Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 1 of 81 PageID #: 13675
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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
` ) 1:03 p.m.
`ZTE USA, INC. June 27, 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
` ) 1:03 p.m.
`ZTE USA, INC. June 27, 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 244 Filed 07/02/18 Page 2 of 81 PageID #: 13676
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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 244 Filed 07/02/18 Page 3 of 81 PageID #: 13677
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`P R O C E E D I N G S
`(Jury out.)
`COURT SECURITY OFFICER: Please rise for the jury.
`(Jury in.)
`THE COURT: Mr. Barrow, you may cross-examine the
`witness.
`MR. BARROW: Thank you, Your Honor.
`ANDREW WOLFE, PH.D., DEFENDANT'S WITNESS, SWORN
`CROSS-EXAMINATION
`
`BY MR. BARROW:
`Q.
`Dr. Wolfe, welcome back.
`A.
`Good morning -- good afternoon.
`Q.
`Yeah. I thought it would be in the morning, too, so I
`understand.
`So just before we start, I'm going to get right
`into it. We're running short on time. So, you know, please
`try to keep your answers brief. Your counsel will have the
`opportunity to do a redirect and give you the opportunity to
`clarify anything you wish to clarify. Okay?
`A.
`I will do my best.
`Q.
`Thank you.
`Okay. So I listened to your direct testimony and,
`you know, I have to be honest, I'm a little bit confused
`because my understanding is that your initial position was
`that limitation 1(a) of the '794 patent was not practiced by
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 4 of 81 PageID #: 13678
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`ZTE's phones, but it sounds like your new opinion is that
`only limitations -- your -- your non-infringement opinions
`only pertain to 1(b) and 1(c).
`So could you please clarify that, what your current
`position is?
`A.
`Sure. In addition to what I discussed today, I have an
`additional reason why these phones don't infringe, and it
`is -- it is with respect to the term "function devices." It
`is both legally and technically complicated, so out of
`respect for the jury's time and the Court's time I didn't go
`into it today. But I can explain it if you like. It is
`complicated.
`Q.
`So I actually have some questions on that, so I think we
`actually might get into that a little bit.
`MR. BARROW: Mr. Ebersole, could you please bring
`up the cross slides that -- that we prepared.
`Q.
`(By Mr. Barrow) Okay. So, Dr. Wolfe, this is one of the
`first slides that you talked about. This shows the claim
`constructions that you followed, right?
`A.
`Yes.
`Q.
`Would you agree with me that these claim constructions
`represent the rules of the game, so to speak?
`A.
`Well, some of them. As I said before, this is the
`Court's instruction to us as to what certain words in the
`claim mean. And we use plain and ordinary meaning, as I
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 5 of 81 PageID #: 13679
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`explained before, for the other words, and -- and that's what
`I did.
`Q.
`You said "some of them." So are you saying that you
`followed some of the Court's constructions but not -- not all
`of them?
`A.
`No. I said that the Court construed some of the words
`in the claim --
`Q.
`And you followed those instructions --
`A.
`I'm sorry. And for the remaining words in the claim I
`used the plain and ordinary meaning in the context of the
`claim and specification.
`Q.
`Sir, did you follow the Court's constructions?
`A.
`Absolutely.
`Q.
`Okay. And so let's go to first, limitation function
`device. And the first rule is that the function device is
`required by claim 1 of the '794 patent, must have the
`structure of either a modem device, an audio communication
`device, a videophone device, or an equivalent thereof, right?
`Isn't that the rule?
`Yeah. But my understanding --
`That's not the rule?
`MS. CUNNINGHAM: Your Honor, I object to the extent
`Mr. Barrow is interrupting the witness's testimony.
`THE COURT: Give him a chance to respond.
`MR. BARROW: Absolutely, Your Honor.
`
`A.
`Q.
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 6 of 81 PageID #: 13680
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`A.
`
`Yes. As I said, this is complicated.
`My understanding is that in a 112(6) claim
`construction -- a means-plus-function claim construction --
`the Judge is pointing us to the structure that is disclosed
`in the patent.
`And so I -- when the Judge told us a modem device,
`my understanding was the Judge was telling us that it had to
`be the modem device that is disclosed in the patent or an
`equivalent thereof.
`Q.
`(By Mr. Barrow) And so you followed the Court's
`construction. This is Paragraph 137 from your
`non-infringement report. Do you recognize that?
`A.
`Yes.
`Q.
