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`BRIGHT DATA, LTD.,
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
` ( CAUSE NO. 2:19-CV-395-JRG
` )
` (
` )
` (
`vs.
` )
` ( AUGUST 31/SEPTEMBER 1, 2021
`TESO, LT UAB, et al
` ) MARSHALL, TEXAS
` ( 10:00 A.M.
`Defendants,
`______________________________________________________________
`
`
`
`______________________________________________________________
`PRETRIAL CONFERENCE
`BEFORE THE HONORABLE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`______________________________________________________________
`
`SHAWN M. McROBERTS, RMR, CRR
`100 E. HOUSTON STREET
`MARSHALL, TEXAS 75670
`(903) 237-7464
`shawn_mcroberts@txed.uscourts.gov
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 1 of 236
`
`
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`BRIGHT DATA, LTD.,
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
` ( CAUSE NO. 2:19-CV-395-JRG
` )
` (
` )
` (
`vs.
` )
` ( AUGUST 31/SEPTEMBER 1, 2021
`TESO, LT UAB, et al
` ) MARSHALL, TEXAS
` ( 10:00 A.M.
`Defendants,
`______________________________________________________________
`
`
`
`______________________________________________________________
`PRETRIAL CONFERENCE
`BEFORE THE HONORABLE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`______________________________________________________________
`
`SHAWN M. McROBERTS, RMR, CRR
`100 E. HOUSTON STREET
`MARSHALL, TEXAS 75670
`(903) 237-7464
`shawn_mcroberts@txed.uscourts.gov
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
`
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 1 of 236
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`A P P E A R A N C E S
`FOR PLAINTIFF: RUYAKCHERIAN LLP - BERKLEY
` 1936 UNIVERSITY, SUITE 350
` BERKELEY, CALIFORNIA 94704
` (510) 944-0187
` BY: MR. SUNNY CHERIAN
` MR. ROBERT HARKINS
` RUYAKCHERIAN LLP
` 1700 K ST. NW, SUITE 810
` WASHINGTON, DC 20006
` (202) 838-1568
` BY: MR. RONALD WIELKOPOLSKI
` RUYAKCHERIAN LLP
` 1901 L STREET NW., SUITE 700
` WASHINGTON, DC 20006
` (202) 760-5171
` BY: MR. COLBY DAVIS
` Capshaw DeRieux LLP
` 114 E. COMMERCE AVENUE
` GLADEWATER, TEXAS 75647
` (903) 845-5770
` BY: MS. ELIZABETH DeRIEUX
`
`
`
`FOR DEFENDANTS:
`
` CHARHON, CALLAHAN, ROBSON &
` GARZA, PLLC
` 3333 LEE PARKWAY, SUITE 460
` DALLAS, TEXAS 75219
` (214) 521-6400
` BY: MR. STEVEN CALLAHAN
` MR. GEORGE SCOTT
` MR. JOHN HEUTON
` MR. MITCHELL SIBLEY
` NORTON ROSE FULBRIGHT US LLP
` 2200 ROSS AVENUE, SUITE 3600
` DALLAS, TEXAS 75201
` (214) 855-8118
` BY: MR. BRETT GOVETT
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 2 of 236
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` NORTON ROSE FULBRIGHT US LLP -
` HOUSTON
` 1301 McKINNEY, SUITE 5100
` HOUSTON, TEXAS 77010-3095
` (713) 651-5151
` BY: MR. DANIEL LEAVENTHAL
` SCHEEF & STONE, LLP - MARSHALL
` P.O. BOX 1556
` MARSHALL, TEXAS 75671-1556
` (903) 938-8900
` BY: MR. MICHAEL SMITH
`OFFICIAL REPORTER: SHAWN M. McROBERTS, RMR, CRR
` 100 E. HOUSTON STREET
` MARSHALL, TEXAS 75670
` (903) 923-7464
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 3 of 236
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`THE COURT: Be seated, please.
`All right. This is the time for pretrial matters before
`the Court in the case of Bright Data, Limited, versus Teso LT,
`UAB, Metacluster LT, UAB, and Oxysales UAB. This is Civil
`Action No. 2:19-CV-395.
`Let me ask for announcements at this time. What says the
`Plaintiff Bright Data?
`MS. DeRIEUX: Good morning, Your Honor. Elizabeth
`DeRieux on behalf of Bright Data. With me today, Robert
`Harkins, Blake Thompson, Sunny Cherian, Colby Davis and Ron
`Wielkopolski. And we are ready to proceed.
