Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 1 of 45 PageID #: 13394
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 1:17 p.m.
`ZTE USA, INC. June 25, 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
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 1:17 p.m.
`ZTE USA, INC. June 25, 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 240 Filed 07/02/18 Page 2 of 45 PageID #: 13395
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`2
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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 240 Filed 07/02/18 Page 3 of 45 PageID #: 13396
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`3
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`P R O C E E D I N G S
`(Jury out.)
`COURT SECURITY OFFICER: All rise.
`THE COURT: Let's have the jury brought down.
`(Pause in proceedings.)
`COURT SECURITY OFFICER: Please rise for the jury.
`(Jury in.)
`THE COURT: Mr. Wisnia, you may continue.
`MR. WISNIA: Thank you, Your Honor.
`Can you bring up Slide 2?
`JOSHUA PHINNEY, PH.D., PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
`CROSS-EXAMINATION (CONTINUED)
`
`BY MR. WISNIA:
`Q.
`All right, sir. You talked quite a bit about claim 1 of
`the '794 patent, during your direct examination, right, sir?
`A.
`Yes.
`Q.
`And I've got to be honest, this is a little bit like a
`logic or a word problem. Would you agree with me, sir?
`A.
`I don't know if I agree with it exactly, but, yeah, I
`see what you're saying.
`Q.
`There's a lot of different rules that you have to
`satisfy to meet this claim?
`A.
`Yeah, these limitations set forth in the words of the
`claim.
`Q.
`Okay. And I want to talk through with you some of the
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 4 of 45 PageID #: 13397
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`4
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`requirements or, I think, rules of claim 1, if we could, okay
`sir?
`A.
`Q.
`
`Okay.
`All right.
`MR. WISNIA: Your Honor, may I approach the paper
`
`there?
`
`THE COURT: You may.
`MR. BARROW: May I stand in the front?
`THE COURT: You may.
`MR. BARROW: Thank you.
`(By Mr. Wisnia) All right. So can we agree that the
`Q.
`controller controls operation of function devices based on
`remaining capacity?
`A.
`Yes. That is in that limitation 1(b).
`Q.
`Okay. So I'm going to put that as rule 1. Controller
`controls operation of function devices based on remaining
`capacity.
`Is that readable from where you're sitting, sir?
`Yes, it is.
`Okay. Good.
`Can we also agree that there's a rule that there
`has to be two sets of devices?
`A.
`You know, it looks like we're rewriting the claim, but I
`think I see what you mean. Yes, there's a set GA and a set
`GB.
`
`A.
`Q.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 5 of 45 PageID #: 13398
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`5
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`Q.
`
`Okay. So two sets of devices, GA and GB.
`All right. Can we agree that all devices in GA
`have to receive a power consumption reduction instruction?
`A.
`Yes. Here, I'm reading that the controller sends a
`power consumption reduction instruction to each function
`device included in a set GA if NA is detected.
`Q.
`So that means all of them, right? Each and every one of
`them that's in GA?
`A.
`To each function device in the set GA, that would --
`that would mean to each in our set GA, yeah. What you're
`saying seems to express the same thing.
`Q.
`Great. So we agree.
`A.
`Okay. What were your words exactly, though?
`Q.
`All devices in GA receive a power consumption reduction
`instruction.
`A.
`Right. And I'm -- you know, just the limitation here
`reads: If any is detected. I'm just trying to keep the
`clause together. But I see what you're saying.
`Q.
`Okay. So all devices in GA receive a power consumption
`reduction instruction.
`All right. Cover your left eye and see if you can
`read that.
`A.
`I believe I can, yes.
`Q.
`Okay. Good.
`And we have the same rule with respect to all the
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 6 of 45 PageID #: 13399
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`devices in GB, right?
`A.
`And, again, just keeping the limitations together, that
`is, you know, if NB is detected, but I see what you're
`saying, yes.
`Q.
`Okay. So I'm just going to put these dashes. You know
`that means just to kind of copy what we have above, and I'm
`just going to put GB.