`Okay. And right here you're referencing the LCD display
`of the ZTE phones, and you state that: An LCD display with
`backlight is not a modem device, audio communication device,
`or videophone device.
`Do you see that?
`Yes.
`A.
`And so you're following the Court's construction.
`Q.
`You're following the rules here, right?
`A.
`In the report, yes.
`Q.
`Yes.
`You not following them today?
`Well, I didn't testify about this today, but I --
`
`A.
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`Q.
`A.
`Q.
`
`Okay.
`-- have been following them today as well.
`Okay. So you followed the rules.
`So this is Paragraph 139. Do you recognize this
`from your non-infringement report?
`A.
`Yes.
`Q.
`Okay. And here you're referring to the WTR4905
`transceiver. Dr. Phinney discussed that yesterday. And you
`state that this transceiver for voice calling and mobile data
`is not a modem device, audio communication device, or
`videophone device. Do you see that?
`A.
`Well, I say more: As those terms are used in the '794
`patent.
`Q.
`Right. You say that.
`And so the language I've highlighted here, this --
`this is language from the Court's construction, right, modem
`device, audio communication device, videophone device.
`A.
`Yes.
`Q.
`Okay. So you followed the construction here?
`A.
`As I understood it, yes.
`Q.
`Yes.
`But here you don't. Here you break the rule. So
`here you're talking about the Bluetooth and WiFi modems, and
`you say -- you say they're not audio communication devices.
`You say they're not videophone devices. But instead of modem
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 8 of 81 PageID #: 13682
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`devices, you say landline telephone modems, so you're
`breaking the Court's rule, aren't you?
`A.
`No. Because in my report I explain this very clearly.
`First I use the term "modem device," and then I explain in
`the report my understanding of what a modem device was as
`disclosed in the patent and at the time. And I discuss
`whether or not that type modem device is present or its
`equivalent. And I go into detail.
`Q.
`So here is the Court's claim construction, and here's
`the structure portion of that, modem devices, audio
`communication devices, videophone device, and equivalents
`thereof. Doesn't say "landline telephone modem," does it?
`A.
`It does not say those words.
`Q.
`"Landline" doesn't appear in the construction, right?
`A.
`That's true.
`Q.
`"Landline modem" -- or "landline telephone modem," those
`words don't appear in the patent, do they?
`A.
`No. The actual phrase in the patent is "modem in a
`notebook computer."
`And as I explained, again, in my report a person of
`ordinary skill would understand that to be a landline modem
`at the time because that's the kind of ordinary modem that
`was ordinarily used at the time.
`Q.
`"A landline telephone modem," those are your words,
`right? They're not from the patent. You replaced -- you
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 9 of 81 PageID #: 13683
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`crossed out part of the Court's construction, and you
`provided your own construction, right? You made up your own
`rule?
`A.
`Absolutely not. I explained my understanding of the
`Court's construction and what I thought it meant at the time.
`Q.
`And so here's the language I think you're referring to
`from the patent. It says "modem functions in a notebook
`computers." Is that what you were referencing?
`A.
`Yes. That is the only mention of a modem that I'm aware
`of in the patent.
`Q.
`Doesn't say "landline telephone modem," it just says
`"modem functions in a notebook computer," right?
`A.
`That's true. Those are the words.
`Q.
`Okay. And so what are these things?
`A.
`Well, I'm not familiar with all of them, and I'm not
`familiar with the names of all of them, but they are wireless
`communication devices. They were very unusual devices at the
`time, and I -- and I'm going to be right up front.
`There were places in the literature and in
`specialized devices where the word "modem" was used with
`wireless communications in 2000. It simply wasn't the
`ordinary meaning of the word the way an ordinary person would
`use it, and I was chief technology officer of a modem company
`at the time.
`Q.
`You're a person of ordinary skill in the art, right?
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`Yep.
`A.
`You have that in your report. You're a person of
`Q.
`ordinary skill in the art?
`A.
`Yep.
`Q.
`Well, I'll represent to you that I'm not.
`A.
`Okay.
`Q.
`Okay?
`And so I pulled these from a simple Google search.
`Typed in "wireless modem pre-2000," all this stuff came out.
`I couldn't fit it all on the page. I just have seven here.
`And this is what I got.
`Wouldn't that seem to indicate that these were --
`these were pretty well-known, that these were widely
`available wireless modems in 2000, 1999, 1998, 1997?
`A.
`I don't know what you searched, and I don't know where
`the documents were from. I will tell you I did the same
`search, and I found a few obscure things, but I didn't find
`as many things that were called "modems" in their own
`documentation at the time.
