Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 1 of 37 PageID #: 892
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CELLULAR COMMUNICATIONS * CIVIL ACTION NO. 6:13-cv-507
`EQUIPMENT LLC, *
` * CONSOLIDATED LEAD CASE
` Plaintiff, *
` *
`vs. *
` *
`HTC CORPORATION, ET AL., * Tyler, Texas
` * September 22, 2015
` Defendants. * 1:35 p.m.
`----------------------------------------------------------------
`CELLULAR COMMUNICATIONS * CIVIL ACTION NO. 6:14-cv-759
`EQUIPMENT LLC, *
` *
` Plaintiff, *
` *
`vs. *
` *
`SAMSUNG ELECTRONICS CO., LTD., *
`ET AL., * Tyler, Texas
` * September 22, 2015
` Defendants. * 1:35 p.m.
`----------------------------------------------------------------
`CELLULAR COMMUNICATIONS * CIVIL ACTION NO. 6:14-cv-982
`EQUIPMENT LLC, *
` * CONSOLIDATED LEAD CASE
` Plaintiff, *
` *
`vs. *
` *
`LG ELECTRONICS, INC., ET AL., * Tyler, Texas
` * September 22, 2015
` Defendants. * 1:35 p.m.
`----------------------------------------------------------------
`
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`REPORTER'S TRANSCRIPT OF MOTIONS HEARING
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`BEFORE THE HONORABLE K. NICOLE MITCHELL
`UNITED STATES MAGISTRATE JUDGE
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`APPEARANCES:
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`(SEE SIGN-IN SHEETS DOCKETED WITH THE MINUTES OF THIS HEARING.)
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 2 of 37 PageID #: 893
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`COURT REPORTER: BRENDA HIGHTOWER BUTLER, CSR
` Official Court Reporter
` Eastern District of Texas
` Texarkana Division
` 500 N. State Line Avenue
` Texarkana, Texas 75501
` 903.794.1018
` brenda_butler@txed.uscourts.gov
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`********************
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 3 of 37 PageID #: 894
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`seated.
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`P R O C E E D I N G S
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Good afternoon, everyone. Please be
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`Ms. Hardwick, if you would call the case, please.
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`COURTROOM DEPUTY: Court calls Civil Action
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`6:13-cv-507, Cellular Communications Equipment, LLC versus HTC
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`Corporation et al.; Case 6:14-cv-759, Cellular Communications
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`Equipment, LLC versus Samsung Electronics Company, Ltd., et
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`al.; and Case No. 6:14-cv-982, Cellular Communications
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`Equipment, LLC versus LG Electronics, Inc., et al.
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`THE COURT: All right. Announcements?
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`MR. HILL: Good afternoon, Your Honor. Wesley Hill
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`on behalf of the Plaintiff CCE. With me here today, Your
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`Honor, is Mr. Ed Nelson, our lead counsel.
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`MR. NELSON: Good afternoon, Your Honor.
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`MR. HILL: Brannon Latimer, who is also representing
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`CCE. And also with us, Your Honor, we have our client
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`representative on behalf of CCE Ms. Holly Hernandez.
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`THE COURT: Good afternoon.
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`MR. HILL: We're ready, Your Honor.
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`THE COURT: All right.
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`MR. NOTEWARE: Good afternoon, Your Honor. Daniel
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`Noteware. I'm here for Verizon, Samsung and LG. With me I
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`have Vicki Maroulis for Samsung. And also Michael Maas over at
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 4 of 37 PageID #: 895
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`counsel table for LG.
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`MS. MAROULIS: Good afternoon, Your Honor.
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`MR. MAAS: Good afternoon.
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`THE COURT: All right.
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`MR. KENNERLY: Your Honor, Chris Kennerly with Paul
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`Hastings for Defendant AT&T. I have with me my colleague Jeff
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`Comeau, and local counsel Dallas Tharpe with Yarbrough Wilcox.
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`MR. FINDLAY: Good morning, Your Honor -- good
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`afternoon, Your Honor. Eric Findlay and Mark Scarsi here on
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`behalf of Apple. And also from Apple, Marc Breverman. And
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`we're ready to proceed.
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`THE COURT: All right. Good afternoon.
