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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`TOUCHSTREAM TECHNOLOGIES, INC.
`
`*
`June 28, 2023
`VS.
`*
` * CIVIL ACTION NO. W-21-CV-569
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`PRETRIAL CONFERENCE
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Ryan D. Dykal, Esq.
`Lauren Douville, Esq.
`Jordan T. Bergsten, Esq.
`Philip Alexander Eckert, Esq.
`Robert McClendon, Esq.
`B. Trent Webb, Esq.
`Shook, Hardy & Bacon, LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Sharon A. Israel, Esq.
`Andrew M. Long, Esq.
`Shook, Hardy & Bacon L.L.P.
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Samuel G. Bernstein, Esq.
`Shook, Hardy & Bacon L.L.P.
`111 South Wacker Drive, Suite 4700
`Chicago, IL 60606
`Tharan Gregory Lanier, Esq.
`Evan M. McLean, Esq.
`Gurneet Singh, Esq.
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 943034
`Edwin O. Garcia, Esq.
`Jones Day
`51 Louisiana Avenue, N.W.
`Washington, DC 20001
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 2 of 156
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`2
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`Tracy Ann Stitt, Esq.
`John R. Boule III, Esq,
`Jones Day
`51 Louisiana Avenue, N.W.
`Washington, DC 20001
`Michael E. Jones, Esq.
`Shaun William Hassett, Esq.
`Potter Minton PC
`110 North College, Suite 500
`Tyler, TX 75702
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
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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
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 3 of 156
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`3
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`(Hearing begins.)
`THE BAILIFF: All rise.
`THE COURT: Good afternoon -- good
`morning, everyone.
`Thank you. You may be seated.
`If you'd call the case, please.
`DEPUTY CLERK: Waco Case 6:21-CV-569,
`Touchstream Technologies, Inc. v. Google LLC. Case
`called for in-person pretrial conference.
`THE COURT: If I could have announcements
`from counsel, please, starting with plaintiff.
`Don't be shy.
`MS. ISRAEL: Good morning, Your Honor.
`Sharon Israel for plaintiff Touchstream. And we have
`today Ryan Dykal, who'll be the primary speaker for
`Touchstream, Jordan Bergsten, Sam Bernstein, Phil
`Eckert, Trent Webb, Andrew Long, Lauren Douville, and
`Robert McClendon.
`THE COURT: Welcome all.
`And for defendants?
`Good morning, Mike.
`MR. JONES: Your Honor, Mike Jones and
`Shaun Hassett for the defendant Google. Also with me
`is Mr. Greg Lanier, Ms. Tracy Stitt, Mr. Evan McLean,
`Mr. Edwin Garcia, Mr. John Boule, Mr. Gurneet Singh.
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 4 of 156
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`4
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`And here for the client itself, Mr. Andy
`Nguyen and Susan Kemp.
`And we're ready to proceed, Your Honor.
`THE COURT: I appreciate them being here.
`Let's see. I believe the first issue
`we're going to take up is the issue of the motion for
`summary judgment under Section 101.
`Let me say that again. We're going to
`take up the motion for summary judgment under Section
`101, and I'll hear from the defendant on that.
`MS. DOUVILLE: The defendant, Your Honor?
`THE COURT: Oh, I'm sorry. This is a
`motion for validity under 101, so I guess I need to
`hear from the plaintiff.
`MS. DOUVILLE: Lauren Douville.
`THE COURT: I apologize for that.
`MS. DOUVILLE: May it please the Court.
`So, Your Honor --
`THE COURT: I'm sorry. Would you remind
`me of your name?
`MS. DOUVILLE: Yes. Lauren Douville.
`THE COURT: Okay. Thank you.
`It's not -- we're not set for tall
`lawyers. The courtroom --
`MS. DOUVILLE: I did notice.
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 5 of 156
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`THE COURT: The courtroom has
`limitations. When I have like a tall criminal defense
`lawyer and a short defendant or -- it's very difficult
`to deal with, but hopefully we'll be able to hear you.
`MS. DOUVILLE: So I think on the 101
`brief that Touchstream has filed, the main point is
`that Google has failed to meet its burden under 101 to
`show by clear and convincing evidence at either Alice
`Step 1 or Step 2 that the claims are directed to
`patent-ineligible subject matter.
`As Your Honor's well aware and very
`familiar, with respect to the first step, whether there
`is an abstract idea, most courts look to one of two
`things to sort of reach a determination as to whether
`there's an abstract idea.