`But I will accept that -- that it's possible that
`there were things that were called "modems" that were
`wireless at the time. It just simply wasn't the ordinary
`meaning.
`Q.
`My search looks pretty good then, huh, I guess?
`A.
`I was --
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`Q.
`
`Better than yours.
`So if these are -- these were pretty well-known,
`wouldn't it stand to reason that a person of ordinary skill
`in the art would have known about these wireless modems in
`2000, 1999, 1998, 1997?
`A.
`I'm not sure that these were pretty well-known, but --
`at that time.
`But, as I said, it was not a normal word for people
`to use for a wireless function in a notebook computer at the
`time. But it was a word that was occasionally used for radio
`products at the time.
`Q.
`It's not the word that comported with the
`non-infringement position that ZTE wanted you to take, right?
`A.
`Well, first place, ZTE never told me what
`non-infringement position to take.
`Q.
`Well, you knew what they wanted.
`A.
`They wanted me to review the evidence and do a good job
`is what they told me to do.
`But other than that, I never discussed it with
`them. I simply explained what I thought the ordinary meaning
`of the word "modem" was at the time.
`Q.
`Okay. And you ignored all this stuff.
`A.
`I didn't ignore it. I took it into consideration.
`Q.
`Let me ask -- because -- because this isn't the first
`time we've met, right? I deposed you a few months ago?
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 12 of 81 PageID #: 13686
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`Right.
`A.
`And you remember at that time you said you couldn't
`Q.
`recall any wireless modems around the time the '794 patent
`was filed. Do you remember that?
`A.
`I think I was a little more ambiguous than that. I
`think I said that I couldn't remember -- that WiFi came
`around just about that time, and I couldn't remember whether
`they were just before or just after, but that in my
`experience people of ordinary skill didn't usually call them
`modems at the time.
`Q.
`Sir, I'm going to hand you a binder --
`MR. BARROW: Permission to approach the witness,
`Your Honor?
`THE COURT: Yes.
`(By Mr. Barrow) Okay. Dr. Wolfe, I've handed you a
`Q.
`binder that includes your non-infringement report. It also
`includes a copy of your deposition transcript. Do you see
`those two documents there?
`A.
`Yes.
`Q.
`I'd like you to turn to Page 82 and take a look at
`Lines 2 through 9 for me and tell me if that refreshes your
`memory as to what I asked you and what you testified about
`wireless modems.
`A.
`Yes. I think it makes more sense in the context of some
`of the earlier testimony, but, yes, that was the accurate
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`testimony.
`Q.
`What I represented?
`A.
`No, no. What I said. Can I read the testimony?
`MR. BARROW: Your Honor, may he read the testimony?
`THE COURT: You may.
`QUESTION: Are you aware of any wireless modems
`that existed in 2000?
`ANSWER: Not off the top of my head. There could
`have been, but, again, that would have been a very
`specialized usage. I'm not aware of one that was built into
`a notebook computer, and I don't think that's what the '794
`was referring to when it talked about a modem.
`Q.
`(By Mr. Barrow) Okay. So this -- my question wasn't
`about WiFi; it was about wireless modems. It wasn't about a
`particular wireless standard, right?
`A.
`Correct.
`Q.
`When you were mentioning WiFi, you were referring to
`802.11. It was a -- that's a specific standard. But here
`I'm asking you about wireless modems in 2000, and you
`couldn't recall any off the top of your head.
`A.
`Right. But I said there could have been some.
`Q.
`There could have been. And now we have some. We have
`many, right?
`A.
`Yes.
`Q.
`Okay. So do you acknowledge that these are wireless
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`modems on the screen?
`A.
`I'm not familiar with them, but I certainly can't deny
`that.
`Q.
`You can't deny that they're wireless modems.
`In view of that, would you like to change your
`testimony or your position with respect to whether a WiFi
`modem or Bluetooth modem qualifies as a function device?
`A.
`No.
`Q.
`No. Okay.
`All right. So that was our first rule. Here's
`another rule. The Court issued a construction that remaining
`capacity of said battery means remaining charge stored in the
`battery.
`
`Did you follow that rule?
`I did. When? Today when I testified in court?
`A.
`I'm just asking if you followed the rules.
`Q.
`Well, this was a very recent claim construction.
`A.
`Right.
`Q.
`This was provided to us very recently by the Court. But
`A.
`in Dr. Phinney's report, it was very clear that this is what
`he thought it meant.