`THE COURT: All right. What are the announcements
`for the Defendants?
`MR. SMITH: For the Defendants, Your Honor, Michael
`Smith, and with me today is Mr. Steve Callahan, Brett Govett,
`Daniel Leventhal, Mitchell Sibley, George Scott, and John
`Heuton. And we're ready to proceed.
`THE COURT: All right. Thank you.
`Before I get into what's before us today, let me ask you
`this, counsel. I see some of you are sitting at counsel table
`with masks and I see some of you are not. Is there anybody in
`the courtroom that's not been vaccinated? If so, please let
`me know. I hear nothing or see nothing from anyone, so I'll
`assume everyone present's been vaccinated regarding COVID-19.
`Those of you that are wearing masks, you are certainly
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 4 of 236
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`free to continue to wear them if that's your choice. Given
`that everyone in the room appears to be vaccinated, if you
`would prefer not to wear your mask during the pretrial
`conference today, that's fine as well. I'm going to hear all
`argument from the podium, and if you are wearing a mask, you
`will need to remove it when you go to the podium, and if you'd
`like to replace it after you leave the podium, that's fine.
`Okay. Let me go over some housekeeping matters with you
`before we get into the disputed motions and other matters
`before the Court.
`Based on the parties' request, I've rescheduled this
`case, so that jury selection and trial will begin on Monday,
`November the 1st, 2021.
`Each side will be afforded 30 minutes per side to voir
`dire the jury panel. As is this Court's practice, you may use
`up to but not more than three minutes of your 30 minutes to
`give a very high-level non-argumentative bare-bones sketch of
`the issues that will be presented during the trial. That
`three-minute overview is to be non-argumentative. If I sense
`that it is becoming argumentative, I will call you down in
`front of the jury panel and take any other action I think is
`necessary. And I don't think you want me to do that, so make
`sure if you choose to give a high-level comment on what's at
`issue before you get into specific questions of the panel,
`make sure it is non-argumentative.
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 5 of 236
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`I'm going to seat eight jurors in this case. Each side
`will be afforded four peremptory challenges.
`I'm going to afford each side eleven and a half hours per
`side to put on your evidence. That does not include jury
`selection, that does not include opening statements and that
`does not include closing arguments. Each side will be
`afforded 30 minutes to present their opening statements, and
`each side will be afforded 40 minutes to present their closing
`arguments.
`It's no secret that this has been a difficult case up to
`this point. There have been a lot of disputes between the
`parties. My practice has always been to require an ongoing
`substantive and professional level of meeting and conferring
`during the course of the trial, and I am going to do that in
`this case as well.
`I'm going to be available each morning in chambers by
`7:30 to review any disputes that have not been resolved but
`have arisen during your meeting and conferring during the
`course of the trial so that I can take up those disputes and
`give you guidance before we begin with the jury and begin
`using your designated trial time. That effort on my part is
`intended to maximize the effect of your designated trial time.
`You should report any objections that have arisen as a
`part of your meeting and conferring overnight to my staff by
`email not later than 10:00 p.m. To the extents there are
`
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 6 of 236
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`demonstratives at issue or other tangible matters, you're to
`furnish a copy of what is at dispute. You are also to furnish
`a one-paragraph or not more than a half page narrative as to
`what the substance of the unresolved dispute is. You would be
`amazed how many times I get a demonstrative at 10:00 p.m. and
`nobody tells me what the problem with it is. If you do that,
`then we're going to waste time, and when we taste time it's
`going to be your time, not my time. So keep that in mind.
`Furnishing that report at 10:00 is not a signal that you
`can go to bed and quit working on your disputes. You need to
`continue to meet and confer. And to the extent that by the
`next morning there are still unresolved issues where you need
`the Court's guidance, then you're to furnish a three-ring
`binder to chambers at 7:00 a.m., and included in that binder
`is to be whatever is at issue together with a narrative, a
`revised and updated narrative as to what any remaining
`disputes are with regard to the same so that I can review that
`between 7:00 and 7:30 and begin meeting with you at 7:30 in
`hopes of resolving those issues before 8:30, because it's 8:30
`each morning, after day one, beginning day two it will be 8:30
`each morning I intend to bring the jury in and begin the trial
`for that day.
