Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 1 of 67
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 1 of 67
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`EXHIBIT A
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 1 of 67
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`EXHIBIT A
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 2 of 67
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` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`DEMARAY, LLC
`) Docket No. WA 20-CA-634 ADA
` )
`vs.
` ) Waco, Texas
` )
`INTEL CORPORATION
` ) September 27, 2021
`__________________________________________________________
` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`) Docket No. WA 20-CA-636 ADA
`DEMARAY, LLC
` )
` ) Waco, Texas
`vs.
` )
`SAMSUNG ELECTRONICS CO., )
`
`LTD. (A KOREAN COMPANY), )
`ET AL
`) September 27, 2021
`
`
`TRANSCRIPT OF VIDEOCONFERENCE DISCOVERY HEARING
` BEFORE THE HONORABLE ALAN D. ALBRIGHT
`
`
`
`
`
`APPEARANCES:
`For the Plaintiff:
`
`Mr. Crawford Maclain Wells
`Irell & Manella, LLP
`1800 Avenue of the Stars,
`Suite 900
`Los Angeles, California 90067
`Mr. Richard D. Milvenan
`McGinnis Lochridge, LLP
`1111 West 6th Street, Suite 400
`Austin, Texas 78701
`
`For Intel Corporation: Ms. Sonal N. Mehta
`Wilmer, Cutler, Pickering,
`Hale & Dorr, LLP
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 3 of 67
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`2
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`(Appearances Continued:)
`Mr. Yar R. Chaikovsky
`For Intel Corporation
`And Samsung Electronics: Mr. Philip Ou
`Paul Hastings, LLP
`1117 South California Avenue
`Palo Alto, California 94304
`Mr. Brian C. Nash
`Pillsbury, Winthrop,
`Shaw, Pittman, LLP
`401 Congress Avenue, Suite 1700
`Austin, Texas 78701
`Mr. Cosmin Maier
`Desmarais, LLP
`230 Park Avenue
`New York, New York 10169
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`Court Reporter:
`
`
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Proceedings reported by computerized stenography,
`transcript produced by computer-aided transcription.
`
`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 4 of 67
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`3
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`THE COURT: Good afternoon, everyone.
`Suzanne, if you would call the case, please.
`THE CLERK: Sure.
`Discovery hearing in Civil Action W-20-CV-634,
`styled, Demaray, LLC vs. Intel Corporation, and Case No.
`W-20-CV-636, styled, Demaray, LLC vs. Samsung Electronics
`Company, Limited, a Korean Company, and others.
`THE COURT: If I could have announcements from
`counsel starting with the plaintiff, please.
`MR. MILVENAN: Good afternoon, Judge Albright.
`This is Rick Milvenan from McGinnis Lochridge,
`and I'm joined by Maclain Wells from Irell & Manella.
`THE COURT: Welcome to y'all both.
`MR. WELLS: Thank you, your Honor.
`MR. OU: Good afternoon, your Honor.
`Philip Ou from Paul Hastings for Intel. Your
`Honor, Mr. Ravel apologizes he couldn't join us today, so
`I'm doing the introductions. With me is my colleague, Mr.
`Chaikovsky from Paul Hastings, as well. We also have a
`client rep, Gerald Edgar from Intel, and some colleagues
`from Wilmer Hale, but I'll let them introduce themselves.
`MS. MEHTA: Good afternoon, your Honor.
`Sonal Mehta from Wilmer Hale on behalf of Intel.
`THE COURT: Anyone else from Wilmer?
`MS. MEHTA: No, your Honor. Thank you.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 5 of 67
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`4
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`THE COURT: Well, you're welcome to be here. And
`I'd like to thank all the client representatives that took
`the time to attend. I'm happy to take up whatever issues
`we have.
`MR. OU: Your Honor, just for appearance
`purposes, myself, and Mr. Chaikovsky, as well as Mr.
`Cosmin Maier from Desmarais is also here on behalf of the
`Samsung Defendants.
`THE COURT: Okay. Very good.
`MR. CHAIKOVSKY: Your Honor, I believe the --
`this is Mr. Chaikovsky on behalf of Defendants Intel and
`Samsung. I believe the first issue, and if you have the
`slides that we had submitted, related to the placeholder
`claims.
`
`THE COURT: Okay.
