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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`Before The Honorable Beth Labson Freeman, Magistrate Judge
`
`AGIS SOFTWARE DEVELOPMENT )
` LLC, )
`)
`Plaintiff,
`
`) Case No. C 22-04826-BLF
`vs.
`)
`GOOGLE LLC, )
`)
`
`Defendant.
`)
`______________________________)
`San Jose, California
`Monday, November 6, 2023
`
`))
`
`TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND
`RECORDING 10:00 - 10:30 = 30 MINUTES
`
`
`APPEARANCES:
`For Plaintiff:
`
`Fabricant LLP
`411 Theodore Fremd Road
`Suite 206
`South Rye, New York 10580
`VINCENT J. RUBINO, III, ESQ.
`
` BY:
`For Defendant:
`
`
`O'Melveny & Myers LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, California
` 94111
` BY: DARIN W. SNYDER, ESQ.
`
`
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`Echo Reporting, Inc.
`Transcribed by:
` Contracted Court Reporter/
` Transcriber
`
`echoreporting@yahoo.com
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`10:00 a.m.
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`Monday, November 6, 2023
`P-R-O-C-E-E-D-I-N-G-S
`--oOo--
`THE CLERK: Okay. And we are going to be calling
`the case management conference in AGIS versus Google.
`So I would ask any registered counsel, please raise
`your hands and please accept the invitations to join. Thank
`you.
`Okay, your Honor. I believe we're ready to begin.
`THE COURT: Good morning, everyone. Welcome.
`We're going to do this a little less formally today since
`it's case management, but we'll call the case and get your
`appearances.
`THE CLERK: Calling case 22-04826, AGIS Software
`Development LLC versus Google, LLC.
`Counsel, if you would please state your appearances,
`and if we can begin with the plaintiffs and then move to
`defendants.
`MR. RUBINO: Vincent Rubino from the law firm
`Fabricant LLP on behalf of the plaintiff.
`THE COURT: Good morning.
`MR. RUBINO: Good morning, your Honor.
`MR. SNYDER: Good morning, your Honor. Darin
`Snyder of O'Melveny and Myers on behalf of Defendants Google
`and Waze.
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`THE COURT: Good morning.
`All right. Thank you for the joint statement about the
`issues that you want to discuss today.
`Mr. Snyder, I think this all comes from you. So why
`don't you give me a little background on why we need this
`and where it will take us?
`MR. SNYDER: Absolutely. And thank you, your
`Honor. Thank you for setting this so promptly. All of this
`is necessitated by the Court's recent summary judgment
`order. In the Court's order, it identified two different
`terms for which it acknowledged that there were disputes
`about meaning. For purposes of the summary judgment order,
`the Court applied the plaintiff's proposed construction --
`THE COURT: Uh-huh.
`MR. SNYDER: -- which we -- and we understand the
`rationale for that. But going forward, it will be important
`for the parties to have the Court's adopted -- an adopted
`construction for purposes of contentions, expert reports,
`resulting damages analysis, and ultimately for future motion
`proceedings and trial.
`Those two terms are the word "participant" as used in
`the agreed construction of "group," which is more than two
`participants associated together, and does the term
`"participant" mean merely users, or can it also mean
`devices? The Court's order acknowledges that dispute. We
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`think a supplemental Markman proceeding to resolve that and
`definitively get a construction for this -- these cases is
`important.
`The second term is the meaning of "remote control"
`which has not yet been construed. Both of those terms
`appear in every claim of the only remaining patent asserted
`against Google, the 829 patent. And that same 829 patent is
`also asserted against Defendant Waze, as is the 123 patent.
`So we believe that supplemental Markman proceedings are
`required to address those legal claim construction disputes
`and to move forward with the case.
`The other two requests relate to -- also relate to the
`summary judgment order. Once the -- so the second was our
`-- our request is for supplemental expert discovery for the
`limited purposes of addressing those supplemental
`constructions. Once we have the Court's constructions, it
`will make sense to amend the parties' respective contentions
`and have expert reports that conform to those constructions.
`And we think it's valuable to have all of these proceedings
`-- the Markman and the supplemental expert reports sooner
`rather than later, given how much history there is in this
`case.
`
`THE COURT: Uh-huh.
