Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 1 of 77
`Case 6:20-cv-00636—ADA Document 89-3 Filed 03/30/21 Page 1 of 77
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`Case 6:20-cv-00636—ADA Document 89-3 Filed 03/30/21 Page 1 of 77
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 2 of 77
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`DEMARAY LLC
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`VS.
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`INTEL CORPORATION
`SAMSUNG ELECTRONICS, ET AL
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`January 26, 2021
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`* CIVIL ACTION NO. W-20-CV-634
`* CIVIL ACTION NO. W-20-CV-636
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`BEFORE THE HONORABLE ALAN D ALBRIGHT
`DISCOVERY HEARING (via Zoom)
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`APPEARANCES:
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`For the Plaintiff:
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`Crawford Maclain Wells, Esq.
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
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`Richard D. Milvenan, Esq.
`McGinnis Lochridge and Kilgore
`600 Congress Avenue, Suite 2100
`Austin, TX 78701
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`J. Stephen Ravel, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado Street, Suite 2000
`Austin, TX 78701
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`Yar R. Chaikovsky, Esq.
`Philip Ou, Esq.
`Paul Hastings LLP
`1117 South California Avenue
`Palo Alto, CA 94304
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`Brian Christopher Nash, Esq.
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701-3797
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`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
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`For Defendant Intel:
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`For Samsung Defendants:
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`Court Reporter:
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`Proceedings recorded by mechanical stenography, transcript
`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 3 of 77
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`(January 26, 2021, 3:08 p.m.)
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`DEPUTY CLERK: Discovery hearing in Civil Action
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`W-20-CV-634, styled Demaray LLC versus Intel Corporation, and
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`W-20-CV-636, styled Demaray LLC versus Samsung Electronics
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`Company and others.
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`THE COURT: If I could hear announcements from counsel,
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`starting with the plaintiff, please.
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`MR. MILVENAN: Your Honor, Rick Milvenan from McGinnis
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`Lochridge for the plaintiff Demaray LLC. I'm joined by Maclain
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`Wells from the Irell & Manella firm.
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`MR. WELLS: Good afternoon, Your Honor.
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`THE COURT: Good afternoon.
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`MR. NASH: Good afternoon, Your Honor. This is Brian Nash
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`of Pillsbury Winthrop Shaw Pittman on behalf of Samsung
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`defendants.
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`(Clarification by the reporter.)
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`MR. NASH: This is Brian Nash, Your Honor, on behalf of
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`the Samsung defendants.
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`MR. RAVEL: Your Honor, Steve Ravel on behalf of Intel.
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`With me today is our client representative John Edwards and a
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`couple of lawyers from Paul Hastings who can introduce
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`themselves and let you know how they fit in.
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`THE COURT: Okay.
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`MR. CHAIKOVSKY: Good afternoon, Your Honor. Yar
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`Chaikovksy from Paul Hastings. We also represent Intel and
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 4 of 77
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`Samsung in this matter. We also represent third-party Applied
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`Materials.
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`With me today is my partner Phil Ou who'll be speaking
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`also. And also a client representative from Applied Materials,
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`Nathan Zhang, is on the line also, Your Honor.
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`THE COURT: Very good. Anyone else?
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`Okay. And let me take the opportunity to thank those
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`folks who are in-house or client representatives for taking the
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`time to attend today. It's one of the very few things about
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`COVID that has worked out for us, which is that clients are
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`able to attend these hearings. I think that's vitally
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`important. So I appreciate you all taking the time to do it.
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`Give me one second to get my cheat sheet on the motions
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`that are in front of me.
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`Okay. My understanding is Issue No. 1 is discovery that's
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`been sought from Intel with regard to accused reactor
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`configurations; is that correct?
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`MR. MILVENAN: That's correct.
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`THE COURT: Okay. Mr. Milvenan, who's going to be
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`speaking on behalf of the plaintiff?
