Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 1 of 35 PageID #: 56784
`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 1 of 35 PagelD #: 56784
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`EXHIBIT A
`EXHIBIT A
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`Draft Transcript
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`)
`ARENDI S.A.R.L.,
` )
` )
` Plaintiff, )
` ) C.A. No. 13-919-JLH
`v. )
` )
`GOOGLE LLC,
`)
` )
` Defendant. )
`
`
`
`
`
`
`
`
`Friday, April 24, 2023
`9:00 a.m.
`Jury Trial
`
`Volume I
`
`
`
`844 King Street
`Wilmington, Delaware
`
`BEFORE: THE HONORABLE JENNIFER L. HALL
`United States Magistrate Judge
`
`
`
`
`APPEARANCES:
`
`
` SMITH, KATZENSTEIN & JENKINS LLP
` BY: NEAL C. BELGAM, ESQ.
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` -and-
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`P R O C E E D I N G S
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`APPEARANCES CONTINUED:
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` SUSMAN GODFREY, LLP
` BY: JOHN LAHAD, ESQ.
` BY: KEMPER DIEHL, ESQ,
` BY: MAX STRAUS, ESQ.
` BY: SETH ARD, ESQ.
` BY: KALPANA SRINIVASAN, ESQ.
` Counsel for the Plaintiff
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` POTTER ANDERSON & CORROON
` BY: DAVID ELLIS MOORE, ESQ.
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`-and-
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` PAUL HASTINGS
` BY: ROBERT W. UNIKEL, ESQ.
` BY: CHAD J. PETERMAN, ESQ.
` BY: MATTHIAS A. KAMBER, ESQ.
` BY: ANDREA ROBERTS, ESQ.
` Counsel for the Defendant
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`_ _ _ _ _ _ _ _ _ _
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`Google.
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`MR. PETERMAN: Chad Peterman on behalf of
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`(Proceedings commenced in the courtroom beginning at
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`9:00 a.m.)
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`THE COURT: Please be seated.
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`Okay. The first day of trial, we're getting
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`off to a rocky start here. Let's have appearances for the
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`record.
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`MS. SRINIVASAN: Kalpana Srinivasan of Susman
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`Godfrey on behalf of Arendi.
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`MR. ARD: Seth Ard, Susman Godfrey, on behalf
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`of Arendi. Good morning, Your Honor.
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`MR. LAHAD: John Lahad, Susman Godfrey, on
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`behalf of Arendi. Good morning, Your Honor.
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`MR. BELGAM: Neal Belgam for Arendi, Your
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`Honor.
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`MR. DIEHL: Kemper Diehl from Susman Godfrey,
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`on behalf of Arendi, Your Honor.
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`THE COURT: Okay.
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`MR. UNIKEL: Robert Unikel on behalf of Google.
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`MS. ROBERTS: Andrea Roberts on behalf of
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`Google.
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`MR. KAMBER: Mathias Kamber of behalf of
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`Google.
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`THE COURT: Okay.
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`MR. BELGAM: Your Honor, we have Max Straus,
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`also for Arendi.
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`THE COURT: All right. Very good. So for the
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`record, I've got a big stack of papers, much of which has
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`come in over the weekend, in the last 48 hours. So let's
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`start working through this.
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`It's 9:02. We'll get started. I had intended
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`to take the bench at 8:30, but we didn't have everyone
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`here. I won't dock the time today, but I'm frustrated by
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`the situation, that we didn't have everybody here so we
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`could get started.
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`So we have the jurors waiting in the jury room.
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`We're going to have them sit here while we go through some
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`of this stuff. So let's get started.
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`So first up on my list -- all right -- has to
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`do with IPR estoppel. So I have letters from the parties
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`that 456, 463, and 464 on this issue. So the record is
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`clear, here's my understanding of how we got to where we
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`are today. This case has been pending since 2013, well
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`before I took the bench.
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`Back in 2013, Apple, Google, and Motorola
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`

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`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 3 of 35 PageID #: 56786
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`downloads in 2018. But the reality is that probably less
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`than half of those downloads would have been to devices
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`that actually have the operating system that could have
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`infringed. But we can't address that because we never
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`knew this was going to be a model they were going to
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`pursue.
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`THE COURT: Okay. Counsel --
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`MS. SRINIVASAN: May I respond to that?
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`THE COURT: Yes.
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`MS. SRINIVASAN: Except for Google Chrome, all
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`of the other applications were from 2017 forward. So if
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`Google wanted to argue, we don't know what Android
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`So I think there's a little bit of confusion
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`created that is not clear here. All of the things from
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`post 2017 that are in the case today, that were in the
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`case before, that's the argument that counsel is talking
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`about. He wants to say, I don't know which one
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`corresponds to the 2018 -- or to the Android 8. But that
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`was true a week ago, two weeks ago, six months ago.