`MR. SNYDER: And then finally, your Honor, our
`third request -- it's really more of a notice, but we may
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`want to set a schedule -- is that defendants intend to file
`a motion for partial final judgment under Rule 54(b). The
`summary judgment order resolves all of the claims against
`Google for three of the four patents. And given the
`multiplicity of other cases, I believe there are at least 10
`other cases pending in which AGIS has made allegations
`against these same products under these same patents. It
`will be important to avoid inconsistent rulings, that we --
`that the Court enter a partial final judgment, which then
`will have preclusive effect in those other cases.
`Otherwise, we run a very serious risk that this case will
`proceed on one track while all of those other cases are
`proceeding on another track, and we could -- addressing
`literally the same factual and legal issues with a great --
`grave risk of inconsistent results as they all go forward.
`THE COURT: I'm trying to wrap my head around how
`there could be a number of other suits challenging the same
`product by the same patents. Is that different claims in
`those patents?
`MR. SNYDER: No, it's the same claims, your Honor.
`These are claims against handset providers that use the
`Google software.
`THE COURT: Oh. Oh, so it's customer cases.
`MR. SNYDER: So it's the Find my Device and Google
`Maps for Mobile, FMD and GMM. They are literally the same
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`products that are used, but they're asserted in suits
`against, for example, Samsung based on Samsung selling
`handsets that -- or other products that include those Google
`products. There are, I believe, still nine other pending
`cases against other companies whose products also
`incorporate FMD and GMM, such as Sony.
`THE COURT: Well, that's interesting.
`MR. SNYDER: Yeah. So this is a situation -- we
`-- we're literally talking about the same claims.
`THE COURT: Okay. Well, I guess I should be glad
`you didn't try to make this an MDL and bring them all here.
`Okay. Well -- all right. So --
`MR. SNYDER: We're trying to simplify, your Honor.
`THE COURT: Okay. So I -- I'll -- I'm going to
`turn to Mr. Rubino, and then we'll -- I'll circle back, and
`we'll discuss these three issues.
`MR. RUBINO: Thank you, your Honor. Is there any
`specific issue that you would like me to start with, or you
`just want me to go through the list?
`THE COURT: I just want to -- I just want to make
`sure that I hear you -- your arguments beyond the brief
`statement you gave me since I let Mr. Snyder lay it out.
`And then I do want to talk about it, but I didn't want to
`foreclose any comments that you would make.
`MR. RUBINO: Thank you, your Honor.
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`So starting with the supplemental claim construction
`positions, AGIS' position is that when we first started this
`endeavor here in Northern California and we had the first
`CMC, the Court said that there was -- you know, the claim
`construction was done.
`We've litigated these issues on these claims for years
`now with Google. They could have asked for the construction
`of these terms. They didn't. They instead sought to go
`right to summary judgment. And when that didn't get them
`the relief that they wanted, now they want to go back to
`claim construction.
`I think that the order lays out how, you know, the
`claims can be interpreted. We don't think that there's any
`additional construction that's necessary and that the case
`should stay in that way. In other words, even though claim
`scope may have been implicated for some of the claim terms
`that AGIS lost on, we're not asking the Court to go back and
`look at the construction of, for example, the transmitting
`data limitation, which, in our expert report, we thought it
`was broader, and the Court's --
`THE COURT: Uh-huh. Uh-huh.
`MR. RUBINO: -- interpretation was narrower, so --
`THE COURT: Well, I think that argument would
`apply to the -- your arguments that I recall regarding
`"remote control." I'm a little bit more concerned about the
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`way in which the parties agreed to construe "group". So I
`wouldn't construe a construction. I would be going back to
`construing "group."
`MR. RUBINO: And, your Honor, that opens up a
`whole -- another can of worms where we agreed that it would
`be three or more in order to resolve the dispute. We still
`disagree with that construction. If we're going to go back
`to the term "group" again, that would open up the question
`as to whether this Court has to take a look at --
`THE COURT: Oh.