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`MR. MILVENAN: I will be, as well as Mr. Wells.
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`THE COURT: Mr. Milvenan, I'm having, which is rare, a
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`little bit of a hard time hearing you. So you might do
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`whatever you need to do. I'm much nicer about it than Kristie
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`is, so if you make me happy, you'll avoid a scolding.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 5 of 77
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`(Collective laughter.)
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`MR. MILVENAN: Well, I am surprised to hear that anyone
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`would have trouble hearing me in any circumstance, as you know,
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`Judge.
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`(Clarification by the reporter.)
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`MR. MILVENAN: Your Honor, just a very quick bit of
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`background. Our client, Demaray LLC, was founded by Richard
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`Demaray. He's a long-time figure in the semiconductor
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`industry. He set up this company to focus on research,
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`development and commercialization of new products.
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`He's suing Intel and Samsung in this case on two patents
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`on which he is a named inventor. The '276 patent relates
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`generally to a configuration of a reactor for deposition of
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`thin films. The '657 patent relates to a method of depositing
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`thin films by pulse EC reactive sputtering.
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`Now, where we are in this case is, first off, as was
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`mentioned earlier by the attorneys for defendants, the Paul
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`Hastings firm represents Applied Materials in California. They
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`represent Samsung and Intel here. The first order of business
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`for them was to file a lawsuit in California and try to enjoin
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`this Court from proceedings. That failed, but they also filed
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`this motion to transfer.
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`At a very high level, we're here trying to get discovery
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`on the configurations of the reactors that Intel and Samsung
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`utilize, where their locations are, et cetera.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 6 of 77
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`We believe they haven't responded sufficiently, and we've
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`brought this to the Court to try to get help from the Court in
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`ordering them to produce this.
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`The first one of the reactors that is at issue, this Issue
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`1, relates to research and development reactors. We feel that
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`our preliminary infringement contentions sufficiently lay out
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`that research facilities are relevant.
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`Let me say about this, they say our infringement
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`contentions don't sufficiently say "research and development."
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`You know, our view it's an issue of semantics. It's very clear
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`we -- from the infringement contentions that that's an issue.
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`You know, we certainly could amend to make it clearer if
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`that is a problem; however, they have known for quite sometime
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`that we were taking this position. We originally wrote asking
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`for this hearing after meeting and conferring back in December.
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`Now, one of the things that our opponents say is, well,
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`you know, this research and development use, it's speculative.
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`It's unclear what products will come out of that, but, you
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`know, first of all, the '657 patent is a method patent.
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`If they're practicing the patent out there for research
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`and development, they are infringing. There's numerous cases
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`out there that say it doesn't matter how extensive the damages
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`are. If you're infringing the patent, you can have discovery
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`on it and you can sue on it.
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`We've asked them to sort of fully respond on this issue,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 7 of 77
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`give us the information about where these R&D reactors are
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`located and they have declined to do so.
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`Now, in this respect I did want to mention this one small
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`point. We got sent by Mr. Ravel some slides, at like 1:10 this
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`afternoon. I thought under the Court's standing order that
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`those are supposed to come in 24 hours in advance of a hearing,
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`but they have, you know, some of the issues that we'll be
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`talking about addressed today in there.
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`THE COURT: Anything else you'd like to add on that issue?
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`MR. MILVENAN: No, Your Honor. We simply want the
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`discovery with respect to these R&D reactors. They know what
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`it is we want. They simply say, you can't have them. The
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`preliminary infringement contentions aren't detailed in them.
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`THE COURT: Who will be speaking next?
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`MR. RAVEL: Your Honor, Mr. Chaikovsky and I are going to
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`divide the argument, even on R&D reactors. He's going to
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`respond to Mr. Milvenan's intro and I will respond on the R&D
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`reactors.
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`THE COURT: Okay.
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`MR. CHAIKOVSKY: Good afternoon, Your Honor.