`And that is, do the claims focus on a
`specific means or method that improves the relevant
`technology, which Touchstream argues is the case with
`respect to the asserted claims here, or are they,
`instead, directed to a result or effect that is the
`abstract idea itself and merely invoked using generic
`processes or machinery?
`The Federal Circuit has declined to read
`Alice so broadly as to hold that all improvements in
`computer-related technology are inherently abstract
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 6 of 156
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`6
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`and, therefore, must be considered at Step 2. So this
`is something that does need to be examined at Step 1.
`And it's Touchstream's position that
`Google in this case has failed to carry its burden to
`prove by clear and convincing evidence that there is an
`abstract idea.
`And I think one of the things that
`underscores this point is the fact that Google itself
`has struggled to define what is the abstract idea.
`They identified three different things that might
`possibly be an abstract idea.
`The first is that these claims are
`directed merely to receiving, converting and
`transmitting. The second theory that they propose is
`that the abstract idea is organizing content and then
`displaying it.
`And then the third, which is the broadest
`of all and the most clear example of an
`oversimplification, which all precedent tells us we're
`not to do when deciding an abstract idea, is they say
`that this is just simply directed to remote control.
`Touchstream would respectfully submit
`that that is not at all what the claims are directed
`to. They are not just methods for remote control.
`They are much more narrow than that, and they relate to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 7 of 156
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`7
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`a specific type of method that includes a number of
`steps that Google just simply ignores when it argues
`that there is no abstract idea.
`To name just a few of the steps that
`Google has ignored, the first one, the server system
`being separate from the personal computing device.
`At the time of the invention, there was a
`need to be able, based on multiple different content
`provider platforms, to allow someone to choose content
`from any of those platforms and control it using a
`single interface.
`So keeping the server systems separate
`from the personal computing device freed up resources
`on that personal computing device and was a unique
`solution to address that problem that existed as a
`result of these being computer-implemented
`technologies.
`In addition, this is not just
`results-based claiming, which I think is what Google
`has argued. The claims of the asserted patents all
`recite the steps that are necessary in order to
`facilitate presentation of -- presentation of content
`at the display device from one of many different media
`players.
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`For example, the messages state that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
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`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 8 of 156
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`there has to be a synchronization code, a media file, a
`media player identification, location of the media
`player and then an action control command.
`And so contrary to what I think Google
`states, specific claim limitations do recite all of the
`information that you need in order to implement this.
`They describe how to implement it, not simply a result.
`Other examples of the claim limitations -- yes, Your
`Honor.
`
`THE COURT: Let me ask you this, because
`this presents a little bit of a novel -- something I
`haven't dealt with. Maybe I have, but I don't
`remember.
`
`So what's unusual about our posture is
`that I think -- if I'm correct, that Google's response,
`in part, to your motion is going to be that it's --
`there are questions of fact and I should wait to rule
`on your motion.
`Usually it's -- I'm -- y'all are --
`that's why it confused me when you stood up. Usually
`I'm hearing from them why it should be summary judgment
`of 101 and it's the plaintiff who's arguing, no. It
`gets to the jury.
`So here, why either, number one,
`shouldn't I as a matter of law defer to the -- what
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
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`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 9 of 156
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`Google's arguing and allow the jury to deal with it or,
`two, why wouldn't it be the safer thing for both sides
`for me to allow them to deal with it and then take it
`up on -- depending on what the jury does, take it up
`after that?
`
`And I'm not saying that's the right thing
`to do. I want you to tell me what you think, and then
`I'll hear from Google what they think.
`MS. DOUVILLE: Absolutely.
`So our understanding of Google's position
`is that neither of these two steps should be analyzed
`or brought to the jury for a decision.
`I think both parties -- and I'm sure
`they'll correct me if I'm misstating their position,
`but I think both parties agree that at least at Step 1
`that is an issue of law for the Court to decide. And
`it --
`
`THE COURT: Okay. So then maybe I
`misunderstood. What Google's saying, instead of it
`should go to the jury, is they're saying it should not
`go to the jury because -- they're going to tell me as a
`matter of law that the asserted claims were
`well-understood, routine and conventional.
`So maybe I was misreading the notes from
`my clerk here, that -- they are going to take the
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 10 of 156
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`position I'm used to defendants taking, which is it's
`out on Step 1.