`So same rule between 3 and 4. You've got one rule
`for GA, one rule for GB. Fair enough, sir?
`A.
`Agreed.
`Q.
`Okay. All right. We can also say that there is no
`device in GB that's also in GA, right?
`A.
`Yes. That's from the last limitation of -- last part of
`claim limitation 1(c). Each function device of set GB is not
`included in a set GA.
`Q.
`And vice versa as well, right?
`A.
`Yeah. They're mutually exclusive.
`Q.
`They're mutually exclusive, right?
`See where I'm getting -- that sounds like one of
`those Ask Marilyn questions about, you know, you're having a
`dinner party, and Bob can't sit next to Mary, and Mary has to
`sit next to so-and-so?
`A.
`All the limitations that are --
`Q.
`Yeah. That's what I'm getting at.
`A.
`Yes.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 7 of 45 PageID #: 13400
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`All right. So I'm going to say GA -- what if I put GA
`Q.
`not equals GB? Does that -- does that get this point
`across --
`A.
`Yeah.
`Q.
`-- or should I write it differently?
`A.
`If everyone -- this is a confusing notation. I think
`that's fine to mean that -- yeah, they're -- yeah.
`Q.
`Right. So if I put an equal sign and put a line through
`it, that means not equal to, right?
`A.
`Sure. We could -- you could use that notation to mean
`this limitation.
`Q.
`Okay. So GA is not equal to GB. So nothing in GA is
`also in GB and vice versa, right?
`Okay. And then we have a rule that at a first
`threshold -- that's NA -- you send these instructions from
`No. 3, right?
`A.
`Yes. That was that part of that clause I was trying to
`keep with it.
`And here I think maybe it would help to use the
`words of the claim because it says: If any is detected.
`Q.
`I'm sorry. If what is detected?
`A.
`The claim says: If any is detected. So it doesn't say:
`At a threshold. It says: If any is detected.
`Q.
`Okay. That's fine with me.
`So if -- can I say: If first threshold NA?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 8 of 45 PageID #: 13401
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`8
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`Because that's what NA is, is a threshold.
`A.
`I don't mind if we substitute. As long as first
`threshold means NA, I guess we could substitute that.
`Q.
`Okay.
`A.
`We have a GB and GA, though. You know, maybe it would
`help to keep those linked.
`Q.
`Okay. So, if first threshold NA is detected, then
`rule 3, right?
`A.
`Yeah, that's fair. We're taking these limitations and
`reordering them in some way, but yes.
`Q.
`Okay. And then -- so I wrote here as rule 7: If second
`threshold NB is detected, rule 4, right?
`A.
`Yeah. The same type of answer for -- as our Step 6 --
`Q.
`Okay.
`A.
`-- or limitation 6 or whatever.
`Q.
`Okay. So all of these rules have to be met for there to
`be infringement, right?
`A.
`Among other things, yes.
`Q.
`Among other things, but at least we've got to do these
`things, right?
`A.
`Yeah. It's expressed in the claim, but, yeah, we've
`agreed about all of these rules.
`Q.
`Okay. So --
`MR. WISNIA: Can we put up on the screen Slide 1?
`(By Mr. Wisnia) I think this is a cleaner version of
`
`Q.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 9 of 45 PageID #: 13402
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`what we did. Maybe I just put a couple of them in a
`different order. Can you just confirm for me that -- that
`what I have as the rules of claim 1 up here on the screen is
`what we've done on the board?
`A.
`Well, again, you know, one thing that I think is
`important is that at the second -- at the first threshold NA,
`we've written: If first threshold NA is detected.
`Q.
`Okay. So No. 4, which is at first threshold NA, you
`want to change that to --
`A.
`I just said we did it to mirror the claim language.
`Q.
`So we write, if -- you want to say -- instead of "at,"
`you want to say: If first threshold NA is detected?
`A.
`Yeah, mirroring the claim language.
`Q.
`Okay. So if I make that change to No. 4 and -- then
`I've got to make that same change in No. 7, right?
`A.
`Yes. And that would reflect --
`Q.
