Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 1 of 19
`Case 6:20-cv-00636—ADA Document 51-7 Filed 02/23/21 Page 1 of 19
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`EXHIBIT 6
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`EXHIBIT 6
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`Case 6:20-cv-00636—ADA Document 51-7 Filed 02/23/21 Page 1 of 19
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`EXHIBIT 6
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 2 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`APPLIED MATERIALS INC.,
`PLAINTIFF,
`
`VS.
`DEMARAY LLC,
`DEFENDANT.
`
`CASE NO. CV-20-09341-EJD
`SAN JOSE, CALIFORNIA
`JANUARY 21, 2021
`PAGES 1 - 17
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`TRANSCRIPT OF ZOOM PROCEEDINGS
`BEFORE THE HONORABLE EDWARD J. DAVILA
`UNITED STATES DISTRICT JUDGE
` A-P-P-E-A-R-A-N-C-E-S
`FOR THE PLAINTIFF:
`
`PAUL HASTINGS
`BY: YAR R. CHAIKOVSKY
` PHILIP OU
`1117 S. CALIFORNIA AVENUE
`PALO ALTO, CALIFORNIA 94304
`
`FOR THE DEFENDANT:
`
`IRELL & MANELLA LLP
`BY: CRAWFORD MACLAIN WELLS
` BENJAMIN W. HATTENBACH
`1800 AVENUE OF THE STARS, SUITE 900
`LOS ANGELES, CALIFORNIA 90067
`
`OFFICIAL COURT REPORTER:
`
`IRENE L. RODRIGUEZ, CSR, RMR, CRR
`CERTIFICATE NUMBER 8074
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`PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY,
`TRANSCRIPT PRODUCED WITH COMPUTER.
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`SAN JOSE, CALIFORNIA
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`JANUARY 21, 2021
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`P R O C E E D I N G S
`(COURT CONVENED AT 10:39 A.M.)
`THE COURT: THIS IS APPLIED MATERIALS VERSUS
`DEMARAY. THESE ARE 5676 AND 9341.
`LET ME FIRST CAPTURE THE APPEARANCES OF THE PARTIES. WHO
`APPEARS, PLEASE, FOR PLAINTIFFS IN THIS MATTER?
`MR. CHAIKOVSKY: YOUR HONOR, THIS IS YAR CHAIKOVSKY
`FROM PAUL HASTINGS. ALONG WITH ME WE HAVE PHILIP OU ALSO FROM
`PAUL HASTINGS.
`AND IN THE GALLERY, ACTUALLY THE ZOOM GALLERY WE HAVE
`NATE ZHANG, OUR CLIENT REPRESENTATIVE FROM APPLIED MATERIALS.
`THE COURT: THANK YOU. GOOD MORNING TO YOU.
`AND WHO APPEARS FOR THE DEFENDANTS IN THIS MATTER?
`MR. WELLS: YOUR HONOR, THIS IS MACLAIN WELLS OF
`IRELL & MANELLA.
`AND WITH ME IS BENJAMIN HATTENBACH ALSO FROM
`IRELL & MANELLA APPEARING ON BEHALF OF DEFENDANT DEMARAY LLC.
`THE COURT: THANK YOU. GOOD MORNING EVERYONE. IT'S
`NICE TO SEE YOU BACK, MR. HATTENBACH.
`MR. HATTENBACH: LIKEWISE.
`THE COURT: THIS IS A CASE MANAGEMENT CONFERENCE,
`AND I UNDERSTAND THERE'S A FEW THINGS IN PROGRESS HERE. AND
`THE FIRST THING I WANTED TO ASK IS WHAT IS THE STATUS OF -- I
`THINK THAT APPLIED WAS GOING TO DISMISS OR TALKED ABOUT
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 4 of 19
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`DISMISSING THE 5676 CASE.
`WHAT IS THE STATUS OF THAT?
`MR. CHAIKOVSKY: YOUR HONOR, YAR CHAIKOVSKY HERE
`AGAIN FROM PAUL HASTINGS.
`AS YOUR HONOR KNOWS, WE FILED THE ADMINISTRATIVE MOTION
`SEEKING LEAVE WITH RESPECT TO THAT CASE AND THEN ALSO IN THIS
`ACTION FILED A NEW COMPLAINT.
`AS SOON AS THIS CASE MANAGEMENT CONFERENCE PROCEEDED,
`WE'RE READY TO MOVE TO DISMISS THAT COMPLAINT AND PROCEED WITH
`THIS CASE. WE WERE JUST LEAVING IT UP TO YOUR HONOR WHAT WAS
`THE BEST WAY TO PROCEED. IT SEEMS LIKE WE'RE PROCEEDING WITH
`THE 9431 LITIGATION, AND, THEREFORE, WE WILL MOVE TO DISMISS
`THE OTHER LITIGATION.
`THE COURT: ALL RIGHT. THANK YOU FOR THAT.
`AND YOU'LL FILE A FORMAL DISMISSAL I TAKE IT, THEN?