`MR. RUBINO: -- whether there's two or more, et
`cetera. We never intended to -- we intended to simplify the
`dispute by agreeing to that construction. And meanwhile,
`even though defendants clearly knew that -- they believed
`there was a claim scope issue with the word "participant,"
`they never raised that. And I would point out though that
`we had a similar proceeding last Friday. I was in Marshall
`at a hearing against Samsung, and O'Melveny, same counsel,
`was there, and the Court gave a preliminary construction of
`the term "group" and explicitly rejected this device
`limitation to those claim terms. We expect that Court to
`issue an order on these terms shortly.
`So number one, we think the construction was right. We
`think the Court's result was right. We don't think there's
`any confusion about what is and isn't in the scope of the
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`claims. The expert will be allowed to say --
`THE COURT: The problem -- Mr. Rubino, I just want
`to be clear. I was applying a summary judgment standard
`where I was compelled to draw all reasonable inferences in
`your client's favor. I did not construe or apply a reasoned
`construction of the word "group" or "participant," so I have
`some concern. But you raise a different issue of a
`Pandora's box of going back into what the word "group"
`means, and that's concerning to me. But perhaps this will
`become simpler once the judge in EdTechs issues that claims
`construction.
`MR. RUBINO: Yes, your Honor. He already issued a
`preliminary construction on Friday.
`THE COURT: Okay.
`MR. RUBINO: We could share with the Court if
`
`necessary.
`
`THE COURT: Well, I don't want to get involved in
`a preliminary. I would rather see a final.
`MR. RUBINO: Sure.
`THE COURT: But -- okay. That's just an important
`piece of information that that's -- that -- the terms being
`construed.
`
`MR. SNYDER: If I could interrupt just briefly,
`your Honor.
`THE COURT: Yeah.
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`MR. SNYDER: This term was construed, but it is in
`one of these parallel cases that I mentioned. Google and
`Waze are not parties to that case. That case is against
`Samsung. So it is not a situation where Samsung and Waze
`are parties to the case that Mr. Rubino is referring to.
`THE COURT: Oh, I understand that, but it is
`always helpful to the Court to see another judge's analysis
`of the same term.
`MR. RUBINO: And, your Honor, for all intents and
`purposes, our understanding is that, you know, it's the same
`lawyers that Google is indemnifying Samsung, that it is
`really pretty much still Google in that other case.
`THE COURT: Well, I don't -- we won't -- I
`understand.
`MR. RUBINO: That is another Pandora's box.
`THE COURT: Sure. Okay. I guess, Mr. Rubino, I'm
`just concerned at trial you will be arguing to the jury that
`a participant can be a device or a person, and Mr. Snyder is
`going to say to the jury, "No, a participant is a person
`only." And the -- I can't let the jury have that decision
`to make. That's for me to decide.
`So I'm really struggling here. And, you know, I guess
`maybe if group -- everything is up for grabs in group, then
`it's up for grabs. I'm not sure. I know -- I mean, there
`is some federal circuit case law on the obligation of the
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`Court to construe a construction, and I suppose I could
`limit the scope of the -- of a new Markman to construing the
`word "participant" as it's meant in the agreed upon
`construction and not upsetting the apple cart, but I take
`your point that like in all contracts that we've all
`negotiated, some terms are left intentionally ambiguous
`because there is the hope that it won't become the key issue
`later, and we'll just ride it out. It seems like we're not
`riding this one out.
`So -- all right. I guess I'm going to have to think on
`that a little bit. Let's go on to the other two issues, and
`then we'll circle back.
`MR. RUBINO: Yes, your Honor. In terms of the
`supplemental expert reports, first of all, AGIS doesn't
`believe that there needs to be any additional expert
`discovery on the liability side because we don't believe
`there should be any additional claim construction --
`THE COURT: Okay.
`MR. RUBINO: -- as a result. Nothing there. But
`on the damages side, I don't think we have any issue with a
`supplemental report to capture whatever changes there may be
`to damages periods, if any. But we also don't want to go
`back to the drawing board and start discovery again.
`THE COURT: Okay.
`MR. RUBINO: So with some limits, we think that
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`there may be some additional benefit to having some expert -
`- damages-related expert discovery.
`THE COURT: Okay. And then the last issue is
`partial judgment. I think really that's just a matter of
`Mr. Snyder needs to file the motion.
`MR. RUBINO: Well, your Honor, I think there's a
`concern that we have on the AGIS side for that, which is --
`because they were asking us if we agreed to such a motion.
