Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 1 of 12 PageID #: 13299
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 1:16 p.m.
`ZTE USA, INC. June 22, 2018
`
` TRANSCRIPT OF TRIAL
` AFTERNOON SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
` AND A JURY
`
`A P P E A R A N C E S
`
`
`FOR THE PLAINTIFF:
`
`MR. JAMIE B. BEABER
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`
`MR. GEOFFREY P. CULBERTSON
`PATTON TIDWELL & CULBERTSON, LLP
`2800 Texas Blvd.
`Texarkana, TX 75503
`
`COURT REPORTER: MS. CHRISTINA L. BICKHAM, RMR, CRR
` FEDERAL OFFICIAL COURT REPORTER
` 300 Willow, Ste. 221
` Beaumont, TX 77701
`
`
`Proceedings taken by Machine Stenotype; transcript was
`produced by a Computer.
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 1:16 p.m.
`ZTE USA, INC. June 22, 2018
`
` TRANSCRIPT OF TRIAL
` AFTERNOON SESSION
` BEFORE THE HONORABLE ROBERT W. SCHROEDER III,
` UNITED STATES DISTRICT JUDGE,
` AND A JURY
`
`A P P E A R A N C E S
`
`
`FOR THE PLAINTIFF:
`
`MR. JAMIE B. BEABER
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`
`MR. GEOFFREY P. CULBERTSON
`PATTON TIDWELL & CULBERTSON, LLP
`2800 Texas Blvd.
`Texarkana, TX 75503
`
`COURT REPORTER: MS. CHRISTINA L. BICKHAM, RMR, CRR
` FEDERAL OFFICIAL COURT REPORTER
` 300 Willow, Ste. 221
` Beaumont, TX 77701
`
`
`Proceedings taken by Machine Stenotype; transcript was
`produced by a Computer.
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 2 of 12 PageID #: 13300
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`FOR THE PLAINTIFF:
`
`MR. ALAN GRIMALDI
`MR. KFIR B. LEVY
`MR. JAMES A. FUSSELL III
`MR. BRYAN C. NESE
`MR. WILLIAM J. BARROW
`MS. TIFFANY MILLER
`MR. BALDINE B. PAUL
`MR. SAQIB J. SIDDIQUI
`MR. CLARK S. BAKEWELL
`MAYER BROWN LLP
`1999 K. Street, NW
`Washington, DC 20006
`
`FOR THE DEFENDANT:
`
`MR. ERIC H. FINDLAY
`FINDLAY CRAFT PC
`102 N. College Ave., Ste. 900
`Tyler, Texas 75702
`
`MS. CALLIE A. BJURSTROM
`MR. HOWARD N. WISNIA
`MS. NICOLE S. CUNNINGHAM
`MR. SARA J. O'CONNELL
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`501 W. Broadway, Ste. 1100
`San Diego, CA 92101-3575
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 3 of 12 PageID #: 13301
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`P R O C E E D I N G S
`(Courtroom remains sealed.)
`(This portion of the transcript is sealed and filed
`under separate cover as Sealed Portion No. 14.)
`(Courtroom unsealed.)
`THE COURT: Mr. Findlay?
`MR. FINDLAY: Just we have a possible witness issue
`with Mansoorian that I don't know if we have resolved yet.
`One of our witnesses, Mr. Mansoorian -- we have
`discussed it with Maxell, we have told them about it -- has
`to be in California on Tuesday. And so we were wondering if
`perhaps we could put him on Monday out of order potentially.
`MS. BJURSTROM: No.
`MR. FINDLAY: Oh, sorry.
`THE COURT: Ms. Bjurstrom, do you want to address
`
`this?
`
`MS. BJURSTROM: Yes, Your Honor. I sent an e-mail
`a couple of days ago to the other side to let them know that
`things -- the timing has been a little different than we
`thought for some of the witnesses, and so one of their last
`witnesses is going to be Dr. Madisetti, and he hasn't gone on
`yet.
`
`And it looks like if Dr. Phinney hasn't gone, we've
`got Dr. Madisetti still to go kind of way towards the end of
`the order.
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 4 of 12 PageID #: 13302
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`And, obviously, Dr. Mansoorian would like to be
`able to sit and listen to Dr. Madisetti.
`He had -- in the two-week period of time that we
`he -- similar to Dr. Caloyannides -- he had one day, Tuesday
`of next week, where he needed to be in the Bay Area for a
`long scheduled meeting.
`So I had asked whether we could put Dr. -- well, I
`said, you know, Dr. Mansoorian could testify like Monday
`morning or Wednesday afternoon. He could be here for
`Dr. Madisetti if he went on Monday morning, and then he could
`come back and testify, Mansoorian could, on Wednesday
`afternoon.