`MR. CHAIKOVSKY: Of defendants' issue. Starting
`if you have the slides handy, your Honor, with what is
`slide 4, it gives you a timeline and, really, a timeline
`that all it's for is just to highlight this dispute. The
`case has been going and pending for over a year. We've
`had our preliminary infringement contentions since October
`9th. There have been court-ordered supplements to those
`contentions. If you recall, back in January, you ordered
`them to supplement their contentions. Those contentions
`have been supplemented numerous times, including prior to
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 6 of 67
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`5
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`the Markman hearing.
`And there's one theory, and we'll show you that
`one theory as to the application of claims that they now
`want to interject a new theory. That new theory, they
`disclosed in their discovery submission on September 22nd,
`and that's the final contentions upcoming. And we'll step
`through that, your Honor. If there's any questions,
`please free to go ahead and ask.
`On slide 5, you see the claims in the 657 patent
`that are at issue here, the method claims. In particular,
`we're focused on claims 2 -- if you recall at the Markman,
`these claims were an issue at the Markman hearing. Claims
`2 and their dependent claims, 21, only claim 1 was at
`issue. And as you see the title of the patent is Biased
`Pulse DC Reactive Sputtering of Oxide Films. You could do
`the pulse DC reactive sputtering of oxide films. And so,
`what you see in dependent claim 2, which is the subject of
`the dispute, has not been asserted with the theory we're
`seeing interjected last week. It says you deposit an
`inflating film on a substrate. That's in the preamble.
`And, you know, we'll have issues about that as these
`claims are part of the case. And then, the wherein
`clause, the wherein clause tells you what is that. An
`oxide material is deposited on that substrate and you form
`the insulating film. And you could see on the left image
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 7 of 67
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`6
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`that you have the substrate color-coded with the claim and
`an insulating film of the oxide materials, they're one in
`the same. I deposit the oxide material --
`THE COURT: Mr. Chaikovsky, if you think I'm
`seeing something while you're talking, I'm not.
`MR. CHAIKOVSKY: I apologize, your Honor. I was
`asking if you had the slides handy.
`THE COURT: I don't. I do not have the slides.
`MR. CHAIKOVSKY: Okay. Mr. Ou, given that, do
`you want to maybe put up a projection of the slide?
`MR. NASH: Judge, I think your original intent
`was to keep the slides off just for confidentiality
`purposes, but I think we could probably talk around those
`and bring up the ones that aren't going to be
`controversial from a confidentiality standpoint.
`MR. OU: Your Honor, I think for this dispute,
`the slides that are marked confidential, I think the
`material is something that we can -- we can share because
`it's been publicly disclosed already. So if you give me a
`minute, I'll share my screen.
`THE COURT: Or I don't know that I need it. I
`just was letting you know, I can't see it.
`MR. CHAIKOVSKY: No. I think it would be helpful
`for you to have the slides, your Honor, and apologies in
`communication, that's something got mis-communicated.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 8 of 67
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`I'll just talk really briefly on the timeline,
`I'll go back. Your Honor, just so you see the timeline of
`events. I already told you, but really, we've gone
`through the case an entire year. There's a new theory of
`infringement that they have presented on claims that are
`not in the case and really haven't been part of the case,
`claims 2 and their dependents of the 657 patent, just last
`week in their discovery submission, the September 22nd
`submission. We've never had this theory and we'll show
`you what that theory is. And that's the final contentions
`coming due, including invalidity contentions, and how are
`we going to respond at this point in time. These really
`should be struck and we'll show you that in these upcoming
`slides.
`
`So again, slide 5, as I was depicting, the claims
`that they now want to have this new theory applied to,
`these were not covered in the Markman hearing. We only
`talked about claim 1 of the 657 patent. Claim 2 is
`dependent. Our method claim that relates to depositing an
`insulating film on the substrate. And again, the title of
`the patent was depositing using the claimed process oxide
`film. And so, the wherein clause you can see here, as you
`deposit an oxide material to form an insulating film,
`which is part of the preamble. And we've shown kind of a
`block picture of depositing an insulating film, oxide
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 9 of 67
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`8
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`material in brown, on top of, you know, the substrate.
`And so, that's kind of how one would look at
`these claims. And in fact, we've had commentaries from
`both Intel and Samsung that this doesn't transpire. We go
`to the next slide, your Honor, if you recall, way back
`earlier in the case, prior to our first hearing on these
`contentions, back in December and January, they had blanks
`in their infringement contentions. So after the
`preliminary contentions were due, we had blanks, and we
`came to your Honor because they had nothing. They were
`largely placeholder claims.
