying right there is that in
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`that figure, the main menu or -- or specifically the main list
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`starts with the word "launcher" and ends down here with
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`"phone."
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`So if we can go back to the figure, you see that does
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`not include the status bar.
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`So our position, Your Honor, simply put, is that the
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`status bar is described in the patent as not being part of the
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`main menu, that if you interact with the status bar in order to
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`access the notification shade, that is an intervening step that
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`is not involved in interacting -- you're not interacting with
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`the main menu; you're interacting with the status bar, which is
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`the patent itself is something different. Because it is an
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`intervening step, it is not being reached directly from the
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`main menu.
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`What you'll hear from Dr. Zeger, Your Honor, is that
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`in his opinion, it -- consider it -- doesn't matter whether the
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`status bar is part of the main menu or not. What matters is
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`that you can see the main menu on the screen and then take some
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`action.
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`Doesn't matter whether you're interacting with it or
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`not, as long as you can see it and take an action, which I
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`think he's going to concede requires acting on the status bar.
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`Then you are reaching from the main menu, regardless of whether
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`or not the status bar is part of the main menu.
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`That's what I believe you'll hear from Dr. Zeger.
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`THE COURT: Well, the discussions we've had in
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`chambers and that I mentioned previously have been that the
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`parties felt -- and particularly the Defendant felt it likely
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`that there was a need for additional construction by the Court
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`with regard to "reached directly."
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`That's what I want to hear from you on to the extent
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`you have anything else you haven't already given me.
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`MR. BROWN: I -- I think by "reached directly," Your
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`Honor, we meant the term "reached directly" from the main menu.
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`And I think the construction we would like on "reached
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`directly" is "without an intervening step."
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`THE COURT: All right. All right. Is there further
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`argument from either side on these terms?
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`MR. GIZA: No, Your Honor.
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`THE COURT: Anything further, Mr. Brown?
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`MR. BROWN: No, Your Honor.
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`THE COURT: All right. Well, I'm going to construe
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`"unlaunched state" as "not displayed." And I'm going to
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`construe "reached directly" as "reached without an intervening
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`step." And I'm prepared to give those two constructions in
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`written form to the jury when they return to be placed in their
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`juror notebooks.
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`I will also instruct the jury to disregard any
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`testimony they've heard from either of these two witnesses that
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`in any way is inconsistent or contradicts with these
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`constructions.
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`I'm also going to instruct counsel for both parties
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`that having raised this issue, having been through it and
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`having received these additional constructions, neither side is
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`to attempt to go behind, collaterally attack, or otherwise
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`dispute the constructions that I've just given you.
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