Case 6:21-cv-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 1 of 8
`Case 6:21-cv-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 1of8
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`EXHIBIT 3
`EXHIBIT 3
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`Case 6:21-cv-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 1of8
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`EXHIBIT 3
`EXHIBIT 3
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`Case 6:21-cv-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 2 of 8
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`*
`RFCYBER CORP.
`*
`September 13, 2022
`
`*
`VS.
`
`
` * CIVIL ACTION NO. W-21-CV-916
`APPLE, INC.
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`MARKMAN HEARING (via Zoom)
`
`
`APPEARANCES:
`For the Plaintiff:
`
`Vincent J. Rubino, III, Esq.
`Fabricant LLP
`411 Theodore Fremd Av, S 206 South
`Rye, NY 10580
`Mark D. Fowler, Esq.
`DLA Piper LLP
`2000 University Ave.
`East Palo Alto, CA 94303-2214
`John Michael Guaragna, Esq.
`Zachary Loney, Esq.
`DLA Piper LLP (US)
`401 Congress, Suite 2500
`Austin, TX 78701
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
`
`For the Defendant:
`
`Court Reporter:
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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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 3 of 8
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`2
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`(Hearing begins.)
`DEPUTY CLERK: A civil action in Case
`6:21-CV-916, RFCyber Corp. versus Apple, Inc. Case
`called for a Markman hearing.
`THE COURT: If I could have announcements
`from counsel, starting with plaintiff, please.
`MR. RUBINO: Your Honor, Vincent Rubino
`from Fabricant LLP on behalf of the plaintiff.
`THE COURT: I see Mr. Fowler and
`Mr. Guaragna.
`MR. GUARAGNA: Good morning, Your Honor.
`It's John Guaragna from DLA Piper for Apple. With me
`this morning from DLA are Mark Fowler.
`MR. FOWLER: Good morning, Your Honor.
`THE COURT: Morning.
`MR. GUARAGNA: And Zach Loney.
`MR. LONEY: Good morning.
`THE COURT: Welcome.
`MR. GUARAGNA: Also on the line, Your
`Honor, are in-house counsel from Apple, Natalie Pous
`and Amy Walters.
`THE COURT: Very much welcome to counsel
`and your clients for attending.
`The first claim term I have is "e-purse,"
`e-purse or electronic purse.
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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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 4 of 8
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`3
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`I'll hear from counsel for Apple.
`MR. GUARAGNA: Your Honor, if I may, just
`before we start the argument, I understand the Court
`wants to be informed when there are pending transfer
`motions so the Court can have an opportunity to address
`those before Markman.
`In this case, Apple does have a pending
`motion to transfer at Docket No. 93. The venue
`discovery that has been served on Apple has been
`responded to. So the briefing in that instance could
`be completed promptly and a decision could be done
`quickly in that regard.
`THE COURT: Well, I typically -- maybe
`something happened here. I'm happy to reschedule the
`Markman till we take that up. I usually don't hold the
`Markman until we've -- when -- Mr. Guaragna, when do
`you anticipate the briefing to be done?
`MR. GUARAGNA: We anticipate it could be
`done within the next month, Your Honor. The -- I think
`the plaintiff will have two weeks to respond to our
`motion, then we will have another two weeks. So we're
`looking at roughly four weeks of briefing schedule.
`And then the motion should be ripe for resolution.
`THE COURT: Mr. Rubino, do you agree with
`that time estimate?
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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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 5 of 8
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`4
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`MR. RUBINO: Your Honor, while we may
`agree with the time frame, plaintiff's position, which
`this is a catching us a bit by surprise honestly, but
`plaintiff's position is and has been that Apple moved
`to transfer to the Northern District of California.
`That was an inter-district transfer. We briefed that.
`We spent considerable time dealing with that motion.
`And then right at the end Apple decided
`to withdraw its motion and recast a new motion as a
`motion to transfer intra-district to the Austin
`Division.
`
`We have two beliefs about how the law
`stands. One is that there's no requirement -- or that
`this Court -- we believe this Court hasn't had to do
`intra-district transfers before the Markman, and only
`inter-district transfers. I hope I said that right.
`And in this case there's a bit more
`egregious conduct here, which is that, you know, we
`spent a lot of time, delayed the Markman from June all
`the way till now to get that initial motion decided.
`It got pulled.
`We think there's probably even grounds to
`strike their new motion in view of this behavior. And
`we don't think the Markman should be postponed any
`longer. And this seems like pure delay tactics on the
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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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 6 of 8
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`5
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`part of Apple.
`THE COURT: Mr. Guaragna?
`MR. GUARAGNA: Yes, Your Honor. I
`appreciate the opportunity to respond.
`So what happened in this situation,
`Judge, is that during the venue discovery period in
`the -- in connection to a discovery dispute, the
`plaintiff had explained that the contentions it had
`served touched on features that were not -- that Apple
`didn't understand to be at issue.
`So when they did that and those features
`were advertised, that brought certain individuals from
`Austin into play. So in light of those individuals in
`Austin being potentially relevant witnesses, Apple
`reached out to RFCyber and asked for a stipulation that
`the case be transferred to Austin instead of to the
`Northern District of California, based on those new
`facts.
`
`THE COURT: I'm not worried about -- I
`don't think anyone did anything good or bad. Given
`that this is an intra-district and that we are at least
`a year, if not longer, for trial, I have more optimism
`than I would have even six months ago, that if this is
`transferred to Austin that I would be able to retain
`jurisdiction over it.
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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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 7 of 8
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`6
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`So I'm going to go ahead and conduct the
`Markman today. Because I don't think the transfer
`to -- if I transfer it to Austin, I don't think
`necessarily I'm going to lose jurisdiction over the
`case, as might have been in the past.
`So I'm going to go ahead and conduct the
`
`Markman.
`
`MR. GUARAGNA: Thank you, Your Honor.
`THE COURT: First claim term is "e-purse"
`or "electronic purse."
`I'll -- Mr. Fowler, is this you? Or
`
`is --
`
`MR. FOWLER: It's Mr. Loney.
`THE COURT: Okay. Very good.
`MR. LONEY: Thank you, Your Honor. May
`it please the Court. Zachary Loney on behalf of Apple.
`Now, starting with slides that Apple
`presented, I'd like to (inaudible) the "e-purse" term,
`or electronic purse.
`Now, the Court's preliminary construction
`for this term is software is that stores electronic
`financial information in a local device. Apple agrees
`that this language is correct, but it is not complete.
`The dispute remaining between the parties
`is whether the electronic financial information 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-00916-ADA-DTG Document 103-2 Filed 09/23/22 Page 8 of 8
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`7
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`the e-purse must be capable of storing must include
`electronic value.
`Now, before I go on, I want to be very
`clear since there was some confusion in RFCyber's
`briefs regarding Apple's position. Apple does not seek
`to limit an e-purse to storing only electronic value.
`That was the dispute litigated in RFCyber's previous
`case. It's not the issue before us now.
`Nor does Apple seek a construction that
`would require the actual storage of electronic
`financial information, but rather the capability to
`store such information. To this point Apple would
`support an alternative construction of software capable
`of storing electronic financial information, including
`electronic value in a local device.
`(Clarification by Reporter.)
`MR. LONEY: I'll continue on, and if
`there's any more problems, please let me know.
`So as I touched on, the issue in dispute
`is narrow. As we saw in the previous slide, the
`parties do not dispute that an e-purse is software that
`stores electronic financial information in a local
`device.
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`The parties also do not dispute that an
`e-purse can store electronic financial information,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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