Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 1 of 47
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DEMARAY LLC,
`PLAINTIFF,
`
`
`)(
`CIVIL ACTION NO.
`)(
`6:20-CV-634-ADA
`)(
`WACO, TEXAS
`)(
`VS.
`)(
`NOVEMBER 4, 2021
`)(
`INTEL CORPORATION,
`10:30 A.M.
`)(
`DEFENDANT.
`___________________________________________________________
`DEMARAY LLC,
`)(
`
`PLAINTIFF,
`)(
`CIVIL ACTION NO.
`)(
`6:20-CV-636-ADA
`)(
`WACO, TEXAS
`)(
`)(
`NOVEMBER 4, 2021
`)(
`10:30 A.M.
`
`VS.
`INTEL CORPORATION,
`DEFENDANT.
`
`
`DISCOVERY HEARING
`BEFORE THE HONORABLE JUDGE ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`FOR THE PLAINTIFF: Mr. C. Maclain Wells
`Irell & Manella LLP
`1800 Avenue of the Stars
`Suite 900
`Los Angeles, CA 90067
`Ms. Shelly Holmes, CSR, TCRR
`Certified Shorthand Reporter
`2593 Myrtle Road
`Diana, TX 75640
`(903) 720-6009
`shellyholmes@hotmail.com
`
`COURT REPORTER:
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DEMARAY LLC,
`PLAINTIFF,
`
`
`)(
`CIVIL ACTION NO.
`)(
`6:20-CV-634-ADA
`)(
`WACO, TEXAS
`)(
`VS.
`)(
`NOVEMBER 4, 2021
`)(
`INTEL CORPORATION,
`10:30 A.M.
`)(
`DEFENDANT.
`___________________________________________________________
`DEMARAY LLC,
`)(
`
`PLAINTIFF,
`)(
`CIVIL ACTION NO.
`)(
`6:20-CV-636-ADA
`)(
`WACO, TEXAS
`)(
`)(
`NOVEMBER 4, 2021
`)(
`10:30 A.M.
`
`VS.
`INTEL CORPORATION,
`DEFENDANT.
`
`
`DISCOVERY HEARING
`BEFORE THE HONORABLE JUDGE ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`FOR THE PLAINTIFF: Mr. C. Maclain Wells
`Irell & Manella LLP
`1800 Avenue of the Stars
`Suite 900
`Los Angeles, CA 90067
`Ms. Shelly Holmes, CSR, TCRR
`Certified Shorthand Reporter
`2593 Myrtle Road
`Diana, TX 75640
`(903) 720-6009
`shellyholmes@hotmail.com
`
`COURT REPORTER:
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 2 of 47
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`FOR THE PLAINTIFF: Mr. Rick Milvenan
`McGinnis Lochridge, LLP
`1111 W. 6th Street
`Suite 400
`Austin, TX 78703
`
`
`FOR INTEL:
`
`Mr. Philip Ou
`Paul Hastings, LLP
`1117 South California Avenue
`Palo Alto, CA 94304
`Ms. Claire M. Specht
`WilmerHale
`60 State Street
`Boston, MA 02109
`Mr. J. Stephen Ravel
`Kelly Hart & Hallman, LLP
`303 Colorado Street
`Suite 2000
`Austin, TX 78701
`
`FOR THE SAMSUNG:
`
`Mr. Brian C. Nash
`Pillsbury Winthrop Shaw Pittman, LLP
`401 Congress Avenue
`Suite 1700
`Austin, TX 78701-3797
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 3 of 47
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`THE COURT: Good morning, everyone.
`Suzanne, if you'd call the case, please.
`COURTROOM DEPUTY: Sure.
`Discovery Hearing in Civil Action W:20-CV-634,
`styled Demaray, LLC, versus Intel Corporation, and
`Discovery Hearing in Civil Case No. W:20-CV-636, styled
`Demaray, LLC, versus Samsung Electronics Company Limited, a
`Korean company, and others.
`THE COURT: I'd like to have announcements from
`counsel, please.
`MR. MILVENAN: Your Honor, Plaintiff is ready.