`MR. CHAIKOVSKY: YES, YOUR HONOR.
`MR. WELLS: YOUR HONOR, MAY I COMMENT BRIEFLY?
`THE COURT: YES, MR. WELLS.
`MR. WELLS: IF YOU'LL RECALL THAT THE PLAINTIFFS
`FILED A MOTION TO LOG THE NEW COMPLAINT IN THE EARLIER FILED
`CASE, THE APPLIED ONE CASE, AND THAT WAS DENIED.
`AND IN DENYING IT, THE COURT INDICATED THAT IT WAS ALSO
`NOT RULING THAT THE PENDING MOTION TO DISMISS IN THE FIRST
`FILED CASE IS MOOT, SO THAT MOTION IS STILL PENDING.
`SO TO THE EXTENT THAT THE COURT WANTS TO ADDRESS THAT
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 5 of 19
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`MOTION, BECAUSE IT MIGHT RESOLVE WHETHER OR NOT THE SECOND
`FILED CASE IS APPROPRIATE, THAT'S STILL AN OPEN ISSUE.
`SO I JUST WANTED TO GET THE COURT'S CLARITY THAT IT DOES
`NOT WANT TO ADDRESS THAT MOTION OR WHETHER IT DOES WANT TO
`ADDRESS THAT PENDING MOTION TO DISMISS.
`THE COURT: I'M SORRY. YOU BROKE UP A LITTLE BIT
`THERE, MR. WELLS. I THINK ARE YOU ASKING WHAT WE SHOULD DO
`ABOUT THE MOTION TO DISMISS ON 5676 OR YOUR ANTICIPATED MOTION
`TO DISMISS ON 9341?
`MR. WELLS: MY QUESTION IS REGARDING THE ALREADY
`PENDING MOTION TO DISMISS THAT IT BE FILED WITH PREJUDICE AND
`IT ALSO REQUESTED THAT THE COURT, OR NOTED THAT THE COURT HAS
`DISCRETION NOT TO ACCEPT SUBJECT MATTER JURISDICTION.
`IF THE COURT RULED ON EITHER OF THOSE BASES ON THE PENDING
`MOTION, THEN THE SECOND FILED APPLIED CASE AND THE ISSUES
`THEREIN WOULD LIKELY BE RESOLVED. SO I JUST WANTED TO GET THE
`COURT'S GUIDANCE ON WHETHER OR NOT IT WANTED TO RESOLVE THAT
`MOTION AS IT'S STILL PENDING.
`THE COURT: WELL, WHAT I WOULD LIKE TO DO, I THINK,
`IS TO PROCEED. FIRST OF ALL, LET ME ASK A QUESTION EARLIER
`SOMEWHAT TONGUE AND CHEEK, MAYBE NOT, BUT I THINK
`MR. CHAIKOVSKY ASKED WHAT IS THE BEST WAY TO PROCEED IN THE
`CASE IS. TO ANSWER THAT QUESTION, IT'S THE DISMISSAL OF ONE
`AND THEN THE SETTLEMENT OF THE OTHER.
`SO WE'RE NOT GOING TO ACCOMPLISH THAT THIS MORNING, I
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 6 of 19
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`THINK AT LEAST THE SECOND PART OF THAT.
`BUT AS TO YOUR QUESTION ABOUT WHAT TO DO WITH 5676, I
`THINK IT'S BEST AND CLEANER IF, AND I APPRECIATE YOUR ATTENTION
`TO DETAIL, I THINK WHAT I'D LIKE TO DO IS TO PROCEED, THE PLAN
`I HAVE, THE THOUGHT I HAVE IS THAT IF 5676 IS DISMISSED, I
`WOULD FIND THAT THAT MOTION TO DISMISS IS MOOT.
`9341 IS PRESENT. THAT MOVES ME TO THE NEXT QUESTION WHICH
`IS THE TIMING OF YOUR FILING YOUR MOTION TO DISMISS THAT
`ACTION, THAT IS, THE 9341 ACTION.
`I KNOW THAT APPLIED ASKED FOR A HEARING DATE THAT WE'VE
`SECURED OF MARCH 4TH. I THINK THAT'S -- LET ME JUST TELL YOU,
`I THINK THAT'S PREMATURE. MY SENSE IS THAT WE WOULD TAKE AND
`HAVE A NORMAL SCHEDULING FOR THAT MOTION.
`THE SECONDARY TERTIARY QUESTION THAT COMES UP IS WHAT
`SHOULD WE DO ABOUT DISCOVERY? I KNOW I'VE READ YOUR THOUGHTS,
`BOTH OF YOUR THOUGHTS ON THAT. WE SHOULD PROCEED WITH
`DISCOVERY, WE SHOULD NOT PROCEED WITH DISCOVERY.
`MY THOUGHT IS THAT AS I LOOKED AT THIS, WHAT I WOULD DO IS
`NOT ENGAGE DISCOVERY UNTIL THE COURT HAS RULED ON THAT MOTION.