`We just wanted to try to organize this in a way
`that he could be gone for that one day back and forth --
`sorry -- back and forth. So it's just a -- and I let them
`know a couple of days ago, but I haven't heard anything in
`response. And I'm a little concerned that we just got
`through the damages expert, and we haven't even gotten to
`Dr. Phinney or Dr. Madisetti yet.
`THE COURT: Okay. Thoughts from the Plaintiffs?
`MR. LEVY: Thank you, Your Honor.
`I think we were aware that Dr. Mansoorian had a
`scheduling issue and might be out of order, but I don't think
`we had any of the details.
`But maybe now that we have the details, we can talk
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 5 of 12 PageID #: 13303
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`about it. I'm not quite sure what relief they're asking for.
`We still have two witnesses, two experts, and some deposition
`clips and, you know, we've -- we've been handling roughly two
`a day. So, hopefully, we can get them both done on Monday.
`If the issue is that Dr. Mansoorian sooner won't be
`able to go on Tuesday, I think that's fine. He could
`probably go on Wednesday.
`Again, I'm -- I think there's some confusion on our
`part because we're not sure what relief they're actually
`asking for. So maybe that's something we can discuss over
`the weekend.
`MS. BJURSTROM: Well, if they're just willing to
`work it out with us, like we worked it out with
`Dr. Caloyannides, I think that would be appreciated. So we
`just haven't heard anything.
`THE COURT: Well, I don't -- I'm going to expect
`the same from either of you, to try -- try your very best to
`work it out.
`MR. LEVY: Absolutely. We -- we don't have any
`issue. We're just not quite sure what the issue is, and
`we're happy to work with them to kind of figure it out.
`THE COURT: I mean, you know, I've had this come up
`a time or two in other cases where there was, you know, a
`longer trial and we asked the witness to sit for a deposition
`over the weekend and, you know, when we got to that part of
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 6 of 12 PageID #: 13304
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`the testimony, we just played the deposition. I don't know
`if that's something you all are interested in doing to avoid
`the scheduling issue or not. But that's one possibility.
`MR. LEVY: We can -- we're happy to discuss it with
`
`them.
`
`THE COURT: Okay.
`MR. LEVY: We're open to ideas.
`THE COURT: All right.
`MS. BJURSTROM: Thank you.
`THE COURT: Yes.
`I think we're doing okay on the exhibits. I think
`we've had maybe a handful of exhibits that have been moved
`into evidence but, perhaps, not accepted yet. So I'd ask you
`all to -- I know maybe Ms. Miller on the Plaintiff's side
`is -- is responsible for exhibits.
`Remind me who it is on the -- Ms. O'Connell.
`MS. O'CONNELL: Your Honor, I'll take that on. Is
`the procedure that we'll actually read the exhibits --
`THE COURT: That's supposed to be the procedure.
`I'm not sure any of us have been following that throughout
`the course of the week.
`Based on Mr. Culbertson's moving into evidence
`the -- the larger list on Tuesday morning, I think, those to
`which there were no objections, obviously, we've not had --
`you know, we have not had to handle this sort of piecemeal
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 7 of 12 PageID #: 13305
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`throughout the course of the trial.
`There have been a few, I think, that have moved,
`and the parties were going to try to work out some agreement
`on those. So let me just remind you to take another look at
`that. So that's my thoughts on that.
`Just a little short reference. We're -- you guys,
`the Plaintiffs, are at 12 hours of testimony remaining, and
`the Defendants are at 13 hours. So we've used, I guess, 21
`hours of testimony in four days. So that's not too bad.
`MR. LEVY: Just to clarify, Your Honor, that's 12
`hours remaining or we've used 12 hours?
`THE COURT: 12 hours remaining, a little under 12
`hours remaining, to be specific. You have 11 hours and 53
`minutes left. You don't have to use it all.
`MR. LEVY: I hope to not use any of it.
`THE COURT: So I don't think I have anything else.
`We need to discuss the Phinney slides and anyone
`who's not necessary for that may feel free to excuse
`themselves at this point. But I'm happy to stay as long as
`you all want to, to go through these. I've taken a look at
`them. So maybe we can start with whoever wants to deal with
`that.
`
`MR. LEVY: Mr. Barrow from our side.
`THE COURT: Okay.
`MR. LEVY: Have a good weekend, your Honor.
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 8 of 12 PageID #: 13306
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`THE COURT: Thank you very much, Mr. Levy.
`Ms. Cunningham, are you handling this?
`MS. CUNNINGHAM: I am.
`THE COURT: Okay.
`MS. CUNNINGHAM: This is their objections?
`THE COURT: Yes, ma'am.
`MS. CUNNINGHAM: There are a few different
`categories of objections, so I'll go through them one by one.
`There are a couple that I think we can put to the side, is
`the good news. So I can clarify that as well.
`THE COURT: All right. Which ones?