`The issue is not about preclusion, which, by the way, the
`Samsung case -- the Samsung case -- one of the Samsung cases
`is before your Honor, so I don't think there'll be any
`conflicts there.
`The issue is really that I think if they file their
`partial judgment motion and then the appeal clock starts
`ticking, then we're going to have a federal circuit appeal
`pending at the same time we're litigating this case where
`issues could be -- you know, it could -- that could be an
`entire case where we have the same issues being litigated by
`this case, then being decided in an interlocutory fashion by
`the federal circuit for a both validity and infringement of
`related patents. It's -- that's going to be, you know, a
`problem going forward in terms of having potential --
`THE COURT: Well, Mr. Rubino, I don't think I can
`prevent Mr. Snyder from filing the motion. Do you?
`MR. RUBINO: I don't -- your Honor, I don't know
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`what your Honor can prevent anyone from doing, but AGIS
`would oppose such a motion and would ask that the Court, you
`know, delay that final judgment until the case is actually
`over after a jury trial. Google wants there to be a jury
`trial as late as possible, but they want this decision to
`come out sooner, and they should be left with their decision
`to, you know, have that jury trial or be in a forum where
`the jury trial is later.
`THE COURT: Well, I would only comment that it
`would be -- it would be unusual to have a partial judgment
`on claims. Occasionally, we do partial judgments as to
`parties and let them out entirely and let the appeal time
`run because it frees them of the litigation.
`Mr. Snyder, I can't prevent you from filing a motion,
`so you should do it. I think it's -- I think it's -- would
`be unusual, but I'm glad to consider your arguments. But
`let me just tell you that it's a very specific issue, and
`I'm going to give you very specific page limits. If you
`choose to file the motion, the motion may be five pages, the
`opposition five pages, and the reply three pages. And I
`probably won't need argument on it, so we won't need to
`delay it forever.
`MR. SNYDER: Can we make it eight pages, your
`
`Honor?
`
`THE COURT: I don't -- no. I'm sure you can -- I
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`just don't think it's that complicated.
`MR. SNYDER: Okay. Thank you.
`THE COURT: So I think you can do that.
`I don't have the trial date in front of me. And I'm
`sorry, do you --
`MR. SNYDER: August 18th, 2025. And to be clear,
`it is not that Google and Waze want to have a trial as late
`as possible. We would like to have a trial as soon as we
`can --
`
`THE COURT: Okay.
`MR. SNYDER: -- but we do understand the
`constraints on the Court's schedule.
`THE COURT: It was just when I said it. I know.
`
`Okay.
`
`MR. RUBINO: Your Honor, on that point, if I may,
`if the Court's trial calendar opens up, we -- we're ready
`whenever. I think that we've been, you know, litigating
`this case for a while, and we can move very quickly. I'm
`sure Google and Waze are big companies. They can move very
`quickly as well. And with the advanced age of our client --
`he's, I think, 83, almost 84, it would --
`THE COURT: Sure. Well, let me ask you, Mr.
`Rubino, are you planning to file a summary judgment motion?
`That makes a big difference on whether I can advance trial.
`MR. RUBINO: I don't think so. If it would
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`advance trial, then no.
`THE COURT: Let me take a look at my trial
`calendar and informally float -- through my courtroom deputy
`float some dates. We'll do it in four --
`MR. SNYDER: There are things --
`THE COURT: Sorry.
`MR. SNYDER: We certainly appreciate that, your
`Honor. Thank you. There are things that need to get done
`before that trial date. So I -- you know, I honor Mr.
`Rubino's claim that they're ready right now, but --
`THE COURT: Well, I'll be looking at next summer
`as opposed to two summers from now. So we're not talking
`about the next 90 days. But if I could advance this by a
`year, that might be a big help to everyone.
`MR. SNYDER: And that would certainly change
`things, your Honor.
`THE COURT: Okay. Let me -- I just have to look
`at my calendar and see what else I've got going on. I think
`this Markman issue is pretty focused as well, but I hear you
`on that.
`All right. So let me then circle back on -- I really
`think there's only one other issue. I think reopening
`discovery is -- on experts is going to flow from any
`Markman. And clearly if I reinterpret these claim terms or
`construe "remote control" in -- at the get-go, then the
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`experts will need to do something. But I can wait on that.