`THAT'S WHAT THE COURT WOULD LIKE TO DO.
`THE NEXT QUESTION IS, WELL, WHAT ABOUT A SCHEDULE OR
`CONCURRENT QUESTION, I SUPPOSE, IS, WELL, WHAT ABOUT A SCHEDULE
`FOR 9431? AND HERE AGAIN I THINK IT'S PREMATURE FOR THE COURT
`TO ADVANCE A SCHEDULE RECOGNIZING THAT I'M GOING TO ENJOY THE
`MOTIONS THAT YOU'RE GOING TO FILE AND WILL LITIGATE THAT AND
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 7 of 19
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`THEN WE WILL SEE WHAT WE DO ABOUT A SCHEDULE SUBSEQUENT TO
`THAT.
`SO I GUESS IN ANSWERING MR. CHAIKOVSKY'S QUESTION, I TOLD
`YOU THE PLAN I THOUGHT I WOULD ENGAGE IN THIS CASE AND NOW I'M
`HAPPY TO HEAR FROM YOU IF YOU HAVE ANY COMMENT ON THAT.
`MR. WELLS: SO, YOUR HONOR, JUST TO BE CLEAR, WE
`WILL BE FILING OUR MOTION ON THE 26TH OF JANUARY PURSUANT TO A
`STIPULATION BY THE PARTIES REGARDING THE TIMING OF OUR RESPONSE
`TO THE NEW COMPLAINT, AND WE AGREE WITH YOUR PROPOSED THOUGHTS
`ON HOW TO PROCEED.
`THE COURT: OKAY. THANK YOU.
`MR. CHAIKOVSKY: YOUR HONOR, THIS IS MR. CHAIKOVSKY
`ON BEHALF OF APPLIED MATERIALS. WE UNDERSTAND YOUR HONOR'S
`WISHES, AND WE'LL PROCEED THAT WAY IN THE 934 ACTION.
`IF WE LOOKED AT THE TIMING OF THE NORTHERN DISTRICT OF
`CALIFORNIA RULES, THE BRIEFING WILL COMPLETE, BE COMPLETE ON
`THAT MOTION TO DISMISS TWO WEEKS BEFORE THAT MARCH 4TH HEARING
`THAT YOU ALREADY SET ASIDE FOR THE PRIOR ACTION. SO THAT WAS
`THE BASIS FOR OUR REQUEST TO MAINTAIN THAT DATE AND JUST
`ADDRESSING THAT ISSUE ALONE OF THE HEARING DATE TO MAINTAIN
`THAT DATE BECAUSE THE BRIEFING WILL BE COMPLETED, AND,
`THEREFORE, WE THOUGHT OBVIOUSLY GETTING TO THE ARGUMENT AS
`OPPOSED TO SOME TIME IN APRIL WOULD BE MORE EFFICIENT AND
`EFFECTIVE.
`GOING TO YOUR COMMENT EARLIER ABOUT WANTING TO REACH A
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 8 of 19
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`RESOLUTION AS TO THE SECOND ACTION, THE SOONER WE CAN GET TO
`THAT THE BETTER. AND AGAIN, THE PARTIES SHOULD BE READY BY
`THAT MARCH 4TH DATE.
`THE COURT: I APPRECIATE THAT. MR. WELLS, DO YOU
`WANT TO COMMENT ON THAT OR MR. HATTENBACH?
`MR. WELLS: YES, YOUR HONOR.
`SO WE'VE RESERVED A DATE OF APRIL 8TH OR APRIL 15TH WITH
`THE COURT CLERK REGARDING OPEN DATES FOR MOTIONS IN THIS SECOND
`FILED CASE, AND WE THINK THAT'S WHEN THE MOTION SHOULD BE
`HEARD. THIS IS NOT -- THE COURT HAS ALREADY RULED THAT IT'S --
`THE SECOND FILED CASE IS NOT TAKING THE PLACE OF THE FIRST
`FILED CASE OR ANYTHING ELSE, AND SO IT OUGHT TO BE, THE MOTION
`TO DISMISS OUGHT TO BE ADDRESSED ON THE NORMAL SCHEDULE. IT'S
`IN APRIL.
`THEN ONCE THAT HAS OCCURRED, IF THE COURT DETERMINES IT'S
`GOING TO KEEP THE CASE, THE CASE SHOULD PROCEED UNDER A NORMAL
`SCHEDULE AS OUTLINED IN THE CMC STATEMENT, AND WE WILL GET TO
`THE MERITS OF THE CASE ACCORDING TO A NORMAL CASE SCHEDULE AS
`IS APPROPRIATE.
`THE COURT: ALL RIGHT. THANK YOU.
`I THINK THE 15TH OR THE 8TH OF APRIL ARE THE DATES.
`MR. CHAIKOVSKY, I APPRECIATE YOUR ENTHUSIASM, BUT I DO
`THINK THAT I WOULD LIKE TO HAVE THE HEARING IN APRIL SOME TIME.
