`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`BROADBAND ITV, INC.
`) Docket No. WA 19-CA-716 ADA
`)
`vs.
`) Waco, Texas
`)
`DISH NETWORK, LLC
`) August 31, 2020
`__________________________________________________________
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`BROADBAND ITV, INC.
`) Docket No. A 20-CA-717 ADA
`)
`vs.
`) Austin, Texas
`)
`AT&T SERVICES, INC.,
`)
`AT&T COMMUNICATIONS, LLC, )
`DIRECTV, LLC
`) August 31, 2020
`TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE ALAN D. ALBRIGHT
`
`APPEARANCES:
`For the Plaintiff:
`
`For DISH Network:
`
`Mr. David Alberti
`Mr. Robert F. Kramer
`Feinberg, Day, Kramer, Alberti,
`Lim, Tonkovich & Beloli
`577 Airport Boulevard, Suite 250
`Burlingame, California 94010
`Ms. Andrea L. Fair
`Mr. Jack Wesley Hill
`Ward, Smith & Hill, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`
`Ms. Alyssa Caridis
`Orrick, Herrington
`& Sutcliffe, LLP
`777 South Figueroa Street,
`Suite 3200
`Los Angeles, California 90017
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`BBiTV EX2003
`AT&T v. Broadband iTV
`IPR2021-00556
`
`
`
`(Appearances Continued:)
`For DISH Network:
`
`For AT&T Services:
`
`Court Reporter:
`
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`2
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`Mr. Clement S. Roberts
`Orrick, Herrington
`& Sutcliffe, LLP
`405 Howard Street
`San Francisco, California 94105
`Mr. John P. Palmer
`Naman, Howell, Smith & Lee
`P.O. Box 1470
`Waco, Texas 76703
`
`Mr. Roger J. Fulghum
`Baker Botts, LLP
`One Shell Plaza
`910 Louisiana Street
`Houston, Texas 77002
`Mr. Jeff Becker
`Mr. Timothy S. Durst
`Baker Botts, LLP
`2001 Ross Avenue, Suite 900
`Dallas, Texas 75201
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Proceedings reported by computerized stenography,
`transcript produced by computer-aided transcription.
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`THE COURT: Good afternoon. It's Alan Albright.
`Suzanne, would you call the case?
`THE CLERK: Sure.
`Telephonic conference in Civil Action
`1:20-CV-717, styled, Broadband iTV, Incorporated vs. AT &
`T Services, Incorporated, AT & T Communications, LLC and
`DIRECTV, LLC; and telephonic conference in Civil Action
`6:19-CV-716, styled, Broadband iTV, Incorporated vs. DISH
`Network, LLC.
`THE COURT: Good afternoon.
`If I could hear first from plaintiff's counsel
`and then, from counsel for the defendants.
`MR. HILL: Good afternoon, your Honor.
`Wesley Hill on behalf of the Plaintiff BBiTV.
`With me here on the phone this afternoon, your Honor, is
`Robert Kramer, David Alberti and Andrea Fair. And we are
`ready to proceed.
`THE COURT: Thank you so much.
`If I could hear from defense counsel for AT & T.
`MR. FULGHUM: Good afternoon, Judge.
`This is Roger Fulghum for the AT & T Defendants.
`With me is Lon Outland, senior IP counsel for AT & T. And
`also on the line are Tim Durst and Jeff Becker.
`THE COURT: And for DISH.
`MR. ROBERTS: Good afternoon, your Honor.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
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`This is Clem Roberts with Orrick Herrington.
`With me is my partner, Alyssa Caridis. And I believe that
`Mr. Palmer is also on the line.
`THE COURT: Very good.
`A whole host of my favorite lawyers all across
`America. Who could be any luckier than me to get to --
`you all to invite me to get together with you this
`afternoon.
`So I am happy to hear -- a reminder of two
`things. I think you all know this. One is, if any of you
`are going to speak, please identify yourself for the
`record so we could keep the record accurate. And number
`two, if you are on a cellphone, please mute yourself when
`you're not talking. Other than that, I am happy to hear
`whatever it is you all would like to take up.