`I do not require, as some judges do, that you present all
`deposition designation objections or counterdesignation
`objections in total before the trial begins. I'll take those
`
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 7 of 236
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`up on a rolling basis. However, there's an important caveat
`that goes with that--that I do not want deposition disputes or
`counterdesignations that are disputed presented to me later
`than the day before the day that deposition testimony is to be
`presented to the jury. Presenting them later than that time
`creates a real risk of delay in the trial and I don't want
`that. So any designations regarding deposition testimony or
`counterdesignations that are in dispute that are not presented
`to me within that time period will be considered waived.
`Bring them to me not later than the day before the day you
`intend to present that testimony.
`I will defer any motions to be brought under Rule 50(a)
`of the Federal Rules of Civil Procedure until all the evidence
`has been presented. That includes the Plaintiff's case in
`chief, the Defendants' case in chief, and any rebuttal case
`that the Plaintiff may put on. After all the evidence has
`been presented and I've excused the jury, then I'll take up
`any motions under Rule 50(a).
`After I've dealt with motions that are presented under
`Rule 50(a), I'll then conduct an informal charge conference
`where I will review with you informally and off the record the
`then latest iteration of the proposed final jury instructions
`and verdict form. That will afford me an opportunity to get
`the free-flowing input of both sides.
`As is my usual practice, if you are tasked with
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`Federal Official Court Reporter
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`Code200's Exhibit 1021
`Page 8 of 236
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`presenting closing arguments, you're not required to be
`present for the 50(a) motion practice or the informal charge
`conference, but I have no doubt we will have more than enough
`lawyers necessary to allow those presenting closing arguments
`to be absent and still adequately cover motions under Rule
`50(a) and the informal charge conference.
`After I've completed the informal charge conference and
`had the benefit of your input on any issues where you don't
`disagree or where the Court has questions or concerns, then I
`will take that information and factor into what I believe is
`the then proper final jury instruction and verdict form, I'll
`present those to you with an opportunity to review them, and
`then I'll conduct a formal charge conference on the record
`where either party may present and preserve any objections
`that they still have to either the final jury instructions or
`the verdict form.
`Let me remind all of you, although I know most of you are
`aware of this, it is my long-standing practice to prohibit
`parties, counsel, witnesses, or anyone from referring to other
`individuals by first name only in the presence of the jury.
`Do not use first names only. Make sure your witnesses know
`that. If they ignore that instruction, then I will hold you
`accountable. Use of first names only in a jury trial is, A,
`inherently confusing and, B, it fails to maintain the proper
`decorum in a United States District Court. So don't do it.
`
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`Federal Official Court Reporter
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`Code200's Exhibit 1021
`Page 9 of 236
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`Make sure your witnesses don't do it.
`I'll refer you to the Court's standing order posted on
`our website for the Eastern District regarding protection of
`confidential or proprietary information by means of requesting
`that the courtroom and the transcript be sealed. I would
`remind you that post-trial redactions are not an acceptable
`means of attempting to preserve or protect confidential or
`proprietary information and should be limited in their use
`only to very narrow incidents, perhaps where a driver's
`license number or social security number or some personal
`identification information has somehow crept into the record,
`but redactions are not a substitute for following the Court's
`standing order on sealing the courtroom.
`To the extent necessary, it is always my request that
`counsel for both sides structure your examination of the
`witnesses in the area of any confidential information, as best
`as you can, to keep it together so that there will not be a
`need for repetitive sealing and unsealing of the courtroom
`followed shortly thereafter by another request to seal then
`unseal the courtroom. That kind of repetitive sealing and
`unsealing can be and is often very disruptive. I'm not going
`to tell you that there won't be opportunities and places in an
`examination where that becomes necessary, but I'd like to
`minimize any possible disruptions caused by the sealing and
`unsealing process, and I would urge both sides to keep that in
`
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 10 of 236
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`mind as you prepare your examination of each witness and your
`cross examination of each witness.
`My understanding is there has already been a juror
`questionnaire submitted in this case, and I will refer you to
`our deputy in charge for the Marshall Division as to times and
`dates when you can obtain access to those questionnaires with
`the venire members' answers included therein.
`Let me remind you that we make it clear to the public who
`are summonsed to appear for jury duty that any questionnaires
`they complete will not be copied, they will not be scanned,
`they will not be retained by the parties or by counsel. We do
`that so that we can encourage openness and completeness of
`answers to those questionnaires which work to your benefit,
`counsel.