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`So that's not a new argument. That has nothing
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`to do with the fact that the pre2017 units are out. It
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`is -- all of those other applications that are unmodified
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`besides Google Chrome. They are exactly as they were
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`post2017.
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`If Google wanted to argue that they can't
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`operating system those applications apply to, that issue
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`it could have raised at any time. It is not impacted by
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`the narrowing of the applications that are from pre2017.
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`There's -- all the other applications that are
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`in there from post 2017, if Google wanted to take
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`discovery on it or wanted to raise in a motion, it didn't
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`raise this in Daubert, could have raised it and said,
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`well, we can't identify for these other applications what
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`operating system, whether it relates to Android 8 or not.
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`That issue is one that, as Google has framed, could have
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`been raised at any time. It is not specific to the fact
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`that the pre 2017 units are not -- no longer being
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`asserted.
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`figure out what operating system they connect to, that
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`should have been raised before.
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`THE COURT: All right. We are not going to
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`exclude any evidence at this point. That said, that
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`doesn't say anything about the merits. So if the evidence
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`gets presented and plaintiff failed to meet its burden of
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`proof that these numbers correspond to infringing
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`products, that's what it is. Google can move for JMOL or
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`we can deal with it in post-trial briefing, but the
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`evidence is going to go forward.
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`All right. An issue about closing the
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`courtroom.
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`MS. SRINIVASAN: Your Honor, we understand that
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`some information that might be raised in opening Google
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`has asked that the courtroom be sealed for, and there are
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`some third-party licenses that are referenced in opening,
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`and at least one of those third parties has made a request
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`for sealing. And so we obviously want to understand how
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`the Court would like to best handle that. Those are
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`definitely going to be presented in opening argument.
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`There are probably two discrete sections where
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`that happens, but they are not together in the opening, so
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`it would require sealing in the middle. And the Court can
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`also consider whether -- in our view, is that when Google
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`MS. SRINIVASAN: We could do that and not
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`publish it.
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`THE COURT: Counsel?
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`MR. UNIKEL: That would be fine, Your Honor, if
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`we just not publish the information to the whole
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`courtroom, but the jury gets the slides in hard copy, we
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`wouldn't object to that.
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`THE COURT: I just want to make sure -- I just
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`want to make sure -- I don't want to hear any arguments of
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`counsel later about certain slides being given undue
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`weight because we handed up copies of these slides but not
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`other slides.
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`So I guess we could explain to the jury that
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`has asked us to seal in terms of number of downloads or
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`the number of installed applications, doesn't provide a
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`basis for sealing the courtroom.
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`We understand if we're talking about source
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`code we may need to seal the courtroom. But these are
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`unit numbers, and we don't see that as a basis for sealing
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`the courtroom at this --
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`THE COURT: Can we get -- are we talking about
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`information that's on an opening slide that's going to be
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`up on the screen?
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`MS. SRINIVASAN: Yes.
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`THE COURT: Is there a way we can deal with
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`this where we can give the jury a copy of the slides?
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`we're going to give them a copy of all of the slides with
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`the idea being that the -- that's not a great solution as
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`I'm thinking about it. We could give them a copy of just
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`the slides that have the confidential information and
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`explain to them that we are giving it to them because it's
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`got confidential information we don't want published to
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`the Court.
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`Anybody have any ideas about what the best
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`approach is going to be?
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`MS. SRINIVASAN: I think that would work fine,
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`at least for my purposes because the two major things we'd
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`be talking about these third-party licenses, I could
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`

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`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 4 of 35 PageID #: 56787
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`certainly say there's an agreement by this party, which,
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`you know, that can be shared publicly, and the number and
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`the amount of that I can't say out loud, but you can look
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`at it on your slide.
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`THE COURT: Okay. Counsel?
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`MR. UNIKEL: That would make sense as long
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`as -- the only thing I would is that if those slides are
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`given, they be given at the time that it would normally
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`show up in the presentation.
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`THE COURT: So they're not sitting there
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`looking at them?
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`MR. UNIKEL: Right. The whole time. And then
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`So we are going to be able to do openings
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`without closing the courtroom?
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`MS. SRINIVASAN: With that, for Arendi, yes.
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`THE COURT: Yes?
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`MR. UNIKEL: I believe yes, Your Honor.
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`THE COURT: Okay.
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`MS. SRINIVASAN: And I believe in the
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`examination of our first witness, Mr. Hedloy, we'll have a
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`similar issue where there will be some discussion. Now,
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`in that case, because he's offering evidence and
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`testifying about it, we probably will need to seal the
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`courtroom so he can talk about the terms of those
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`agreements.
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`obviously they shouldn't be evidence that they're taking
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`back, and so we can collect those at the end as well.
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`THE COURT: Everybody agree?