`Then we would be on the same page?
`A.
`This would match what you've written.
`Q.
`Okay. All right. So I'll get that fixed for us at some
`point --
`A.
`Okay.
`Q.
`-- okay?
`All right. One of the things that you did was you
`played a video during your testimony, right, sir?
`A.
`Yes.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 10 of 45 PageID #: 13403
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`Okay. And this had to do with what you were calling the
`Q.
`power saver mode, right?
`A.
`Yes. It's what it -- how it's named on the ZTE phone,
`it's called the power saver mode.
`Q.
`All right. And what you were showing was screen
`captures, right?
`A.
`Yes, that is correct.
`Q.
`That wasn't actually a video of you operating the phone,
`right?
`A.
`Right. My finger didn't appear over it. It was sort of
`getting the image on the screen and sending just that image
`to the PC for recording.
`Q.
`Okay. So --
`MR. WISNIA: Can we play that video a little bit,
`
`please?
`
`(Video animation played for the jury.)
`(By Mr. Wisnia) So when this thing came up, it just kind
`Q.
`of disappeared, but in reality, you had to take your finger
`and push that button, right, sir?
`A.
`Yes. The user must follow this alert and touch the
`screen at this time.
`Q.
`And so what happens -- tell me -- tell me if you agree,
`sir -- is that if you go into this power saver mode, if you
`set this mode on your phone, when the battery gets down to
`15 percent, you get this pop-up window. That's what we're
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 11 of 45 PageID #: 13404
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`looking at, right?
`A.
`Yeah. It's called an alert.
`Q.
`Okay. But it's like a pop-up window, right?
`A.
`Yes.
`Q.
`Okay.
`A.
`It appears a little bit different from pop-ups that
`we're used to because it disappears in about two seconds.
`Q.
`Okay. Well, that's my first question. What happens if
`you don't touch it?
`A.
`If you don't touch it, it will disappear and you won't
`be provided this alert or this link for power saver at least
`on that alert.
`Q.
`So you get the message, but if the person doesn't
`actually touch the button, it doesn't go into this power
`saver mode, right?
`A.
`That would -- the user would have to take these actions
`that you're describing to authorize the entry into power
`saver mode.
`Q.
`Is that a "yes" to my question?
`A.
`I'm sorry, then, could you repeat it?
`Q.
`So when this window pops up, if the user doesn't
`actually put their finger against the screen, the phone
`doesn't go into this power saver reduced power mode, right?
`A.
`Yes, that is correct. A user would have to touch the
`screen to follow these alerts.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 12 of 45 PageID #: 13405
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`Okay. So unless and until the person touches the screen
`Q.
`with their finger, no matter what the capacity is detected,
`the phone doesn't go into these reduced power modes, right,
`sir?
`The -- the phone requires that authorization from the
`A.
`user, and it's asking the user. I could explain more about
`that if -- if you'd allow me to.
`Q.
`First I want to make sure we're on the same page. Is
`the answer to my question yes?
`A.
`Yes. And I would explain, you know, more about that
`answer if you would allow it.
`Q.
`Okay. So if we can go back to the rules -- I'm sorry.
`Let me -- let me use my -- the version we all agree
`
`on.
`
`So if the first threshold NA is detected -- that's
`what's happening when that popup comes up, right, some
`threshold is detected?
`A.
`At that time when the battery level transitions from 16
`to 15 percent, then that's when the alert appears, at some
`time a little bit after that.
`Q.
`So is the answer to my question yes?
`A.
`Oh, I'm sorry. What is the question?
`Q.
`It -- the claim requires if the first threshold NA is
`detected. And it gets detected when that popup screen comes
`up, right?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 13 of 45 PageID #: 13406
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`13
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`A.
`Q.
`
`And I'm sorry. Can you repeat the question?
`I'll try, sir.
`In your theory of infringement that you -- that you
`went through today, you said, hey, I'm going to prove that
`this requirement -- you didn't call it Rule 6, but you were
`talking about Rule 6.