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`MS. CUNNINGHAM: Good afternoon. Nicole Cunningham
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`on behalf of Defendants HTC and ZTE.
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`MR. LAMB: Good afternoon, Your Honor. Bobby Lamb on
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`behalf of T-Mobile.
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`MR. SOJOODI: Good afternoon, Your Honor. Emon
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`Sojoodi for Amazon. And with me is my colleague Ravi Ranganath
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`and our local counsel Jennifer Doan.
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`THE COURT: Good afternoon.
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`MS. MORAN: Good afternoon, Your Honor. Michelle
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`Moran on behalf of Kyocera Communications, Inc.
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`MR. WEBER: Your Honor, Bob Weber and Megan Redmond
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`on behalf of the Sprint and Boost Mobile Defendants. And we're
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`ready.
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`THE COURT: Good afternoon.
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`MS. ALFARO: Good afternoon, Your Honor. Natalie
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`Alfaro on behalf of Dell Inc. And with me here today is Roger
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`Fulghum and Tammy Rhodes, also for Dell.
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`THE COURT: Good afternoon.
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`MR. WERTZ: Ryan Wertz (spelled phonetically) and
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`John Denison (spelled phonetically) (inaudible).
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`THE COURT: Okay. Good afternoon.
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`MR. STEEBNBURG: And Mr. Charles Steenburg for
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`Sony -- for Sony Mobile Communications.
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`line.
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`THE COURT: All right. Well --
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`COURTROOM DEPUTY: And I think Mr. Park is on the
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`THE COURT: Oh, and we have -- Mr. Park, are you on
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`the line with us?
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`MR. PARK: Yes, Your Honor. This is Hae-Chan Park on
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`behalf of Pantech Wireless.
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`THE COURT: All right. Thank you.
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`Welcome, everyone.
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`We are here for a scheduling conference -- well, a
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`conference on a motion to amend the DCO and then various other
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`motions. I think we're going to save the scheduling for the
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`end and get to the merits of the motion that may or may not
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`impact our schedule.
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`So I would like to take up the motions to dismiss
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 6 of 37 PageID #: 897
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`first. And so whoever is ready to start with those, I am ready
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`to listen.
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`MR. COMEAU: Good afternoon, Your Honor. Jeff Comeau
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`for AT&T.
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`Now, we've got three motions to dismiss in front of
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`you. And AT&T is lucky enough to be in all three cases, so I'm
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`happy to address all three of them.
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`The motions to dismiss focus on CCE's contributory
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`infringement claims. You may be aware that there's a little
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`bit of history behind CCE's pleadings. There was a prior
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`motion that was before Judge Davis, and he granted those
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`motions in our favor with respect to the contributory
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`infringement claims and ordered CCE to amend.
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`Now, they amended, but they didn't fix the
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`deficiencies that Judge Davis identified. The allegations that
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`we're dealing with now are largely the same as what Judge Davis
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`found to be inadequate. What CCE did was add one sentence for
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`each new patent, supposedly identifying the -- the component
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`that they're accusing.
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`And I would like to focus on two elements of the
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`contributory infringement standard that they failed to meet.
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`First, they haven't identified a component with no
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`substantial non-infringing use. And, in fact, their pleadings
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`show the opposite. They focus on a component, such as the
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`baseband processor, and say when it's paired with software
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`instructions, then it's infringing and then it has no
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`non-substantial infringing use. But they also focus on the
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`baseband processor for another patent and say that it has a
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`different use.
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`And what they're trying to do is say that the
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`component only has a non-infringing -- excuse me. The
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`component has no substantial non-infringing use but only when
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`it's infringing. And the Federal Circuit has found that that
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`is not adequate. And that's the Bill of Lading case, laid out
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`in our -- in our briefs.
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`What's more, elsewhere in their pleadings, they --
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`when they're talking about induced infringement, their
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`allegations say that Defendants specifically instruct the --
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`their customers how to use their devices to infringe the
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`patents. And that actually supports the inference that the
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`components and the devices do have non-infringing uses.
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`Because if you have to instruct someone how to infringe, of
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`course, there must be other uses.