`Rick Milvenan from McGinnis Lochridge and Maclain Wells
`from Irell & Manella on behalf of Demaray, LLC.
`THE COURT: And --
`MR. NASH: Good morning, Your Honor.
`THE COURT: Good morning, Mr. Nash.
`MR. NASH: Sorry, Judge, were you -- were you
`talking? I never want to interrupt you.
`THE COURT: I just saw you, and I said, good
`morning.
`MR. NASH: Okay. Good morning, Your Honor. Brian
`Nash at Pillsbury Winthrop Shaw Pittman here on behalf of
`Sam -- the Samsung entities. Also today are the Paul
`Hastings team that are going to introduce themselves, and
`they'll be taking the laboring oar on the discussion.
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 4 of 47
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`MR. RAVEL: Your Honor, for Intel, Steve Ravel
`along with first and most importantly our client
`representative, Jared Edgar -- Edgar.
`The Paul Hastings usual suspects are here. From
`Wilmer, Boston, we have an appearance from Joe Mueller.
`And our primary speaker today is Claire Specht, also from
`Wilmer, Boston.
`THE COURT: Anyone else?
`Okay. Very good. Okay. I'm happy to take up the
`
`issues.
`
`Jun has gotten me the list of topics and
`questions, so I'm happy for -- for anyone -- whoever is
`going to argue this to -- to take over.
`MR. WELLS: Your Honor, there are motions. This
`is Maclain Wells of Irell Manella on behalf of Demaray. So
`it'd probably makes sense for me to go first. I'm happy to
`take them in whatever order that you would like.
`The first issue addresses both Defendants, and the
`second issue relates to Intel specifically. And I think
`they have some concerns about confidentiality. So it might
`make sense for us to do the general one first. And then if
`anybody needs to leave, we can cover the Intel one. Is
`that acceptable?
`THE COURT: That's great.
`MR. WELLS: Okay. So just to reorient the Court,
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 5 of 47
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`very quickly. Two patents-in-suit, they relate to reactor
`configurations used to deposit thin films. One relates to
`method claims, one relates to apparatus claims.
`And within these patents, there's various
`limitations, including limitations relating to a DC power
`that's used, an RF bias that's used, and an RF filter
`that's used with specific characteristics.
`Now, the parties have been going round and round
`about identifying reactors that have DC power sources and
`an RF bias, and then also the additional details on the RF
`filters for other protective -- alternative protective
`mechanisms that are used. And we've come to the Court
`repeatedly on this.
`So back in December of last year, we should have
`gotten basic information on reactor configurations, but we
`didn't. We had three motions to compel in the spring, we
`had a stipulation by the parties in the summer, and this
`all culminated with the latest hearing on September 27th
`where we came to the Court and asked for specific
`information, which the Court ordered, but we're still not
`getting what we need, and so that's the background.
`Now, if the Court will recall, at the last
`hearing, there was a dispute regarding the RF filters. And
`so there's a certain subset of reactors for which the
`Defendants have identified an RF filter. And for those
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 6 of 47
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`reactors, they were going to go obtain a filter and provide
`it to us to inspect, a representative component part.
`They've agreed to do that, but we actually haven't
`received any of them yet. So that's one issue because
`obviously we're a month later, and we still haven't gotten
`anything.
`Now, the other dispute is with regard to reactors
`for which they have not identified an RF filter, the
`question is, okay, well, what is the alternative protective
`mechanism that's present? Detail it so we can address it
`and determine on our end whether it's a filter or an
`equivalent thereof, as is required by the claims.
`And the Court ordered this type of discovery. And
`the Defendant said, hey, instead of letting Demaray go into
`our -- into our fabs and look, let us do an inspection,
`Your Honor. We'll go -- we'll go look. We'll check with
`our suppliers, as well, see what they recommend, and we'll
`get back to you.
`Well, they went and did an inspection, but the
`inspection that they did, they artfully worded. And they
`say, oh, we can't find a filter or an alternative
`protective mechanism between the DC power source and the
`target. That's where we looked.