`So follow Ms. Clendening's instructions on how you are to
`obtain, review, and return those questionnaires, but let me
`just say at a high level, you are not to scan them, email
`them, Xerox copy them, or retain in any form any of the
`information contained from those citizens summonsed for jury
`duty who completed juror questionnaires.
`Reflective of my earlier observation that this has been a
`difficult case and there have been an above-average number of
`disputes, we have a lot of matters to get through in this
`pretrial. We're going to move as promptly as we can, but it's
`probably not likely we're going to cover everything today.
`
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 11 of 236
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`Therefore, I've scheduled tomorrow for a continuation of this
`pretrial to the extent we don't finish everything today.
`Unless I indicate otherwise, I'll expect you to be back here
`at 9:00 in the morning and we will begin round two at that
`time, if that's necessary.
`As is my practice in patent infringement cases, I'm going
`to direct that the parties jointly and cooperatively prepare
`juror notebooks for use by the jury during the trial. I am
`going to direct there be 12 copies prepared and delivered to
`chambers no later than 1:00 p.m. on Thursday the 28th of
`October.
`For those of you that are not familiar, and most of you
`are, I know your local counsel are, these notebooks should be
`simple three-ring binders that contain a complete copy of any
`Patent-in-Suit, a side-by-side ledger or chart reflecting the
`adopted claim construction rulings of the Court with the
`disputed claim language on the left column and correspondingly
`on the right the adopted construction pursuant to the Court's
`claim construction order. Also these notebooks should contain
`separate tabbed pages for each witness who may testify either
`live or by deposition, and on each witness page you should at
`the upper portion of the page superimpose a head-and-shoulders
`photograph of the witness with their name underneath the
`photograph.
`Do not characterize the witness. It's certainly
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 12 of 236
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`appropriate where it's earned to show a terminal degree, in
`which case you may have Dr. John Jones. Do not put Dr. John
`Jones, Plaintiff's damages expert. Don't characterize them;
`just put the complete name, whether it's Mr., Ms., Doctor,
`whatever.
`Beyond those tabbed witness pages, you should also
`include a new three-hole punched legal pad for additional
`note-taking by the jury, and you should put in the front flap
`of each notebook a non-clicking, non-noise-making pen so the
`juror will have the benefit of that.
`And, again, those 12 cooperatively generated juror
`notebooks should be delivered to chambers no later than 1:00
`p.m. on the 28th of October.
`Also, counsel, you generated previously a joint pretrial
`order in this case which was done in April of this year.
`Since that time, the then existing non-patent claims have been
`dismissed, and I think it's entirely appropriate in light of
`the substantive focusing of the case since the Spring that you
`should prepare and submit a new joint pretrial order
`reflecting the changes that have taken place up until present
`and since the prior pretrial order was generated last April.
`That should include your preparing and generating new witness
`lists and a new proposed verdict form and final jury
`instruction. Everything you've submitted along those lines
`heretofore have included the non-patent claims that are no
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 13 of 236
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`longer active in this case, and the Court would benefit from
`having an updated and narrowed joint pretrial order, competing
`witness lists, and proposed final jury charge and verdict
`form. You should do that within the next 14 days.
`And as a part of that -- well, we're going to get to
`exhibits as a part of the pretrial process, and the Court is
`going to pre-admit any exhibits that either party offers that
`either do not draw an objection or, in light of any drawn
`objection, the Court finds that the exhibit is admissible
`under the rules of evidence. Ordinarily if we had more time,
`I would direct you to narrow your list of disputed exhibits,
`but we'll just do that as we go through the pretrial process.
`As both sides I'm sure understand and has been my
`long-standing process, we will begin the trial with a defined
`universe of pre-admitted exhibits. Those pre-admitted
`exhibits may be used by either party during the course of the
`trial without a formal offer, predicate, or explanation. Any
`opportunity to object to the same will be cabined to the
`pretrial process and they will not be objectionable on an
`evidentiary or admissibility basis when they are offered and
`published to the jury during trial.
`Once they are used and published as a part of the trial
`itself, then they become an admitted exhibit and part of the
`evidence in the record and they cease to be merely a
`pre-admitted exhibit. Any items from that universe of
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
`Page 14 of 236
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`pre-admitted exhibits established during pretrial, which is
`not used before the jury, is not published or otherwise
`introduced as a part of the trial, remains merely a
`pre-admitted exhibit, is not a part of the record, and is not
`a part of the evidence in the case.