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`And finally, CCE -- the -- the next element that CCE
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`failed to -- failed to meet under the contributory infringement
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`standard, they didn't plead anything to show from which the
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`Court can infer that the components are a material part of the
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`invention. They just relied on straight boilerplate.
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`And so I think these -- these motions are relatively
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`simple, and I will pause there.
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 8 of 37 PageID #: 899
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`THE COURT: I anticipate what they're going to say
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`is, in our amended pleading, we didn't just say they were
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`material; we listed out these specific pieces of hardware and
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`software.
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`What do you say in response to that?
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`MR. COMEAU: So they did list specific pieces of
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`hardware, not specific --
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`THE COURT: Yeah.
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`MR. COMEAU: -- not specific pieces of software.
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`THE COURT: My mistake.
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`MR. COMEAU: Some -- some vague, I guess, unspecified
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`functionality is what they say.
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`THE COURT: I see: Baseband processor which contains
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`functionality that is at least specifically programmed or
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`configured to maintain a transmit power difference as claimed.
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`You would argue that's still too boilerplate, too
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`nonspecific?
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`MR. COMEAU: That's correct. Again, they're
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`attempting to identify the component, but not why it's a
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`material part of the invention.
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`like.
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`THE COURT: All right.
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`Response. You can start right there if you would
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`MR. NELSON: I was about to. I will start right
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`there.
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`We certainly have identified why it's material. And
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`we talk about the component combinations, and -- and we
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`expressly state what functions or operations that they're --
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`that they're carrying out.
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`THE COURT: Will you show me where you do that?
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`MR. NELSON: Yes.
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`Okay. So, for instance -- and I'm referring to
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`Paragraph 50 of the representative complaint in the -507 case.
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`And it reads specifically: Each of the accused devices contain
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`at least, one, a baseband processor and associated transceiver
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`which; two, contain functionality which is specifically
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`programmed and/or configured to monitor the usage of a
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`plurality of buffers, detect certain preselected conditions,
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`designate buffer status reporting formats, and communicate
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`buffer status reports as claimed in Claims 1, 4, 6, 10, 12, 17,
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`et cetera.
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`And -- and that's -- those types of paragraphs are
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`specific in every instance that we claim contributory
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`infringement. We're identifying exactly what this combination
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`of components is responsible for doing.
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`And, you know, as a -- as a general matter, if I may,
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`Your Honor, point out, that if you're going to accept the
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`Defendants' principal premise for their motions to dismiss and
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`these contributory infringement allegations, that's to say that
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`you can never plead contributory infringement when a component
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`is a processor. And it's because there are many hypothetical
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`non-infringing uses for -- for a processor.
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`And so what we tried to do is look at the law in this
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`district and craft our pleadings to exceed sort of a base
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`level. And I'm going to get to that in just a second.
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`But I do want to make very clear that what we pled in
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`each instance in response to Judge Davis's order, which asked
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`us to identify the components, is that we made very clear that
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`there is discrete code that is a component in and of itself and
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`that code is -- is configured to control a baseband processor
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`and, by extension, other identified hardware components. And
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`that together, they're performing the claimed operations and
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`that there is no substantial non-infringing use for that
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`combination of components.
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`And I submit to Your Honor that it's entirely
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`appropriate to plead it that way. And I'm going to point Your
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`Honor to an order that is referenced in one of our -- one of
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`our briefs. I believe it was the surreply in the -982 case.
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`And it's Document No. 69 at Page 3. It's the Tierra v. Asus
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`case from Judge Gilstrap, Case No. 2:13-cv-44.
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`And he entered an order on -- on an analogous motion
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`and in analogous circumstances in March of 2014. And what he
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`had to say was, TIB, which is the Plaintiff Tierra, has accused
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`not the entire Pantech Flex mobile phone, which no doubt does
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`have substantial non-infringing uses, but rather its
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`authentication methods -- software -- which it alleges are a
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`material part of the invention with no substantial
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`non-infringing use. The Court finds that Tierra's allegations
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`as pled are sufficient.
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`And I would submit to Your Honor that if you go to
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`the complaint, it was an amended -- it was the first amended
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`complaint in that case, and you look at the allegations, I
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`would consider that a floor for pleading contributory
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`infringement. We far exceeded that floor. We've done
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`everything we can.