`And you said, I'm going to prove that when that
`threshold NA is met, then we send these power consumption
`reduction instructions to the devices in GA, right?
`A.
`Yes. The -- the controller would then seek the user's
`authorization through the alert mechanism to enter that mode.
`And I can explain more about that if you'd like.
`Q.
`Well, you had your direct. You did your explanation,
`right, sir?
`A.
`Yes.
`Q.
`Okay. So my -- my question now is the time where this
`first threshold NA is detected is when that popup screen
`comes up on the screen, right, sir?
`A.
`The -- the phone goes from a 16 percent to this 15
`percent. That's -- that's something that BatterySaver.java
`(sic) then makes available to com.zte.powersavemode. And so,
`you know, close to that time that's when the alert will pop
`up, a little bit after that time.
`Q.
`Okay. So in the order of things, something in the
`phone, in your view of the world, detects that threshold A
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 14 of 45 PageID #: 13407
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`has been met, right?
`A.
`BatterySaver.java (sic) is the thing that's estimating
`the state of the battery.
`Q.
`So it's the software you're talking about.
`A.
`Yes, BatteryService.java.
`Q.
`Okay. So that is what you said does the detection that
`NA has been met?
`A.
`Well, the -- okay. But just -- just to -- that's part
`of it because, to be clear, that also included some hardware.
`Q.
`Okay. But now the phone, based on this software, knows
`that it's met this threshold. Is that what you're telling
`us?
`Yeah. The battery saver -- BatteryService.java is able
`A.
`to send an alert to the rest of the software in the phone,
`indicating that the state of the battery has changed and
`actually sends something called an intent, which is like a
`broadcast message, when it's -- when the battery is something
`called low. And low in this phone is defined, for instance,
`at 15 percent.
`Q.
`So yes? Is that the answer to my question?
`A.
`I really apologize. I just -- I'm sorry. If I could
`just hear the question again. I'm really sorry.
`Q.
`Not the easiest stuff. Let's give it a shot.
`Something in the phone detects when the phone gets
`to this first threshold NA, right?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 15 of 45 PageID #: 13408
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`Yeah. It would be part of the battery capacity
`A.
`detector, and the -- and the controller could also be
`involved in this as well.
`Q.
`Okay. And then something tells the computer to pop up
`that window, right, for the phone to pop up that window?
`A.
`Yes. That's also mediated via an intent.
`Q.
`Okay. Up until that point, we know we have the popup
`window. Okay. Has it -- has a power consumption reduction
`instruction been sent?
`A.
`At that time the user has not authorized entry into the
`power saver mode so I -- I think the answer would be no.
`Q.
`Okay. So if the -- if the user never touches that popup
`window, does a power consumption reduction instruction get
`sent?
`A.
`No. In that instance, the -- the phone would continue
`to operate as normal, and it would not be in power saver
`mode.
`Q.
`Okay. So it's only -- I had a pointing problem the
`other day so I'm not pointing at you. I promise you. I'm
`just using my finger for the -- for the phone here.
`So it's only when the person takes their finger and
`pushes that popup window that the thing -- the phone will go
`into this -- the phone will issue this power consumption
`reduction instruction, right?
`A.
`I disagree just a little bit in the sense that you're
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 16 of 45 PageID #: 13409
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`16
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`using the word "only" there, and so I'm not sure that's the
`most helpful way to look at it. And I would like to explain
`more, if you would allow me.
`Q.
`Sure. What else beside your finger?
`A.
`Okay. So one way to think of this is that the
`controller in power saver mode is akin to sort of an
`electronic co-pilot that's sitting by the driver, with our
`car analogy. Imagine this electronic co-pilot sort of
`looking at that low fuel indicator, and it's turning down the
`AC for you. That's kind of the idea of the controller in the
`claim.
`
`Now imagine in battery saver that controller would
`do its job without user input. Once it's configured it will
`do it -- it will do it for you --
`Q.
`Hold on, sir. I know you're trying to explain, but
`right now your video has nothing to do with battery saver,
`right? We're talking about power saver mode, right?
`A.
