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` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`STRATOSAUDIO, INC.
`) Docket No. WA 20-CA-1128 ADA
` )
`vs.
` ) Waco, Texas
` )
`SUBARU OF AMERICA, INC. ) August 31, 2022
`
`
`
`TRANSCRIPT OF VIDEOCONFERENCE MOTIONS HEARING
` BEFORE THE HONORABLE DEREK T. GILLILAND
` *** Sealed ***
`
`APPEARANCES:
`For the Plaintiff:
`
`Mr. Henry Y. Huang
`Ms. Hallie E. Kiernan
`Mr. Jonathan J. Lamberson
`White & Case, LLP
`3000 El Camino Real
`Two Palo Alto Square, Suite 900
`Palo Alto, California 94306
`Mr. Daniel S. Sternberg
`White & Case, LLP
`75 State Street
`Boston, Massachusetts 02109
`Mr. Jeffrey D. Parks
`Friedman, Suder & Cooke
`604 East 4th Street, Suite 200
`Fort Worth, Texas 76102
`
`For the Defendant:
`
`
`
`Mr. Matthew Satchwell
`Mr. Paul R. Steadman
`DLA Piper, LLP
`444 West Lake Street, Suite 900
`Chicago, Illinois 60606
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Petitioner Hyundai Ex-1032, 0001
`
`
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`2
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`(Appearances Continued:)
`For the Defendant:
`
`Transcriber:
`
`
`Mr. John M. Guaragna
`DLA Piper, LLP
`303 Colorado Street, Suite 3000
`Austin, Texas 78701
`
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Proceedings reported by digital sound recording,
`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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`Petitioner Hyundai Ex-1032, 0002
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`THE COURT: Okay. All right. We'll go off the
`record just briefly.
`Okay. We're back on the record.
`And after viewing the expert reports and the
`briefs of the parties, I'm convinced that the discussions
`regarding both the output and the location are reasonable
`expert explanation of how a person of ordinary skill in
`the art would understand the phrases in the claims to be
`met and not to be -- and is not claim construction that
`would require the Court to conduct any further
`construction. I believe it is permissible explanation of
`how a person of ordinary skill in the art would understand
`the plain and ordinary meaning of those terms in both
`claim 9 and I believe it's claim 12.
`So I'm going to deny the motion to strike expert
`reports as described at docket No. 100. All right.
`And then, let's see, we've got docket 105 is
`next. This is the plaintiff's motion to strike Dr.
`Shoemake. Oh, is that one --
`MR. LAMBERSON: Yes, your Honor. Well, there's
`only one issue we're going to argue, your Honor. This is
`Mr. Lamberson again.
`THE COURT: Okay. All right. Go ahead.
`MR. LAMBERSON: And this is the issue with --
`it's the same issue, but it shows up in two places. If
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0003
`
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`22
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`Mr. Sternberg can get our slides up again, we can go to
`slide 40. The issue first shows up in this electronic
`receiving device limitation. The claim talks about -- it
`first introduces the electronic -- an electronic receiving
`device and then, you know, refers to it again for
`antecedent basis saying the electronic receiving device.
`And if we go to the next slide, the issue we have here is
`that Dr. Shoemake apparently intends to tell the jury that
`"a" means a single device. We've shown here an excerpt
`from his report, paragraph 119, an electronic device or
`the electronic device means a single electronic device
`under the plain and ordinary meaning. "A" and "the" are
`both generally understood to be singular. And so, he's
`saying that this means you only can have one device.
`If we go to the next slide, it's simply not
`correct "a" or "and" means one or more, generally
`speaking. If Subaru wanted to limit this to one single
`device, they should have asked for that in claim
`construction. And this shows up again in -- if we go back
`to slide 29, please. We see on slide 29, paragraph 70
`from Dr. Shoemake's report where he says the claim recites
`a broadcast stream, and then, he says GPS which has three
`signals is not a broadcast stream. This one does go on to
`make other arguments and we're not challenging those other
`arguments about GPS and whether it's a broadcast stream.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0004
`
`
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`23
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`The issue really is if Dr. Shoemake is going to come in
`and say "a" means one and only one, we do think that's
`inappropriate and that should be struck. You know, the
`alternative, I suppose, would be we could ask Judge
`Albright for a claim construction on the law, which is
`fine, you know, and we're fine doing that as an
`alternative if that's the Court's preference. But we do
`think this is one place where, you know, we need -- one
`way or the other, this opinion is just simply not a
`correct opinion.
`THE COURT: Okay. Let me hear from defendant on
`this point.
`MR. STEADMAN: I drew the straw on this again,
`your Honor. This is Paul Steadman.
`THE COURT: All right. Mr. Steadman.