`MR. FULGHUM: Well, thank you. Judge, this is
`Roger Fulghum for AT & T.
`And I think I'm the one who sent the first e-mail
`that may have initiated this phone call. We have a claim
`construction hearing in this case set for November 13th.
`And our opening brief is September 10th, and that's a week
`from Thursday. And we sent an e-mail to the Court asking
`for permission to brief and have the Court construe a
`total of 22 terms between our case, the AT & T case, and
`the DISH case, and that breaks down like this.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`5
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`AT & T is proposing that the Court construe 18
`terms spread across five patents. DISH is proposing that
`the Court construe 16 terms spread across four patents.
`There are 12 terms in common between AT & T and DISH, and
`of those 12 terms, AT & T and DISH agree on nine
`constructions; and we have our differences on three
`constructions, and that goes to the fact that AT & T and
`DISH here are different parties, different products,
`different systems.
`We've worked independently of one another on
`prior art issues, as well. This case involves five
`patents, five patents asserted against AT & T, four of
`those patents asserted against DISH. I realize that the
`number of -- the number 12 is higher than the Court's
`presumed limit, but we think there's good reason for that
`in this particular case.
`As I mentioned, five patents and against AT & T,
`there are a total --
`THE COURT: Mr. Fulghum, I am -- it's a
`five-patent case, I am -- that number doesn't offend me
`very much.
`Let me hear from the plaintiff real quick. The
`numbers you're giving me, while they are -- let me say
`this. We may need to have more than one hearing just --
`we'll see. It depends how it shakes out what the total
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`6
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`number is. I didn't hear you give me a number of claims
`that the plaintiff might want construed, as well. And so,
`the only issue I see is, maybe it will take us two
`hearings to get this all done, and may not kill myself and
`my law clerks, but they will be pretty close.
`But let me hear from the plaintiff as to why, Mr.
`Hill, or whoever's going to be speaking, why this is too
`many terms.
`MR. HILL: Thank you, your Honor. Wesley Hill on
`behalf of the Plaintiff BBiTV.
`Your Honor, we think it is too many terms for
`this case. We think the limit that the Court has recently
`indicated or its guidepost in its most recent order
`governing proceedings of about 12 terms for this number of
`patents is more appropriate. And, your Honor, we say that
`because there are only five independent claims asserted
`across the five patents, one independent claim per patent,
`and the patents all stem from a common parent.
`There is a continuation, in part, involved that
`adds some matter that would have to be considered, but
`effectively it's a single-patent family. And so, we've
`got five patents across a single family with five
`independent claims. And what the defendants together are
`asking for, your Honor, is effectively 19 terms across
`five claims. They have three other terms that only appear
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
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`in independent -- or, excuse me, dependent claims, but
`that seemed a bit high to us.
`In terms of just a construction, a straight
`construction, your Honor, we've got one term we're
`submitting for construction. Our other positions are
`plain and ordinary meaning positions where we have also
`indicated what we believe that plain and ordinary meaning
`to be, which we would address in our briefing. But under
`the circumstances, your Honor, we thought it was a bit
`high.
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`I'll throw one other issue on the table, your
`Honor, separate from this claim term discussion.
`Defendants sent an e-mail to the Court raising this issue,
`posing these questions to the Court. We responded with
`our position, but we also responded with a question of our
`own, your Honor, regarding the trial setting in the case
`and the trial timing in the case, based on indications the
`defendants had given at the PTAB, to the PTAB that they
`expect the date to be delayed, potentially even this
`Markman hearing date to be delayed.
`So as a part of what we discussed in addition to
`these terms, your Honor, we'd like, to the extent the
`Court's willing, to get some clarity about the date
`issues.
`
`THE COURT: Let me add this. Let me put you on
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
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`hold for just one second because I wasn't ready to handle
`the date issue, and Josh usually helps me coordinate with
`that. So let me get back to you just in one second, okay?
`He's briefed me generally on these, but he's going to
`better know the details. So let me make sure he's here to
`help me with this. Give me one second.
