Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 1 of 53 PageID #: 13622
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 8:30 a.m.
`ZTE USA, INC. June 27, 2018
`
` TRANSCRIPT OF TRIAL
` MORNING 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.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD. )
`
` DOCKET NO. 5:16cv179
`-vs- )
` Texarkana, Texas
` ) 8:30 a.m.
`ZTE USA, INC. June 27, 2018
`
` TRANSCRIPT OF TRIAL
` MORNING 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.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 2 of 53 PageID #: 13623
`
`2
`
`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
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 3 of 53 PageID #: 13624
`
`3
`
`P R O C E E D I N G S
`(Jury out.)
`COURT SECURITY OFFICER: All rise.
`THE COURT: Good morning. Be seated.
`Do we have anything we need to raise before we have
`the jury brought in?
`MR. FINDLAY: Just very quickly, Your Honor. There
`are a couple issues. Only one, I think, needs to be
`addressed immediately.
`This has to do with an exhibit that Mr. Beaber was
`using to cross-examine Mr. Andrews with yesterday. This is
`PX299. This is the claim chart that Maxell purportedly gave
`to ZTE Corp about the '317 patent and the Fury -- and you may
`recall, I think Mr. Beaber was asking Mr. Andrews about that
`it met most of the limitations, et cetera.
`We have a MIL, an agreed MIL in the case that no
`one should talk about or raise evidence regarding dropped
`claims of infringement or invalidity.
`I'm not suggesting that Mr. Beaber violated that
`MIL, but I think this gets close to it because the Fury is
`not an accused product in this trial, Judge, and I think we
`have to have the ability to redirect Mr. Andrews on that
`point to clarify that, look, this claim chart may have said
`whatever it said, but here in front of this jury the '317 --
`I mean, the Fury, excuse me, is not accused of infringing the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 4 of 53 PageID #: 13625
`
`4
`
`'317, and I don't want us to walk on that MIL. And so I'm
`seeking guidance from the Court.
`THE COURT: Mr. Beaber.
`MR. FINDLAY: And it had been accused perviously.
`THE COURT: I'm sorry?
`MR. FINDLAY: It -- it had been accused in the case
`previously.
`THE COURT: Right, sure.
`MR. FINDLAY: It was dropped, so I don't want to
`walk on that MIL.
`THE COURT: Right.
`MR. FINDLAY: Thank you.
`MR. BEABER: Your Honor, to be clear, the
`discussions between Maxell and ZTE with respect to this
`document dealt with an entire portfolio of patents, correct?
`And I think that's clear from Mr. Nakamura's testimony.
`So the use of this document and the Fury -- the
`Fury was representative of all of ZTE's products in those
`discussions, including the ZTE ZMAX 2 phone.
`So I don't have any problems with the
`cross-examination. I think the document is already in
`evidence. But I do think that, you know -- I didn't come
`close to violating the MIL.
`Claim 1 of the '317 patent is in there. That was
`the focus of the discussions. And I think it's clear from
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 5 of 53 PageID #: 13626
`
`5
`
`the other testimony that there is a portfolio of patents and
`this was representative of that.
`THE COURT: You -- you're certainly entitled to
`redirect the witness on it. I don't think there's any
`dispute about that.
`MR. FINDLAY: On the -- on the Fury not being
`accused. Thank you, Judge.
`THE COURT: All right. What else?
`MR. FINDLAY: There is one other issue I would like
`to raise very quickly.
`We are concerned -- if I can grab the transcript
`from yesterday.
`I think Mr. Beaber, respectfully, yesterday in his
`cross of Mr. Andrews, tried to bring in and suggest to the
`jury that ZTE Corp is here in the courtroom today, in a way
`that was more blatant than what they've done earlier.
`You may recall there have been at least ten
`references to a Chinese mother ship, which I don't think was
`inappropriate, although I don't know whether it directly
`violated the non-disparaging MIL.