`MR. STEADMAN: I think this one's actually
`relatively simple. This is a case of applying the claim
`language to the accused device and trying to understand
`what it means in both cases. So as to an electronic
`receiving device, up until expert reports, they accused
`the car. It was only in expert reports that they changed
`their allegation and said that the accused functionality
`was the car plus the iPhone. And if you read the claim
`language, it says that an electronic receiving device has
`to do something. Well, what the expert says is, you know,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0005
`
`
`
`24
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`the car is an electronic receiving device and the phone is
`an electronic receiving device, and they're doing
`different things.
`So he's saying you can't read the claim correctly
`as they've read it because you're trying to read it on two
`different things. Part of the time, one electronic
`receiving device is doing something and part of the time a
`different electronic receiving device is doing something.
`They recognize this problem because they've tried to
`define the phone and the car together as an electronic
`receiving device, but that is -- under the plain language
`at least as applied by Dr. Shoemake is incorrect.
`As to broadcast stream, it kind of changed their
`argument here. The argument that they laid out in their
`briefs was that he had incorrectly understood the word
`"stream." They're now saying that we've applied some sort
`of singular versus plural. The problem is that GPS is not
`a broadcast stream; and the reason it isn't is because the
`electronic information they're trying to say that the car
`gets and displays is a location. The location is
`calculated by the head unit and it's calculated from three
`different signals from three different GPS satellites. So
`there is no broadcast stream that has the location
`information that they're talking about in it.
`Each stream broadcasts the location of a
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0006
`
`
`
`25
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`different satellite and then, from that, the head unit
`calculates the location and may or may not display the
`location on the head unit. Well, that's something quite
`different. So what the expert said is that a person of
`ordinary skill in the art would understand the term "a
`broadcast stream," that could not encompass the three GPS
`signals or more that it's taking to calculate the location
`nor does it -- nor does that broadcast stream have the
`information it's required in it.
`So as a person of ordinary skill in the art who
`understands exactly how the GPS system works, he's simply
`saying that that's not how you would read and apply that
`language to the accused device.
`THE COURT: Okay. Mr. Lamberson, would you like
`the last word?
`MR. LAMBERSON: Yes, please, your Honor. And if
`we could bring back up slide 41, please.
`So with respect to receiving device, we're not --
`you know, we're not seeking to strike any opinions about
`whether or how the phone or the car satisfy various
`portions of the claim. We're not raising any fact
`disputes if they want to say, you know, the phone doesn't
`do this or that or the car doesn't do this or that, those
`are fair opinions and they've given them in other
`paragraphs.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0007
`
`
`
`26
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`What you didn't hear in response was any argument
`or suggestion that we are -- that A in a patent claim
`means one and only one. But that is the opinion Dr.
`Shoemake gave in 119. This is the only paragraph -- I can
`go back to the brief and check. This is the paragraph
`we're seeking to strike. Not other arguments or
`paragraphs on these devices.
`And here, he very clearly says "a" means a single
`device. "An" and "the" are generally understood to be
`singular. Well, maybe in the English language that may be
`true, but in patent with antecedent basis, this is a false
`statement. It is legally false. And he says "the" refers
`back and so, it has to be singular still. This is -- it's
`just legally wrong and if they're allowed to present this
`to the jury, we're going to need a curative instruction.
`And rather than going that route, we respectfully suggest
`you should just strike this because it's simply wrong as a
`matter of law, wrong as matter of claim construction,
`which is what he's doing.
`And the same thing on the GPS issue. We're not
`seeking to strike any -- respectfully, Mr. Steadman is
`confusing two different issues in the brief. We did have
`an issue over the stream and definition he gave from a
`dictionary, which they have put on their exhibit list and
`we will address that next week.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0008
`
`
`
`27
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`But setting that issue aside, if they want to say
`GPS doesn't qualify for these various reasons, that's
`fine. The only issue we take exception to is when they
`say the claim requires a single stream and GPS, because it
`sends three streams, cannot infringe. It is that specific
`argument and we take exception both because the preamble
`is not a limitation. I didn't go into that issue, but
`that was also briefed. But also because of the plural
`issue, which, again, in the briefing and here today, we've
`heard no suggestion that we are wrong about this issue of
`law. That's all, your Honor.
`THE COURT: Okay. On this one, let me go off the
`record just briefly.
`Okay. We're back on the record.
`With regard to docket No. 105, plaintiff's motion
`to strike various portions of the expert report of Dr.
`Matthew Shoemake, I'm going to deny that request on all
`grounds and I can go through each one. But, for example,
`with regard to his opinion or testimony regarding stream
`or broadcast stream, I'm denying the request to strike the
`report. I do believe after reviewing the report that Dr.