`SO WE'LL SEE IF THE MOTION GETS FILED. IF THE MOTION GETS
`FILED ON NEXT TUESDAY, THE 25TH, AND I ANTICIPATE IT WILL BE AN
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`APRIL DATE, MR. CHAIKOVSKY, JUST TO LET YOU KNOW.
`MR. CHAIKOVSKY: I APPRECIATE THAT. AND I'D LIKE TO
`ADDRESS, GIVEN YOUR COMMENTS, YOUR HONOR, ONE OR TWO MORE
`ITEMS.
`IN PARTICULAR, I BELIEVE I HAD HEARD FROM YOUR HONOR THAT
`PENDING THAT MOTION TO DISMISS FILED BY THE DEFENDANTS THAT
`DISCOVERY WOULD BE STAYED IN THIS ACTION. WE'VE SERVED
`DISCOVERY IN THIS ACTION. AND, YOUR HONOR, LOOKING AT YOUR OWN
`OPINIONS IN TS TECH OR IN BARRETT V. APPLE, THERE MUST BE A
`CLEAR SHOWING THAT DISMISSAL IS LIKELY IN THIS CASE.
`AS WE LOOK AT THE COMPLAINT THAT WE FILED ON DECEMBER 24TH
`IN THIS 9431 LITIGATION, YOU KNOW, THERE'S NOTHING TO SHOW THAT
`DISMISSAL IS LIKELY IN THIS CASE. AND, IN FACT, ALL OF THE
`EVENTS THAT HAVE TRANSPIRED THAT LEAD TO OUR FILING OF THE NEW
`COMPLAINT IN THIS ACTION AND THE AFFIRMATIVE ACTIONS AS
`RECOUNTED ON REALLY PAGES 6 THROUGH 8 OF OUR NEW COMPLAINT AND
`THE NEW ACTIONS ARE AFFIRMATIVE ACTS OF THE PLAINTIFF ON PAGE 8
`THAT HAVE BEEN TAKEN.
`FOR EXAMPLE, IN THE JOINT CASE MANAGEMENT STATEMENT IN THE
`PRIOR CASE, THAT IS THE 5676 CASE, THAT DEMARAY SAID THEY WOULD
`SEEK DISCOVERY FROM APPLIED, THAT HAS BEEN REITERATED IN THE
`CASE MANAGEMENT STATEMENT IN THIS CASE.
`FURTHERMORE, DEMARAY HAS SERVED SUBPOENAS ON APPLIED.
`REMEMBER IN THE PRIOR ACTION DEMARAY HAD SAID THIS IS ALL ABOUT
`CONFIGURATIONS OF INTEL AND SAMSUNG. INTEL AND SAMSUNG HAVE
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`THE REQUISITE ELEMENTS OF A PULSE DC POWER AND A FILTER. THAT
`WAS THEIR CLAIM BACK IN THE SUMMER AND IN OPPOSITION TO OUR
`PRELIMINARY INJUNCTION MOTION. THAT IS NOT THE CASE ANYMORE,
`YOUR HONOR.
`IN THEIR CMC STATEMENT, AS THEY SAY ON PAGE 7, INTEL AND
`SAMSUNG HAVE SAID THEY DO NOT PROVIDE PULSE DC POWER, THEY DO
`NOT PROVIDE THE FILTER OF THE CLAIM LANGUAGE. SO THEY DON'T DO
`IT.
`I HAVEN'T SEEN DEMARAY SAY THAT INTEL AND SAMSUNG ARE
`LYING ABOUT THAT. BUT THEY DON'T DO IT. AND SAMSUNG HAS BEEN
`DEPOSED. INTEL HAS PROVIDED DISCOVERY RESPONSES. IF YOU WANT
`THE DETAILS OF THAT, MR. OU CAN PROVIDE THE DETAILS OF THAT.
`SO IF THEY DON'T DO IT -- WELL, WHAT THEY THEN DID WAS
`SERVED DISCOVERY, SUBPOENAS, IN WEST TEXAS IN BOTH THE INTEL
`AND SAMSUNG CASES ON APPLIED. I CAN WALK THROUGH THOSE
`EXHIBITS TO THE COMPLAINT, YOUR HONOR. THOSE ARE EXHIBITS
`F AND G. BOTH IN DOCUMENT REQUESTS AND IN SUBJECT MATTER FOR
`THE DEPOSITION, A DEPOSITION THAT THEY'VE DELAYED, YOUR HONOR.
`WE'VE BEEN TRYING TO SCHEDULE, AND THEY HAVE NOT WANTED TO HAVE
`THAT DEPOSITION PRIOR TO THIS HEARING SO THAT THEY DON'T HAVE
`TO ASSERT THAT THEY MAKE INFRINGEMENT ALLEGATIONS IN ADDITION
`TO AN INVESTIGATION OR I SHOULD SAY AN INSPECTION OF OUR
`PROPERTIES.