`But now we've got a situation where it's kind of an
`attempt at death by a thousand cuts. He asked Mr. Andrews:
`You understand you're retained, and here on behalf of ZTE USA
`and ZTE Corp, you're testifying on behalf of both of them
`here today, correct?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 6 of 53 PageID #: 13627
`
`6
`
`Mr. Beaber knows that's not the case. ZTE Corp is
`not in this lawsuit. ZTE Corp has been severed. I
`understand they were just served the other day via the Hague.
`They have a different lawsuit in front of Your Honor.
`This is inappropriate interjection of Corp in the
`case. It can only be done for one reason, Judge, to
`hopefully raise, from the Plaintiff's standpoint, some bias
`or prejudice that they hope the jury has against the whole
`China issue, which we've talked about ad nauseam.
`I think it's inappropriate. We would request,
`either now or at the appropriate time, perhaps the jury
`instructions, but a specific, strong instruction to the jury
`that clarifies that the only Defendant in this case is
`ZTE USA; ZTE Corp is not a defendant in this case; and that
`Maxell has a separate action against ZTE Corp in this court.
`I think that would be appropriate to buttress. The
`inference, I think, is being tried to be raised by Maxell
`over and over again. It would make clear to the jury that
`Corp is not at this case.
`THE COURT: Mr. Beaber.
`MR. BEABER: Sure. I think Your Honor said stick
`to the facts in the case. I think that's what we've done.
`I think the questioning was with respect to his expert
`report. It said he was retained on behalf of both ZTE USA
`and ZTE Corporation. That's a fact.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 7 of 53 PageID #: 13628
`
`7
`
`ZTE's position throughout this case has been that
`ZTE Corp has never been a proper party to this case, yet,
`they've retained many of their experts on behalf of both.
`That's a fact.
`I understand that they don't like that fact, but
`that's a fact, and it's in the expert reports of the experts.
`We should be able to argue that fact. Yes, they maybe made a
`mistake, but that doesn't change the fact that we have a
`bunch of experts that were retained by ZTE USA and ZTE Corp
`expressly.
`And as a result of that, we should be able to
`question -- question them on whose behalf they're here. It's
`clear both. They were retained by both. And that was the
`questioning.
`MR. FINDLAY: That's not a complete factual
`announcement of the situation in this case, and I think
`Mr. Beaber knows it, Judge.
`ZTE Corp was named in the lawsuit. They never were
`served, but they were on the papers. Out on an abundance of
`caution, the expert reports say what they say, I suppose.
`But there is no issue that they're not in this
`trial. They have a separate case that's been brought against
`Maxell that Your Honor severed out. And to continue to
`commingle them is only done for one reason. It's not about
`the facts. It's about what I suggested in trying to engender
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 8 of 53 PageID #: 13629
`
`8
`
`up -- or rile up ideas of prejudice or some Chinese foreign
`control over everything that's happening here, and that's
`just completely inappropriate.
`It certainly goes against the spirit of
`Your Honor's motion in limine. It goes against the spirit of
`everything we tried to do in voir dire to make sure that we
`had a jury that wasn't tainted by these biases and concerns.
`THE COURT: Let me suggest this: I mean, look, I
`certainly am going to allow, you know, thorough
`cross-examination on the important facts, and I'll caution
`Mr. Beaber and anyone else acting on the Plaintiff's behalf
`to stick to the facts in going through that.
`It is true that ZTE Corporation is not a defendant
`in this action, but there is some interrelatedness at some
`level. Certainly goes to a number of issues the jury is
`going to be asked to decide with respect to notice and
`willfulness and any number of things.
`I will say, if I think the questioning gets beyond
`sticking to the facts, Mr. Beaber, and gets close to
`bordering on any type of -- well, engendering any kind of
`prejudice against ZTE Corporation in light of some of the
`concerns that we've dealt with throughout the course of this
`trial, I won't hesitate to give the jury an appropriate
`instruction along the lines of what Mr. Findlay has
`requested.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 9 of 53 PageID #: 13630
`
`9
`
`I don't think we're there yet, Mr. Findlay. I am
`closely monitoring this. I think it is something we should
`be sensitive to, and I won't let the Plaintiff take advantage
`of that.
`
`So, Mr. Beaber, I would request you be sensitive to
`that and stick to the facts.