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`As Mr. Milvenan was explaining, Paul Hastings is here
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`because although these cases involve Samsung and -- Samsung and
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`Intel's use of equipment supplied by nonparty Applied Materials
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`to manufacture products at their fabs or facilities, as they're
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`known.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 8 of 77
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`And the parties referenced, and as Mr. Milvenan
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`referenced, you know, reactors or chambers as they're sometimes
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`called, they're accused of infringement. And if the Court
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`remembers when there was an earlier infringement contentions
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`dispute about their confidentiality in this case, there was big
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`picture of large machines, and Steve will show you -- Mr. Ravel
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`will show you, I apologize -- those large machines that are
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`involved in this case.
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`As Mr. Milvenan was suggesting, this is a typical customer
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`supplier suit. Applied Materials actually makes, sells and
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`supplies the equipment to Intel and Samsung, and they're
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`accused of infringement based on that use of equipment, and
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`you'll hear more from Mr. Ravel that what we have going on here
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`with respect to all of these disputes is really more merit
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`discovery, infringement contentions discovery, not discovery
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`relating to venue or really a venue dispute.
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`There are two patents in this case, as Mr. Milvenan said,
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`a method patent and a reactor patent. That reactor patent, the
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`only person selling reactors is Applied Materials.
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`What's at issue here is use of those reactors or use of a
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`method of the patent.
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`So yes. Applied Materials is a key element in this case.
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`Demaray has sought discovery from Applied through the subpoenas
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`in this case, and Applied knows how the equipment works, not
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`Intel or Samsung. That's why Applied filed a declaratory
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 9 of 77
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`judgment action in the Northern District of California where
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`Applied and Demaray are both located.
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`And as the Court knows, there are pending motions to
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`transfer, and that's why we're here for venue discovery
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`relating to those motions to the Northern District of
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`California.
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`So with that I would pass it to Mr. Ravel to actually
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`handle the R&D reactor portion.
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`MR. RAVEL: Before I start, Mr. Ou, the only slide I'm
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`going to want to refer to is No. 2, and I'll be asking for it
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`in just a little while.
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`Judge, let me start by stressing that Intel is the classic
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`customer. In a customer suit in this case it is Applied
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`Materials' reactors which we use to manufacture semiconductors
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`and to conduct research and development in facilities outside
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`of Texas.
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`Intel is -- as to these reactors as James Albright is to a
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`Nintendo gaming system. He buys it, he uses it as directed,
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`but at least James uses his Nintendo here in the Western
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`District of Texas.
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`Why then, the Court might appropriately ask, are we
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`arguing about research and development, non-revenue-generating
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`activities that Intel engages in outside of Texas?
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`Could I see Slide 2, please?
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`Okay. Judge, let's look closely at what they're asking
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 10 of 77
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`for in terms of R&D, what the disputes are.
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`Let's focus in on their chart which says in their
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`infringement contentions they accuse Intel's use of the claimed
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`reactor configurations at its fab plants and research
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`facilities, which I have represented to the Court none of those
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`are in Texas.
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`So let's go over to their contentions proper briefly.
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`And in the first three lines they say, "Intel accused
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`products" in the first line. "Intel accused products" in the
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`third line. And then down in the paragraph of commentary they
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`say, "Intel accused products" a third time.
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`These are of course actually Applied Materials' accused
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`products, and maybe a -- an analogy that would be a little more
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`precise is that Intel is to these reactors as General Motors is
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`to those big contraptions that help them put car frames
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`together.
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`Judge, we need finality on venue discovery.
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`Demaray is unwilling on the record that it has so far to
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`take Intel's deposition or Applied's deposition, saying they
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`need more discovery, when it is certainly unclear what more
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`information they need regarding the actual 1404 factors,
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`private and public.
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`Judge, just let me be clear. Intel does not use the
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`accused reactors for any purpose at its facility at
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`1300 South MoPac here in Austin or anywhere else in Texas,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 11 of 77
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`zero, zip, nada.
