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Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 1 of 76 PageID #: 2926
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`1
`
`IN AND FOR THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`MOBILE TELECOMMUNICATIONS * Civil Docket No.
`TECHNOLOGIES, LLC * 2:13-CV-258
` *
`VS. * Marshall, Texas
` *
` * November 17, 2014
`APPLE, INC. * 1:45 P.M.
`
`TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE ROY PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`APPEARANCES:
`
`FOR THE PLAINTIFFS:
`
`MR. DANIEL SCARDINO
`MR. RAY MORT
`Reed & Scardino, LLP
`301 Congress Avenue
`Suite 1250
`Austin, TX 78701
`
`MR. DERON DACUS
`The Dacus Firm, PC
`821 ESE Loop 323
`Suite 430
`Tyler, TX 75701
`
`APPEARANCES CONTINUED ON NEXT PAGE:
`
`COURT REPORTERS:
`
`MS. SHELLY HOLMES, CSR, TCRR
`MS. SUSAN SIMMONS, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on CAT system.)
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`Microsoft Ex. 1012
`Page 1 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 2 of 76 PageID #: 2927
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`2
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`FOR THE DEFENDANT:
`
`MR. BRIAN E. FERGUSON
`MR. ANISH R. DESAI
`MR. DAVID M. DESROSIER
`MR. CHRISTOPHER T. MARANDO
`MS. MEGAN H. WANTLAND
`MR. CHRISTOPHER M. PEPE
`Weil, Gotshal & Manges, LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`
`MR. GARLAND STEPHENS
`Weil, Gotshal & Manges, LLP
`700 Louisiana, Suite 1600
`Houston, TX 77002
`
`MS. ANNE M. CAPPELLA
`Weil, Gotshal & Manges, LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`
`MR. ERIC FINDLAY
`MR. BRIAN CRAFT
`Findlay Craft, LLP
`102 North College Avenue
`Suite 900
`Tyler, TX 75702
`
`****************************************
`
` P R O C E E D I N G S
`
`LAW CLERK: All rise.
`
`(Jury in.)
`
`THE COURT: Thank you. Please be seated.
`
`Ladies and gentlemen, I'd ask you if you'd turn
`
`your attention now to the lawyers. I think counsel for
`
`Plaintiff is prepared to begin.
`
`Mr. Dacus.
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`Microsoft Ex. 1012
`Page 2 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 3 of 76 PageID #: 2928
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`3
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`MR. DACUS: We are, Your Honor. Thank you.
`
`THE COURT: All right.
`
`MR. DACUS: May it please the Court, Your Honor.
`
`Good afternoon. I want to start this afternoon exactly
`
`where I started with you when you came in for jury service,
`
`and that is to say a very sincere thanks to you on behalf of
`
`myself, on behalf of MTel, on behalf of Mr. Fitton.
`
`And what you now know that you didn't know at the
`
`time of jury service is that a juror who serves in a patent
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`case is owed a little bit of an extra thanks, because this
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`is pretty thick stuff. This is pretty dense information,
`
`and there's a lot of information.
`
`My goal over the next 40 minutes -- and sometimes
`
`I accomplish this goal and sometimes I don't -- is to try to
`
`help you organize the evidence that you've seen. It's not
`
`my position -- as I told you from the beginning, it's not my
`
`position to tell you what the evidence is. You heard the
`
`evidence from the witness stand. But you've seen and heard
`
`a lot of evidence, so my goal is to help you or try to help
`
`you organize some of that evidence that you've seen.
`
`And one reason I think we can at least potentially
`
`accomplish that goal is when you boil all this information
`
`down that you've heard and you boil all these patents down,
`
`almost all of these issues and all -- related to
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`infringement, boiled down to one or two words in the claims.
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`Microsoft Ex. 1012
`Page 3 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 4 of 76 PageID #: 2929
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`4
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`And so I want to remind you of what those issues
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`are so that you can crystallize in your mind exactly where
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`the parties dispute the things.