`Yes. I'm only contrasting --
`THE COURT: Hold up.
`Mr. Wisnia, as I understood, his request was to --
`was to be given an opportunity to explain his answer, and you
`said okay.
`MR. WISNIA: I did, but the question was about
`power saver mode.
`Q.
`(By Mr. Wisnia) Are you answering about power saver
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 17 of 45 PageID #: 13410
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`mode?
`A.
`I am. I am.
`Q.
`Okay. Then please go ahead.
`A.
`Okay. So I was talking about just, first of all,
`contrasting to -- to power saver.
`In -- in battery saver, that controller doesn't
`require user input to do its job of turning down the air
`conditioning.
`Power saver is sort of like that electronic
`co-pilot sees the low fuel indicator, and it says hey,
`driver, the -- the low fuel light is on. Should I turn down
`the AC for you?
`And so it does require user input, but I see it
`that there's still a controller, and the controller is still
`basing what it's doing on the low fuel indicator. So that's
`why I think the -- the rules of claim 1 are -- the
`limitations of claim 1 are still satisfied.
`Q.
`Okay. Can we get back to talking about power saver now?
`A.
`Sure.
`Q.
`Okay. So in power saver mode, it never goes into power
`saver mode unless a person touches that -- that window,
`right, sir?
`A.
`A person would need to do that the way the driver would
`need to say, yeah, go ahead.
`Q.
`Okay.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 18 of 45 PageID #: 13411
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`Enter --
`A.
`So maybe to use the -- I'm trying to get along the
`Q.
`example you're going with.
`You're driving a car, and your kid's in the car
`next to you, and you have -- well, let's assume for a moment
`as a hypothetical you have a well-behaved child.
`A.
`I love that. That's funny.
`Q.
`Okay.
`A.
`Yeah.
`Q.
`And your child says: May I change the radio station?
`A.
`Oh, gosh. Are we going to do radios? Okay.
`Q.
`Okay. Well, hold on. May I change the radio station?
`Okay?
`
`They don't get to change the radio station until
`you tell them yes or no, right?
`A.
`If they're so well-behaved, I guess that's true in
`our --
`Q.
`I said it was a hypothetical.
`A.
`Hypothetical, sure.
`Q.
`Okay. So what I'm driving at -- I think you could
`see -- is the claim requires that the person touch that
`button and agree to go into power saver mode, right?
`A.
`That is -- that is part of it, yes.
`Q.
`Okay. And if the person doesn't touch that button, the
`button goes away, right?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 19 of 45 PageID #: 13412
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`Yes. That is correct. That alert will disappear in
`A.
`about two seconds.
`Q.
`And then it never goes into power saver mode unless and
`until the phone is touched -- the screen comes up again, and
`the person touches that button, right?
`A.
`Yeah. That's -- to just explain it in a little bit more
`detail, it occurs at 15 percent, then at 10 percent, then at
`5 percent, and the person is given these alert opportunities
`to do that. Yeah.
`Q.
`And if they never touch the screen, it never goes into
`power saver mode?
`A.
`Yeah. Power saver mode won't save you from yourself if
`you don't want to enter it.
`Q.
`Okay. Got it.
`All right. One of the rules, Rule No. 1, is the controller
`controls operation of the function devices based on remaining
`capacity, right?
`A.
`Yes. That was from limitation 1(b).
`Q.
`Okay. And so the controller, the way it controls the
`operation of the function devices, is by issuing these power
`consumption reduction instructions, right?
`A.
`Okay. Just, first of all, you know, I see -- I
`understand what you're saying. But just we have to be
`careful, and this is what sort of the issue is when we
`rewrite the claims in terms of these rules because we're
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 20 of 45 PageID #: 13413
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`talking about some phrases.
`The first part is from 1(b), and it's part of a
`larger phrase.
`And the -- the second part that you pointed to is
`from 1(c). And so, you know, I understand what you're
`saying. I just -- you know, I think we just need to
`appreciate that these words are sort of modifying other words
`that are in groups.