`And to keep a clear and running count of which items from
`the list of pre-admitted exhibits have been so used during the
`trial and are admitted exhibits in the case, beginning on the
`second day of the trial before I bring the jury in, I will
`expect a representative of each side to go to the podium and
`offer into the record a rendition of those items from the list
`of pre-admitted exhibits used during the preceding day's
`portion of the trial, and we will do that on a rolling basis
`each day throughout the trial so that we keep an accurate and
`ongoing rendition in the record of what has been used as a
`part of the trial and is no longer merely pre-admitted but is
`an exhibit in the case so that we can separate those items
`from the remaining items on the list of pre-admitted exhibits
`that are not used, are not admitted exhibits, and remain
`merely pre-admitted and are not a part of the record.
`All right. Are there any questions from either Plaintiff
`or Defendant as to these housekeeping instructions?
`MS. DeRIEUX: Nothing from Plaintiffs, Your Honor.
`
`Thank you.
`
`MR. SMITH: Nothing from Defendants, Your Honor.
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
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`THE COURT: All right. Then following what the
`parties have submitted as an agenda to list and set forth the
`disputed dispositive motions, we'll take up any disputed
`motions at this time. And we'll begin with Plaintiff's motion
`to strike the invalidity opinions of Michael Freedman. That's
`Docket No. 244.
`Let me hear from the moving Plaintiff first.
`And let me remind both sides, I've read your motions,
`I've read the briefing, I have prepared such that you don't
`need to start at Alpha and go all the way to Omega. I know
`the background. We've got a lot of ground to cover today, so
`to the extent you can get right to the disputed issues, if I
`need further background or clarification I'll ask for it, but
`please tell me what time it is; please don't tell me how to
`build a watch.
`All right. Let me hear from Plaintiff.
`MS. DeRIEUX: May we distribute the binders with the
`slides on them?
`THE COURT: You may.
`I've got a copy of Plaintiff's binder. I don't have a
`copy of Defendants' binder.
`All right. And it's clear that several of you at
`different times are going to be presenting argument to the
`Court today. Just make sure that you identify yourselves for
`the record before you proceed with your argument.
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`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`Mr. Harkins, you're going to be up a lot today, so why
`don't you proceed.
`MR. HARKINS: Thank you, Your Honor.
`Well, Your Honor, we're starting with the motion to
`strike certain opinions of Doctor Freedman, who is Defendants'
`invalidity expert. Our hope is that by addressing these
`issues in the motion to strike, we will be able to
`dramatically reduce the amount of argument we have on other
`motions regarding issues touched upon in this motion, because
`ultimately if the Court strikes Doctor Freedman's opinions,
`that's how we get to summary judgment; and if Doctor Freedman
`is going to be able to opine the patents are invalid, then
`we're not going to have a position that we are entitled to
`summary judgment on invalidity, for example.
`THE COURT: I'm aware of the all-too-common overlap
`here where you present a motion, and then depending, you also
`present a disputed limine motion. Lawyers often take as many
`bites at the apple as they possibly can. But let's get down
`to the heart of it.
`MR. HARKINS: Okay. So let's go to slide 3, please.
`So there are five areas that this motion is about. The
`first one is that Doctor Freedman incorrectly opines that
`devices configured as client devices are both the client
`devices and servers of the claim, in contradiction of the
`claims and the claim construction order. That is the
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`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`principal area we are talking about in this motion, but also
`there's errors regarding written description on-sale bar ยง 101
`eligibility, and inequitable conduct.
`If we can proceed to the next.
`So the first dispute is about the conflation of client
`devices and servers.
`Go to slide 5, please.
`So particularly in applying the Crowds and MorphMix
`references as prior art, Doctor Freedman addressing
`peer-to-peer systems and incorrectly labels the client devices
`both clients and servers. There is no support for this
`position. There is a clear distinction in the claims between
`the client device and the server. The Court's claim
`constructions distinguish between client device and server,
`and we have been through this on numerous occasions that these
`claims are not simply about any computer communicating with
`any other computer. That's a different architecture.
`Let's go next to slide 6.
`So claim constructions that have been entered into this
`are that -- in the '319 and the '510 Patents, the client is a
`communication device that is operating the role of a client.
`It's not just any device; it's a communication device that is
`operating in the role of a client. And the server is a server
`that is not the client device.