`
`A lot -- a lot -- a lot of these elements are
`
`admitted by Apple, and we don't need to spend a lot of time
`
`on them. But where the disputes lie, I want to help remind
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`you of the evidence that you've seen related to those.
`
`Now, I also want to take time this afternoon --
`
`I'm trying to go forward here, Mr. Gros (phonetic spelling).
`
`There we go -- is to remind you of how we get here
`
`today, November 17th of 2014. And this is the chronology
`
`that I showed you at the very beginning of the lawsuit in
`
`opening statements. I don't want to go back through it, but
`
`there's a couple things that I want to remind you of, and
`
`they're the things written down in the green.
`
`These are things I said in opening, because I
`
`thought they might be important, but as I went through the
`
`case, I realized that they're probably more important than I
`
`ever anticipated.
`
`You know in the early '90s up through the middle
`
`'90s that, of course, MTel was developing two-way messaging,
`
`a two-way data transmission system. And you know now that
`
`you've heard from Mr. Hays and you've heard from Mr. Pinter,
`
`two inventors who were there at the time, that they were
`
`creating inventions not only for problems that were
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`Page 4 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 5 of 76 PageID #: 2930
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`5
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`currently being experienced on that paging network, but they
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`foresaw problems that if two-way wireless data transmission
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`really became popular, problems that would occur in the
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`future. And they were trying to solve those problems that
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`would occur in the future.
`
`And I will tell you that these six patents that
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`are at issue here were problems that they told you that they
`
`foresaw might actually happen if two-way data transmission
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`wirelessly became a very popular thing. And as we all know,
`
`it did.
`
`The thing you also know -- and remember I warned
`
`you at the beginning that if you hear Apple say, hey, these
`
`are old or these are aging technologies, I wanted you to
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`really get your antenna or your radar up, because they're
`
`trying to leave you with the impression that these claims
`
`and these inventions relate solely to paging.
`
`But you know from what Mr. Hays said and what
`
`Mr. Pinter told you that they're much broader than just
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`paging. They relate to any network on which someone is
`
`transmitting data wirelessly in a two-way fashion.
`
`Now, I put these up here, because, you know,
`
`basically you've seen these devices. These are the -- the
`
`pagers that were in 1996, 1997, and, of course, the 2010
`
`is -- is the -- is the Apple iPhone.
`
`And you note the similarities between the devices.
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`Page 5 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 6 of 76 PageID #: 2931
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`6
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`And as Mr. Hays and Mr. Pinter told you, those -- those
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`paging devices could basically function as the -- the phones
`
`do today. They had email; they had attachments; you could
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`send the equivalent of a text. You could even get on --
`
`even though there was no Internet, you could have gotten on
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`the Internet, if there was such a thing.
`
`Now, we overlay that history with Apple's history.
`
`And you know this is Apple's slide that they showed you in
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`opening. It says four decades of innovation. And you
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`remember I asked Ms. Caldbeck, I said, well, doesn't that
`
`really beg the question of what innovation Apple had? And
`
`she said she didn't think so.
`
`But I would respectfully suggest to you that I
`
`do -- I do think it begs the question of what was Apple's
`
`innovation. You now know from the evidence that Apple was
`
`basically a computer company. Not basically; they were a
`
`computer company for those first three decades; and, of
`
`course, they employed engineers who knew all about
`
`computers.
`
`But in 2000, after they got in some financial
`
`trouble, moving into the middle 2000s, of course, came the
`
`iPhone. The iPhone and ultimately the iPad enjoyed more
`
`success than I think Apple even ever imagined. And, of
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`course, the prominent feature or the most popular feature of
`
`those devices was two-way wireless data communications.
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`Microsoft Ex. 1012
`Page 6 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 7 of 76 PageID #: 2932
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`7
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`And as they became more popular, what we came to
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`know, what you came to know through the evidence from Mr.