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`Bottom line, Judge, is is discovery into the R&D reactors
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`has nothing to do with venue and really nothing material on the
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`merits, because what damage model is going to flow from
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`research and development work elsewhere.
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`So I think what's going on here is we're trying to engage
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`in merits discovery and, you know, that's what creative,
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`aggressive, sharp lawyers do is try to create a situation where
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`merits discovery is advanced into the first half of the case,
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`and I don't say that in a critical way. I say that in an
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`11
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`admiring way, but there is nothing about the documents that
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`12
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`will be used at trial, the witnesses that will appear at trial,
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`the local interest, any of the public or private factors that
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`14
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`has anything to do with how these reactors are used for
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`research and development elsewhere.
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`So I'm going to leave it there, Judge, unless you have
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`specific questions for me.
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`MR. MILVENAN: Your Honor, if I could briefly respond.
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`I'm afraid you're muted, Judge. I can't hear you.
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`Well, Judge, to move forward on this point, just to
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`03:24
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`21
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`address very briefly a couple of the things that Steve
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`mentioned a moment ago.
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`There's no fair use or research and development exception
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`24
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`for infringement of normal commercial processes. That is the
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`Navy versus Duke University case, 307 F.3d 1351, Fed Circuit
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 12 of 77
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`11
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`2002.
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`And there's a lot of cases that say that. So the mere
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`fact that it relates to research and development doesn't mean
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`that it is not relevant, and, again, like I say, the '657 is a
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`method patent, and if they're practicing that patent, they are
`
`infringing.
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`You know, the rush to "let's close this transfer
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`discovery," I mean, we feel as though we've somewhat been
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`stonewalled in getting what we need in order to respond. They
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`say, you need to hurry up and respond.
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`Well, yeah. Well, we want to take their people's
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`deposition, but we want to have the documents relevant to those
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`depositions in order to move forward.
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`MR. WELLS: And, Your Honor, if I could just respond to
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`one point by Mr. Chaikovsky.
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`THE COURT: Well, give me just one second, if I could.
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`And either of you can answer that.
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`I'm -- I am having a hard time figuring out how you are
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`03:25
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`19
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`tethering what you're seeking to venue discovery. I don't know
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`03:26
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`20
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`that I -- I've got a clear takeaway from what Mr. Milvenan
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`said. Either -- either of you can answer this, but I'm just
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`03:26
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`not sure -- I'm sure I don't understand what the connection is.
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`MR. MILVENAN: Well, Your Honor, they have quite a few
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`reactors. Some of them --
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`25
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`THE COURT: Who is "they"?
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 13 of 77
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`MR. MILVENAN: Samsung and Intel.
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`THE COURT: Okay. I'm aware of that.
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`MR. MILVENAN: Okay. And then some of them we believe
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`infringe our patents; others do not.
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`THE COURT: Okay.
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`MR. MILVENAN: We want to get the information on -- and
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`I'll turn it over to Mr. Wells to take it to a more technical
`
`level if you want, but we want to know the configurations of
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`the reactors that they have so that we know which ones are at
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`10
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`issue in this case, which is relevant to responding to a motion
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`03:26
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`11
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`to transfer to say, here are the ones that are relevant to
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`03:26
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`12
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`this.
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`03:27
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`MR. WELLS: Your Honor, if I could add to that slightly.
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`03:27
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`14
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`THE COURT: Well, you should do better than slightly. And
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`03:27
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`15
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`let me tell you what I mean. I'm assuming when the plaintiff
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`03:27
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`16
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`filed the lawsuit, the plaintiff was aware -- the plaintiff had
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`03:27
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`17
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`analyzed which Applied Materials fab -- the machines might
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`03:27
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`18
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`infringe or might not infringe, which -- which reactors might
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`03:27
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`19
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`or might not infringe. Is what you're seeking from the parties
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`03:27
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`20
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`here which Applied Materials machines are where?
