Case 6:21-cv-00569-ADA Document 259 Filed 09/01/23 Page 1 of 244
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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.
`*
`July 17, 2023
`
`*
`VS.
`*
` * CIVIL ACTION NO. W-21-CV-569
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`JURY TRIAL PROCEEDINGS
`Volume 1 of 5
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Ryan D. Dykal, Esq.
`Lauren Douville, Esq.
`Jordan T. Bergsten, Esq.
`Robert McClendon, Esq.
`Philip Alexander Eckert, Esq.
`Shook, Hardy & Bacon, LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Gary M. Miller, Esq.
`Justin R. Donoho, Esq.
`Samuel G. Bernstein, Esq.
`Shook, Hardy & Bacon LLP
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`Sharon A. Israel, Esq.
`Shook, Hardy & Bacon L.L.P.
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Tharan Gregory Lanier, Esq.
`Michael C. Hendershot, Esq.
`Evan M. McLean, Esq.
`Gurneet Singh, Esq.
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 943034
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`TOUCHSTREAM TECHNOLOGIES,
` INC.
`*
`July 17, 2023
`
`*
`VS.
`*
` * CIVIL ACTION NO. W-21-CV-569
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`JURY TRIAL PROCEEDINGS
`Volume 1 of 5
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Ryan D. Dykal, Esq.
`Lauren Douville, Esq.
`Jordan T. Bergsten, Esq.
`Robert McClendon, Esq.
`Philip Alexander Eckert, Esq.
`Shook, Hardy & Bacon, LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Gary M. Miller, Esq.
`Justin R. Donoho, Esq.
`Samuel G. Bernstein, Esq.
`Shook, Hardy & Bacon LLP
`111 S. Wacker Drive, Suite 4700
`Chicago, IL 60606
`Sharon A. Israel, Esq.
`Shook, Hardy & Bacon L.L.P.
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Tharan Gregory Lanier, Esq.
`Michael C. Hendershot, Esq.
`Evan M. McLean, Esq.
`Gurneet Singh, Esq.
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 943034
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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 259 Filed 09/01/23 Page 2 of 244
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`Tracy Ann Stitt, Esq.
`Jennifer L. Swize, Esq.
`Edwin O. Garcia, 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
`
`Court Reporter:
`
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
`
`
`
`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 259 Filed 09/01/23 Page 3 of 244
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`(Hearing begins.)
`THE COURT: Good morning, everyone.
`Jen, would you call the case, please?
`You may be seated.
`DEPUTY CLERK: A civil action in Case
`6:21-CV-569, Touchstream Technologies, Inc. versus
`Google LLC. Case called for a jury trial proceeding.
`THE COURT: Announcements from counsel,
`
`please.
`
`Good morning.
`MS. DOUVILLE: Good morning, Your Honor.
`Lauren Douville for Touchstream. With me today is
`Mr. Bergsten, Jordan Bergsten and Sharon Israel.
`THE COURT: Welcome.
`Yes, sir.
`MR. HASSETT: Good morning, Your Honor.
`Shaun Hassett for Google. And with me today is Michael
`Hendershot, Edwin Garcia, and John Boule, Your Honor.
`THE COURT: Okay. Let's see what we've
`
`got.
`
`Okay. Explain to me what y'all's worry
`is about MIL No. 18: Evidence, testimony, or argument
`for purpose of noninfringement comparing the accused
`products or methods to...any non-accused product or
`method.
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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 259 Filed 09/01/23 Page 4 of 244
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`What is the concern that you all have?
`That's the issue I have. If that's
`right, I'm happy to hear what the concern is.
`MR. BERGSTEN: Yes, Your Honor. Jordan
`
`Bergsten.
`
`There are some documents that they intend
`to use that are Touchstream documents that compare
`Touchstream's product to the accused Google product.
`So we find that to be barred by the current MIL ruling.
`Now, I think --
`THE COURT: What are they going to do?
`MR. BERGSTEN: They want to use
`Touchstream documents -- is the plaintiff -- our own
`documents, marketing documents that are comparing our
`product to the accused Chromecast product.