`
`Lanning and then ultimately from Ms. Davis is that those --
`
`those pop -- the popularity of those devices created issues.
`
`It created issues of whether or not they had enough capacity
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`on those networks to handle the type of data that was
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`flowing.
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`As Mr. Lanning told you, everybody wants on their
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`device the ability to transmit data faster, the ability to
`
`get more capacity on their device.
`
`And as we said from the beginning, the solutions
`
`that Apple turned to were those very same solutions that
`
`MTel, Mr. Hays, Mr. Pinter had solved back in the middle
`
`1990s.
`
`Now, I want to pause for just a second here.
`
`You remember at -- before we talked about infringement
`
`because I want to talk about the details of
`
`infringement, but before we do it, you remember that the
`
`Judge told you at the beginning of this case that you're
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`going to have to judge credibility and believability.
`
`He just read you a jury instruction on that
`
`again, reminding you that, you know, Apple's going to
`
`say X in this case, MTel has said Y. And you've got to
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`judge the credibility and the believability.
`
`And in every lawsuit, I think, there are things
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`Microsoft Ex. 1012
`Page 7 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 8 of 76 PageID #: 2933
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`8
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`that are said, things that are put on the board that really
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`go to that issue. And, in particular, in this case, you've
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`heard many times -- you've seen Apple say four decades of
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`innovation. You've seen them put up the Apple inventions of
`
`the iPhone and the iPad and call it the Apple invention.
`
`And -- and they also said something in opening
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`statement that I think is very important, and this -- what I
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`have on the screen, of course, is the transcript of the
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`trial. We get each day the transcript of the trial typed
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`out by Ms. Holmes, and this is what the Apple lawyers in
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`opening: Apple employs thousands and thousands of the
`
`world's finest engineers, and they work millions of hours
`
`every single year to build these Apple products from the
`
`ground up. They build them from scratch and it's their own
`
`work and it's their own inventions. It's their own work and
`
`their own inventions.
`
`You now know -- until we got to the very last
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`Apple witness before we could get that evidence all the way
`
`out, but you now know from what Julie Davis told you, their
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`damages expert who's worked for them many times in the past
`
`that, in fact, they don't build these from scratch. It's
`
`not their own work. It's not their own inventions.
`
`You remember that I asked her isn't it true that
`
`there are hundreds of other people's technology in the
`
`iPhone and the iPad. And she said: Actually it may be
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`Microsoft Ex. 1012
`Page 8 of 12
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`

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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 9 of 76 PageID #: 2934
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`9
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`thousands. So you now know from the evidence that these
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`devices contain hundreds of other people's technology. You
`
`also know from what she told you that others -- patent
`
`owners like MTel have had to go to court to force Apple to
`
`do the right thing and pay for the use of that technology.
`
`Sometimes in the course of a lawsuit, what you
`
`don't hear, who you do not hear from on a witness stand also
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`says a lot to credibility. So think back to who the --
`
`Apple brought here as their corporate representative, okay?
`
`Mrs. Caldbeck. And, again, as I told Mrs. Caldbeck, I'm not
`
`being personally critical of her. But do you remember that
`
`she has been at Apple for one year? They brought an
`
`employee who had been at Apple for one year to tell you
`
`about the history -- four decades of innovation at Apple.
`
`Why not bring an engineer to a patent case who's
`
`been at Apple for all or most of those four decades, rather
`
`than someone who has been there for a year? I would suggest
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`to you that the answer came from her on the stand when I
`
`said: Are you aware that other people -- hundreds of others
`
`have technology in these? And she said: I don't know
`
`really anything about that. Right? She said: I don't -- I
`
`don't really know if there's a bunch of other people's
`
`technology in them.
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`I would suggest to you there's a reason they
`
`didn't bring an engineer who has been at Apple for most of
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`Microsoft Ex. 1012
`Page 9 of 12
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`

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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 10 of 76 PageID #: 2935
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`10
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`those four decades to talk to you about the history and
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`innovation at Apple.