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`Counsel points out that we haven't identified --
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`identified that particular software. Well, we don't have to
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`marshal our evidence in the complaint. We -- we pled this as
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`particularly as we possibly can.
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`And -- and, you know, when it comes to summary
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`judgment or -- or at least upon our ability to review the code
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`and we can actually then point to the module or file name or,
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`you know, line numbers for the appropriate code, then -- then,
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`sure, we could -- we could marshal our evidence at that point.
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`But when -- anyone skilled in the art would certainly
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`understand that you're combining -- that you're including code
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`that is then controlling a processor to carry out the claimed
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`functionality. That's what we're saying, and we think that's
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`certainly particular enough.
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`THE COURT: Thank you.
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`Response.
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`MR. COMEAU: I'll just reiterate: It's a tautology,
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`and it's circle to say it's a component with no substantial
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`non-infringing use when it's infringing. And the specificity
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`that counsel was reading to you from the complaint is really
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`just parroting the claim language.
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`THE COURT: All right.
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`MR. NELSON: Your Honor, one more point briefly.
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`Because I didn't get to address Bill of Lading. So
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`look, it's -- it's somewhat nuance because Bill of Lading is a
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`different type of a case. And Bill of Lading involved an
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`accused system. Okay?
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`And in Bill of Lading, what the Plaintiff was trying
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`to say was, I've got this accused system. And if you use the
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`entire system one way, then it infringes, but that system in
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`its entirety has other ways that it -- other purposes, other
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`things that it can be used for. This is not what we're saying
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`here.
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`We're identifying the discrete code that controls the
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`baseband processor and, by extension, perhaps the transceiver
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`or -- or something else. And there is no substantial
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`non-infringing use for that combination of components. It's
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`different.
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`It may be a little bit difficult to articulate. But
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`I think that the Tierra case is more on point in terms of the
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`technology at issue, in terms of what was considered to be the
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`component and in terms of what was considered to be sufficient
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`in this Court.
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`THE COURT: All right.
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`Any final words on this motion? Anyone else want to
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`take a stab at it before we move on?
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`MR. COMEAU: Briefly, Your Honor.
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`I disagree that the pleadings identify discrete code.
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`What it says is that there is functionality that is
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`specifically programmed and/or configured. So again, if it's
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`something that has to be specifically programmed and/or
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`configured, then it must have substantial non-infringing uses.
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`THE COURT: All right.
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`I will get you all a ruling on this motion to dismiss
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`as quickly as possible.
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`I want to take up the motions for leave to amend
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`infringement contentions and invalidity contentions.
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`We'll start with the Plaintiffs.
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`MR. LATIMER: Good afternoon, Your Honor. Brannon
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`Latimer for CCE.
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`So the motion here is Plaintiff's motion to amend its
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`infringement contentions and motion to strike Defendants'
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`supplemental invalidity contentions. And before I dive into
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`the merits of that, if I could just start with a little bit of
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`context here.
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`Your Honor will recall this relates to the -- what we
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`call the Wave One cases, that's the -507 action. And
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`there's -- what Judge Davis did was consolidated a large group
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`of cases that had overlapping patents into a single action.
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`That action was filed back in June of 2013. And what we got
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`was a sort of a special -- special docket control order that
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`provided for -- for multiple Markman hearings, including an
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`early Markman hearing; delayed discovery; and some early
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`disclosures. And so it was sort of a slow-developing case.
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`10
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`And when CCE serviced its initial, the very first
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`11
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`contentions it served were in March of 2014. But after that,
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`quite a bit took place. There were two Markman hearings, there
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`was a motion for summary judgment of invalidity, there were
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`multiple IPR proceedings.
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`And so this is a case where even though all that
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`stuff is going on, CCE had not taken any discovery. So it's
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`been a case where Defendants really had the opportunity to take
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`a lot of big shots. CCE hasn't had the chance to develop its
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`case on the flip side of that. So it's kind of against that
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`backdrop that CCE served its proposed amended contentions.
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`And the way the timing of that fits in here, is when
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`the Court issued its initial Markman order, that was in March,
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`CCE took a survey of its contentions in light of the Court's
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`order and in light of everything that had happened, and it
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`identified clarifying amendments, as well as amendments
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 15 of 37 PageID #: 906
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`directly resulting from the Court's order that it wanted to
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`make. And it disclosed those to Defendants in, I believe it
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`was, April. It was 30 days after the claim construction order
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`issued.