`MR. BEABER: Absolutely, Your Honor. Thank you.
`THE COURT: All right.
`MR. FINDLAY: Thank you, Your Honor.
`THE COURT: Very well.
`Let's have the jury brought in.
`MR. LEVY: Your Honor, just with all respect, I was
`asked to be here this morning. I will be here for the
`examination of Dr. Kennedy. I'm handling the
`cross-examination, but --
`THE COURT: I did ask for you to be here, Mr. Levy,
`only because you were absent from the courtroom yesterday
`afternoon. I had a very pleasant conversation with
`Ms. O'Connell in your absence.
`I suspect your colleagues have informed you about
`what my concerns are with respect to the jury instructions,
`and I'm sure, when you finish your responsibilities today;
`you will turn right to that.
`MR. LEVY: I will.
`And I did notice -- I read the transcript, saw
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 10 of 53 PageID #: 13631
`
`10
`
`opposing counsel couldn't stop saying my name. But if it's
`all right, I'll step out and get back to work, and then I'll
`be back here --
`THE COURT: That's fine. As long as you all really
`do have a sitdown tonight on the jury instructions and work
`through those to the extent you can and narrow the disputes,
`I think that will make it more productive.
`MR. LEVY: We did send them a revised draft Sunday
`with substantially narrowed disputes --
`THE COURT: Okay.
`MR. LEVY: -- and I understand Ms. O'Connell wants
`to talk today at lunch.
`THE COURT: So you all do that. Get us a draft
`tomorrow, and my guess -- my preference would be for you all
`to get us your final draft tomorrow, and we'll take a look at
`it. And then depending on the narrowing of the disputes,
`we'll either do the charge conference tomorrow night or I'll
`just let you put your objections on the record on Friday
`morning.
`
`MR. LEVY: Thank you, Your Honor.
`THE COURT: Fair enough?
`Okay. Ms. Cary.
`COURT SECURITY OFFICER: All rise for the jury.
`(Jury in.)
`THE COURT: Please be seated.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 11 of 53 PageID #: 13632
`
`11
`
`Ladies and gentlemen of the jury, welcome back and
`thanks for being here a little early so we can get a head
`start on the day.
`When we concluded last evening, Mr. Andrews was on
`the witness stand, where he is again this morning, and
`Mr. Beaber was cross-examining him.
`So, Mr. Beaber, at this time, you may continue.
`MR. BEABER: Thank you, Your Honor.
`Good morning, ladies and gentlemen of the jury.
`SCOTT ANDREWS, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
`CROSS-EXAMINATION (CONTINUED)
`
`BY MR. BEABER:
`Q.
`Good morning, Mr. Andrews.
`A.
`Good morning.
`Q.
`So have you worked for ZTE previously?
`A.
`I believe I served on a case briefly with Pillsbury that
`was on behalf of ZTE. I'm not sure which entity of ZTE.
`Q.
`Okay. So same counsel, same company, though, correct?
`A.
`Yes.
`Q.
`And so you'd like to do work for ZTE and Pillsbury in
`the future, correct?
`A.
`If the need arises.
`Q.
`They're a repeat customer of yours, so you would like to
`do work with them in the future, right?
`A.
`Sure.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 12 of 53 PageID #: 13633
`
`12
`
`So it's helpful for you to say things that support their
`Q.
`case, correct?
`A.
`That's not my job in this case. My job is to say what
`my opinions are about the facts that I observed.
`Q.
`Sure. Let's turn to the patent.
`MR. BEABER: Can we pull up Figure 3?
`Thank you.
`Q.
`(By Mr. Beaber) Now, on your direct, you showed the jury
`Figure 1 of the '317 patent.
`Do you remember that?
`Yes, I do.
`A.
`You didn't show them the figures here, Figure 3C, D, E,
`Q.
`and F. That's correct, right?
`A.
`That's correct.
`Q.
`Don't these figures look a lot more like the AT&T
`Navigator application?
`A.
`Well, these figures, in my opinion, pertain to claim 15
`and 17, which involve a route, not simply pointing the
`direction.