`
`What else did you not hear? You remember the --
`
`the statement from opening statement where they said they
`
`build these things from scratch, they develop them
`
`themselves? When you put these type of features into
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`products, the engineers at Apple, you would certainly
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`expect, would come here and testify about how they developed
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`those products. Where are the documents that show the
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`development of those features? Where are the options that
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`they explore? Where are the pros and cons? Where are the
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`tests of the testing of those features in those products.
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`Those are the kinds of things if you really -- if
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`Apple really developed these from scratch, if they're really
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`their own products, those are the kinds of things you'd
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`expect to hear from the witness stand, and you heard none of
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`it.
`
`So with that backdrop, we'll turn to the question
`
`of infringement. As I told you, we -- MTel has to come to
`
`you for help. And the way you help us is by answering this
`
`question of infringement.
`
`Of course, there are two sets of patents, the
`
`messaging and the transmission patents. The '946, I want to
`
`run through the evidence that you heard related to
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`infringement on the '946. And I start with the '946 because
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`Microsoft Ex. 1012
`Page 10 of 12
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`

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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 11 of 76 PageID #: 2936
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`11
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`I probably -- I think it's probably the simplest issue for
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`you to make a decision on.
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`You remember that the '946 relates to the tap to
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`download, the load vid -- video or the load images function.
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`And you remember that this is a slide from Apple's
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`presentation. Apple said to you, they do not infringe, but
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`the only reason they put forward, even though they put an X
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`through all three of those elements, all three of them
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`contained the word retransmission. And Apple claims that
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`their products do not retransmit.
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`And to kind of reorient you to this issue, if you
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`look down on the bottom, that's the representation of what
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`Apple does. You remember that the email is sent from the
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`server to the Apple iPhone or the iPad, and then there's a
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`tap to download. If you tap to download it, then out of the
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`image or the attachment or the video is first sent from the
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`server to the iPhone.
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`And what Apple said to you -- and, again, this is
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`one of the demonstratives that they showed you. You
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`remember Mr. -- Dr. Kelly testified about this. He said
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`that because this photo is transmitted for the first time,
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`there is no retransmission. That's their only and sole
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`position.
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`And so I've written on the top, is that incredible
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`or is that believable? And the answer to that question is
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`Microsoft Ex. 1012
`Page 11 of 12
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`Case 2:13-cv-00258-RSP Document 75 Filed 11/18/14 Page 12 of 76 PageID #: 2937
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`12
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`actually found in several things, but one of which is what
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`the Judge just read to you in your jury instructions. So
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`for those who are taking notes -- and you'll have these jury
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`instructions in the -- in the deliberation room with you --
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`if you look on Page 9 of those jury instructions given by
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`the Court, you'll see what the Court has said about
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`retransmission. And the -- the Court says: The Court has
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`held that the plain and ordinary meaning of the word
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`retransmission is not so limited as to require that a
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`retransmission can only occur after a first transmission of
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`a message from a communication network to a mobile unit.
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`So what does that mean? Dr. Kelly says we don't
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`infringe. We, Apple, don't infringe because this is the
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`first transmission and, therefore, it's not a
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`retransmission. It cannot be a retransmission is what Dr.
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`Kelly says. The Court says the exact opposite. The Court
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`said that first transmission can be a retransmission.
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`So I don't need to tell you -- the Court's
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`construction's told you, and you certainly know, you're duty
`
`bound to follow the law. The Court's given you exactly what
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`the law is with respect to this.
`
`Dr. Kelly, on the other hand, as you remember,
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`this is one of the demonstratives that Mr. Mort, when he was
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`asking Mr. Kelly, you may remember he read this to Dr. Kelly
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`on the stand -- it's the very same definition that I just
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`Microsoft Ex. 1012
`Page 12 of 12

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