`MR. HILL: Thank you, your Honor.
`THE COURT: Okay. We're back on the record.
`Y'all took me a little bit off of guard -- off
`guard with the last issue. Let me make clear. The Court
`has moved a couple of trial dates, and I think 100 percent
`of the time, it was because the parties jointly requested
`us to do so. I think most of the time that we did it, it
`was to deal with issues that I couldn't fix in terms of
`timing because of some either discovery issues or
`whatever. And we obviously had a couple of problems with
`COVID that I decided it was fairest to the parties to push
`back the trial date because they were sort of right in the
`middle of trying to get fact discovery done or expert
`discovery done, and COVID was preventing their experts and
`others from being able to move about.
`So let me say this on the record. I'm going to
`trial. My cases this month have settled. I will be going
`to trial in October on cases that are set in October. And
`I don't know what might have led anyone in this case, and
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
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`I asked Josh what might have led anyone in this case, to
`believe that I would push back the trial in this case.
`It's not going to be delayed. We're going to go to trial.
`So, my comment -- the comments I made with regard
`to the Markman are simply if I accommodate the defendants'
`request for additional claim terms, you know, typically we
`have about 12. And I know how hard it is for us to get
`those done and get you all preliminary constructions,
`which I like doing the day before. And so, I could see
`us, you know, splitting these out by a couple of weeks if
`we had to do that. We may not have to do that. I don't
`know. We can look at them when we get them.
`But I can assure you that even if I were to split
`up the Markman hearing into two Markman hearings, that
`will not affect the trial date. So I'm slightly uncertain
`of whatever that underlying issues were that raised
`concern on anyone's part about me moving the trial date,
`but that's not going to happen. So hopefully that takes
`that issue off the board.
`Now, getting back to the claim term issue, the
`number of claim terms, sounds to me, if my math is right
`-- and I think every lawyer on the call knows my ability
`to do math. So I will -- which is not great. But it
`sounds to me like we have 20 claim terms between the two
`defendants and the plaintiff, and with respect to 19 of
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
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`the 20, the plaintiff is going to be taking the position
`of plain and ordinary meaning. Likely, we can accommodate
`all of the claim terms at one Markman.
`Although, as you all know, it's not unusual, I
`think in about 25 to 30 percent of the cases, the Court
`will proffer either it's plain and ordinary meaning, we
`will articulate what the plain and ordinary meaning is, or
`if there's a contested claim term, we've been known to
`give our own claim construction.
`So I am not -- given that there are two different
`parties and there are disputes over some of the number of
`claims, I am not going to reduce the number of claims from
`what AT & T and DISH are advocating for at this time. I
`think with five patents, even though there are only five
`independent claims being asserted, I will tell you, of
`course, that, you know, as we go through and see which
`claim terms you all believe were -- needed to be
`construed, I'm going to at this time be optimistic that
`all of them do need to be construed.
`It has been my experience that there are usually
`more claim terms that are sought to be construed than
`probably were necessary. I hope it doesn't turn out that
`way here. So that's just an observation from as recently
`as today at my Markman hearing where I think I handled a
`dozen claim terms, and there were only two patents.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
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`So having done that long soliloquy, Mr. Hill, is
`there anything else that we needed to take up from the
`plaintiff's perspective?
`MR. HILL: Yes, your Honor. I have a question.
`I appreciate the Court's comments about the trial date,
`your Honor.
`I think part of the I won't say inspiration but
`at least the opportunity for the comments that defendants
`made to the PTAB about the delay of the trial setting stem
`from the fact that we don't have an assigned trial date in
`this case. We have a last date in our scheduling order of
`October 1, 2021 to file a joint pretrial order, which
`indicates to me a November trial setting.
`THE COURT: Mr. Hill, when is the Markman date?
`MR. HILL: The Markman date is November 13th of
`this year, your Honor.
`THE COURT: Okay. Hold on one second. You all
`are about to have a trial date. So give me just one
`second. Okeydokey. We will be setting the trial for
`November 15th of 2021.