`Q.
`This is navigation information here in Figure 3, right,
`from a present point to a destination; is that correct?
`A.
`It's a route.
`Q.
`A route from the present place to the destination; is
`that fair?
`A.
`It's a route from the present place, it's a set of
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 13 of 53 PageID #: 13634
`
`13
`
`directions, and it's a route from the present place to the
`destination, yes.
`Q.
`So is that a "yes"?
`A.
`Yes.
`Q.
`So, if you can answer yes or no to a question, I would
`appreciate that. Your counsel is going to be able to come up
`here and ask you additional questions. I want to make sure
`that we're clear on that. Is that okay?
`MS. BJURSTROM: Your Honor, I would just, again,
`ask that Mr. Andrews be allowed the same courtesy we allowed
`their witnesses to explain an answer and not to be confined
`to a yes or no.
`THE COURT: He's certainly not going to be confined
`to a yes or no, but I think, like other attorneys in
`cross-exams throughout this trial, I've let them ask the
`witness to answer as narrowly as possible; and if it can be
`answered in a yes or no, to comply in that regard. So the
`rules will be the same.
`MR. BEABER: Thank you, Your Honor.
`(By Mr. Beaber) Now, yesterday we talked a little bit
`Q.
`kind of to the core of your opinion, this orientation of
`pointing the device in the direction.
`Do you remember that?
`I remember that.
`Okay. Have you reviewed U.S. Patent No. 6,430,498?
`
`A.
`Q.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 14 of 53 PageID #: 13635
`
`14
`
`I don't recall whether I read it in detail.
`A.
`Okay. Do you understand that that is the parent patent
`Q.
`to the '317 patent?
`A.
`I believe that's right.
`Q.
`And what does it mean to be the parent patent?
`A.
`It means that this patent was one of the originally
`filed patents with the same application, but it's -- came
`before it.
`Q.
`Right. So if you look at the patent, the specification,
`the inventors, et cetera, are the same between the '317
`patent and the '498. The difference is in the claims. Is
`that fair to say?
`A.
`That's right.
`Q.
`And the parent patent, the '498, that's the earlier
`patent, right? That's the first patent here.
`A.
`I would assume so, since '317 is a continuation of '498.
`Q.
`Right. And we talk about the '317 as the child; is that
`fair?
`A.
`That's fair.
`Q.
`So the '498 was the first patent. The '317 came
`sometime after. But everything in the patent is identical
`between the two patents except for really the claims.
`A.
`That's how I understand a continuation.
`Q.
`Okay. Can we -- can we take a look at claims 2, 6, 11,
`and 12 of the '49- -- oh, here we go. Here we go.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 15 of 53 PageID #: 13636
`
`15
`
`So you see each one of these claims, right? And in
`those claims it specifically claims the direction pointed by
`the tip of the portable terminal, right, each one of these
`claims?
`A.
`Yes.
`Q.
`Thank you.
`And you can't -- you can't double patent
`inventions, correct? This couldn't be claimed in the '317
`patent because it was already earlier claimed in the '498
`patent; is that correct?
`A.
`That's correct.
`Q.
`So this pointing of the tip, the directions that you're
`talking about, that looks very similar to what's in the '498
`patent, not the '317 patent, correct?
`A.
`Well, I think you'd have to compare the claims
`side-by-side so that you could see the subject matter of the
`'317 patent claims that we're talking about. It is probably
`related but maybe doesn't cover the same exact details.
`Q.
`Absolutely. Thank you for that.
`Let's -- okay. Let's turn to your videos real
`
`quick.
`
`So --
`MR. BEABER: Could we pull it --
`(By Mr. Beaber) Okay. So this is -- these are three
`Q.
`screenshots of the video that you played for the jury
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 16 of 53 PageID #: 13637
`
`16
`
`yesterday. I believe it's DPX15.
`And the image on the left was at 17 seconds. The
`image in the middle of the screen was at 1 minute. And the
`last image here was at 1 minute and 16 seconds of -- of that
`video that you showed the jury.
`Now, do you see that interesting warning message at the
`bottom of the screen: Unable to reach server. Please try
`again later?