`Go to the next. And we had a hearing about this,
`and during this hearing, as Mr. Nash recounted, on January
`26th of this year, we're facing these deadlines, and the
`crux of the problem is, we can't tell what's in the case.
`Claim 2 is blank. That's what we just saw in the prior
`slide 6, that slide 11 of that prior hearing, this very
`claim is blank, and so, we don't know what they're
`asserting.
`Now, what did Irell & Manella, Mr. Wells here
`said those claims relate to the deposition of thin films
`that are oxide. No other concept as the title of the
`patent says, as the claims say, Mr. Wells recounted that
`the claims relate to the deposition of thin films that are
`oxide. And then, there was a dispute that Samsung had
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 10 of 67
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`9
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`provided information saying we don't do that and they
`would amend the contentions. Intel hasn't yet provided
`information, but would shortly, and amend the contentions
`and we'll show you that.
`And so, as soon as they provide that information,
`that's really Intel, they do supplement timely, and that
`was what happened on January 26. So if we go to the next
`slide. Your Honor, you said in response to that, you
`know, with respect to the supplementation, if down the
`road when we're deciding which of these claims are going
`to be asserted and whether the adequate -- contentions are
`adequate, despite the fact the defendants had produced
`sufficient information, I will take into consideration
`striking those claims for which there are not sufficient
`contentions.
`And so, we went forward, if we go to the next
`slide, and the Court shifted the Markman deadline to allow
`the parties to meet and confer regarding these claims and
`the amended contentions. In fact, you see that the Court
`allowed the plaintiff to February 5th to provide amended
`contentions. And then, the meet-and-confer was shifted to
`February 10th. And the Court noted if it would be
`beneficial for the parties to meet and confer regarding
`anything that might be in these amended contentions.
`Well, what happens next with respect to these
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 11 of 67
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`10
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`amendments on February 5th, your Honor, you go to slide 10
`of our presentation, it's on the screen, you see the
`amended contentions that we received from plaintiff. And
`what's on the screen is Intel's amended contentions. And
`you could see with respect to Intel's amended contentions
`that Samsung, which is on slide 11 is no different, your
`Honor, is that Demaray stated that Intel has asserted that
`it does not have, use a DC power supply to the target
`coupled with an RF bias to produce an oxide material,
`citing to interrogatories.
`And then, they go on to say, Demaray will not
`pursue these claims against Intel. So assuming that to be
`the case, Demaray is not going to pursue these claims.
`And what's important to note, both with respect to Intel
`and Samsung -- the language is identical on slides 10 and
`11, although the Court can compare it -- is that Plaintiff
`Demaray this time is providing what they believe to be
`their theory at best as to how to interpret these claims
`after a court-ordered amendment, after a dispute, and that
`theory is that you've gotta use the claim process, as
`we've all been talking about through Markman and
`everything, and that's the DC power supply to the target
`coupled with an RF bias to produce an oxide material.
`That is that the oxide material is produced against the
`insulating film. Not that there's some separate oxide
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 12 of 67
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`material. And we'll see what their current theory is in
`their current submission.
`But the natural reading and this is what they
`said and then, they said, you know, they will not pursue
`the claims until we list them to be true. Their theory.
`Well, that's what they're -- they're walking back on their
`word with respect to what they stated on February 5th.
`And you could see that in slide 11, also, with respect to
`Samsung. I won't go over the details, but it's the same.
`So we get to slide 12, your Honor. We then have
`a meet-and-confer on the additional terms, on February
`10th, and the oxide claims are not asserted or considered
`for claim construction. We made that clear. So
`defendants made it clear that we're not presenting any
`term that Demaray is maintaining placeholder language.
`Based on their supplemental contentions, we got them on
`February 5th, they said they're not pursuing them. You
`know, assuming the representations to be true, our view is
`claim 2 and its dependents are not in the case. So we're
`not going to construe any claims relating to those or
`terms relating to those claims.
`Next, what happens is what's on slides 13, your
`Honor. Demaray responds and key to note in this second
`point, you know, No. 2, in Demaray's response to
`defendants, Demaray states: As noted in Demaray's
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 13 of 67
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`contentions. Well, we just went through those contentions
`a few slides ago, your Honor, where they said they won't
`pursue those claims assuming those representations to be,
`true, and they are true, discovery -- and the discovery's
`been conducted at length -- has shown those to be true.