`I was very troubled during summary judgment at the
`difficulty presented by the use of the word "participant."
`And I will say I did -- we had some discussion that within
`the patent that you could see that "participant" would mean
`a human user and not a device, but I actually think that we
`need clarity on what "participant" means.
`I'm not inclined to unwind the parties' agreement on
`the term "group." So I would be willing to have a
`construction of a construction, which in my reading of --
`let's see of Bayer vs. Baxalta 989 F3.d 964, I certainly
`have the discretion to have this further construction of a
`claim term and of a construction. So I think that's fine.
`On "remote control," I'm not persuaded it needs a
`construction, but I haven't seen argument on it as to
`whether a plain and ordinary meaning would apply or not.
`And, Mr. Rubino, I gather that is potentially the
`argument that you would put forward on "remote control."
`MR. RUBINO: Your Honor, that is, with the caveat
`that there are some really good examples that would benefit
`-- in other words, as a dependent claim, that gives some
`examples, and I believe your Honor had cited to that in the
`decision.
`THE COURT: Uh-huh. Yeah.
`MR. RUBINO: And, you know, with that in mind that
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`those examples would be part of the -- part of remote
`control operations, I think the jury will have enough to go
`on. And I don't think we're going to really be -- I don't
`even think I know what it is that Google is saying would be
`excluded under such a construction. So I'm not sure what
`they're going to tell the jury isn't a remote control
`operation.
`THE COURT: Yeah.
`MR. RUBINO: So there's -- there is that issue.
`THE COURT: Okay.
`MR. RUBINO: So I think --
`MR. SNYDER: I do think our summary judgment
`papers clarified where the dispute is.
`THE COURT: Uh-huh.
`MR. SNYDER: So the plaintiffs contended that
`"remote control" could include merely displaying
`information.
`THE COURT: Yeah.
`MR. SNYDER: And defendants -- well, we argued
`that it could not include displaying information for several
`reasons, including that displaying information was disclosed
`as separate steps in several of the 829 patents claims.
`So we've got a very clear dispute of whether the term
`"remote control" is satisfied by merely displaying
`information. The Court acknowledged that dispute in the
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`summary judgment order and for the purposes of that order
`applied plaintiff's construction.
`THE COURT: Uh-huh.
`MR. SNYDER: But I -- we understand the Court's
`position that it would be inappropriate to go to the jury
`with that unresolved.
`THE COURT: Yeah.
`MR. RUBINO: Your Honor, along those lines -- and
`maybe this is something for supplemental briefing, but
`Google had known of that position and had known of these
`arguments for years and didn't tell the Court that that was
`a claim scope issue. We had our initial CMC almost a year
`-- I mean, I think it's even more than a year ago now.
`And so, you know, delaying these things to just
`piecemeal attack certain claims, prevail at summary
`judgment, then go back and say it's a claim construction and
`try to get the rest done, a future summary judgment seems a
`bit -- well, unfair, honestly.
`THE COURT: No. Let -- I think Mr. Snyder is
`clear on this, but let me just say it. There'll be no more
`summary judgment. This is an order to assist the jury in
`how to apply the terms of the patent. Summary judgment has
`come and gone. And like all summary judgments, reasonable
`inferences are decided in favor of the non-moving party.
`That's all I did. And we don't come back on a second
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`summary judgment. Mr. Snyder has not suggested that, and
`that's not going to happen. So you don't need to worry
`about that, Mr. Rubino. But I can't have your experts
`telling the jury opposite things that the device is or is
`not a participant, that "remote control" can mean this or
`that.
`So I think for the trial, this is actually well
`identified as a problem. So I am willing to do it, but I'm
`-- it's going to be very limited. I am not going to
`construe the word "group." The parties came to an
`agreement. They agreed on the word "participant" without
`giving it any definition, and that's where it will be. It
`raises the specter of who were the people at the table in --
`for the -- your clients who came up with the word
`"participant," and what did they discuss at the time? Was
`there a common meaning that somebody has contorted since
`then or not? And I'm a little troubled by that.
`MR. RUBINO: Your Honor, I think the issue isn't
`that our client came up with it. The issue is that EdTechs
`came up with it years ago. This was a construction that
`was --
`
`THE COURT: Oh.