`BUT THEY SERVED THESE SUBPOENAS. AND IN THE SUBPOENAS
`MOST IMPORTANTLY, IT'S NOT INTEL'S OR SAMSUNG'S CONFIGURATIONS,
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`THEY'RE FOCUSSING ON APPLIED PROVIDING THE REQUISITE PULSE
`DC POWER, APPLIED PROVIDING THE REQUISITE FILTER, APPLIED
`PROVIDING THE FR BIAS.
`SO WE'VE SEEN A SIGNIFICANT CHANGE, AND THAT'S REALLY KIND
`OF THIS MIGRATION THAT STARTED, AGAIN FOCUSSING JUST ON PAGE 8
`NICELY CHARTED BY US, ON NOVEMBER 30TH AND THEN DECEMBER 12TH.
`AND ON DECEMBER 20TH, THEIR COUNSEL IN TEXAS, WHICH IS
`EXHIBIT H TO OUR DECLARATORY JUDGMENT COMPLAINT, SAID THAT IT
`WAS NECESSARY TO DETERMINE WHAT REACTORS ARE IN DISPUTE BY
`GOING AFTER APPLIED MATERIALS.
`IF YOU LOOK AT EXHIBIT 8, YOUR HONOR, AND PULL IT UP,
`THERE CAN BE NO DOUBT AT THE VERY LEAST AN ALLEGATION OF
`INDUCEMENT OF INFRINGEMENT, WE HAVE KNOWLEDGE OF THE PATENTS,
`WE HAVE KNOWLEDGE OF WHAT CONSTITUTES INFRINGEMENT, THAT'S
`GLOBAL TECHNOLOGY. IN THAT LETTER FROM COUNSEL FOR DEMARAY
`THEY ARE ALLEGING THAT WE'RE AIDING AND ABETTING. HOWEVER, I
`WOULD REMIND YOU, YOUR HONOR, THAT ONE OF THE TWO PATENTS AT
`ISSUE HERE, YOUR HONOR, IS A SYSTEM PATENT, A REACTOR PATENT.
`APPLIED MATERIALS IS THE ONLY PARTY OF THE THREE THAT ARE
`INVOLVED HERE, THAT IS, APPLIED, INTEL OR SAMSUNG, MAKES, SELLS
`REACTORS. WE DO THAT. NO ONE ELSE. THE OTHER PATENT IS A
`METHOD PATENT AND ITS USE.
`SO THAT IS WHY COUNSEL FOR DEMARAY IN THIS ACTION AND IN
`THE ACTION IN TEXAS ARE NOW SEEKING ALL OF THIS INFORMATION
`FROM APPLIED MATERIALS.
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`SO THEY WILL FILE A MOTION TO DISMISS ON THE 26TH, BUT
`THAT MOTION TO DISMISS BASED ON SUBJECT MATTER JURISDICTION IN
`OUR OPINION IS SPURIOUS, YOUR HONOR, AND THAT'S THE REASON WHY
`WE'RE LOOKING FOR EXIGENT ABILITY TO RESPOND TO THAT AND
`PROCEED ON OUR LICENSING DEFENSE, YOUR HONOR, BECAUSE OUR
`LICENSING DEFENSE IS A CONTRACTUAL INTERPRETATION. DEMARAY
`GAVE US A LICENSE TO ITS INTELLECTUAL PROPERTY, AND THEN THAT
`CAN BE LITIGATED QUICKLY TO REACH YOUR HONOR'S ULTIMATE RESULT
`OF A QUICK SETTLEMENT.
`IT'S REALLY BASIC CONTRACT INTERPRETATION. AGAIN, WE'VE
`HIGHLIGHTED THAT VERY EASILY FOR YOUR HONOR. THAT IS EXPLAINED
`AT LENGTH IN OUR DJ COMPLAINT IN PARAGRAPH 64 TO 89, AND I
`THINK IT IS IDENTIFIED THERE. WE CAN ALSO ARGUE IT, BUT IT'S
`IDENTIFIED THERE -- I DON'T WANT TO BELABOR IT UNLESS THE COURT
`WOULD LIKE ME TO -- THAT THEY'VE GIVEN US A LICENSE.
`THEIR RESPONSE TO THAT IS THAT THOSE LICENSES ARE SOMEHOW
`INTERTWINED WITH AN ASSIGNMENT PROVISION.
`WELL, AS YOU CAN SEE IN PARAGRAPH 64 AND 89 AND THE
`RELATED EXHIBITS, NOT SO. IN FACT, DEMARAY HIMSELF SAID THAT
`THE ASSIGNMENT PROVISIONS WERE RELEASED WHEN THEY DID THE
`ORIGINAL SRA AGREEMENTS BACK AT THE OUTSET OF SYMMORPHIX'S
`FOUNDING. THEY'RE NOT INTERTWINED. THE LICENSE IS SEPARATE
`AND INDEPENDENT. WE HAVE A LICENSE TO THIS PATENT. LICENSES
`THAT WILL, FRANKLY, PROTECT APPLIED AND ITS CUSTOMER.
