Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 1 of 5 PageID# 28617
`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 1 of 5 PagelD# 28617
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`EXHIBIT K
`EXHIBIT K
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`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 1 of 5 PagelD# 28617
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`EXHIBIT K
`EXHIBIT K
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`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 2 of 5 PageID# 28618
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`1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`-------------------------------:
`:
`TECSEC, INCORPORATED,
`:
`Plaintiff,
`
`::
`
`:
`
`-vs-
`
`Case No. 1:10-cv-115
`
`Volume 1 - A.M.
`
`::
`
`ADOBE INC., et al.,
`Defendants.
`-------------------------------:
`
`::
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`:
`
`JURY TRIAL PROCEEDINGS
`
`December 10, 2018
`
`Before: Liam O'Grady, USDC Judge
`
`And a Jury
`
`Norman Linnell and Anneliese Thomson - EDVA-OCRs (703)549-4626
`
`
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`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 3 of 5 PageID# 28619
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`20
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`opening, and it should be precluded.
`THE COURT: All right. Thank you.
`All right. Mr. Oakes?
`MR. OAKES: Your Honor, it is a corporate record of
`TecSec. Mr. Wack will establish that under rule 806. It is
`evidence of secondary considerations. It's also relevant to
`the corporate history and their experience, and Mr. Wack will
`tie the CKM technology to the patent mentioned in his
`testimony.
`
`THE COURT: All right. It will be allowed.
`All right. Ms. Cohen?
`MS. COHEN: Your Honor, we also object to slide
`No. 23. This excerpt is a letter that TecSec sent to a
`standard setting organization describing TecSec's purported
`license, a patent licensing policy. The fundamental problem
`with this slide, the letter shows a mere offer to license. The
`evidence shows that this offer to license was never accepted by
`anyone.
`
`Your Honor probably will recall that Adobe moved to
`exclude offers to license -- the parties' license agreements
`because the experts admitted that the licenses that were
`actually entered into weren't comparable. In this case, this
`isn't even a license that was executed. This is an offer to
`license. It was never accepted by anyone, and therefore, it's
`by definition less probative of the reasonable royalty rate
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`Norman Linnell and Anneliese Thomson - EDVA-OCRs (703)549-4626
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`
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`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 4 of 5 PageID# 28620
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`than the executed licenses.
`I'll direct Your Honor to a Federal Circuit case,
`it's Whitserve v. Computer Packages, 694 F.3d 10, at 29 to 30,
`Federal Circuit 2012 case. I do have copies of the case for
`Your Honor.
`May I approach?
`THE COURT: Yeah.
`Joe? Thanks.
`MS. COHEN: In that case, the court said that
`unaccepted offers to license are of limited evidentiary value
`at pages 29 to 30, and it may only have value in certain
`situations.
`As I said, Your Honor, in this situation, it's even
`less probative than the excluded licenses that have actually
`been executed. There's no evidence that TecSec ever
`implemented the policies, no evidence that -- the witnesses
`will say that they never received a 1 percent rate for any of
`their unaccepted offers to license.
`It was made by -- to a standard setting organization
`that was indisputedly in a different context than the licensing
`considerations that would be part of the hypothetical
`negotiation in this case. The offer was made in 1998. That's
`three years before the hypothetical negotiation date of
`April 2001. It was made to the American Bankers Association,
`which is, like I said, a standard setting organization who's
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`Norman Linnell and Anneliese Thomson - EDVA-OCRs (703)549-4626
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`Case 1:20-cv-00393-LO-TCB Document 1012-11 Filed 02/11/22 Page 5 of 5 PageID# 28621
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`not a party to the hypothetical negotiation.
`At bottom, we think it shouldn't be allowed because
`it's inadmissible -- as an inadmissible offer to license and
`it's -- the purported licensing policy has no basis in fact.
`THE COURT: All right. Thank you, Ms. Cohen.
`Mr. Oakes?
`MR. OAKES: Your Honor, Mr. Wack will authenticate
`this offer. He will use it as evidence to establish the
`company's ongoing belief in their licensing policy. It's been
`the corporate policy for many years. The damages experts both
`relied upon it as part of the Georgia-Pacific factor as the
`established or expected royalty rates of the, of the parties.
`It is only one factor, and I heard Ms. Cohen say
`repeatedly it's less probative. It's not irrelevant. It is
`certainly evidence of TecSec's expectations in terms of
`licensing these patents, and it does specifically relate to the
`DCOM, these -- the four patents at issue here.
`THE COURT: Well, that's not obvious from this quote.
`Is it in the body of the document itself?
`MR. OAKES: It is.
`THE COURT: Okay. All right. It'll be permitted.
`All right.
`MS. COHEN: Your Honor, there are just two
`housekeeping items we wanted to raise with the Court. One is
`with respect to the preliminary instructions. The parties have
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`Norman Linnell and Anneliese Thomson - EDVA-OCRs (703)549-4626
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`
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