`MR. RUBINO: -- right, that Judge Gilstrap put
`into place in his Markman order. This issue wasn't on the
`table. It was a case against Apple. We figured we would
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`agree to it again because we thought the issue was two verse
`three. We didn't want to have to re-litigate two verse
`three. And never realized that there was going to be this
`issue about whether what we've accused was in or outside the
`scope of the claims, which was never before the Court when
`we litigated against Apple because they -- you know, they
`were people, they were devices, it wasn't relevant.
`THE COURT: I see.
`MR. RUBINO: So there was that issue. But Google
`has known this. They've known that they were going to take
`this position. And I guess just when it comes to claim
`construction, if we're going to have supplemental
`proceedings, I just want to make sure that we can still make
`an argument of waiver, because Google should have known of
`these issues, should have asked for it before, didn't. And,
`you know, they didn't ask for it in East Texas at the claim
`construction. They didn't ask for it at the ITC when we had
`the case there. They didn't ask for it. They didn't want
`to construe this claim term again there and, you know,
`didn't ask this Court for it. And in the 11th hour to try
`to change the construction and sort of hinder our experts on
`what we think should be an issue that they have, at the very
`least, waived and that our construction agency's position
`should be what is in the plain and ordinary meaning at this
`point -- that we can still make that argument.
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`THE COURT: Well -- yeah, I'm not sure that --
`well, it'll take -- I'll need to know what the experts say
`about the plain and ordinary meaning of the word
`"participant."
`MR. SNYDER: Your Honor, I guess the same could be
`said of plaintiffs. They didn't ask for these constructions
`either.
`
`THE COURT: Yeah.
`MR. SNYDER: So I guess whoever hurls the
`accusation of waiver first, it gets it on the record.
`That's -- we have a dispute. They are the ones that are
`trying to take a patent that was designed for situational
`awareness on the battlefield or for first responders and
`apply it to somebody who's maybe trying to find their lost
`iPhone or their lost Android phone. It's not an iPhone.
`It's -- but their lost Android phone. So it's -- this isn't
`an issue of waiver. This is an issue about a -- the Court
`fulfilling its obligation to fulfill -- fulfilling its
`obligation to construe a term --
`THE COURT: Uh-huh. Uh-huh.
`MR. SNYDER: -- in a claim. And that's why we
`brought it to the Court's attention.
`THE COURT: Okay. So I will allow further claims
`construction. I will limit it to the term "participant" as
`used in the construction of the word "group" and "remote
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`control" as used in the patent itself. I will not allow
`further construction of the patent term "group." I will --
`Now, under our patent local rules, you all have a
`little bit of work to do before you can even file briefs on
`this. So I expect that you will. And I want to -- I don't
`know what your briefing schedule will be. I'm not going to
`give you a briefing schedule. It's not something I'm asking
`for. So you need to move along on this.
`And if -- what I'm going to do, I'm going to generously
`give you 10 pages for the opening briefs and opposition, and
`six pages for the reply. If you were doing 10 terms in 25
`pages, you would have much less space, so I think that's
`ample.
`And you know, I mean, these -- this could all -- as
`always could -- each of these terms could end up being plain
`and ordinary. It's not my preference. And I think with
`"participant," I think we've really come up with the real
`problem here. It's very narrow, and I'll look forward to
`seeing it discussed more fully. On "remote control," I
`don't really -- I don't really know where we're going on
`that, so your briefing will be helpful.
`So I don't know whether you -- it may be that you want
`to get together and work out a schedule so that you can
`comply with the patent local rules and give me a briefing
`schedule, and then we'll -- as soon as I see that, we'll try
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`to get a hearing date on it. But I'm going to leave the --
`leave this in your hands to provide me with a briefing
`schedule.
`Okay. So I think -- Mr. Snyder, you -- were you -- do
`you need me to reopen expert discovery in order to prepare
`for the further Markman, or is that in the event that you're
`successful?
`MR. SNYDER: It's -- we do not need expert
`discovery for the Markman, your Honor. The request for that
`additional, post-supplemental reports was -- is to address
`the Court's constructions that come out of this process.
`THE COURT: Okay. Then we'll talk about
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