`MR. HILL: Thank you, your Honor.
`THE COURT: Did plaintiffs have anything else?
`MR. HILL: No, sir.
`THE COURT: Mr. Fulghum?
`MR. FULGHUM: Yeah, Judge. Just one point of
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`clarification.
`Mr. Hill's comments, he talks about the
`defendants and the defendant, certain activity on the part
`of the defendants at the PTAB. AT & T has not filed an
`IPR petition. I just want that to be clear. And the
`defendants were not involved in doing that.
`MR. HILL: I apologize for the loose language,
`your Honor.
`THE COURT: Let me say this one more time. I
`know I look incredibly young. Actually, not as young as
`Mr. Hill. I wish I did. And I wish I looked as young as
`Mr. Fulghum does when he's on Facebook. But I have been a
`lawyer long enough that when lawyers make those kind of
`comments, I just -- there's something in me that just sort
`of tunes them out.
`So, Mr. Fulghum, I appreciate that. But, you
`know, I just -- I found I don't -- none of that stuff
`sticks. So -- and in part because if it's one of the
`defendants is making an argument that protects their
`client, you know, I think good on them. There's no group
`of lawyers I have more affection or respect for than the
`lawyers on this call. So I know there's no one on this
`call who would not be doing whatever they should ethically
`to zealously represent your client.
`Mr. Hill is doing his best to -- I'm sure, to
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`represent his and in responding to whatever's said about
`an IPR. So I think you all are -- as Judge Lautner
`(phonetic) used to say, you're all great lawyers, and
`you're all doing a fine job. He usually said that right
`before he did something awful to me and my client.
`MR. FULGHUM: Well, Judge, nothing further for AT
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`& T.
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`THE COURT: Anything from DISH?
`MR. HILL: No, your Honor, unless your Honor had
`any questions that you had about what we had said to the
`PTAB or why, I'd be very happy to address them. But I'm
`not looking to argue. So if --
`THE COURT: I neither know nor care. What you
`all do with the -- in your IPR is in front of another
`court. It was not constitutionally created like mine was,
`and that's why I feel like everyone oughta get a jury
`trial in front of an Article III judge. I don't feel
`badly about the fact that I want to give people an
`opportunity to try their case.
`So whatever you are doing on behalf of DISH with
`the IPR, I wish you the best of luck and God's speed, but
`it's independent of what I'm doing.
`MR. HILL: Thank you, your Honor.
`THE COURT: You bet.
`Hearing nothing else, I -- by the way, let me say
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`this, though, and I'm saying this because my law clerk
`isn't in here and can't hit me. If you are going to have
`that many claim terms, you ought to -- I would reach out
`to Josh and see what he wants to do about any -- and he
`has discretion because he reads them first. But you might
`want to check with him about any modification with respect
`to the page limits.
`Nothing else? You guys be safe out there. In
`COVID world, I was about to tell you all to have a nice
`weekend, but that's just because it's been a long Monday.
`So have a good day. Take care. Bye.
`MR. FULGHUM: Thank you, your Honor.
`MR. HILL: Thank you, your Honor.
`(End of proceeding.)
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`* * * * * *
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`15
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`UNITED STATES DISTRICT COURT )
`WESTERN DISTRICT OF TEXAS )
`
`I, LILY I. REZNIK, Certified Realtime Reporter,
`Registered Merit Reporter, in my capacity as Official
`Court Reporter of the United States District Court,
`Western District of Texas, do certify that the foregoing
`is a correct transcript from the record of proceedings in
`the above-entitled matter.
`I certify that the transcript fees and format comply
`with those prescribed by the Court and Judicial Conference
`of the United States.
`WITNESS MY OFFICIAL HAND this the 2nd day of September,
`2020.
`
`/s/Lily I. Reznik
`LILY I. REZNIK, CRR, RMR
`Official Court Reporter
`United States District Court
`Austin Division
`501 W. 5th Street,
`Suite 4153
`Austin, Texas 78701
`(512)391-8792
`SOT Certification No. 4481
`Expires: 1-31-21
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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