`So when I responded to Dr. Phinney's report, I both
`said what I thought it meant, and I also responded taking his
`position into consideration. I did both.
`Q.
`You mentioned what you thought it meant, and what you
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`thought it meant was that it referred to the size of the
`tank. Not the amount of charge left, but the size of the
`tank, right?
`A.
`I said that was the plain meaning. The Court's given us
`a construction based on the law since then, and I've applied
`it, and I considered it in my report.
`Q.
`Have you ever seen a fuel gauge in a --
`MS. CUNNINGHAM: Objection, Your Honor.
`Could we have a sidebar, please?
`THE COURT: Yes.
`(Bench conference.)
`MS. CUNNINGHAM: Your Honor, I'm concerned that
`he's using the report to try to impeach the witness's
`application of the construction that did not issue until
`after the report.
`MR. BARROW: I'm only asking the witness about a
`portion of his report, the position he previously took.
`I'll note that during the examination -- the
`cross-examination of Dr. Phinney, there were various aspects
`of that report which weren't -- that he provided that were
`consistent with other potential claim constructions. And so
`all that came in. I think it's only appropriate to ask a few
`questions to --
`THE COURT: Is that right?
`MS. CUNNINGHAM: Your Honor, he applied both
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`Dr. Phinney's construction and his construction in his
`report. Your Honor issued the claim construction which
`matched Dr. Phinney's essentially in the last two weeks.
`MR. BARROW: Your Honor, there's various questions
`on GPS, haptic, sensors and things that, frankly, weren't
`pertinent. They questioned Dr. Phinney on the positions that
`he set forth in his report before there was a claim
`construction order. It's the exact same issue. That's --
`they were permitted to question him on that. I --
`THE COURT: Okay. I'm going to give him a little
`bit of latitude.
`MR. BARROW: Thank you, Your Honor.
`(Bench conference concluded.)
`(By Mr. Barrow) Dr. -- Dr. Wolfe -- I'm so used to
`Q.
`saying Dr. Phinney.
`Dr. Wolfe, have you ever seen a fuel gauge in a car
`that tells you, for instance -- if you have a 15-gallon tank,
`and it just magically happens to shrink to 14.9 gallons, that
`it tells you that that happened? Have you ever seen a fuel
`gauge like that?
`A.
`Not on a gasoline car, but on electric cars that use
`batteries, they do have that.
`Q.
`That tells you that the size of the tank shrunk?
`A.
`Well, no, the capacity -- total capacity of the battery
`system.
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 17 of 81 PageID #: 13691
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`So you see this slide here. So this is the fuel tank.
`Q.
`Have you ever seen a fuel gauge that would tell you if that
`somehow magically shrinks a little bit?
`A.
`Not on a gasoline car, no.
`Q.
`But that's basically what your previous construction
`was, right?
`A.
`No. It was about batteries.
`Q.
`It was about batteries. So let's apply it in the
`context of a notebook computer. That seems to be what you
`want to talk about.
`So on a notebook computer, sometimes you see a
`little battery icon, correct?
`A.
`Correct.
`Q.
`And that's referring to the charge remaining in the
`battery, not the maximum capacity -- not the maximum capacity
`of the battery.
`A.
`Yeah. It depends where you look, but the one that they
`show you every day is -- yes -- is the charge that's
`remaining in the --
`Q.
`I mean, the one we all see every day, the one everyone
`is familiar with.
`A.
`That's right.
`Q.
`Okay. And so would it be fair to say that you agreed
`with the Court's construction before you -- before you agree
`with it, you want -- that wasn't your position, right?
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 18 of 81 PageID #: 13692
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`We're getting into some real legal issues here, but I
`A.
`expressed what I thought the plain meaning of the words were.
`The Court ruled recently on what the meaning in the
`claim is, and I accept the Court's judgment, and I've applied
`it today. And as I look back in my report, I understood that
`that was Dr. Phinney's position, and I took it into
`consideration, and I responded to it.
`Q.
`You had no choice but to accept the Court's guidance,
`right?
`A.
`Absolutely.
`Q.
`Rules are rules.
`Okay. So here's something that's not a rule. I
`hope we can agree on this. There's no claim construction
`ruling that the preamble is limiting, right?
`A.
`Correct.
`Q.
`Right? This wasn't construed.
`A.
`Correct.
`Q.
`So that means, you know, any attempt to say that an
`information processing device has to be a notebook computer
`and might exclude mobile phones or smartphones, that --
`that -- there's no rule prohibiting mobile phones and
`smartphones from qualifying as information processing
`devices, right?