`That would clearly run afoul of this
`order if it were used for noninfringement. We
`understood it to just be -- given the prejudicial
`nature of that kind of evidence and the fact that it
`cannot have any role in a noninfringement decision, we
`understood your ruling to just exclude any kind of
`product-to-product comparison like that.
`I believe their argument is that it's
`relevant to damages and willfulness. We understood it
`to already be excluded, but if you'd like me to address
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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 259 Filed 09/01/23 Page 5 of 244
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`the argument as to damages and willfulness, I can do
`that too.
`
`THE COURT: What is it that you intend to
`
`do with it?
`
`MR. HENDERSHOT: Your Honor, Mike
`Hendershot of Jones Day. Good morning.
`THE COURT: Good morning.
`MR. HENDERSHOT: We don't intend to use
`it for noninfringement. We understand the MIL, and the
`MIL says you cannot compare products to products for
`noninfringement.
`It goes directly to -- they're not going
`to go directly to their willfulness case as well as
`their damages case.
`Their willfulness case is premised upon a
`meeting between the parties where they demonstrated a
`product to Google. They didn't show us a patent. They
`showed us a product. And they said, based on that
`meeting, which is featured prominently in their opening
`slides, Google copied our product, therefore, they
`should be found to be a willful infringer.
`That is the theory they're running. They
`have documents that say they have a different approach.
`They're in a different market. That's probative of the
`question of willfulness.
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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 259 Filed 09/01/23 Page 6 of 244
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`And their damages case is that they're
`seeking roughly a billion dollars saying Google
`foreclosed them from competing in the market by their
`infringement.
`
`THE COURT: If they -- if Google asks a
`question you're unhappy about, just object, I
`understand the issue, and I'll take up relevance when
`they ask the question.
`MR. BERGSTEN: If I may, this is going to
`come up briefly because they are using some of these
`documents in opening statements. So we would just
`contend that, because we know, as, you know, borne out
`of these Federal Circuit cases --
`THE COURT: Opening argument is argument.
`I'm -- it's argument, so they can do that.
`Anything else?
`MR. BERGSTEN: There's -- there was
`another issue tied up with this one other than the MIL
`18 one.
`
`THE COURT: Okay.
`MR. BERGSTEN: Would you like to take
`
`that up now?
`
`THE COURT: Sure.
`MR. BERGSTEN: So that one was the issue
`of whether a lay witness can opine on infringement.
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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 259 Filed 09/01/23 Page 7 of 244
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`Obviously, we think that's out. We understood the
`Court's order on MIL 3 saying --
`THE COURT: What do you anticipate them
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`doing?
`
`MR. BERGSTEN: Well, so they have -- as
`of yesterday, they did say they do not intend to ask
`fact -- our fact witnesses about whether a product
`infringes.
`
`I think -- I'm not saying they don't
`intend to, I think that should be clear going into our
`testimony. So we would ask --
`THE COURT: I can't imagine why they
`would ask your witness whether their product infringes.
`MR. BERGSTEN: Well, I asked them on
`Friday to agree that they -- to agree to be barred from
`doing that and they wouldn't do it. So I also offered
`a compromise on Friday and they wouldn't agree.
`THE COURT: They're not going to do that.
`MR. BERGSTEN: Okay. Thank you.
`The only --
`THE COURT: Now, let me say, you have a
`willfulness case. I don't know what they're going to
`do with regard to that issue. I mean, I don't know how
`they might ask it. They might ask something in that
`regard.
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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 259 Filed 09/01/23 Page 8 of 244
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`But certainly, there's no one -- fact
`witnesses don't get to opine -- fact witnesses on
`either side don't get to opine on validity or
`infringement.
`MR. BERGSTEN: Yeah. But --
`THE COURT: I don't know what they're
`going to do that might be relevant to your willfulness
`case.
`
`MR. BERGSTEN: Two clarifications I want
`to make, I guess.
`So one of the depositions that they --
`THE COURT: Do you know it is
`impossible -- I don't think you all understand. You
`come here and you say, Judge -- you whine -- sorry --
`but we are worried they're going to say this.
`What do you want me to do?
`When they ask something, stand up. Look.
`If the question is, to their CEO, do you have a DWI?
`Well, we can't unring that. It doesn't matter. The
`jury's heard that he has a DWI. That's a motion in
`limine.