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`And that was all done in good faith. CCE didn't try
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`to slip those in under 3-6(a) without leave. They didn't say,
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`here's our contentions, Defendants. We're going to seek leave
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`for these; let us know if you oppose.
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`And that process is detailed in the briefing, and I
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`won't rehash it all here. But it took about two months for
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`Defendants to finally decide that they were going to oppose.
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`And so CCE went to prepare its opposed motion, but it
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`kept talking to several of the Defendants. And it ultimately
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`reached an agreement with AT&T, which is in all the cases
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`except the Dell action -- all the constituent cases except the
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`Dell action, and it reached an agreement with Dell for a mutual
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`17
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`unopposed supplementation of contentions.
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`And so we did that and served the contentions. And
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`19
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`sort of the upshot of that is that CCE's amended contentions
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`are actually live in every single one of the constituent cases
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`already, notwithstanding the motion.
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`22
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`But, anyhow, the other Defendants all decided to
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`oppose. And so CCE filed the opposed motion before the Court
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`now.
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`There are essentially two aspects of CCE's
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 16 of 37 PageID #: 907
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` 1
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`contentions that are disputed here. One is, certain -- it's
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` 2
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`two sentences added to the "wherein" clause of certain claims
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` 3
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`in the '820 patent. That's issue number one. And the second
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` 4
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`one has to do with Doctrine of Equivalents language that CCE
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`added to several claim elements. And I would like to address
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`those in that order one at a time.
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`So the '820 patent, Your Honor may recall that this
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` 8
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`patent relates to buffer status reporting from the claim
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`construction hearing earlier this year. What it's about -- in
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`10
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`LTE networks, a device needs to tell the network that it has
`
`11
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`data to send so that the network can give it resources to do
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`12
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`so. These buffer status reports are the mechanism for doing
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`13
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`that. And what the patent talks about is sending either a long
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`14
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`or a short buffer status report to notify the network about the
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`15
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`data in the buffers.
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`16
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`So, you know, as it happens, the inventor of the '820
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`17
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`patent actually helped develop the technical standards for LTE,
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`18
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`and so that there's a very strong correspondence between the
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`19
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`invention of the '820 patent and what you see in the 3GPP
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`20
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`technical standards for LTE. And as a result, CCE's
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`21
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`infringement contentions are pretty straightforward. What they
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`22
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`do is identify, quote and summarize Section 5.4.5 of Technical
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`Specification 36.321.
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`And it's clear from the exhibit that that's what they
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`do. They do it -- they sort of take an approach where in the
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 17 of 37 PageID #: 908
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`preamble of Claim 1, for instance, it sets out the entire
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`section of the technical specification and summarizes it and
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`just lays it all out there. And then it goes element by
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`element sort of talking about those things again.
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`And so Defendants don't dispute and they can't
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`dispute that CCE has always accused all three of these types of
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`BSR's identified in that technical spec: They're regular,
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`they're periodic and they're padding BSR's. CCE has always
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` 9
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`alleged that all three of those are used to designate a long
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`10
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`BSR format.
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`11
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`The dispute here is about mentioning two of those in
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`12
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`the "wherein" clause that follows that designated spec. So to
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`13
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`be even more specific, what -- what they're saying is that the
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`14
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`sentence that CCE adds to the "wherein" -- let me back up a
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`15
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`little bit.
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`16
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`The claim requires designating a long or short BSR.
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`17
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`The contentions have always said you can use a regular,
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`18
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`periodic or a padding BSR to do that. The claim then says,
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`19
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`when you designate the long BSR, you do that when you have
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`20
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`enough bandwidth. That's the "wherein" clause.
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`21
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`CCE added clarifying amendments in these proposed
`
`22
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`supplements to note that, as we already talked about, all three
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`23
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`of those are used to designate a long BSR. That's what we're
`
`24
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`fighting about.
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`25
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`So that's not a new allegation. It's always been in
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 18 of 37 PageID #: 909
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`CCE's contentions since the beginning. The original
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` 2
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`contentions accuse the same process and the same section of the
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` 3
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`same technical specification of a related claim element. It's
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` 4
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`not expanded.