`A.
`That's right. I don't think I ever said there was.
`Q.
`Do you understand that ZTE has -- took that position in
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 19 of 81 PageID #: 13693
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`their opening statement?
`A.
`No. I don't remember them ever saying that other kinds
`of devices were prohibited.
`Q.
`Have you seen this slide before?
`A.
`Sure.
`Q.
`Were you present during Dr. Phinney's direct testimony,
`cross-examination, and redirect? Were you present there?
`A.
`Yes.
`Q.
`And you heard him talk about this?
`A.
`I did. I also heard the opening when this was
`discussed.
`Q.
`Right. And are you -- is it your position that the
`claims of the '794 patent are limited to this type of thing,
`a notebook computer connected to two auxiliary devices?
`A.
`No. I don't think anybody has ever said that.
`Q.
`I think ZTE's counsel said that.
`But just to be clear, so you would disagree with
`that position, right?
`A.
`I haven't heard anybody make that position. I didn't
`hear ZTE's counsel say limited.
`Q.
`Okay. So let's go back a little bit.
`Would you agree with me that an information
`processing device can include a wireless device?
`A.
`Absolutely, as long as it processes information.
`Q.
`Right. Exactly. And the patent talks about that. You
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 20 of 81 PageID #: 13694
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`can have a wireless information device, like a phone, that
`qualifies as an information processing device, right?
`A.
`It would depend on what kind of phone, but certainly a
`smartphone like we're used to today is an information
`processing device.
`Q.
`Right. So the claims could cover smartphones, right?
`A.
`If they were designed to have all of the elements of the
`claims, then, conceivably, it could.
`Q.
`And this portion of the disclosure -- I'm not going to
`belabor it, but you see where it says wireless information
`device, and that's in the context of Figure 2? This is from
`the '794 patent.
`Do you see that?
`Yes.
`A.
`Okay. So here's Figure 2, and you see the function
`Q.
`device is there inside the information processing device,
`right?
`A.
`In this drawing, yes.
`Q.
`Well, the patent covers a smartphone where the function
`devices are internal, right? Do you agree with me there?
`A.
`As long as it has all the elements of the claim.
`Q.
`Right. Yeah. We've got lots of elements.
`Okay. So -- okay. So I was listening to your
`testimony. The word "automatically" came up. I think you
`said that the power consumption reduction instruction has to
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 21 of 81 PageID #: 13695
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`be automatically issued. You said that, right?
`A.
`I don't think that's what I said. I think what I said
`is that when the controller controls the operation of said
`function devices based on said remaining capacity, that that
`describes an automatic operation. It has to be based on the
`capacity and not based on something else like a person
`flipping a switch.
`Q.
`But automatic, that word doesn't appear in the claim,
`does it?
`A.
`No. That's why I explained what words in the claim
`taught me that concept.
`Q.
`So you're sort of -- you're sort of interpreting the
`language there a little bit. You're putting "automatically"
`in there. That's not in the claim. It's not in any of the
`Court's claim constructions.
`A.
`No. I'm not putting --
`Q.
`That's your requirement, right?
`A.
`Can I answer the question, please?
`Q.
`Yes, please.
`A.
`I'm not putting it in the claim. I pointed the jury to
`the exact words in the claim, and I used it to explain the
`difference between what's taught in the patent where things
`happen in response directly to the battery remaining
`capacity, as opposed to something like the power saver mode
`where all you get related to battery capacity is a
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 22 of 81 PageID #: 13696
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`notification, and then you have to open up a control panel,
`and then you have to go to that control panel and make a
`decision and flip a switch, and at that point, the battery
`capacity doesn't matter anymore.
`Q.
`"Automatically" is your word. It's also maybe
`Ms. Cunningham's word. It's not the Court's word, is it?
`It's not the claim's word.
`A.
`It was my word to explain the claim language.
`Q.
`Okay. Okay. So you applied your own construction for
`function devices, and you see that that term is all
`throughout the claim. It's everywhere. It's in 1(a), 1(b),
`and 1(c).
`You disagreed with the Court's construction for
`remaining capacity of said battery, and that's in limitation
`1(b) and 1(c).
`ZTE apparently takes the position that information
`processing device means something other than an information
`processing device.
`So you add all this together, this is a very
`different claim, isn't it?
`A.
`I don't think any of the statements that you made are
`true. I applied --
`Q.
`So --
`A.
`-- the Court's claim construction for function devices.