`
`I don't want to hurt your feelings, but
`if he asks a question and you stand up then and say, I
`object. Hopefully, some of the jury was listening.
`But I can promise you, you ask 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 259 Filed 09/01/23 Page 9 of 244
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`question, if they're unhappy, they object. If you ask
`a question, that's all -- I mean, I can't police what
`you all can do. I just -- I mean, I can't do it. It
`doesn't work.
`And just object. I mean, there's nothing
`here that the jury's going to be scarred by if they
`hear the question, I promise you. I've had stuff where
`motions in limine were violated and I had to deal with
`it and I talked to the jury afterwards and they said,
`We had no idea what they were doing.
`I mean, just y'all care -- I'm sorry --
`you all -- I was you. You all care very much about
`this. You think the jury's hanging on every question
`and whatever the answer is could be life changing.
`It's not. None of them are.
`MR. BERGSTEN: Okay. Understood.
`THE COURT: They won't even understand
`why you're asking it.
`So tell me something that you're worried
`about that if they ask the question, just the asking of
`the question, it will be so detrimental that I -- that
`you need to worry about it.
`That's a motion -- to me, a motion in
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`limine.
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`Now, there's the obvious ones. You have
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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 259 Filed 09/01/23 Page 10 of 244
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`one. You don't get to ask either side do they
`infringe, unless it has to do with willfulness and then
`you might.
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`MR. BERGSTEN: So I guess very briefly,
`so the one question that we were truly worried about,
`there was testimony in an earlier deposition that they
`have -- so the question would be: Isn't it true that
`in a earlier document, people at Touchstream, you know,
`had an opinion that Google was not infringing at the
`time?
`
`So that was something that came out in an
`earlier deposition.
`THE COURT: Do they have that? Do -- I
`mean, do they have that statement?
`MR. BERGSTEN: They have -- yeah. They
`have that document. It was attached to it.
`THE COURT: And are you all asking for
`
`willfulness?
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`willfulness.
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`relevant?
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`MR. BERGSTEN: Yes. We are asking for
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`THE COURT: Then why wouldn't that be
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`MR. BERGSTEN: These are non-attorneys at
`Touchstream, you know, talking with the information
`that they have. And, obviously, they're not legal
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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 259 Filed 09/01/23 Page 11 of 244
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`attorneys who are qualified to give an opinion like
`that, so we think it would be prejudicial.
`THE COURT: Then why were they talking
`about whether or not it was infringing or not?
`MR. BERGSTEN: The truth is they're just
`a small startup and they are, you know, asking some of
`the questions --
`THE COURT: Are they engineers?
`MR. BERGSTEN: Some of them were.
`THE COURT: Do they know how their
`products work?
`MR. BERGSTEN: They didn't know how
`Google's -- they were trying to find out how Google's
`product worked, but they didn't -- you know, they knew
`what public information could tell them at the time.
`THE COURT: If you are asking -- if you
`are claiming they're acting willfully and one of your
`people said they don't think it infringes, I think
`that's relevant.
`I mean, you know, now, you can control
`that by not -- I mean, it has nothing to do with
`whether it infringes or not.
`I mean, if you don't have a willfulness
`case, then I would agree with you that it doesn't come
`in because they don't get -- but if -- if one of 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 259 Filed 09/01/23 Page 12 of 244
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`folks, you know, thought that they don't infringe,
`that's relevant, if you want it to be relevant -- I
`mean, if you want there to be willfulness, which is
`why, again, I can't do this prophylactic stuff.
`I don't know why a question might be
`asked, that it might not be relevant on one issue, but
`it might be relevant on the other until I hear -- I'm
`in trial.
`
`MR. BERGSTEN: Okay. Understood. Thank
`
`you.
`
`THE COURT: Anything else?
`MR. HENDERSHOT: Not from Google on that,
`Your Honor. You anticipated my response.
`THE COURT: Okay. Anything from the
`
`plaintiff?
`
`MS. DOUVILLE: No, Your Honor. I don't
`think we have anything else on that issue. It's my
`understanding that Google has a number of objections to
`testimony and exhibits that we intend to present today
`after opening and also some objections to
`demonstratives, as well.