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` 5
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`THE COURT: Well, why amend now? Why didn't you
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`amend earlier and why must you -- why do you need to now?
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`MR. LATIMER: So it's debatable, Your Honor. This is
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` 8
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`such a minor change. It truly is a clarification from our
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` 9
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`perspective, because this is all accused. So it's debatable
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`10
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`whether it's even required.
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`11
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`But the fact of the matter is, when CCE evaluated its
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`12
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`contentions before discovery was going to open, it determined,
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`13
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`look, there's a discrepancy here. There's -- the Apple charts
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`14
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`have this extra language in the "wherein" clause, the Claim 24
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`15
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`that was added in all of these contentions had the same
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`16
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`language in the "wherein" clause; we should make that
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`17
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`consistent.
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`18
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`And so that was the impetus for doing that. In our
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`19
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`view, it doesn't change the scope of the case.
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`20
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`So, Your Honor, I guess -- I suppose that is probably
`
`21
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`the key question on the '820 issue. And I'll move on from that
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`22
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`unless you have further questions for me.
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`23
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`The two other issues are the Doctrine of Equivalents
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`24
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`language. And really, it seems like the issue that Defendants
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`25
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`have with this Doctrine of Equivalents language is they're
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 19 of 37 PageID #: 910
` 19
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` 1
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`worried about CCE using it to make unsubstantiated new
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` 2
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`arguments in expert reporting, but that's not a reason to
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` 3
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`oppose the language.
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` 4
`
`That's not a problem with what we've done in the
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` 5
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`charts; that's a fear of how we might try to use it. And so
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` 6
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`it's not a reason to oppose what we have here. If CCE attempts
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` 7
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`to make new arguments in expert reports, then that's an issue
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` 8
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`to be decided then.
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` 9
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`And then the last -- the last issue is the motion to
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`10
`
`strike Defendants' invalidity contentions. Defendants served
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`11
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`four brand new references without leave, and CCE asked them
`
`12
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`what their justification for that was. They admitted that they
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`13
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`were supplements, not amendments. There's no explanation or
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`14
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`rationale under the local rules for doing that without leave;
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`15
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`and, yet, Defendants refused to withdraw them. So the Court
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`16
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`has asked -- CCE has asked the Court to strike them.
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`17
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`Their only response was that we haven't changed our
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`18
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`election of prior art yet, so it's not ripe. That doesn't make
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`19
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`any sense. There's not an exception under the local rules for
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`20
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`changing your election of prior art.
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`21
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`They admittedly supplemented their contentions
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`22
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`without leave, and they should be stricken.
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`23
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`THE COURT: And is this -- you mentioned earlier that
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`24
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`you had kind of a back-and-forth agreement with, I guess, just
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`25
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`AT&T regarding supplementation and amending. Is that correct?
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`

`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 20 of 37 PageID #: 911
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`MR. LATIMER: AT&T and Dell and CCE agreed, we'll
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` 2
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`amend our contentions -- our infringement contentions
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` 3
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`unopposed; you can amend your invalidity contentions and prior
`
` 4
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`art elections unopposed. That was our agreement.
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` 5
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` 6
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` 7
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`THE COURT: All right.
`
`Okay. Response?
`
`MR. MAAS: Good afternoon, Your Honor. Michael Maas
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` 8
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`for LG. I'll be handling the '820 issue and the
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` 9
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`supplemental -- the motion to strike the Defendants'
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`10
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`supplemental invalidity contentions. My colleague Mark Scarsi
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`11
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`will be handling the DOE contention issue.
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`12
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`13
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`THE COURT: Okay.
`
`MR. MAAS: And CCE has a bit of a problem with the --
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`14
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`with the '820 issues because they're forced to argue that
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`15
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`they're not significant, but they're forced to try to -- try to
`
`16
`
`get these through. Because, in fact, they are significant.
`
`17
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`This would be the first time that their amended --
`
`18
`
`proposed amended contentions, it's the first time that they
`
`19
`
`accused the regular and periodic BSRs of satisfying the
`
`20
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`"wherein" clause of Claims 1 and 12. They have not articulated
`
`21
`
`a reason why they could not have raised this in the original
`
`22
`
`contentions, why they could not have sought to try to amend
`
`23
`
`these earlier.