`If the alternative protective mechanism is in the
`box that they're calling the DC power source or out -- the
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 7 of 47
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`box that they're calling the target or somewhere else, we
`need them to tell us about it. They -- we don't know where
`they're drawing these lines, and the -- they're
`unnecessary. Just tell us if there's an alternative
`protective mechanism, wherever it may be, so that we can
`evaluate it and move along.
`And then with regard to their request to their
`suppliers, they approached one of their suppliers and
`provided details regarding that supplier. But they
`haven't --
`THE COURT: Give -- give me one second.
`MR. WELLS: Yes, Your Honor.
`THE COURT: Thank you, sir.
`Mr. Wells, you can continue.
`MR. WELLS: With regard to the second issue is
`they appeared to approach one of their power source
`supplier and provided some details regarding that supplier,
`but they haven't approached their other ones. There's only
`a handful of these. There's only a half a dozen. We don't
`understand why there's a hiccup here.
`They told the Court they would go to their
`suppliers, ask them what they recommended or what they sold
`or what they used and tell us what their supplier said.
`And they just haven't provided that information for five of
`the six power source suppliers that have been identified,
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 8 of 47
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`and we don't understand why.
`So now we're back with you, Your Honor, asking
`that you order, one, them to tell us where the alternative
`protective mechanisms are, wherever they may be, and these
`reactors, if there is one; and, two, to go to their power
`source suppliers and ask them what they recommend using as
`a protective mechanism, whether it's an RF filter or an
`alternative protective mechanism, and let us know what they
`say.
`
`THE COURT: Okay.
`A response?
`MR. OU: Yes, Your Honor. Phil Ou on behalf of
`Intel and Samsung. Thank you, Your Honor.
`Your Honor, back in the hearing that we had back
`in September, Your Honor, we agreed to do an inspection
`of -- of our reactors. We did exactly what Mr. Wells asked
`us to do. I can read verbatim the specific instructions
`you gave us.
`You said, go look at the DC power supply, follow
`the connections to the target, and see if there were any
`filters.
`We asked Samsung to do that. We asked Intel to do
`that. We even asked Applied Materials to do that. As Your
`Honor knows, Applied Materials has a large laboratory in
`the Northern District of California where it does
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 9 of 47
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`demonstrations for its customers.
`And we had someone go in, spend two days --
`actually go into the lab, inspect representative chambers,
`and gave them a detailed declaration of what the -- of what
`our engineer saw, and there is no -- and there is no
`filter, Your Honor, nor is there an alternative protect --
`alternative protection mechanism.
`I think the problem here, Your Honor, is Mr. Wells
`said they're still not getting what they need. And the
`reason they're not getting what they need is because there
`is no filter. And we've given them discovery time and time
`again that shows that.
`This latest request, Your Honor, is now for us to
`go to the power supply manufacturers. We've done that
`also, Your Honor. Mr. Wells's statement that we've only
`gone to one, that's simply not true. We've supplemented
`our interrogatory responses. We've gone to every single
`one of them.
`And the reality is, Your Honor, that Mr. Wells has
`subpoenaed these power supply manufacturers. They've
`produced documents, they've produced schematics. They have
`the information, meaning Demaray has the information, and
`they're just not getting what they're looking for.
`And that's because there is no narrowband
`rejection filter. There is no filter. And this notion of
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 10 of 47
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`an alternative protection mechanism, that's something that
`Mr. Wells and their -- their team has frankly made up, Your
`Honor.
`
`Dr. Demaray had a problem 20 years ago where his
`power supplies burned, and we're not sure why that
`happened. But that doesn't mean that all the power
`supplies going forward today -- there is no warning.
`There's never been a problem.
`We've asked everybody what alternative protection
`mechanisms there are, and they say, we don't have a problem
`with this. These are power supplies. The power supply
`designs haven't changed for -- for two decades.
`And so, Your Honor, we're honestly not sure what
`more we can do. We've supplemented our interrogatory
`response --
`THE COURT: Let me interrupt a second.
`MR. OU: Yes, Your Honor.
`THE COURT: And ask Mr. Maze (sic) -- give me one
`second.