`And 1(b) -- you're taking an idea from 1(b) and
`sort of pushing it down into 1(c), and I'm a little concerned
`that in doing this you're rewriting the claim in a way that's
`substantial. That's all -- I'm just putting that out there.
`Q.
`All right. Well, what I'm putting out there is can we
`agree that the controller controls the operation of the
`function devices based on the remaining capacity, and it does
`that by issuing these power consumption reduction
`instructions?
`A.
`Yeah. It definitely does that. That's part of 1(b),
`and so that's something that -- that describes the
`controller.
`And then it -- yeah. And then the -- the last
`limitation, instructions are what it uses. Yeah. I think --
`I think this is fine. I'm just -- yeah, I understand, and I
`think that's probably reasonable.
`Q.
`So yes?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 21 of 45 PageID #: 13414
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`Oh, gosh. Sorry. Yeah. Yeah. I'm just -- I'm just
`A.
`thinking about what you're saying. Yeah. I think that is --
`yeah, it seems okay.
`Q.
`So yes?
`A.
`Oh, gosh. Okay. Can you just say the question again?
`It just -- it's -- so you're saying the controller controls
`operation, that limitation from 1(b), and the controller
`includes the limitation that it sends instructions to the
`function devices? Is that it?
`Q.
`Would you like me to take another swing at it?
`A.
`Yeah. You know, because you're just reordering the
`words of the claim, and I'm just trying to make sure that
`what I'm hearing is, you know, is consistent with my
`understanding. That's all.
`Q.
`I'll give it a shot.
`A.
`And if you don't mind, I'm going to turn to Plaintiff's
`Exhibit 3, which is the patent. And I just want to sort of
`refer to the claim as written at the same time.
`Q.
`Okay. Whatever crib sheets you've got up there.
`So --
`A.
`It's the patent.
`Q.
`Tell me when you're ready.
`A.
`Okay.
`Q.
`Can we agree that the controller controls operation of
`function devices based on remaining capacity, and the way it
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 22 of 45 PageID #: 13415
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`
`does that is by sending these power consumption reduction
`instructions?
`A.
`Again, you know, I'm -- you know, I'm not sure we can
`agree on that. And it has --
`Q.
`We were so close moments ago. What changed?
`A.
`No. I understand. I understand. But, you know, I
`think I get what you're -- what you're saying, but I'm just
`sort of pointing out that you're taking a limitation from
`1(b), and you're -- you're sort of adding some more words and
`putting then sort of a part of a step from 1(c), and you're
`saying like the way -- and the way that it controls is that
`it -- and you're adding that.
`Q.
`I agree with you. I'm phrasing it according to the
`words that we've talked about. There's different rules in
`the claim. Okay? And I just want to know if you agree with
`my -- the way I've phrased the requirement.
`I mean, we know that No. 1 is true. We've already
`agreed that No. 1 is true?
`A.
`Right. It's the words that you're putting in between.
`Q.
`Hold on. Hold on, please, sir.
`A.
`Okay, sorry.
`Q.
`Okay. So we've agreed No. 1 is true, and we agreed that
`No. 3 is true, okay?
`But I think -- you tell me -- but we can agree that
`this power consumption reduction instruction, that's issued
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 23 of 45 PageID #: 13416
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`
`by the controller, right, sir?
`A.
`Yes.
`Q.
`Okay. So we know No. 1 is true. We know No. 3 is true.
`And we know that No. 3 is performed by the controller, right?
`A.
`Yes.
`Q.
`Okay. And so when the controller issues this
`Instruction No. 3, what it's doing is it's controlling the
`operation of that function device, right, sir?
`A.
`It's -- what it's doing there is what it says it's doing
`here. So it's -- that's what the claim requires. It's
`sending a power consumption reduction instruction -- I mean,
`the best guide to understand this is the way it's written in
`the claim.
`Q.
`You know, I -- I know you went to MIT, and maybe that's
`the best way for you. I'm trying -- I'm trying to make it a
`little bit simpler for us, but -- so if what I'm saying is
`not true, let me know, okay?
`A.