`I applied the Court's construction for battery capacity as
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 23 of 81 PageID #: 13697
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`soon as the construction was issued, even though I had other
`opinions on that definition before.
`I also applied the eventual Court's construction in
`my report and discussed it. I didn't provide any opinion
`that an information processing device excludes a smartphone.
`So I disagree with all of your assertions.
`So you would agree that Dr. Phinney has opined that the
`Q.
`ZMAX 2's battery saver mode infringes, right?
`A.
`He did.
`Q.
`And also that the power saver mode infringes.
`A.
`Correct.
`Q.
`Okay. So let's start with the power saver mode.
`Now, you talked a lot about the user interaction,
`hitting the button, right?
`A.
`Among other things.
`Q.
`Right. And you were here during Dr. Phinney's
`testimony. Do you recall him stating that power saver
`doesn't save the user from himself?
`A.
`That's right. But it also doesn't perform the functions
`described in the claim.
`Q.
`So, if you don't hit that button, it's not going to go
`into power saver mode now, is it?
`A.
`That's right. If you don't hit the button, it's not
`going to go into power saver mode. And if you do hit the
`button, it doesn't go into power saver mode. If you hit that
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 24 of 81 PageID #: 13698
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`first button, it still doesn't go into power saver mode.
`Q.
`You hit another button -- so the user authorizes power
`saver mode, and then the controller -- the processor in the
`phone starts doing things, right?
`A.
`No. The user --
`Q.
`The processor doesn't do anything. The phone doesn't do
`anything. Nothing happens.
`MS. CUNNINGHAM: Objection.
`THE COURT: Hold on. Mr. Barrow, you have to let
`him answer.
`MR. BARROW: Yes, Your Honor.
`No. The processor selects the power saver menu from the
`A.
`message, and then the user can select to turn on or off power
`saver. And the controller, at that point, doesn't know why
`the user did it, and it doesn't check the battery capacity.
`So it can't be based on remaining capacity.
`Q.
`(By Mr. Barrow) Does the claim say anything about the
`user, one way or the other?
`A.
`No. But it does say that the controller has to perform
`functions based on said remaining capacity. And if the only
`functions that are identified by Dr. Phinney are based on the
`user's free will, without checking the battery capacity --
`without the controller checking the battery capacity at that
`time, then -- then I don't think that that meets the claim
`language.
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 25 of 81 PageID #: 13699
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`If I go into power saver mode -- let's say I'm connected
`Q.
`over WiFi, so I'm connected to a WiFi network. When you go
`into power saver, that connection is going to drop, right?
`A.
`If you manually turn on power saver mode, it will drop
`your WiFi connection.
`Q.
`It's going to drop the WiFi connection, so the -- would
`it be fair to say the WiFi modem is doing a little bit less
`after that, in that scenario?
`A.
`It may be moving less data.
`Q.
`Right. It's consuming less power?
`A.
`Well, we don't know. We'd have to -- we'd have to
`analyze it.
`Q.
`We'd have to analyze it. Okay.
`What's the purpose of turning off the WiFi modem in
`power saver mode?
`A.
`I assume that it's because it does sleep or -- we may
`actually be cutting the power to it, you know, Dr. Phinney
`hasn't identified any -- any actual evidence related to that,
`as to how it works. But certainly, it -- it's not because
`it's receiving an instruction based on said remaining
`capacity.
`Q.
`Now, you mentioned earlier the concept of background
`data. So it would be fair to say that when background data
`is restricted, things like the e-mail application, maybe like
`a weather application, those aren't spinning in the
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`Case 5:16-cv-00179-RWS Document 244 Filed 07/02/18 Page 26 of 81 PageID #: 13700
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`background at the same pace that they were before, or at all?
`A.
`We don't know necessarily that they're running, but
`they're not sending data back and forth when background data
`is restricted.
`Q.
`They're -- they're doing less stuff?
`A.
`They are doing less stuff.
`Q.
`They're consuming less power.
`A.
`The -- you mean the software applications?
`Q.
`I -- I'm saying the WiFi modem in that scenario.
`A.
`The WiFi modem probably consumes less power when you use
`it less.
`Q.
`Okay.
`A.
`I would think that's --
`Q.
`So it's consuming less power.
`So the phone enters that mode -- and this is in
`battery saver mode, right? This is the background data --
`background -- the restriction on background data that we're
`talking about. That -- that's in battery saver mode, right?
`A.
`Well, it's your question. But the one that I talked
`about in my testimony was in battery saver mo
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