`So, Mr. Maze, tell me specifically what you want
`me to order them to do because I -- counsel is representing
`that they -- that everything they can do in-house, they've
`done everything they can do at the suppliers. So what --
`what is it that you're asking me to order the Defendants to
`do?
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 11 of 47
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`MR. WELLS: Yes, Your Honor. It's Mr. Wells. I
`just want to make sure you are meaning me.
`With regard to the power suppliers, they've said
`they've gone to them and have told us what they said. They
`actually -- we don't think they have.
`If they can just list for each of the power
`suppliers that they've identified for both the DC power
`source and the RF filter -- it confirms that we went to the
`supplier, we asked them what RF filters they recommend
`using, if you use a DC power source or an RF bias, or
`alternative mechanisms that they recommend using, which
`ones they've provided, if any, and this is what they said.
`And just do that for each one of the power suppliers. It
`should be straightforward. And it sounds like they have
`the information. We just haven't gotten it.
`THE COURT: Well, no, what I heard counsel say was
`they've done this.
`MR. WELLS: But they haven't told us the
`information. So if they have the information, just tell
`us.
`
`THE COURT: I think -- what I heard -- and I'll
`let him speak for himself, but it's probably important that
`I understand what he said.
`What I understood counsel to say was that they've
`asked, and there is no information.
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 12 of 47
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`MR. WELLS: They haven't told us that. They've
`told us for one power supplier, that this is what that
`power supplier says. And that was the Applied Energy power
`supplier.
`With regard to the other power suppliers that
`they've identified for the DC power supply and the RF
`filter, they've simply said, we've approached them, and we
`don't have any more information. They haven't said, this
`person refused to answer, or this person said X, or this
`person said Y.
`And so just tell us what they said. And if
`they're refusing to answer, then we know we still need to
`follow up with them in some other way, shape, or form. But
`with what we have now, we don't know what we're working
`with.
`
`THE COURT: Mr. Ou?
`MR. OU: Yes, Your Honor.
`So we've approached all of them. I think, Your
`Honor, you're correct in that we've provided all the
`information that we have. We've cited to documents, and
`we've supplemented our interrogatory response.
`If Mr. Wells just wants me to confirm in a -- in a
`further supplementation that, for example, the RF power
`supplier informed us that they don't have any information
`about an alternative protection mechanism, I'm happy to do
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 13 of 47
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`that, Your Honor. I thought that was clear from our
`supplementation. And we've said, we've given you all the
`information we have, and to the extent we get more
`information, we will supplement our interrogatory response.
`
` And I understand Mr. --
`Mr. Wells had schematics from Advanced Energy prior to even
`the last hearing, Your Honor. And we've taken a look, and
`we've supplemented our rog responses. And, frankly, I
`don't know what there is more that we can do, but if Your
`Honor just asks us to provide that confirmation, I'm happy
`to do that in a supplementation.
`THE COURT: No. I think you've -- you provided
`the supplementation on the record in front of me. That's
`why I'm trying to find out from Mr. Wells what he wants me
`to order you to do.
`MR. OU: Thank you, Your Honor.
`MR. WELLS: So, Your Honor, I just need to know
`which of the power suppliers I need to go after
`individually because they're refusing to provide the
`information.
`It's one thing if they say to the Defendants, oh,
`we don't have any information on an RF filter or an
`alternative power -- or an alternative protective
`mechanism, in which case, you know, we might need to get
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 14 of 47
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`something under oath, a declaration to that effect, but
`okay.
`
`But I -- we don't have that information. If
`they're simply saying, no, we're not going to answer that
`question or we're not going to look, I need to go to that
`power supplier and -- and try to enforce the subpoena
`against them. So --
`THE COURT: That sounds reasonable, Mr. Ou. Have
`you provided to Mr. Wells the names of the companies so
`that they can verify this?
`MR. OU: Your Honor, Mr. Wells has knowledge of
`every power supplier. They've subpoenaed them. And my
`understanding -- I'm not privy to those conversations. I'm
`not looped into those meet and confers.
`My understanding is every single one of the power
`supply manufacturers have responded to the subpoenas. Some
`have produced documents, some have, you know, provided
`written responses in their objections.