`SO, ONE, WE'RE GOING TO GET A MOTION ON THE 26TH THAT WE
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 13 of 19
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`BELIEVE HAS NO MERIT GIVEN THE ALLEGATIONS THAT ARE HERE AND
`THE ADDITIONAL AFFIRMATIVE ACTS AND ACTIONS TAKEN BY DEMARAY;
`TWO, WE HAVE A LICENSE DEFENSE THAT DOESN'T REQUIRE CLAIM
`CONSTRUCTION, THAT REQUIRES EASY CONTRACTUAL INTERPRETATION
`THAT IS VERY CLEAR THAT APPLIED AND ITS CUSTOMERS HAVE A
`LICENSE TO THE DEMARAY FORMERLY SYMMORPHIX PATENTS.
`IF YOUR HONOR HAS ANY QUESTIONS, I'D BE HAPPY TO ANSWER.
`I APOLOGIZE FOR GOING ON FOR A WHILE.
`THE COURT: NO. MR. CHAIKOVSKY, THANK YOU FOR
`GIVING ME THE PREVIEW AND PREQUEL TO YOUR LITIGATION HERE. I
`THINK THAT'S VERY HELPFUL FOR ME TO, TO LOOK AND SEE. IT'S
`ALMOST LIKE WE'RE HAVING THE MOTION IN ADVANCE. I FEEL LIKE
`I'M IN ONE OF THOSE MOVIES THAT SHOWS, YOU KNOW, SOMETHING IN
`ADVANCE AND THEN FLASHES BACK TO TEN WEEKS EARLIER. SOMETHING
`LIKE THAT. SO, NO, THIS WAS INFORMATIVE.
`LET ME ASK MR. WELLS AND MR. HATTENBACH IF THEY WISH TO
`MAKE A CRITIQUE OF THE FILM AS WELL.
`MR. WELLS: YES, YOUR HONOR. I SAW THE MOVIE
`"GROUNDHOG DAY" AND IT'S A LITTLE BIT LIKE THAT TO ME.
`SO I DON'T KNOW THAT I WOULD -- OBVIOUSLY WE'RE GOING TO
`FILE A MOTION ON THE 26TH, AND YOUR HONOR WILL SEE THE MOTION
`PAPERS AT THAT TIME, AND THEY'LL FILE AN OPPOSITION AND A
`REPLY, AND AT THAT TIME YOUR HONOR WILL HAVE THE BENEFIT OF THE
`PAPERS AND CAN MAKE A DETERMINATION AS TO WHETHER IT'S SPURIOUS
`OR APPEARS TO HAVE MERIT.
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 14 of 19
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`AND AT THAT POINT IN TIME IF YOUR HONOR THINKS THAT
`DISCOVERY IS APPROPRIATE TO PROCEED AFTER HAVING THE
`INFORMATION, THAT'S UP TO YOUR HONOR'S DISCRETION.
`WE RESPECTFULLY SUBMIT THAT OBVIOUSLY WE DON'T THINK IT'S
`EITHER SPURIOUS OR FRIVOLOUS AS THEY HAVE SAID IN THE CMC
`STATEMENT, ESPECIALLY GIVEN YOUR HONOR'S PRIOR RULING ON THE
`EXISTING STANDING ISSUES.
`REGARDING THE ACTIONS THAT DEMARAY HAS TAKEN. DEMARAY
`SOUGHT TRANSFER RELATED DISCOVERY IN TEXAS BECAUSE INTEL AND
`SAMSUNG BROUGHT TRANSFER MOTIONS AND THAT TRANSFER RELATED
`DISCOVERY INVOLVES WHERE APPLIED DOES CERTAIN THINGS, LIKE
`WHERE DOCUMENTS ARE AND WITNESSES ARE AND THE LIKE. SO ITS
`ENTIRELY APPROPRIATE THAT DISCOVERY BE SOUGHT BY APPLIED AND,
`IN FACT, THERE ARE SOME ISSUES BEFORE THE TEXAS COURT ON THAT.
`THEN REGARDING THE DEPOSITION OF APPLIED, THERE ARE SOME
`DISPUTES REGARDING THE ISSUES BEFORE THE TEXAS COURT. SO UNTIL
`THOSE ISSUES ARE RESOLVED, WE DON'T THINK THAT IT'S APPROPRIATE
`TO TAKE THE APPLIED DEPOSITION. WE DON'T WANT TO WASTE
`ANYBODY'S TIME THERE.
`WE CERTAINLY WOULDN'T BE OFFERING INFRINGEMENT POSITIONS
`IN THE DEPOSITION OF APPLIED. SO I'M NOT REALLY SURE HOW THAT
`RELATES.