`Shoemake's statements in his report are proper explanation
`of how a person of skill in the art would understand those
`terms to be interpreted with their plain and ordinary
`meaning.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0009
`
`
`
`28
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`I will, however, caution the parties and this is
`something that we'll apprise Judge Albright of and can
`address -- the parties can address at pretrial with him
`next week is caution the parties about experts presenting
`their opinion about what a person of ordinary skill in the
`art would understand something to mean. Caution you
`against presenting that in a way that makes it appear as
`though it's a definition from the Court or that they're
`defining it as the Court should define it or would have
`defined it.
`And the best example of that, I believe, comes
`with regard to the phrase "content" that's in paragraph --
`I believe it's 84 of Dr. Shoemake's make. I think it's
`fine for Dr. Shoemake to say that content -- a person of
`skill in the art would understand the plain and ordinary
`meaning of content to be information available by a
`website or other electronic medium. But I do not believe
`and will pass this along to Judge Albright, as well, that
`it is not permissible for Dr. Shoemake to make -- the
`state it in the fashion that he has in his report that
`content is defined as and then, give a specific definition
`followed by a dictionary definition as that might indicate
`to the jury that Judge Albright has construed it to mean
`that specific definition.
`So that is the one caution to all of the rulings
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0010
`
`
`
`29
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`with regard to Dr. Shoemake's report is that I'm going to
`deny the request to strike his report, but will caution
`the parties and would grant or -- grant a motion in limine
`or an instruction for the expert to not present his
`opinions of what a person of ordinary skill in the art
`would think as though it is the definition provided by the
`Court. It needs to be clear that they are providing their
`opinion about a person of ordinary skill in the art's
`understanding of the plain and ordinary meaning.
`With regard to -- specifically to an electronic
`receiving device or the receiving device as argued by
`parties, again, I'm going to deny the request and deny the
`request, to the extent there was a request to date, to
`further construe that term as I don't believe a further
`construction is either necessary or would eliminate the
`parties' problem. I believe this comes down to a dispute
`between experts, a factual dispute for the jury to resolve
`as to whether two electronic components, a head unit and
`an iPhone can be and act as an electronic device or not.
`And I think Dr. Shoemake's fairly clear in paragraph 119
`of his report that it's his belief that a person of
`ordinary skill in the art would not see those two devices
`as an electronic device. And I'm confident that
`plaintiff's expert has the exact opposite opinion. And I
`think that's a reasonable dispute for experts to have and
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0011
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`30
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`to present to a jury for resolution. So I'm not going to
`further define that or any other terms that were included
`within docket No. 105. And I'm not going to grant -- I'm
`going to deny the request to strike any portion of Dr.
`Shoemake's report. As I understand from having reviewed
`it that the portions identified by plaintiff were all
`proper areas of expert opinion regarding what a person of
`ordinary skill in the art would understand these terms to
`mean at the time and in light of their plain and ordinary
`meaning.
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`Again, caution the parties, though, about
`presenting those opinions in such a way as to make it
`appear that those are the Court's definitions. And we'll
`make sure that Judge Albright is aware of that ruling and
`also alert to parties' attempts to do that so that
`hopefully that doesn't become an issue. So that's the
`ruling, the Court's ruling on docket No. 105.
`Let's see, we've got docket 104, did the parties
`want to argue that one? I'm trying to flip back and forth
`between e-mails and other things. And docket 104 is
`defendant's motion to exclude plaintiff's damages expert,
`Dr. Barnes or Ned Barnes. I don't know if he's a doctor,
`actually.
`MR. SATCHWELL: Yes, your Honor. My name is Matt
`Satchwell. I'm with DLA Piper.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0012
`
`
`
`68
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`REPORTER'S CERTIFICATE
`
`I, LILY I. REZNIK, DO HEREBY CERTIFY THAT THE FOREGOING
`WAS TRANSCRIBED FROM AN ELECTRONIC RECORDING MADE AT THE
`TIME OF THE AFORESAID PROCEEDINGS AND IS A CORRECT
`TRANSCRIPT, TO THE BEST OF MY ABILITY, MADE FROM THE
`PROCEEDINGS IN THE ABOVE-ENTITLED MATTER, AND THAT THE
`TRANSCRIPT FEES AND FORMAT COMPLY WITH THOSE PRESCRIBED BY
`THE COURT AND JUDICIAL CONFERENCE OF THE UNITED STATES,
`ON THIS 6th DAY OF SEPTEMBER, 2022.
`
` ~~~~~~~~~~~~~~~~~~~~~~~~
` L I L Y I .
` REZNIK,
` CRR,
` RMR
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` O f f i c i a l C o u r t R e p o r t e r
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` U n i t e d S t a t e s D i s t r i c t C o u r t
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` A u s t i n D i v i s i o n
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` 5 0 1 W e s t 5 t h S t r e e t,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`Petitioner Hyundai Ex-1032, 0013
`
`