`And so, Your Honor, frankly, I'm not really sure
`what more we can do. Obviously, we don't represent those
`power supplier manufacturers. If Mr. Wells has a dispute
`with them, he knows how to handle that dispute, Your Honor.
`We've given him the information, and if he has additional
`information that he's looking for, if he tells us what that
`is, we're happy to investigate.
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 15 of 47
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`But at the same time, Your Honor, it's not our
`burden to do third-party discovery for the Plaintiff, and
`we think we've -- we've done everything that they've asked
`for. We've done everything that the Court has ordered us
`to do. And if there's something I'm missing, I'm happy to
`further look into it, Your Honor.
`But as far as -- our position is we think we've
`satisfied all these orders and -- and the requests. And
`I'll leave it at that, Your Honor.
`MR. WELLS: Your Honor.
`THE COURT: Yes, sir?
`MR. WELLS: Very briefly. It seems like a simple
`resolution here. For each of the power -- the six power
`suppliers that we're talking about -- it's not many -- if
`they could just simply say, we asked them, and this is what
`they said, or they refused to answer, we can move along,
`and that's all we need -- that's what we need.
`THE COURT: Can -- can you-all do that, Mr. Ou?
`MR. OU: Your Honor, I'm happy to provide that
`information.
`THE COURT: Okay.
`MR. OU: We'll -- we'll do that.
`THE COURT: So we've worked that out.
`MR. WELLS: Now, Your Honor, with regard to the
`other issue, the inspection. They -- they suggested that
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 16 of 47
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`they do a visual inspection in lieu of Demaray, and so
`we're relying on them to do a good-faith reasonable
`inspection on their own without any of our supervision.
`And Your Honor said, hey, if there's a problem, come back
`to me at the last hearing.
`They've done an inspection, but there is a
`problem. So the first problem is they said -- one of the
`issues they said is don't let Demaray do the inspection
`because it's going to interrupt everything.
`Well, it sounds like Applied Materials has
`reactors readily available that they say are representative
`for inspection that they used for public displays and --
`and whatnot. I'm not sure why we don't have access to that
`to go inspect it. It seems like that's an easy resolution.
`THE COURT: Let me stop you and say that it seems
`that to me, too. So let me hear a response to that.
`MR. OU: Your Honor, with respect to inspecting
`Applied Materials's reactors, Your Honor, one, they've
`never made that request. And we do have a lab. Applied
`Materials has a lab. Applied Materials is -- obviously is
`a third party in this case. They've subpoenaed Applied.
`They've never asked to make an inspection of Applied. If
`that is their request, Your Honor, obviously, Applied will,
`you know, take that and consider it.
`We did do exactly what Mr. Wells asked us to do.
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 17 of 47
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`You know, we had an engineer that go to a lab while it was
`not being used for research and development, and -- and we
`did the inspection, Your Honor.
`This is a moving target, you know, after we've
`already done what the other side requested, and we provided
`that information. And now, Mr. Wells is seeking to, you
`know, inspect the chambers of -- of the supplier that's not
`a party to the case.
`That being said, Your Honor, if they want to make
`that request, then, you know, we obviously will address it
`at that time. But that's not within the scope of what Your
`Honor ordered in the prior hearing. It's not what we
`agreed to. And this dispute was over the -- the scope of
`an order that we thought was pretty clear, and we complied
`with.
`
`And so to the extent that Mr. Wells now wants to
`change the scope of the order to say -- continue to allege
`that we're not compliant, we, obviously, take exception to
`that. But if there's now a different request regarding an
`inspection, we're happy to consider what that is, Your
`Honor.
`
`The details of that inspection, I think we're
`going to have to understand what that is. Because we've
`done the inspection, we did -- we provided the information,
`we've given them a declaration. If Mr. Wells wants to
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 18 of 47
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`request that they go do the exact same thing that our
`engineer did, we can obviously take that up with Applied
`Materials and see what the response is, Your Honor.
`THE COURT: Okay. Well, let's do that.