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`MR. WELLS: So, Your Honor, it's actually twofold, and
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`03:27
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`22
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`I'll try to answer that as clearly as I can.
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`03:27
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`23
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`The Demaray patents that are at issue do not cover all
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`03:27
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`24
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`reactors. They cover a specific configuration of reactors.
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`03:27
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`25
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`And the parties agree that, for example, they have to be
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 14 of 77
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`13
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`physical vapor deposition reactors, and they have to be
`
`reactive sputtering reactors, and there's no dispute on that.
`
`There is some dispute regarding some of the other
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`configuration aspects, including whether the DC power source
`
`provides pulses, whether there's an RF bias, and whether
`
`there's filters, and these are all limitations in the claims.
`
`But we're trying to determine what are the reactors actually at
`
`issue?
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`So we don't need to talk about ALD reactors, for example,
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`10
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`that Samsung and Intel use. And we don't need to talk about
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`03:28
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`11
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`reactors that do not use reactive sputtering or do not have
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`03:28
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`12
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`magnets and magnetron sputtering.
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`03:28
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`13
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`So we're trying to figure out what the subset of reactors
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`03:28
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`14
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`is and where those reactors are located, first, because that's
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`03:28
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`15
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`going to be the site of the infringement, documents related
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`03:28
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`thereto, people involved with them, and where they're actually
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`03:28
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`performing the infringing methods. And so --
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`03:28
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`THE COURT: I know Applied Materials has a facility in
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`03:29
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`19
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`Austin. Do they have any of these machines in Austin?
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`03:29
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`20
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`MR. WELLS: Our understanding, Your Honor, is that their
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`03:29
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`21
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`Austin facility for Applied Materials is used for manufacturing
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`03:29
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`22
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`reactors and that they manufacture parts of these reactors
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`03:29
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`23
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`there, but then they send them overseas to another facility
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`03:29
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`24
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`where other parts are added. And we don't have the details on
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`03:29
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`25
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`that, and that's part of the subject of a different topic
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 15 of 77
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`14
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`relating to discovery from Applied Materials that we're
`
`seeking.
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`But with regard to Intel and Samsung, Intel specifically
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`has provided the identity of its reactors used in commercial
`
`manufacturing of existing products and said, here's the subset
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`of reactors that have, for example, a DC power source and an RF
`
`bias. That's something that the parties have been able to
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`agree is a way to whittle this down so we're not talking about
`
`every reactor on the planet.
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`And they provided that information with regard to their
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`03:30
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`commercial manufacturing reactors, but they've refused on their
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`03:30
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`12
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`R&D reactors. Well, their R&D reactors are going to be part of
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`03:30
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`this case. It's an infringement to use those reactors, even
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`03:30
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`14
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`for R&D purposes. And so we want to know where that
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`03:30
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`15
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`infringement occurs, and we want the same information
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`03:30
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`16
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`identifying the subset of reactors that are at issue so that we
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`03:30
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`can move forward with our opposition to their transfer motion
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`03:30
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`18
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`detailing where the actual reactors that are being used are
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`03:30
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`located.
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`03:30
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`20
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`THE COURT: Okay. So let me try this. And it can be you
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`03:30
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`21
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`or Mr. Milvenan, I don't care.
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`03:30
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`22
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`Tell me specifically what it is that you are asking for
`
`03:30
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`23
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`Intel and Samsung to provide to you with regard to the Applied
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`03:30
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`24
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`Materials' products.
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`03:30
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`25
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`MR. WELLS: One thing to note, Your Honor, they say these
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 16 of 77
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`15
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`are Applied Materials' products, but these are actually Samsung
`
`and Intel reactors. They direct Applied Materials, what their
`
`requirements are --
`
`THE COURT: I got it. Okay. And thank you for that.
`
`That was a good clarification. I was unaware of that, so
`
`that's helpful.