`Defendants expressly represented in claim construction
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`they would not conflate current clients and servers. We have
`two quotes from the claim construction itself. Defendants
`deny that they will use client -- that they will claim client
`devices or servers. That's very important. Defendants deny
`that they will claim client devices and servers are
`interchangeable general use computers, and Defendants deny
`that they will assert that client devices are interchangeable
`general use computers, undercutting Luminati's proffered need
`for construction and resolving the dispute about claim scope.
`THE COURT: Let me ask you this, Mr. Harkins. I am
`going to read a sentence to you from Judge Payne's claim
`construction order that's been entered. In the claim
`construction opinion, the Court states, "The patents do not
`include servers as a type of communication device --
`MR. HARKINS: Right.
`THE COURT: -- "but that is not sufficient to
`construe 'client device' as unable to act as a server in all
`cases."
`
`MR. HARKINS: Correct.
`THE COURT: Well, how do you understand that
`guidance from the Court in the claim construction opinion?
`MR. HARKINS: All right. Well, this morning I was
`looking at this, and I have some slides that I ended up
`adding. Unfortunately we didn't have time to print them, but
`we can provide them.
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`Can we go, please, to slide 72?
`Ultimately the short answer, Your Honor, in theory a
`client device -- something that's a client device can have
`more than one -- any device that's a computer. And, Your
`Honor, I think your ruling on the Alice motion that was issued
`speaks to this--that you can have a computer, and that
`computer can be configured, and so you can have a figure that
`has memory, RAM, ability to communicate with other computers.
`You can configure that computer, that is, a client device, and
`you can say, In this box I'm going to have a client device,
`and I'm going to have a server, and those are going to be
`different. I'm going to create the robust properties of a
`server in this box, and it's going to act as a server and be a
`server, or I can -- and I can do that in a laptop if I have
`to, or I can use a server device, you know, in its own
`standing.
`And that's what we understand is what this -- and this
`is -- so in slide 72. But what has to happen is at some point
`that device has to have a configuration, and so what has
`happened here is if you see -- this is figure 3 of the patent
`color coded on slide 72, and it clearly -- and this is also
`mentioned by -- in the same sentence that the patents do not
`include servers as a type of communication device. The
`servers are in blue in figure 3. At the top they call them
`servers, and the patent says repeatedly, or multiple times at
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`least, that the clients, peers, and agents are communications
`devices.
`Now, can you act -- if what the claim construction order
`is getting at is, Well, every device that acts as a proxy is
`going to sometimes ask for information and sometimes provide
`information, we never disputed that. That's what a proxy
`does. That's necessarily true. But that does not mean that a
`proxy is configured as a server. In fact, that would be
`antithetical to what the Court already held in Alice -- in its
`Alice ruling.
`Can we go to the next one, please? So in -- this is not
`the -- can we pull up the other --
`In the Court's ruling at Docket 303 at 5, it refers to
`the claim constructions in this case that were issued that
`include that the communication device -- that a client device
`is a communication device operating in the role of a client,
`and that the second server is a server that is not the client
`device.
`The Court then said, and let's see if we can --
`Well, let's go down to the end of this, please.
`The Court then said at the bottom here at 8, at page 8,
`"Rather than a mere categorization of data, the pairing of
`servers and peer-proxies describes a network structure that
`improves the ability of those actors to communicate and that
`these were non-traditional client devices."
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`Federal Official Court Reporter
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`Code200, UAB v. Bright Data Ltd.
`Code200's Exhibit 1021
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`What the Court is holding here is that you -- that it is
`-- and specifically -- and this is after the claim
`construction, order, but before the supplemental claim
`construction order saying, Look, there is a difference between
`servers and peer-proxies that is in this patent, and it is the
`structure that pairs them together in a particular way that is
`inventive of this patent.
`The patent at column 2 starts off by saying there's
`traditional proxies, and then those already existed. We're
`not talking about regular proxies. It then says there's
`peer-to-peer devices. And we're not just talking about
`BitTorrent and other pre-existing peer-to-peer devices. We're
`talking about the pairing of servers with peer-proxies in a
`particular configuration where the server reaches out to the
`proxy, the proxy reaches out to the web server and back again.
`Those are what the claims at issue in this case recite.
`Now, if we can go to the prior slide, please.
`So there is a supplemental claim construction order in
`this case. It has not been adopted by the Court, and we think
`it has to be read and it can really only be read in a way that
`can harmonize with the Court's claim construction.
`And we just want to show in slide 75 here that figure 1
`already shows proxies, that you can have something that asks
`for files from a web s
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