`So I don't know if Your Honor wants to
`take those up right now.
`THE COURT: Are they -- do any of them
`have to do with the opening argument?
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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 259 Filed 09/01/23 Page 13 of 244
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`MS. DOUVILLE: Yes, Your Honor.
`THE COURT: Then just hand me -- hand me
`the slides that someone's unhappy about, and I'll look
`at them and I'll tell you whether they're coming in.
`MS. DOUVILLE: All right. Your Honor,
`can we do that through -- what would be the easiest way
`to do that?
`
`THE COURT: For you to take them and to
`hand them to me and I'll look at them, and tell me
`which ones each side is unhappy about. Do you have a
`printed copy of your opening slides?
`MS. DOUVILLE: Yes, Your Honor. They do
`
`have --
`
`(Clarification by Reporter.)
`MS. DOUVILLE: Yes, Your Honor, we do.
`Mine have attorney notes on them, but I can --
`THE COURT: I promise I won't look at
`
`them.
`
`can.
`
`approach?
`
`MS. DOUVILLE: Yes. We have someone who
`
`THE COURT: I just need to --
`MS. DOUVILLE: Your Honor, may I
`
`MR. HENDERSHOT: Google's -- those may
`have some notes as well, Your Honor.
`
`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 259 Filed 09/01/23 Page 14 of 244
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`(Off-the-record discussion.)
`MR. HENDERSHOT: Your Honor.
`THE COURT: Yes, sir.
`MR. HENDERSHOT: There's also one
`question we wanted the Court's guidance on with respect
`to some deposition testimony, just the mechanics for
`how you want to run the trial with --
`THE COURT: Ask me that.
`MR. HENDERSHOT: We have a witness that
`we want to call live in our case-in-chief, Matt Van Der
`Staay. Plaintiff wants to present deposition testimony
`from him in their case.
`We want to just preserve our ability to
`call him live and if we -- we wanted to clarify with
`the Court if we designated fairness counters to their
`deposition testimony.
`THE COURT: Then you still get to call
`
`him live.
`
`in any event.
`
`MS. DOUVILLE: And we have no objection
`
`MR. HENDERSHOT: Thank you, Your Honor.
`THE COURT: And let me -- if I haven't
`told you all this, the way I see the world on -- this
`is -- really only relates to the defendant.
`If the plaintiff is going to play 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 259 Filed 09/01/23 Page 15 of 244
`
`15
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`deposition from X witness, you have the choice to play
`yours then, all of it, some of it, or none of it,
`because you don't have any burden in their case. Once
`their case finishes, then you can call someone live
`and/or play the deposition testimony.
`The only thing there is with regard to
`the deposition, it flips, and you need to make sure
`that the plaintiff knows what you're going to play so
`they can do counter-designations in time if you want to
`play.
`
`But you can -- you get to do it -- you
`have no burden. So in my opinion, the defendant gets
`to do whatever they want in terms of what they have the
`jury hear during the plaintiff's case.
`MR. HENDERSHOT: Thank you, Your Honor.
`That makes perfect sense. We just didn't want to
`inadvertently get sideways.
`THE COURT: Good to ask.
`Okay. I have Touchstream's opening
`slides. Which of these slides does the defendant
`object to?
`
`MR. GARCIA: Thank you, Your Honor.
`Edwin Garcia. Thank you for having us.
`I think we start out with there's a
`cluster of them that are probably going to be handled
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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 259 Filed 09/01/23 Page 16 of 244
`
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`today. We start with the Strober prototype slides.
`This is an issue that came up --
`THE COURT: I just -- I just need the
`number, and I don't need the --
`MR. GARCIA: Yes, Your Honor. Slide
`No. 5, starting through 5 through 11. This goes back
`to one of the limines that were handled where we
`excluded there's no testimony from the inventor,
`Mr. Strober, that his prototype practices the patents.
`And so the relevance of the prototype is an issue that
`we took up related to that MIL.
`There's also no expert testimony that all
`of the limitations are in the prototype. So that's
`part of the issue that we have with those slides, Your
`Honor.
`
`THE COURT: What does -- what does the
`plaintiff intend to do with these slides? I mean, what
`do you -- what do you plan to say when you're showing
`these?