`
`So but back to my question. Tell me specifically what you
`
`want from Samsung and Intel with respect to the machines that
`
`Applied Materials manufactures for them.
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`1 2 3 4 5 6 7 8 9
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`03:30
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`03:30
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`03:31
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`03:31
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`03:31
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`03:31
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`03:31
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`03:31
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`10
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`MR. WELLS: Yes, Your Honor. So we've asked them to
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`03:31
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`11
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`identify all reactors that are pressure -- PVB reactors that
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`03:31
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`12
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`use magnetron sputtering and are reactive. So that's a subset
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`03:31
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`13
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`that the parties don't disagree on.
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`03:31
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`14
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`And then we've asked that for those, they identify
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`03:31
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`15
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`specifically reactors that have a DC power source and an RF
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`03:31
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`16
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`generator that can be used to bias the reactors.
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`03:31
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`17
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`And we believe that that brings the entire universe of
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`03:31
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`18
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`reactors down to a manageable portion.
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`03:31
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`03:32
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`19
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`20
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`THE COURT: And then do you --
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`MR. WELLS: So for example -- sorry. Go ahead, Your
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`03:32
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`21
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`Honor.
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`03:32
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`22
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`THE COURT: Do you then ask for them to identify where
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`03:32
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`23
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`those are located?
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`03:32
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`24
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`MR. WELLS: Yes, Your Honor. Where they are located and
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`03:32
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`25
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`what processes those are used for so that we can identify the
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 17 of 77
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`16
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`products and where those products are generated. So, for
`
`example, if they use them in products that are strictly sold
`
`overseas and the fab is overseas, we probably aren't going to
`
`need a lot more information for transfer purposes.
`
`But if they're using it for products that are distributed
`
`in the United States in Texas, at Best Buy down the road, we
`
`need to know that.
`
`THE COURT: Mr. Ravel, I'm picking on you, but it can be
`
`anyone on your side that wants to respond.
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`1 2 3 4 5 6 7 8 9
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`03:32
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`10
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`MR. RAVEL: Well, I will start out. And the way these
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`03:32
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`11
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`hearings work, if on a technical level I need to pivot, you
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`03:32
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`12
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`know that I will, Judge. Dog watching TV.
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`03:32
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`13
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`But I had a sharp ear, and I don't think that the Court
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`03:32
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`14
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`got an answer to its question about how is this tethered to the
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`03:33
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`15
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`private and public factors for the Western District of Texas?
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`03:33
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`16
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`It is undisputed that these reactors are not used here,
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`03:33
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`17
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`and they have by their very request limited it to R&D reactors
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`03:33
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`18
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`that are not revenue-generating. And so they cite all these
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`03:33
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`19
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`cases that say it's still infringement which just makes the
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`03:33
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`20
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`point that it's merits discovery.
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`03:33
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`21
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`And it's really not even merits discovery that's going
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`03:33
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`22
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`anywhere, because this Court has written about testing use and
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`03:33
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`23
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`been pretty cynical about testing, which is a close cousin to
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`03:33
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`24
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`R&D, as a basis for an infringement claim.
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`03:33
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`25
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`So I'm sorry, Judge, but I don't think you've gotten an
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 18 of 77
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`17
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`answer to your question. And so I'm going to end with, I
`
`didn't hear anything on a public or a private factor. And if
`
`Mr. Ou or Mr. Chaikovsky thinks that the details of the
`
`technology need to be mentioned at this point, as Mr. Wells
`
`did, they are welcome to chime in. But it doesn't really sound
`
`like it solved their problem to me.
`
`MR. OU: Good afternoon.
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`THE COURT: Mr. Wells?
`
`MR. WELLS: Yes, sir.
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`1 2 3 4 5 6 7 8 9
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`03:34
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`03:34
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`10
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`THE COURT: Unless -- I didn't mean to cut anyone off on
`
`03:34
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`11
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`the Intel or Samsung side. If you wanted to add anything.