`I will. And I'm trying to explain that what you're
`doing is you're mixing part of a limitation from claim 1(b),
`and you're moving those words and combining them with part of
`1(c).
`Q.
`And my question, is it wrong? Is it not true now?
`A.
`Well --
`Q.
`So -- well, hold on. I'm going to take -- I'm going to
`take a swing at it again.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 24 of 45 PageID #: 13417
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`1 is true. 3 is true. We're on the same page.
`We've resolved that.
`3 is issued by the controller. We're on the same
`page with that, okay?
`Now, this power consumption reduction instruction
`is issued by the controller to control the operation of the
`function device, right? That's what it does, right?
`A.
`That's one thing that the controller does, and, yeah,
`you could say that's part of how it controls the function
`devices, to send them an instruction.
`Q.
`All right.
`A.
`I think the answer is -- I think the answer is yes,
`though. I also think there's other things that the
`controller can do to also be a controller that I described in
`my direct testimony.
`Q.
`I'm not saying it's the only thing it does, but it does
`this, right?
`A.
`Yeah. That makes sense.
`Q.
`Okay. And so it issues these instructions, these power
`consumption reduction instructions, to control the operation
`of function devices, and it's doing it based on the remaining
`capacity, right?
`A.
`Yeah, you could -- you could say that, but I think the
`best guide for the scope of this claim is the way it's
`written, okay?
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 25 of 45 PageID #: 13418
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`And, again, I've just got to say that again. I can
`explain that again, if you'd like.
`Q.
`Is the answer to my question yes?
`A.
`Yes. I -- yes, but, you know, again, the same ideas. I
`find what you're doing to be rewriting the words of the claim
`and their order, and, you know, I just want to point that
`out.
`Okay. All right. So here -- here comes the question,
`Q.
`sir --
`A.
`Okay.
`Q.
`-- all right?
`When the user presses that button, that pop-up
`window, right, the controller issues the power consumption
`reduction instruction, right?
`A.
`Yes. At a later time, the controller would do that,
`yes.
`It's only if -- and only if the user touches that
`Q.
`button, that that power consumption reduction instruction
`gets sent, right?
`A.
`Well, the "only if" is the issue, I think, is ignoring
`the chain of events that occur in the controller prior to
`issuing the instruction. So I don't agree with "only if."
`I'd say --
`Q.
`So, if I never press that button, I don't press it at
`15 percent, I don't press it at 10 percent, I don't press it
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 26 of 45 PageID #: 13419
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`at 5 percent, does that power consumption reduction
`instruction get sent?
`A.
`No -- yeah, it's a requirement. It's a requirement, but
`it's one of multiple requirements. So I just don't want the
`sense of "only if" to just make that unclear.
`Q.
`Well, I'll let other folks decide who's making it
`unclear. But the question is, if I never touch that button,
`the power consumption reduction instruction never gets sent,
`right?
`A.
`That's right. We've agreed, and we've talked --
`Q.
`Okay. Good.
`A.
`-- many, many ways, that -- yeah. The alert will
`appear, go away. The alert will appear, go away. You know,
`it requires the user to authorize that entry.
`Q.
`Okay. And let me ask you --
`MR. WISNIA: Let's bring the claim language up here
`on the screen, please, if we may.
`I'm sorry. Bring back the picture with the finger.
`I apologize.
`Q.
`(By Mr. Wisnia) All right. I say that your reading of
`power saver mode violates at least rule 1 because the
`controller doesn't put this phone into battery saving mode
`based on the detected capacity; it does it based on whether
`or not a user touches the screen, right, sir?
`A.
`I disagree with that. I'd be happy to explain why.
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`Case 5:16-cv-00179-RWS Document 240 Filed 07/02/18 Page 27 of 45 PageID #: 13420
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`I think we tried to go through it quite a bit.
`Q.
`I would really love to explain why and would go back to
`A.
`the analogy I gave for the -- of the electronic co-pilot.
`I'd be happy to explain my --
`Q.
`We just tried 30 minutes on it, sir.
`A.
`Ha
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