`That's why we have a new theory on the 26th of September
`-- or last week, sorry, your Honor. Apologies, mistake.
`And so, they stated, if discovery later supports assertion
`of such claims, Demaray will oppose any attempt to
`interject new claim construction issues. Well, discovery
`confirms what's in the contentions. And what's in the
`contentions is, it's just true that now they have a new
`theory.
`
`And I'll go quickly through these, your Honor,
`because I don't want to belabor this. This continued in
`their April 15th -- what's in slide 15, their April 15th
`contentions. The language didn't change. They again with
`respect to both Intel and Samsung, they state that it does
`not use the DC power supply to the target coupled with an
`RF bias to produce an oxide material. Intel stated that,
`Samsung has stated that. Demaray said if discovery
`confirms this to be true, it won't pursue these claims.
`And that's on slide 14 with respect to Intel. That's on
`slide 15 with respect to Samsung.
`And even what's important here, your Honor, on
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 14 of 67
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`both these slides is, they didn't say it's just in the
`preamble. So I've shown what's on slide 14, that language
`in the preamble, that language is also in the wherein
`clause. So the wherein clause, which is really kind of
`what's disputed here and I'm sure we'll hear some
`arguments from Demaray, but wherein the oxide deposits on
`the substrate and insulating film is formed, that's how
`they're interpreting the claims. And they're saying if
`Intel's and Samsung's assertions are true, we won't pursue
`these claims. And that's the chart we got after discovery
`dispute where you told them to amend the contentions.
`So we then get to slide 15, your Honor, and this
`is the day before the Markman hearing. The contentions
`don't change. And there has been a lot of discovery and
`I'm happy to get to that in rebuttal after we hear
`Demaray's position. A lot of discovery. And their
`positions, the day before the Markman, have not changed.
`And so, at the Markman, of course, no one talks about this
`because they're not pursuing the claims as far as we're
`concerned. They're not asserted.
`We then get to slide 16. And then, what I want
`to show on slide 16 is, again, recall that this maps up.
`We showed this earlier in the beginning of the
`presentation how these contentions, the day before the
`Markman, map up to the claims, the natural reading, the
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 15 of 67
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`preamble being a method of depositing an insulating film
`on the substrate, and then, the wherein clause stating
`that oxide material's deposited on the substrate to form
`that insulating film.
`And that's why they said they won't pursue these
`claims assuming that our representations were true. And
`so far, they haven't been able to show that they're not
`true. Well, so we go through that and the discovery that
`transpired, we get what's in slide 17. And slide 17 is,
`for the first time, on September 22nd, where we get the
`new concept, and that new concept's in their discovery
`submission and it's different than what we just showed
`through all their supplemental contentions, three of them
`in the hearing with the Court, and that -- and you can see
`on the left of the slide, your Honor, now claim 2
`requires, among other limitations, one, that an insulating
`film be deposited using the claimed reactor configuration.
`Okay. That seems to be consistent with what they were
`stating before and how people understood the claims to
`read, but now there's two. An oxide material is deposited
`on the substrate. It's pretty obtuse, not necessarily
`clear, but it seems to be they're suggesting and it's why
`we've shown the claim highlighted as we've shown it is,
`they disconnected the wherein clause and the claims
`process from the oxide materials being deposited on the
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 16 of 67
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`substrate.
`And now it's I have the claim process forming an
`insulating film, which is what everyone believed these
`claims related to, but if I find an oxide material
`anywhere in the chips of Samsung or Intel, any layer,
`whether made by this process or some other process, then
`that could be covered by the claim. And the reason they
`have to go here with this new theory, disclosed last week,
`is because they couldn't find an oxide material using the
`claim process, or under their argument as to what the
`claim process covers, and through, despite what they're
`going to say, a lot of discovery, we can get into that.
`And so, they now want to say, hey, I can get an
`oxide material anywhere. And, in fact, you see at the
`bottom of slide 17, in their discovery submissions,
`Demaray needs to know defendants' products produced using
`the reactors at issue and separately, whether an oxide
`material is present in such products anywhere. Doesn't
`matter. You could have a hundred layers and they want to
`look for an oxide layer and disconnect it from the claim
`process.