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`03:34
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`12
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`MR. OU: Good afternoon, Your Honor. Phillip Ou for the
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`03:34
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`13
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`defendants.
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`03:34
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`14
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`Very briefly, Your Honor, just because Mr. Wells did touch
`
`03:34
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`15
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`on other discovery that goes beyond research and development
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`03:34
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`16
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`reactors, I think that's actually the next dispute, which, Your
`
`03:34
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`17
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`Honor, I'm happy to address when we get there.
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`03:34
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`18
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`But I just want to make it very clear that both -- that
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`03:34
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`19
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`Intel has provided discovery regarding these configurations
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`03:35
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`20
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`that Mr. Maclain referenced, and I'm happy to get into the
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`03:35
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`21
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`details of that in a minute when we get to the next dispute.
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`03:35
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`22
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`But with respect to R&D, I think Mr. Ravel covered it.
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`03:35
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`23
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`THE COURT: Mr. Wells, anything else? Or Mr. Milvenan,
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`03:35
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`24
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`either one.
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`03:35
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`25
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`MR. NASH: Your Honor, can I just speak briefly about sort
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 19 of 77
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`18
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`of -- I think you kind of --
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`THE COURT: Sure, Mr. Nash.
`
`MR. NASH: Thank you, Your Honor. Brian Nash on behalf of
`
`the Samsung defendants.
`
`We skipped a little bit ahead in terms of these issues, so
`
`I just wanted to clarify the aspects that Mr. Wells just raised
`
`have all been provided by Samsung. So we provided all of our
`
`configurations as part of the venue discovery at least a month
`
`ago, Your Honor. So I just wanted to make sure that that was
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`1 2 3 4 5 6 7 8 9
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`03:35
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`03:35
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`03:35
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`clear.
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`03:35
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`11
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`MR. WELLS: So, Your Honor, regarding Mr. Ravel's point,
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`03:35
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`12
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`the location of the infringement, the use of these reactors is
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`03:35
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`13
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`relevant for transfer. The location of information that's
`
`03:35
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`14
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`found on these reactors regarding their configuration is
`
`03:36
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`15
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`relevant for transfer. The relocation of witnesses and
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`03:36
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`16
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`documents at the locations of these reactors, whether for R&D
`
`03:36
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`17
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`purposes or not, is relevant for transfer.
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`03:36
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`18
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`And then regarding the use of these for testing, to be
`
`03:36
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`19
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`clear, Intel's using these to develop its next generation of
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`03:36
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`20
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`semiconductor products that haven't been released yet. This
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`03:36
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`21
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`isn't testing. This is hundreds of millions of dollars of
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`03:36
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`22
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`potential products.
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`03:36
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`23
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`And the Federal Circuit has said in Rite-Hite v. Kelley,
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`03:36
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`24
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`56 F.3d 1538, 1995, that a reasonable royalty is the baseline.
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`03:36
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`25
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`There is no nominal damages. The statute puts forth that there
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:20-cv-00636-ADA Document 89-3 Filed 03/30/21 Page 20 of 77
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`19
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`is a reasonable royalty for use even if it's an R&D use.
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`THE COURT: Anything else from folks either at Intel or
`
`Samsung?
`
`Okay. I understand that.
`
`Let's move on to the next topic, Issue No. 2. Give me one
`
`second to...
`
`My understanding is that this has to do with discovery on
`
`Intel's use of the accused reactor configurations for thin
`
`film. Happy to hear argument on that.
`
`MR. WELLS: Yes, Your Honor. I'll be addressing it.
`
`This is Maclain Wells for the court reporter, again.
`
`So the dispute is Intel has provided information regarding
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`03:36
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`the reactors that it uses for the deposition of TiNitride films
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`03:37
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`14
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`and TaNitride films. Those are tantalum nitride files. Those
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`03:37
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`are tw
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