`BUT THE LONG AND SHORT OF IT IS, YOUR HONOR, THAT THIS IS
`A CMC CONFERENCE, AND WE'RE NOT HERE TO ARGUE THE MERITS OF
`MOTIONS THAT HAVE BEEN BRIEFED YET. AND WE AGREE WITH YOUR
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 15 of 19
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`APPROACH THAT WE SHOULD WAIT UNTIL WE SEE THAT BEFORE
`PROCEEDING WITH THIS CASE.
`THE COURT: ALL RIGHT. THANK YOU VERY MUCH.
`MR. OU, ANYTHING YOU'D LIKE TO ADD, SIR?
`MR. HATTENBACH, ANYTHING YOU WANT TO ADD?
`MR. OU: YOUR HONOR, JUST A VERY BRIEF COMMENT ON
`WHAT MR. WELLS NOTED.
`I DO THINK THAT THE SUBPOENAS THAT WERE SERVED OUT OF
`WEST TEXAS, AND I PROBABLY KNOW THOSE AS WELL AS MR. WELLS DOES
`IF NOT BETTER BECAUSE I'M THE ONE CORRESPONDING WITH THEM ABOUT
`THEM. THEY ARE CERTAINLY RELATED TO LOCATION OF DOCUMENTS AND
`WITNESSES, BUT I THINK IT'S PRETTY CLEAR FROM THE JOINT CASE
`MANAGEMENT STATEMENTS ON PAGE 7 THAT MR. CHAIKOVSKY NOTED, AS
`WELL AS IF YOU LOOK AT THE SUBPOENAS THEMSELVES, AS WELL AS THE
`SUBMISSION TO THE COURT IN WEST TEXAS, THAT THEY'RE NOT JUST
`ABOUT THE LOCATION OF WITNESSES AND DOCUMENTS. THEY ARE
`DIRECTED TO THE EQUIPMENT THAT APPLIED MANUFACTURERS, INSTALLS,
`AND CONFIGURES FOR ITS CUSTOMERS AND THE CUSTOMERS SIMPLY JUST
`USE THAT EQUIPMENT WHICH IS ALLEGED OF INFRINGEMENT WHICH
`MR. CHAIKOVSKY ALREADY COVERED. AND THAT REALLY IS ONE OF THE
`KEY CRUX OF WHY WE THINK THAT SUBJECT MATTER JURISDICTION IS
`APPROPRIATE. BUT AGAIN, NOT TO DISCUSS THE MERITS OF THAT
`MOTION THAT IS FORTHCOMING. I JUST WANTED TO POINT THAT OUT IN
`RESPONSE TO MR. WELL'S COMMENTS.
`THE COURT: THANK YOU VERY MUCH. MR. HATTENBACH,
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`UNITED STATES COURT REPORTERS
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 16 of 19
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`ANYTHING YOU WANT TO ADD, SIR?
`MR. HATTENBACH: NOT MUCH. I THINK WE JUST DISAGREE
`FUNDAMENTALLY ON THE FACTS AND ARGUMENTS THAT WE HAVE HEARD
`FROM THE APPLIED SIDE.
`IF SIMPLY SUBPOENAING SOMEONE IN ANOTHER LITIGATION FOR
`INFORMATION RELEVANT TO THAT OTHER LITIGATION WAS SUFFICIENT TO
`FORM THE BASIS FOR DECLARATORY JUDGMENT JURISDICTION, THERE
`WOULD BE A WHOLE LOT MORE SUITS WHERE NO ONE RECEIVING THE
`SUBPOENA WAS EVER ACCUSED OF INFRINGEMENT. THAT HASN'T
`HAPPENED HERE.
`WE ARE JUST SEEKING INFORMATION RELEVANT TO THOSE OTHER
`SUITS, AND I THINK WE WILL EXPLAIN THAT IN THE PAPERS THAT ARE
`FORTHCOMING.
`WE DON'T THINK THE FACTS HAVE CHANGED IN ANY MATERIAL WAY
`AS TO WHETHER THERE IS SUBJECT MATTER JURISDICTION FROM THE
`TIME WHEN YOUR HONOR FIRST RULED THAT THERE WAS NOT. SO I DO
`TAKE SOME EXCEPTIONS TO THE CHARACTERIZATION ABOUT OUR MOTION
`THAT THEY HAVEN'T SEEN ABOUT BEING SPURIOUS. I DON'T KNOW HOW
`THEY COULD KNOW THAT WITHOUT HAVING RECEIVED THE MOTION YET. I
`DON'T THINK THAT'S APPROPRIATE, PARTICULARLY GIVEN THE HISTORY
`HERE OF A PARTY WHO FILED A PRELIMINARY INJUNCTION MOTION BASED
`IN SIGNIFICANT PART ON A CONTRACT THAT HAS ALREADY BEEN FOUND
`TO BE UNENFORCEABLE AS A MATTER OF LAW RESULTING IN A RULING
`THAT THERE WAS NO SUBJECT MATTER JURISDICTION.