`
`MS. DOUVILLE: I believe that the -- and,
`again, I'm not giving opening, Your Honor. But I
`understand that the testimony -- or the opening
`statement will relate to how the --
`THE COURT: This -- this is what we did?
`MS. DOUVILLE: This is what we did.
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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 259 Filed 09/01/23 Page 17 of 244
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`THE COURT: This is what we developed?
`MS. DOUVILLE: That's exactly right.
`THE COURT: I'm okay with that.
`MS. DOUVILLE: Disclosed, yes.
`THE COURT: Okay. What next?
`MR. GARCIA: Slide No. 20, I think we
`took up issue with the celebrity on the slides.
`THE COURT: Overruled.
`What next?
`MR. GARCIA: Yes, Your Honor.
`The next slide, I think, with the NBC,
`Forbes, and VentureBeat, I think there's no evidence
`really that they were connected to any of those
`companies.
`
`THE COURT: Well, then you can bring that
`out during the trial.
`MR. GARCIA: I think this guidance is
`helpful, Your Honor. I think -- so for the interest of
`expediting through some of these, there's some
`documents for which we think there's not going to be
`any foundation, but I believe, getting from the Court's
`guidance today, that I will take that up at a different
`time.
`
`Yeah, Your Honor, so I'll point out one
`because this issue is related to one of the deposition
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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 259 Filed 09/01/23 Page 18 of 244
`
`18
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`designation issues that we'll discuss briefly, where
`the witness does not recognize a document, he's never
`seen it, and there's no foundation to bring it in
`through the deposition testimony.
`So this is one of those documents that --
`THE COURT: Your position is I'll have to
`rule on whether or not this -- that document is
`admissible or not?
`MR. GARCIA: With -- just trying to
`prevent deposition designations that are --
`THE COURT: Then I'm going to -- if
`there's any issue, I'm excluding it from the opening.
`I don't -- I'll --
`MR. GARCIA: So that -- yes, Your Honor.
`I think that takes -- yeah, I think that takes care of
`Slide 31 and I think we know which --
`THE COURT: And that's bilateral. If
`there's an evidentiary issue about something that's in
`the opening, I'm -- it just is staying out of the
`opening. I'll deal with it during trial.
`MS. DOUVILLE: May I ask a quick point of
`clarification then, Your Honor? There are two
`documents that they plan to use in their opening. They
`go to the issue that I think we just discussed of a
`comparison of two different products, which under
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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 259 Filed 09/01/23 Page 19 of 244
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`19
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`federal --
`
`THE COURT: Are you fighting their
`admissibility?
`MS. DOUVILLE: Correct, Your Honor.
`THE COURT: What --
`MR. GARCIA: Just a clarification on
`those documents. At least one of those documents,
`there was no objections on the exhibit list at all. So
`it's a joint exhibit.
`THE COURT: Then it will come in.
`MR. GARCIA: Thank you, Your Honor.
`THE COURT: If there's an objection to an
`exhibit, it's not going to be discussed during opening
`in either direction.
`MS. DOUVILLE: Understood, Your Honor.
`MR. HENDERSHOT: Thank you, Your Honor.
`THE COURT: And I've told you how we do
`exhibits here, right, the old-fashioned way? You and I
`may be the only two that really remember this --
`MR. HENDERSHOT: Yes.
`THE COURT: -- but you offer an exhibit
`and I admit it or not. No pre-admitted, no -- now, if
`it's joint and you say when you offer it it's joint,
`that means I don't care if they are -- they come in one
`at a time. And joint means you can just say, I'm
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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 259 Filed 09/01/23 Page 20 of 244
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`moving for admission Joint Exhibit 13.
`I'm going to say, It's admitted. And you
`
`keep going.
`
`MR. HENDERSHOT: So if it's a joint
`exhibit, we call out that it's a joint exhibit.
`THE COURT: That will let me know it's a
`joint. But the problem I've had in the past is when we
`pre-admitted the joint exhibits, then I spent a half
`hour like this every morning with people saying, We
`didn't get that.
`So this way we've never had a problem
`with which exhibits are in or out. You do them one at
`time. But if it's joint, then that means I'm just
`going to say it's admitted and you keep going.