`And, Mr. Wells, take that up, get a response as
`quickly as responsible. And if over the next week, you
`guys can't get this resolved, just let me know, and I'll
`get involved.
`Mr. Wells, anything else?
`MR. WELLS: So, Your Honor, that addresses the
`Applied Materials chambers that Defendants have.
`Defendants have other chambers, as well, that have
`filters or that they claim don't have filters. And for
`those, we could either inspect them ourselves -- it's a
`small number of chambers -- we can inspect them ourselves,
`or we ask that they simply state that they've done a
`good-faith reasonable inspection of the chambers for RF
`filters and alternative protective mechanisms, and there
`isn't one present, if that's their position.
`But -- so we can't have them do an inspection and
`say, hey, we looked at this part of the chamber, we're
`putting up boxes here, and we don't know where those boxes
`and lines are drawn.
`If their position really is there is no RF filter
`or alternative protective mechanism after a good-faith and
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 19 of 47
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`reasonable search, just tell us that and -- without drawing
`these boxes as to what they looked at.
`THE COURT: A response?
`MR. OU: Your Honor, we're not drawing boxes.
`Our -- our engineers have conducted a good-faith
`investigation. Again, this seems to be a moving target
`that now Mr. Wells wants us to take apart a power supply
`and inspect the insides of it.
`Your Honor, Intel and Samsung, they don't
`manufacture power supplies. They don't make them. The
`engineers don't ever do that in the ordinary course of
`business.
`I asked an engineer specifically, and they said,
`if we're going to take a power supply and take it apart,
`we're going to have to then send it back to Advanced Energy
`to get it refurbished because they're not comfortable, you
`know, looking inside a box, taking it apart for a component
`they purchase and use, and then making some type of
`determination as to what is the alternative protective
`mechanism. Mr. Wells, he has a schematic from Advanced
`Energy for these parts.
`And so, Your Honor, it's not clear what more we
`can do. Your Honor, these -- these patents have a very
`basic configuration. It's a DC -- pulse DC power supply
`connected to the target. And the claims make very clear
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 20 of 47
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`there's a narrowband rejection filter that the power goes
`through.
`So it's not clear where else we can look and why
`Mr. Wells believes we haven't conducted a good-faith
`investigation. He seems to now suggest that we need to now
`go look at other places in the chamber, which doesn't make
`any sense because the filter is supposed to protect the DC
`power supply from the target.
`So, Your Honor, frankly, I don't even know how to
`instruct our engineers to go look for an alternative
`protection mechanism somewhere else in the chamber. I
`can't even ask them to do that. And I believe if I asked
`them, the response would be, we don't even know what to be
`looking for, Your Honor.
`There's -- if there's going to be a filter, we
`know where it should be. We looked. And it's not there.
`So, again, Your Honor, it's still not clear to us
`what Mr. Wells wants us to go inspect. They have the
`schematics. They have the bill of materials. They've
`taken depositions.
`If Mr. Wells wants to give us a specific
`instruction of what to look for, we're happy to consider
`it, Your Honor. But this notion of, well, go find me an
`alternative protection mechanism so that they can say that,
`okay, well, that's the narrowband rejection filter under a
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 21 of 47
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`DOE theory. I don't even know how to go about doing that,
`Your Honor.
`And that's -- I think that's a fundamental
`problem, and why we're continuing to have these disputes
`back before you, Your Honor.
`THE COURT: Mr. Wells?
`MR. WELLS: Yes, Your Honor. So it seems again
`like there's a simple solution here. It appears that the
`Defendants don't want to take apart their power sources.
`Obviously, we need to know whether there's a filter in this
`power source, and they simply put it in the box instead of
`outside the box. So if they provide us --
`THE COURT: Why -- oh, go ahead, please.
`MR. WELLS: If they provide us representative
`power sources -- here's an example of the power source that
`we use that is representative of this grouping of reactors,
`we'll do the inspection and take it apart. These are
`things they can plug and unplug, provide it.
`They actually agreed to do this before the last
`hearing. I didn't know this was in dispute. But then now
`we haven't received a power source, for example, from
`Advanced Energy.