`MS. DOUVILLE: Correct.
`THE COURT: Okay. Got it.
`MS. DOUVILLE: Well, I think so. I'm not
`entirely sure. And I'm sure they'll correct me, again,
`if I'm wrong. But I don't believe that -- as to Step
`2, they believe that that's an issue to send to the
`jury.
`
`If the Court were to decide that there is
`an abstract idea, of course then that's not the end of
`the analysis. You do have to go to Step 2 at that
`point. So even if they made the argument that it's out
`at Step 1, that would not be supported by any of the
`precedent on this issue.
`But -- and I'm pulling my understanding
`from what we've, I think, exchanged in jury
`instructions. And it's my understanding that they
`don't intend to submit this to the jury, Your Honor.
`Stepping back just a moment, again, I
`think the problem with what they've characterized as
`the abstract idea are these three different things, all
`of which are inconsistent with each other and only
`underscore the incompleteness of the other.
`So -- and then in addition, they also, in
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 11 of 156
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`each of those three characterizations of the abstract
`idea, they fail to acknowledge these other limitations
`of the claim.
`Just briefly a few of the others that I
`think are worth noting, of course, is that the server
`system has to identify programming code based on the
`action control command. That's not something that is
`at all accounted for in their characterization of the
`abstract idea.
`And then ultimately, there's an obtaining
`and loading of a particular media player by the display
`device in response to all these steps.
`So the claims very clearly lay out how
`you are to perform the method, and it's not
`results-based claiming. It's very specific, and it's
`targeted toward a specific technological problem that
`they were facing at the time of the invention.
`So I think that, just to be brief, sums
`up our position as to Step 1.
`I think also with respect to Step 2, if
`the Court reaches that issue, it's very much
`Touchstream's position that there is an inventive step
`of course that Google, again, has failed to meet its
`burden that there is not.
`One of the failures I think in Google's
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 12 of 156
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`position is that they don't analyze any of the claim
`limitations as an ordered combination. They look at --
`THE COURT: Why don't I hear first -- let
`
`me --
`
`MS. DOUVILLE: Sure.
`THE COURT: -- hear from Google on Step
`1, because that may resolve what I do. And then if I
`need to hear Step 2, I'll ask you to step back.
`MS. DOUVILLE: Yes, Your Honor.
`THE COURT: Good morning.
`MR. LANIER: Good morning, Your Honor.
`Pleasure to be in the courtroom. Good to see you
`again. Greg Lanier for Google.
`THE COURT: Are you in -- based in
`
`Boston?
`
`MR. LANIER: Am I what?
`THE COURT: Based in Boston?
`MR. LANIER: No. I'm in Silicon Valley.
`Palo Alto, but we call it Silicon Valley nowadays.
`Your Honor, there's a few things that
`have come up in my listening to this argument, and
`we'll get to Your Honor's concrete question first.
`But, one question I ask the Court to hold
`in mind before deciding this motion fully is to hear
`the argument on our noninfringement motion because
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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 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 13 of 156
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`there is extraordinary push and pull and tension
`between Touchstream's positions here.
`And I'll illustrate that in a couple of
`ways, but first I think I need to turn this thing on --
`oh, it's on.
`
`We can go to Slide 3.
`THE COURT: Well, if it -- if it makes
`sense to do it this way, I'm happy for you to make your
`defensive argument on invalidity and also make your
`argument on infringement. I've gone through them. You
`can make your argument that way, do it together, and
`then I can hear a response to the infringement.
`MR. LANIER: That would be great, Your
`Honor. That actually makes good logical sense to us.
`There's another issue in their motion for
`summary judgment that's unrelated, so maybe we put that
`one aside and come back to it. And I'm just going to
`reach over and grab one more set of notes here.
`THE COURT: Okay.
`MR. LANIER: So, Your Honor, the bottom
`line is -- the bottom line, Your Honor, is that we do
`think that the Court should deny their motion finding
`that -- at a minimum, deny their motion. As we
`suggested in our opposition, even though we did not
`move, we actually think the case is clear enough that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 14 of 156
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`the Court could find invalidity under Section 101. But
`we acknowledge we did not move.
`We do think Step 1, as a matter of law,
`should be decided that there is an abstract idea, and
`we do not think that they have met any burden to
`establish that they've met the requirements of Step 2.
`But let's go to Slide 3, please. Or
`excuse me. Slide 4.