`MR. HENDERSHOT: Understood, Your Honor.
`THE COURT: Okay.
`MR. GARCIA: With that, Mr. Shaun Hassett
`is going to handle the rest of the slides, Your Honor.
`THE COURT: Okay.
`MR. HASSETT: Thank you, Your Honor. We
`have a couple of issues. At least this starts at
`Slide 69.
`
`(Clarification by Reporter.)
`MR. HASSETT: So, Your Honor, this begins
`a -- plaintiff's presentation at Slide 69 and continues
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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 259 Filed 09/01/23 Page 21 of 244
`
`21
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`on through Slide 71.
`THE COURT: Is this what they say in
`their damages report?
`MR. HASSETT: It is not what they say in
`their damages report, Your Honor. This is, in our
`view, a brand-new damages theory. Nowhere in his
`report does Mr. Chandler opine on a 14-cent royalty
`average. Nowhere in his report does he opine on $6.72.
`THE COURT: Okay. I got it.
`Let me hear from the plaintiff.
`MS. DOUVILLE: Your Honor, the bases for
`these numbers is just simple math. It's a summary of
`his opinions and the calculations that he had on a
`per-unit price for three different categories of
`accused products. It's just a summary of averaging
`them out. They were weighted numbers to begin with.
`So, therefore, the average is correct, and they don't
`take issue with that.
`THE COURT: Does he provide --
`MR. HASSETT: We do, Your Honor,
`respectfully. I'm sorry.
`THE COURT: Does he provide these in his
`
`report?
`
`Your Honor.
`
`MS. DOUVILLE: The specific numbers? No,
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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 259 Filed 09/01/23 Page 22 of 244
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`THE COURT: Then he's not going to put --
`they're not going to be in the opening.
`MS. DOUVILLE: Yes, Your Honor.
`THE COURT: Now, if he wants to do the
`math during his testimony that is just using numbers
`that they have and it's -- and even I could do it by
`using the numbers that he has, we'll take it up when he
`wants to put it on.
`MS. DOUVILLE: Thank you, Your Honor.
`THE COURT: But they won't come in during
`
`the opening.
`
`MS. DOUVILLE: Understood.
`THE COURT: What else?
`MR. HASSETT: I believe that's it.
`MR. GARCIA: Yeah. I think the
`last issue, Your Honor, and this might be more for
`argument, but Slide 77, there is an indication that
`there's one Chromecast for every two people in the U.S.
`That is just factually incorrect.
`THE COURT: Okay. Well, then you can
`point that out --
`MR. GARCIA: Fair enough, Your Honor.
`THE COURT: -- during your trial.
`MR. GARCIA: Thank you for the guidance.
`THE COURT: It's just opening argument.
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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 259 Filed 09/01/23 Page 23 of 244
`
`23
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`Okay. I now have Google's slides.
`What are you unhappy about with those?
`MS. DOUVILLE: Yes, Your Honor.
`Beginning with Slide 8, there are characterizations
`throughout this presentation of the server system as
`having a requirement of being in control, we believe
`that's contrary to the Court's claim construction.
`And it was never disclosed in any
`expert's report that how we would define a server
`system is one of control. And so that's the basis for
`that objection on, I believe, Slide 8.
`Also in Slide 13 --
`THE COURT: Okay. Hold on. Let me hear
`from Google. I'm looking at Slide 8, which is the one
`I think they're unhappy with, because the others are
`just the patent.
`Where does your expert do something that
`essentially shows this?
`MR. GARCIA: Yeah, Your Honor. So if you
`look at Slide 9 and you look at the limitations that
`the -- the server refers to, the argument that the
`server is in control is the characterization of the
`collective limitations there of the things that the
`server does.
`
`So it's effectively just the coloring of
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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 259 Filed 09/01/23 Page 24 of 244
`
`24
`
`the infringement read. It's no -- no new opinion or
`claim construction. It's strictly a characterization
`of what the server is doing in view of those
`limitations, assigning by a server system and so on and
`so forth.
`
`THE COURT: Does your expert have
`something that looks like this in his report?
`MR. GARCIA: This specific demonstrative,
`we do have the annotated demonstrative, I believe, in
`the report. I don't know that we have the in c
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