`A.
`Yes.
`Q.
`You didn't identify that to the jury at all during
`this -- this video, did you?
`A.
`No. It wasn't relevant.
`Q.
`Okay.
`MR. BEABER: Can we turn to the next slide?
`(By Mr. Beaber) Isn't it true that when you were walking
`Q.
`that route, you were under a steel awning?
`A.
`Yes, I was.
`Q.
`And you're a GPS expert, right?
`A.
`Yes.
`Q.
`And what happens when you're, say, in a parking garage
`with your navigation or under a steel awning or inside? You
`don't get a good signal, do you?
`A.
`Well, I think that's accountable for why at the
`beginning of the second video it showed me slightly off the
`route, and then it put me on the route.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 17 of 53 PageID #: 13638
`
`17
`
`All kind of delays. You even got the error messages
`Q.
`that confirmed that there were issues. Don't you think if
`you wanted to take a video that was accurate, you would have
`been in a wide-open space, not under a steel awning?
`A.
`Yeah. Inability to reach the server isn't a result of
`being under the awning. It's a fact that the server wasn't
`available. The application doesn't need the server to
`operate in this form.
`Q.
`I think it's pretty clear there was something going on
`here to get all of these error messages. Is that safe to
`say?
`A.
`No. I've gotten this error message when I've been
`walking under clear skies. It comes up all the time.
`Q.
`All the time?
`A.
`Yeah.
`Q.
`So a glitch in the application?
`A.
`Could be.
`Q.
`Maybe it needed to be updated like Dr. Caloyannides
`said, right?
`A.
`Could be. But this is the application that comes with
`the phone, so this is the one that's accused.
`Q.
`All right. Let's -- at the bottom here we have a red
`box around a car.
`Were you in walking navigation mode or car mode?
`I was in walking navigation mode. It's interesting. I
`
`A.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 18 of 53 PageID #: 13639
`
`18
`
`have to put the phone into pedestrian mode, but when I do
`that, it -- when I go to do the route, it says drive, and
`everything else about it is associated with cars. You know,
`what can I say.
`Q.
`Another glitch in the system?
`A.
`Could be.
`Q.
`You need to update that version maybe, right?
`A.
`But this is the version that comes with the phone, and
`this is the version that's accused.
`Q.
`With the phone --
`A.
`The updated version --
`Q.
`I'm sorry. Please.
`A.
`No.
`Q.
`With the version that you purchased. You're not -- you
`can't confirm that the version that Dr. Caloyannides
`purchased didn't have a different version number on it,
`right?
`A.
`Well, Dr. Caloyannides isn't quite sure what he did.
`Q.
`But you could have confirmed this with your client, ZTE
`Corporation or ZTE USA, that there was only one version, and
`you didn't do that, did you?
`A.
`I did the best I could. I bought one phone in December.
`I bought another phone from a different company --
`Q.
`That wasn't the question. Did -- you didn't ask them --
`MS. BJURSTROM: Your Honor, he's interrupting the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 19 of 53 PageID #: 13640
`
`19
`
`witness.
`
`Q.
`
`THE COURT: Mr. Beaber, give him a chance to get
`his -- get his sentence out.
`Q.
`(By Mr. Beaber) Sorry.
`A.
`Bought the other phone six months later from Amazon, and
`it still has the same version. That's my -- those are my
`data points.
`No, I didn't ask ZTE.
`Thank you. That was the question. Perfect.
`You also made another video that was provided to us
`by Pillsbury, but you never showed that to the jury
`yesterday. It was DPX0005, in which you -- you took a turn,
`rotated the phone. Do you recall that?
`A.
`Yeah.
`Q.
`Okay. Now, what I'd like to do here is -- is to -- is
`to play this clip, and I'd like to put it next to the -- the
`video that Dr. Caloyannides took on his version basically
`doing the same turn.
`So these are side-by-side videos. Yours is on the
`left here, the DPX0005. Dr. Caloyannides is on the right,
`and it's PDX007 (sic).