`
`24
`
`It appears to be motivated largely because of Apple's
`
`25
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`IPR that Apple filed on January 20th, 2015. And Apple used a
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 21 of 37 PageID #: 912
` 21
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` 1
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`very strong reference directed towards padding BSRs.
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` 2
`
`In fact, you don't have to take my word for that this
`
` 3
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`was a motivation for the amended infringement contentions.
`
` 4
`
`In the surreply to Apple's opposition to the motion
`
` 5
`
`to supplement the infringement contentions -- that's Docket
`
` 6
`
`No. 445 on Page 1 -- they actually admit it. They state that
`
` 7
`
`this was not an attempted ambush -- meaning their amended
`
` 8
`
`infringement contentions -- but an effort to go further to
`
` 9
`
`identify in light of the unfolding Markman and IPR proceedings,
`
`10
`
`but without the benefit of discovery, elements which may entail
`
`11
`
`equivalent -- equivalents allegations.
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`12
`
`So they admitted with respect to Apple that their
`
`13
`
`action -- the IPRs were a motivating -- one of the motivating
`
`14
`
`factors. They don't explain why. And again, they say
`
`15
`
`repeatedly through their papers that the proposed amendments
`
`16
`
`towards the '820 patent would not have produced any new
`
`17
`
`evidence. Which is true. We fully agree with that.
`
`18
`
`They rely on the same technical standard that they
`
`19
`
`relied on in their original infringement contentions, and they
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`20
`
`could have very easily. And they have no explanation as to why
`
`21
`
`they did not accuse the regular and periodic BSRs in satisfying
`
`22
`
`there "wherein" clauses of Claims 1 and 12.
`
`23
`
`THE COURT: How does it really change the scope of
`
`24
`
`their case? I mean, you heard the Plaintiff's argument that
`
`25
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`all of those are disclosed before this "wherein" clause and
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 22 of 37 PageID #: 913
` 22
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` 1
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`we're just sort of saying, as we stated earlier, you know,
`
` 2
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`we're referring back to all three of those.
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` 3
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` 4
`
`So walk me through why that's not accurate.
`
`MR. MAAS: What is not accurate is they -- what is
`
` 5
`
`not -- I don't want to say it's inaccurate. They do mention
`
` 6
`
`them earlier in the -- as to certain limitations earlier in the
`
` 7
`
`claim language.
`
` 8
`
`The problem is when you get down to the bottom of the
`
` 9
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`last limitation of the "wherein" clause, they sort of drop off
`
`10
`
`the regular and periodic BSRs. In reviewing those original
`
`11
`
`contentions, we took that to mean that they were not accusing
`
`12
`
`the regular and periodic BSRs of meeting all the claim
`
`13
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`limitations.
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`14
`
`THE COURT: What does it do to your case
`
`15
`
`preparation-wise, discovery need-wise, does it -- how does it
`
`16
`
`impact your case if I allow them to amend?
`
`17
`
`MR. MAAS: Well, it would greatly expand the case,
`
`18
`
`bring in a large number of claims.
`
`19
`
`Currently, the supplemental -- on October 30th, they
`
`20
`
`supplemented their infringement contentions, being CCE; and in
`
`21
`
`that supplementation they did add Claim 24, which they did add
`
`22
`
`the periodic and regular BSR language to the "wherein" clause.
`
`23
`
`That is the only claim that currently stands having that
`
`24
`
`language.
`
`25
`
`So by allowing them to bring in that language to the
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`Case 6:14-cv-00982-KNM Document 126 Filed 10/01/15 Page 23 of 37 PageID #: 914
` 23
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` 1
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`other claims, all the remaining claims -- I believe there's
`
` 2
`
`approximately ten claims -- so that would expand it by at least
`
` 3
`
`nine claims, including a large number of dependents.
`
` 4
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` 5
`
`THE COURT: All right.
`
`MR. MAAS: And with respect to the supplemental
`
` 6
`
`invalidity contentions, we have not -- the Defendants who have
`
` 7
`
`joined in the supplemental invalidity contentio