`Thank you.
`So laying this issue out here, the first
`question, as Your Honor knows, on Step 1 is whether
`it's an abstract idea. We do agree that's a question
`for the Court. The Court can decide it.
`Next slide, please.
`So we've got this claim we're
`illustrating here, that representative claim. No one's
`disputed the representativeness of it for purposes of
`this analysis.
`There's three basic components. Mostly
`what we're hearing from Touchstream all the time is
`that we've got all these components. We list these
`components. We list them in an order. And, therefore,
`it's not an abstract idea.
`But the positions they've taken before
`this case and during this case actually prove
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 15 of 156
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`otherwise.
`
`Next slide, please.
`And they proved that this falls within
`the guidance of the cases we've already cited to Your
`Honor, that this is nothing more than the concept of
`delivering user selected media content to portable
`devices.
`
`Whatever components there are, there's
`nothing more specific, new, novel, or inventive than
`that.
`
`And we know this from Touchstream.
`Next slide, please.
`Here we're illustrating what's Exhibit 25
`to Docket No. 154. This is a Touchstream description
`for marketing purposes and for getting investors of
`their invention and the breadth of their claims.
`And they say: Shodogg's ownership of
`these patents protects the company's exclusive
`execution of all web-based casting technology.
`To be clear, and as the courts have
`recognized, an indicia of abstractness is the breadth
`of the claim. They claim the entire field.
`But it's not just marketing information.
`Let's look at the next slide.
`This is Slide 8, and this is an excerpt
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 16 of 156
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`that's attached to Docket 154 from their expert Mr. --
`Dr. Almeroth's opening expert report. Or his
`responsive report, I believe.
`And he says: I have also independently
`considered whether any noninfringing alternatives
`existed to the accused Chromecast functionalities, and
`I have been unable to identify any.
`They are claiming the entire field of
`web-based casting. That is to us, in addition to the
`breadth of these claims that merely list components,
`confirmation that Step 1 is met or failed. But there
`is an abstract idea, however one wants to look at it.
`Then we get to Step 2, which is, you
`know, whether there is anything that takes it beyond
`this abstract idea.
`Let's go to the next slide, please.
`And, again, what we have here, no dispute
`as they illustrated at three basic components. There's
`a personal computing device, there's a server system,
`there is a content -- or there is a content
`presentation or display device.
`We might use those terms interchangeably
`because the different patents involved here use that
`term synonymously.
`But that's it. There is nothing that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 17 of 156
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`describes how any of those actually work, only the
`steps that need to be performed in these method claims.
`But nothing that tells you how to make that phone
`better, that TV better, the server system better. Just
`what it is supposed to do.
`Let's go to the next slide.
`And it actually gets even worse. This is
`a piece of their argumentation -- this is Docket 130 --
`when they are explaining their position here. And
`they're saying: Well, a server's a well-understood
`term of art. And the server, adding the term "system"
`expands it so it's not limited to any of these things.
`So their position quite clearly is that
`it's any of these well-known components put together.
`And, as we submitted in our papers and I
`won't take the Court through all of it,
`Dr. Mayer-Patel, our expert, has made it clear that
`there is nothing new here that takes this from the
`level of abstractness. It is nothing more than a
`computer-assisted invention. Think about it.
`Let's go back to I think it's Slide 4.
`Excuse me. 5.
`6. Sorry. Next one.
`Last crack at my slides. 8. 9.
`There we go. Sorry about that, Your
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 18 of 156
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`Honor.
`
`Again, there is nothing that tells you
`anything about how any of the core components work,
`nothing that improves their functionality, nothing that
`improves their operation. And what happens here with
`all of these inventions? I can use my phone to say,
`I'd like to watch something on another screen.
`And if Your Honor and I were working
`together in a room and we each could control these
`things manually, we could do every bit of that without
`any sophisticated computer technology just using
`well-known things.
`So to us, Your Honor, it's unequivocal
`that the issue of Step 1 should be decided that there
`is an abstract idea. We don't think they've made even
`a prima facie case that they get over Step 2, and we do
`think Your Honor could be free to decide the 101 issue
`against them.
`And we also think that if Your Honor
`isn't comfortable going that far, that Step 2 and the
`question of is there anything that takes this beyond
`the abstract idea is one that could be left to the
`jury. Though we don't think it has to be in this case.
`To make our position crystal clear.