`MR. BEABER: And, for the record, DPX0005 we're
`going to play from about 45 seconds to 55 seconds. And for
`PDX27, we're going to go from a minute 10 to a minute and 20.
`That's just so we see the same turn that both Mr. Andrews and
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 20 of 53 PageID #: 13641
`
`20
`
`Dr. Caloyannides took so we can see the functionality. And
`we're going to identify this side by side as PDX43.
`Please, Mr. Ebersole.
`(Videoclip played.)
`(By Mr. Beaber) Now, that functionality looks almost
`Q.
`identical, right, other than the timing? Took a turn.
`Orientation changed on the phone. Map switched underneath,
`correct?
`A.
`Could you back it up to where I turned? Just back it up
`a little more from where it is on my side.
`MR. BEABER: Can you replay both of them at the
`same time, Mr. Ebersole?
`(Videoclip played.)
`So you'll notice that when it -- when my phone turns,
`A.
`just before it turns, look in the upper left corner. I'm 56
`feet from that turn, according to this. I don't know where
`Dr. Caloyannides was, but I was a long -- a lot farther away.
`If you'll look at the distances on the two, Dr. Caloyannides'
`turn is about 9 feet.
`Q.
`(By Mr. Beaber) And maybe it's because yours was saying
`update the server, can't connect to the server. There's
`delays in this GPS system, right? It's based on how good the
`signal is in the GPS, correct?
`A.
`Could be. I mean, I think that's an important point.
`This turn in the display is based on the fact that it thinks
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 21 of 53 PageID #: 13642
`
`21
`
`that I'm at the turn in the route, not because I've turned
`the phone. And so it's actually trying to follow the blue
`line even if I don't turn. And that's not what the claim is
`about.
`Q.
`I'm glad you think it's an important point because it's
`a very important point. GPS signals have delays in certain
`circumstances, and I think some of that has to do with where
`you are and whether you're getting a strong signal versus
`getting a weak signal, correct?
`A.
`No. Actually, GPS doesn't have delays of that type. It
`has to do with how accurate the position is.
`In the case -- in my case it probably didn't have
`that great a fix, and so it thought I was at that turn before
`I got to the turn. And then it turned the phone display
`because that's what it does. It turns the phone display to
`follow the blue line, not because I changed the direction of
`the phone.
`Q.
`You've had this problem before, right? You've been in a
`big city, tall buildings, and you drive-thru those tall
`buildings. Your GPS doesn't move at all because you're not
`getting a signal. That's happened to all of us, right?
`A.
`Sometimes.
`Q.
`So it does, yeah. Thank you.
`Okay. I want to do this one more time with a
`different portion of these same videos.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 22 of 53 PageID #: 13643
`
`22
`
`Now, you understand that -- that that turn, the
`orientation, is one of a number of different infringing --
`ways that the ZMAX 2 phone infringes pursuant to
`Dr. Caloyannides' expert opinion, correct?
`A.
`According to Dr. Caloyannides' understanding, yes.
`Q.
`Sure. So I want to show you one of the other ways. And
`I think you know one of the other ways that he believes the
`phone infringes is that when you take the phone and it is in
`portrait -- you have it in portrait mode and you turn it so
`it's sideways in landscape mode, the complete orientation of
`the map and everything changes. You understand that's one of
`his expert opinions, correct?
`A.
`I understand that. I disagree with it, but --
`Q.
`Sure. But I want to show the video of that with, again,
`your version on the left and his version on the right.
`MR. BEABER: And, for the record, DPX005, we're
`going to go from a minute 45 to a minute 55.
`And with PDX27, we're going to go from a minute 45
`to a minute 57.
`And we're going to identify the side-by-side as
`
`PDX44.
`
`(Videoclip played.)
`(By Mr. Beaber) The timing is a little off there, but it
`Q.
`looks like when both of you guys twisted the phone, the
`complete map shifted. You saw different things on the wider
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 23 of 53 PageID #: 13644
`
`23
`
`horizontal axis than you did on the vertical axis, yes or no;
`is that correct?
`A.
`You see different things because the map is truncated
`because you're cutting off the top and bottom.