`Well, that theory's never been disclosed. To the
`extent they wanted to make that theory, they could have
`made that theory at the outset of the case on their first
`contentions, on the court-ordered supplement. No one said
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 17 of 67
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`they had to get an expert report. No one's saying that
`they actually had to, you know, detail and prove up. But
`they did have to give contentions if that was the theory
`they were presenting that, hey, this could be because that
`would affect the art we were searching for, that would
`affect that we would have sought construction of the
`preamble and the preamble being limited; that would have
`an effect on how we construe the wherein clause that the
`oxide material isn't the insulating material that is
`formed; that it's somehow disconnected. That all would
`have been different, your Honor, if they had
`presented this little paragraph that they put in their
`discovery with these submissions, and they very easily
`could have done that. And there's nothing in discovery
`that's caused them to write this other than they can't
`prove it under their prior attempt. That's it.
`And how do we know this? It's confirmed, your
`Honor, on slide 18. They confirmed it in their own
`discovery submission. What did they say? So on slide 18,
`they say in their submission, defendants' asserted lack of
`notice regarding Demaray's infringement. They say that's
`baseless. Well, why is it baseless? Let's analyze it.
`They say it's baseless -- because this is the key part
`underlined in red. Sorry about the double red, your
`Honor. Other than the added limitations in claim 2, so
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 18 of 67
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`17
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`other than what's important, the preamble and the wherein
`clause, requiring an insulating film in an oxide material
`of claim 2 and their dependents, hey, these claims have
`the same limitations to those addressed with the 276
`patent. Oh, that's the whole ball game, your Honor. The
`relevant difference is in the claims or in the preamble
`and the oxide material is being deposited. And so, they
`haven't provided -- they're admitting they haven't
`provided the theory.
`And then, they provide just so we -- you know, in
`case they go there, the next sentence that we have
`highlighted, they say the same infringement theories
`already disclosed apply. Sure, for all those terms but
`not the two additional ones that they haven't provided
`them for, i.e., the preamble and the wherein clause. The
`insulating film and the oxide material. Never before
`provided.
`What do we see in slide 17 and 18? New theory?
`Oh, we've admitted it's new. And so, your Honor, what we
`get to in slide 19 is, really, we've gone through all this
`litigation. We've gone through preliminary contentions
`and argument about preliminary contentions. We have
`placeholder claims, they have blank, they supplemented on
`February 5th. They've continued to provide those
`contentions on the 15th of April, the day before the
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 19 of 67
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`Markman on the 16th. We had the Markman. And it's not
`until this discovery dispute that we get this new theory.
`And we have final contentions upon us, invalidity
`infringement, and the close of fact discovery even in
`January of next year.
`So that, we would ask, your Honor, that these new
`claims as your Honor stated in the January 26th order,
`they should be struck. They should not be in the case,
`given this new theory. It's too late. If, for some
`reason, your Honor doesn't strike them, then the
`defendants should be ordered at least 90 days to deal with
`what I've already stated, your Honor. They need to amend
`their contentions because that theory's not in them. They
`need to -- we need to investigate the theory and provide
`responsive discovery now, which would require us looking
`at all layers of all our chips.
`We need to prepare invalidity contentions for
`those new claims under those theories. The first new
`claims and the new theories. And there needs to be a
`Markman on the terms, the wherein clause and the preamble,
`at the very least, and whether the insulating substrate
`and oxide materials should be tied together, which they
`should. I would suggest to you, your Honor, that they
`should be struck at this point in time, given where we are
`in this case and given what your Honor stated in the
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`Case 6:20-cv-00636-ADA Document 145-2 Filed 12/10/21 Page 20 of 67
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`January 26th theory, and that's defendants' respectful
`request.
`Any questions, your Honor?
`THE COURT: No.
`From the plaintiffs?
`MR. WELLS: Yes, your Honor. Maclain Wells on
`behalf -- of Irell Manella on behalf of Demaray. Just
`making sure you can hear me, your Honor.
`THE COURT: Yes, I can.
`MR. WELLS: To reorient ourselves and the Court
`for all of the issues that are at issue here, just a very
`brief background.
`There's two Demaray patents at issue in this
`case. Both relate to a specific configuration of reactors
`for thin films. One covers the reactors themselves;
`that's the 276 patent. And then, there's the 657 patent
`that covers the methods of use of those reactors. Now,
`you might remember from the Markman hearing, your Honor,
`that all of the claims at issue require pulses of DC
`power, for example, an arc detection to distinguish arcs.
`
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