`MS. CUNNINGHAM: One second.
`So there's a category. The first one is PDX29,
`Pages 6, 8, 16, and 17.
`We did confer, Mr. Barrow and I, regarding this
`objection. ZTE's concern is that these slides depict a phone
`with icons for particular applications. One in particular
`says "video phone," and there's no such application on a ZTE
`device. And certainly not on the accused representative
`device.
`
`So our concern was if there would be a suggestion
`to the jury that that appeared on a phone or that that was a
`ZTE phone.
`I understand that that's not the way they
`anticipate using the slides, so I think for now we can put
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 9 of 12 PageID #: 13307
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`that to the side.
`THE COURT: Great.
`MS. CUNNINGHAM: And then skipping a little bit
`further down, the last objection, actually, is PDX2969, and
`we can drop that one as well.
`THE COURT: No objection to the slide?
`MS. CUNNINGHAM: Correct.
`THE COURT: All right.
`MS. CUNNINGHAM: Okay. So that brings us to the
`first, which is -- we can categorize a number of slides
`together. This would include PDX29, Pages 28, 29, 32, 33,
`34, and 65.
`And if we look at Page 28 it should address the
`issues, really, for all of these slide all of the objections
`for the slides because they are variations of the same.
`THE COURT: Okay.
`MS. CUNNINGHAM: Okay. And if you look at this
`slide it's a schematic or a block diagram, and there's
`various color coding on this.
`The good news is the blue shading, we don't have an
`issue with.
`We do have some issues with parts of the orange
`coding, the part that's in the middle, not the part to the
`left, as well as the green and the yellow coding. So I'll
`take them one by one.
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 10 of 12 PageID #: 13308
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`The yellow coding points to an audio codec. And
`while this block diagram in total was in the report -- we
`recognize that -- there was no identification of particular
`components or notations that you see to the side about what
`type of function device they would be, for example, the
`yellow audio communication device.
`And with respect to the audio codec in yellow, in
`fact, audio codec does not appear a single time in
`Dr. Phinney's report. Those words I cannot find except in
`this diagram. And they're not shaded or pointed to in any
`way.
`
`And, you know, not only do they not use the words
`"audio codec," they never call it a function device, and they
`certainly never call it an audio communication device.
`THE COURT: So is the argument this misrepresents
`the report, or is some unfair surprise or what -- what's
`exactly --
`MS. CUNNINGHAM: It would be the latter. It would
`be outside the report and a theory that we were not put on
`notice of.
`THE COURT: Okay. Maybe I could get Plaintiffs to
`respond to that now.
`MS. CUNNINGHAM: Sure. Thank you, your Honor.
`MR. BARROW: Bill Barrow for Maxell, Your Honor.
`So as a preliminary matter, all of this is in --
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 11 of 12 PageID #: 13309
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`within Dr. Phinney's report. This specific figure, I
`believe, is at the end of Paragraph 146.
`And in that paragraph -- either just before or in
`it -- Dr. Phinney expressly discusses many of the devices and
`functionality in this figure. Obviously, that would be
`virtually impossible to do, to discuss every single item.
`There's a lot in here.
`But what's important is that the discussion of this
`figure pertains specifically to the function device's
`limitation. And Your Honor issued a claim construction on
`that limitation. That construction was that the term is a
`means-plus-function term and that it had three -- one of
`three types of structure -- or an equivalent to that
`structure. Specifically, a modem device, audio communication
`device, video phone device.
`Merely what Dr. Phinney has done here is basically
`categorize those function devices which he has expressly
`identified in his report. So starting with the components
`that are highlighted in orange, we have -- on the left we
`have a wireless transceiver which is part of a cellular
`modem. And then you have -- you also have the word "modem"
`sort of in the middle of this big box which is the MSM
`processor.
`And in Dr. Phinney's report he refers to a cellular
`modem as a -- a function device. There is a chart on -- can
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`Case 5:16-cv-00179-RWS Document 238 Filed 07/02/18 Page 12 of 12 PageID #: 13310
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`we bring up the expert report.
`I'm sorry. I have an annotated version of the
`expert report if that might help, Your Honor.
`Oh, this would be -- this would be confidential.
`Actually, this figure is a confidential figure.
`THE COURT: Okay. We'll need to seal the
`courtroom.
`(Courtroom sealed.)
`(This portion of the transcript is sealed and filed
`under separate cover as Sealed Portion No. 15.)
`(Courtroom unsealed.)
`
`
`
`CERTIFICATION
`
`I HEREBY CERTIFY that the foregoing is a true
`and correct transcript from the stenographic notes of the
`proceedings in the above-entitled matter to the best of our
`abilities.
`
` June 22, 2018
`/s/ Christina L. Bickham
`CHRISTINA L. BICKHAM
`Federal Official Court Reporter
`
`
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