`But, you know, I would point out that the patent
`talks about the direction being the leading edge of the
`display. And that leading edge changes when you turn it
`sideways. The side is now the leading edge. It's still
`aimed in the direction you're going.
`The display has rotated on the screen, but you
`haven't actually changed the direction of the phone. You're
`going this way, you have the top of the screen. You're going
`this way, you have the top of the screen. It's still in the
`same direction.
`Q.
`Are you talking about the tip -- the pointing tip of the
`phone? Is that the '498 patent again you're talking?
`A.
`I'm talking about what the patent describes at Column 4,
`Line 25, about what it means by the direction. And it means
`that the direction is the direction that the phone is facing,
`the --
`Q.
`Is pointing?
`A.
`The direction that the phone is pointing or the leading
`edge of the display.
`MR. BEABER: Can we go back to the claims of the
`4 -- '498 patent real quick?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 24 of 53 PageID #: 13645
`
`24
`
`(By Mr. Beaber) You mean something like this, the:
`Q.
`Direction pointed by the tip of said portable terminal.
`Is that what you're talking about?
`That is one way of saying it, sure.
`Thank you very much.
`One last question. How was the lasagna pizza at
`
`A.
`Q.
`
`Joe's?
`A.
`I didn't have time to go -- to actually go there. Is it
`good? Okay. I'll have to go.
`Q.
`You missed out. You missed out.
`MR. BEABER: Thank you, Your Honor. No further
`questions.
`
`REDIRECT EXAMINATION
`
`BY MS. BJURSTROM:
`Q.
`Good morning, Mr. Andrews.
`A.
`Good morning.
`Q.
`So why don't I just start real quick with where
`Mr. Beaber left off.
`He's talking about these tips of the phone
`references in the claims of the '498 patent, sir. Isn't
`another reason -- another possibility that this is just
`another reason why the '317 patent is invalid?
`A.
`Certainly could be.
`Q.
`Uh-huh.
`The two videos, the side-by-side videos that he
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 25 of 53 PageID #: 13646
`
`25
`
`showed to this jury, is there anything about those that in
`any way changes your opinions in this case?
`A.
`Absolutely not.
`Q.
`Thank you. Okay.
`MS. BJURSTROM: Let's go ahead and pull up --
`actually, Your Honor, we need to seal the courtroom at this
`point.
`
`THE COURT: Okay. The courtroom will be sealed at
`this time.
`(Courtroom sealed.)
`(This portion of the transcript is sealed and filed
`under separate cover as Sealed Portion No. 23.)
`(Courtroom unsealed.)
`MS. CUNNINGHAM: Can I continue?
`THE COURT: You may.
`MS. CUNNINGHAM: And if we could go to Slide 2,
`
`please.
`Q.
`(By Ms. Cunningham) Dr. Wolfe, could you please describe
`for us your education starting after high school?
`A.
`Sure. I have a bachelor's degree in electrical
`engineering and computer science that I got in 1985 from
`Johns Hopkins.
`Then in 1987, I got a master's degree in electrical
`engineering and computer engineering from Carnegie Mellon in
`Pittsburgh.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 5:16-cv-00179-RWS Document 243 Filed 07/02/18 Page 26 of 53 PageID #: 13647
`
`26
`
`And then in 1991, I completed the work for a Ph.D.
`that was awarded in 1992 again at Carnegie Mellon in
`Pittsburgh in computer engineering.
`Q.
`Thank you.
`Sir, while you were getting your Ph.D., did you
`also do some work in the real world?
`A.
`I did.
`I had been working since college in developing
`technology for touchscreens. I worked on the first tablet
`computer that was commercially sold and on a number of
`different touchscreens for places like Sears and McDonald's
`and UPS.
`
`And in 1989, I had the opportunity to start my own
`touchscreen company with a former boss, and we opened a
`factory outside of Austin and eventually had a hundred
`employees and built touchscreens there based on signatures
`and technologies that I had designed in my patents.
`Q.
`Okay. Have you also been a college professor?
`A.
`Yes. So in 1991 when I left Carnegie Mellon, I went to
`Princeton University. I taught
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