`So give us representative power sources. We'll
`open them up and look at them. That would handle what's in
`the power source.
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 22 of 47
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`With regard to what's in the rest of the reactor,
`just take out their equivocating language where they say,
`hey, there's no RF filter or alternative protective
`mechanism between the DC power source and the target. And
`if they simply, hey, we did a good-faith reasonable search
`and we are unaware of an RF filter or alternative
`protective mechanism anywhere in the reactor, then we're
`done, and we can move along.
`But right now, if it's outside of where they drew
`that box, we don't know if there is one or isn't one. So
`if they're going to do the inspection, we need to know
`what's really there.
`MR. OU: Your Honor, if I may briefly respond.
`THE COURT: Sure, of course.
`MR. OU: Thank you, Your Honor.
`We're happy to procure a component. It seems like
`we're back to where we were at the last hearing, Your
`Honor, which is if they want to do an inspection of our
`particular component, I think we all agreed that it's not
`reasonable to ask Intel or Samsung to stop manufacturing
`semiconductor products and, you know, take a component out
`of a reactor. And I think Mr. Wells agreed that that's not
`reasonable either.
`So the solution would be, well, we need to
`provide -- you know, procure a component for them to
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 23 of 47
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`inspect it.
`The problem, Your Honor, is that those components,
`one, they're not a lot of spares at the fabs, and we can't
`just take one and make it available. But we said, if you
`want us to procure one, and we will, we're going to need to
`have you pay for it because that's not something that we
`can just take out of -- you know, take out of what's in --
`currently in production. We don't have very many spares.
`I understand that there are components that we can
`make available. And we've -- I've told Mr. Wells, I've
`said, if you actually want to come in and you want to take
`one apart and you want to inspect it, we can arrange for
`that.
`
`But that's taking something out of the ordinary
`course of business. And we're going to then have to go
`return that and have to get it refurbished, that's going to
`require the business units to approve that. But if you're
`willing to pay to procure it, we're happy to do that.
`I'm not sure why Mr. Wells wants to do that when
`he has the documentation from Advanced Energy already, but
`if that's the way to move that forward, as long as
`Mr. Wells is willing to pay to procure the component, we're
`happy to make that investigation and -- and to make that
`inquiry.
`We've already done that, Your Honor, for many of
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 24 of 47
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`these components. In fact, this morning I forwarded to
`Mr. Wells something I got back from -- for Samsung. He
`made the request. We said we'll procure it. I forwarded
`him the quotation with the price, details of the filter,
`and I asked him, do you want us to procure it? Confirm
`that you're going to pay for it, and we'll do that.
`And so, Your Honor, we're doing everything
`possible, and frankly, from our perspective, beyond what
`is -- you know, we're doing the discovery for the Plaintiff
`here.
`
`And, you know, to the extent Your Honor orders us
`to, you know, procure further components, to the extent
`that Demaray is willing to pay for that procurement, again,
`Your Honor, we're happy to accommodate that request and
`make the -- and continue that investigation.
`MR. WELLS: If I can respond very quickly, Your
`
`Honor?
`
`THE COURT: Sure.
`MR. WELLS: So, first, regarding the
`documentation, the documentation we get has a picture of a
`box that says "filter." So that schematic is not very
`helpful. That's why we need to see the actual things.
`And with regard to our access to them, we've
`requested to inspect the reactors of the Defendants. They
`have the reactors themselves, the accused products, and the
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`Case 6:20-cv-00636-ADA Document 151 Filed 12/20/21 Page 25 of 47
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`products that are used in the accused methods.
`And so we're trying to accommodate their request
`that we not do these inspections so that we don't interrupt
`their business flow, and we're trying to be reasonable
`about that.
`We've asked for parts. Mr. Ou did contact us this
`morning regarding a part for a Samsung reactor that he had
`said, but it's not going to be available for six months, he
`told us.
`Obviously, that's not going to help very much,
`given the case timelines that we have. We need to know
`what's in these reactors much sooner than that, especially
`considering we have final infringement contentions due on
`December the 17th, and we still don't have the details on
`the filters and the re
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