`SO I JUST -- I THINK THAT HISTORY IS INFORMATIVE AND WAS
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 17 of 19
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`SKIPPED OVER. I DON'T WANT TO RELIVE IT HERE, BUT I THINK
`YOU'LL SEE WHEN WE FILE OUR MOTION THAT IT'S VERY WELL TAKEN
`AND THERE'S NO NEED RIGHT NOW FOR A BUNCH OF DISCOVERY THAT
`WOULD BE DISRUPTIVE AND EXPENSIVE AND PREMATURE.
`THE COURT: ALL RIGHT. WELL, THANK YOU VERY MUCH.
`WHAT A ROBUST -- THIS WAS A STATUS CONFERENCE, WASN'T IT?
`THIS WAS A STATUS CONFERENCE.
`MR. CHAIKOVSKY: I THOUGHT THIS WAS A CLOSING
`ARGUMENT, YOUR HONOR.
`THE COURT: WELL, THANK YOU VERY MUCH.
`THIS IS WHAT HAPPENS WHEN YOU GET EXCELLENT LAWYERS
`TOGETHER IN ONE ROOM OR AT LEAST IN THIS PLACE ONE SCREEN.
`WE'LL GET THEIR EXCELLENT ARGUMENTS IN ADVANCE. I APPRECIATE
`YOUR EAGERNESS TO PROVIDE ME WITH ADDITIONAL INFORMATION AS TO
`THE STATUS OF YOUR CASES.
`I'M GOING TO -- MR. CHAIKOVSKY, I'M NOT GOING TO DISTURB
`MY PREVIOUS INDICATION NOTWITHSTANDING WHAT YOU TOLD ME. AND I
`APPRECIATE IT. THANK YOU. I'M NOT DISREGARDING ANYTHING
`YOU'VE SAID. I APPRECIATE THE BACKDROP. THAT'S HELPFUL.
`I AM GOING TO DEFER ANY DISCOVERY ON THIS UNTIL WE
`LITIGATE THE MOTION AND HEAR THE MOTION, AND I JUST THINK THAT
`GIVEN THE NUANCES INVOLVED IN THIS CASE, I DON'T THINK THAT
`THAT PREJUDICES YOU AND YOUR CLIENT SIGNIFICANTLY. WE'RE
`PROBABLY TALKING ABOUT 60 DAYS HERE AND SOMETHING LIKE THAT,
`AND I JUST THINK IT'S APPROPRIATE TO DEFER ANY DISCOVERY AT
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`UNITED STATES COURT REPORTERS
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 18 of 19
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`THIS POINT.
`AGAIN, BY DOING THAT I'M NOT, AND I KNOW YOU ALL
`APPRECIATE THIS, I'M NOT PREJUDGING THE LAWSUIT AT ALL OR THE
`MOTION, BUT I JUST THINK THAT BASED ON THE TOTALITY OF THE
`CIRCUMSTANCES HERE AND THE WAY THAT THIS CASE, AS WELL AS THE
`576 CASE PRESENTED, I THINK IT'S BEST IF WE DEFER DISCOVERY AND
`PROCEED AFTER THE MOTION.
`SO THAT'S WHAT WE'LL DO. WE'LL HAVE -- THE MOTION WILL
`GET FILED ON THE 26TH, NEXT TUESDAY, AND WE'LL HAVE A -- WE'LL
`ASSIGN A DATE TO IT. IT SOUNDS LIKE IT WILL BE EITHER
`APRIL 8TH OR APRIL 15TH, WHATEVER OUR CALENDAR PERMITS, AND
`MS. KRATZMANN WILL LOOK AT OUR SCHEDULE AND SEE WHAT IS
`APPROPRIATE FOR THAT.
`ALL RIGHT. THANKS EVERYONE. IT'S GOOD SEEING YOU ALL.
`PLEASE STAY HEALTHY, YOU AND YOUR FAMILIES, I WISH YOU THE
`BEST, AND WE'LL SEE EACH OTHER AGAIN SOON. THANK YOU.
`MR. CHAIKOVSKY: THANK YOU, YOUR HONOR.
`MR. WELLS: THANK YOU, YOUR HONOR.
`MR. HATTENBACH: THANK YOU, YOUR HONOR.
`MR. OU: THANK YOU, YOUR HONOR.
`THE CLERK: COURT IS ADJOURNED. THIS WEBINAR SHALL
`TERMINATE.
`(COURT CONCLUDED AT 11:03 A.M.)
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`UNITED STATES COURT REPORTERS
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`Case 6:20-cv-00636-ADA Document 51-7 Filed 02/23/21 Page 19 of 19
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`CERTIFICATE OF REPORTER
`
`I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED
`STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
`280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY
`CERTIFY:
`THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS
`A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE
`ABOVE-ENTITLED MATTER.
`
`______________________________
`IRENE RODRIGUEZ, CSR, RMR, CRR
`CERTIFICATE NUMBER 8074
`
`DATED: FEBRUARY 11, 2021
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`UNITED STATES COURT REPORTERS
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