`Now, in other cases we have certainly
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 19 of 156
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`argued that this is an issue that can be decided
`entirely by the Court. Depends on the record of those
`cases. We do think this is one. But if not, Step 2 at
`minimum should go to the jury to resolve that.
`But if I could illustrate the tension
`with our noninfringement argument.
`THE COURT: Let me do this. Since while
`you have that up and you just made a pretty direct
`statement. Let me hear a response to what you just
`said from plaintiff's counsel and then I'll have you
`come back up and either respond or move to
`infringement.
`But I'd like to hear the response to what
`you just argued about nothing being inventive in this.
`MR. LANIER: Thank you, Your Honor.
`MS. DOUVILLE: I think on the issue of
`the abstract idea, Your Honor, counsel mentioned a
`number of things that I'd just like to briefly address.
`First, he suggested that we have the
`burden on this. We don't. They have the burden to
`prove invalidity on clear and convincing evidence.
`The other thing I think we saw was
`evidence that sits outside the claims. And regardless
`of the characterization of that evidence, we would
`submit that that's not evidence to be considered on a
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 20 of 156
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`101 analysis.
`THE COURT: I'm more concerned just with
`what he just said about that slide.
`MS. DOUVILLE: And so I guess my
`understanding of what his position is with respect to
`this slide is that he's highlighted some of the
`components that are at issue in the claim. But he
`ignores that these are method steps and he ignores, if
`you can see, the vast majority of what's recited in the
`claim with respect to the steps that are being
`performed and how they're being performed, the
`information that's included in the messages, how those
`messages are acted upon, which is clearly spelled out
`by the claim.
`And, for example, the: Identifying, by
`the server system, programming code corresponding to
`the action control command, wherein the programming
`code is for controlling presentation of the content.
`So we receive the message. The message
`is very clear as to what its contents are. And then it
`describes specifically how the server system acts on
`that. That is not the type of results-based claiming
`that courts have found constitute an abstract idea.
`THE COURT: Got it.
`Anything else? If you'd like to move on
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 21 of 156
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`to the infringement argument.
`MR. LANIER: Thank you, Your Honor.
`THE COURT: Or noninfringement, I guess,
`
`but...
`
`MR. LANIER: So, Your Honor, I'll talk a
`little about 101 in -- partly in comparison to our
`noninfringement issues.
`But first -- and, in fact, let's start
`with Slide 17, if we could.
`Just to make the following point, Your
`
`Honor.
`
`There's actually two sets of push and
`pull here going on with their noninfringement position.
`One is against Section 101, which I'll illustrate in a
`second. The other is against Section 12.
`So we recall what the -- conversation we
`just had and what they're saying is, it's a set of
`well-ordered steps. We have to consider them as a
`well-ordered combination.
`But as Your Honor and I just discussed,
`we could talk through those in a well-ordered
`combination and there's nothing there that says, do
`this thing humans could do, except use computers and
`the Internet. That's as far as we get.
`And so I'll spare the Court further
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 22 of 156
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`dialogue there, but that is exactly the problem that
`these claims have under Section 101.
`But it's their response to our Section
`101 motion that we actually included in our materials
`on noninfringement because it's telling.
`So here we have Slide 17, which are
`pieces of their briefing saying, nope. We are -- we
`are not invalid under Section 101. Right?
`And look what they say: The asserted
`claims are directed to a specific, concrete computer
`architecture.
`The asserted claims here contain a
`specific structure -- and it lists exactly the same
`three devices we have always listed -- and specific
`messaging rules.
`Rather, they specify the technological
`parts of the system that perform each step, talks about
`those three technological parts, along with the
`contents of the messaging that is exchanged between
`these components.
`So to respond to 101 they say, we've got
`technological stuff and it's very specific. It's a
`concrete computer architecture.
`We should remember that phrase.
`Now, as discussed, we don't think that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 6:21-cv-00569-ADA Document 225 Filed 07/02/23 Page 23 of 156
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`gets them over 101. We think the Court could decide
`this against them.
`But let's now go to Slide 16.
`Now, Your Honor, what we've illustrated
`here is from Dr. Almeroth's report. And this is his
`depiction in those red boxes on top of a Google
`document. The Google document has the basic process
`flow for how its accused casting technology works.
`And for the record, this is Docket 158 at
`5. Citing Dr. Almeroth's report at Paragraph 164.
`Dr. Almeroth has told us these red boxes