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`MS. SRINIVASAN: That's fine.
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`THE COURT: How quickly do you think you can
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`get all of that prepared so that we can hand it out?
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`MS. SRINIVASAN: Just need to print probably
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`about four slides.
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`Okay. We have a printer here, so I think we
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`can do that in 10, 15 minutes.
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`THE COURT: Okay. All right. Is there
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`anything else? Have a seat. Anything else we need to
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`deal with?
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`THE COURT: Can we cabin it to one module of
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`the direct examination?
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`MS. SRINIVASAN: I believe so, yes.
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`MR. UNIKEL: And we can cabin the cross
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`similarly. I have it in one module.
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`THE COURT: So the idea is that we're going to
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`kick everybody out, leave the jury where they're seated,
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`do it, bring everybody back in. That's going to happen
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`twice during the course of the examination?
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`MS. SRINIVASAN: Yes.
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`MR. UNIKEL: Yes.
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`THE COURT: Okay. All right.
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`Is there anything else we need to address
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`before we get started?
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`MR. UNIKEL: I don't believe so, Your Honor.
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`MS. SRINIVASAN: No, Your Honor.
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`THE COURT: Okay. All right. Let's take a
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`ten-minute break, and we will be back at 10:15 and we will
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`start with opening statements.
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`(Whereupon, a recess is taken.)
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`MS. SRINIVASAN: We've got our printouts made.
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`I've shared those with the other side. They are fine with
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`having them handed out to the jurors. There are only four
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`or five of them. There's a stapled copy. And I can
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`THE COURT: Just out of curiosity, do you have
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`a sense of how long your opening will be?
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`MS. SRINIVASAN: It will be under an hour,
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`45 minutes to an hour.
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`THE COURT: Forty-five minutes to an hour.
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`Counsel?
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`MR. UNIKEL: I would guess about 40 minutes,
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`Your Honor.
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`THE COURT: Okay. So I think what we'll try to
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`do is do the openings, and then we'll take lunch after
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`that.
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`MR. UNIKEL: Great. Thank you, Your Honor.
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`THE COURT: All right. Let's bring the jury
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`reference that without publishing it on the screen.
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`THE COURT: Okay.
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`MR. UNIKEL: Thank you, Your Honor.
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`THE COURT: Fantastic. All right. Is everyone
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`ready to begin? May I have those as well? Thank you.
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`MS. SRINIVASAN: And, Your Honor, I just had
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`one question. I know we are limited to the podium. Do
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`you object to us being in front of the podium if we're
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`facing the jury?
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`THE COURT: That's fine. I just like everyone
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`to be within arm's reach of the podium during opening
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`statements.
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`MS. SRINIVASAN: Sure.
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`in.
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`THE CLERK: Yes, Your Honor.
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`(The jury enters the courtroom at 10:21 a.m.)
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`THE COURT: Please be seated. Good morning,
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`ladies and gentlemen of the jury. I want to apologize to
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`you for the late start we had this morning. There were
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`some matters that I needed to discuss with the attorneys
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`before we began the trial, but we are now ready to go. We
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`thank you very much for your patience. The trial is now
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`going to begin. First we're going to hear opening
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`statements from each side.
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`Counsel.
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`

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`about something that could be related, have to do with the
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`patent, whether or not is or similar or not, we have to
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`send to the Patent Office.
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`Q.
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`As far as things that existed before the application,
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`what kinds of references -- or you've heard the term
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`"prior art" -- did Arendi find and submit to the Patent
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`Office?
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`A.
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`We found there were several patents that were sort of
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`in the vicinity. There were some manuals, documents,
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`academic papers, everything. So everything we had, we
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`sent everything.
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`Q.
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`Office found is marked with a star, and the rest we
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`submitted to them.
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`Q.
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`We heard about things like CyberDesk and Apple Data
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`Detectors during the opening statements. Did Arendi
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`happen to find any references related to those?
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`A.
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`Yes, we did. And we sent it to the Patent Office.
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`Q.
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`Mr. Hedloy, how did you feel when you got the patent?
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`A.
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`Great, of course. It was a patent, a U.S. patent.
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`It was verification that it was new, and I felt great.
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`Q.
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`Is this case the first time that Arendi has sought to
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`protect the '843 patent from infringement?
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`A.
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`And if you go to the next slide, Mr. Hedloy, can you
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`describe for the jury what's shown on this slide.
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`A.
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`That is the beginning of the section which lists all
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`the things that the patent examiner knew about, and,
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`therefore, looked at. I think it's actually from the
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`left-hand part of the first page.
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`Q.
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`So it starts on the first page of the patent, and
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`then if we go to the next slide, Mr. Hedloy, could you
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`describe what these subsequent eight pages of the patent
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`are showing?
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`A.
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`Those are showing the names of all the references, of
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`all the documents and patents and other things we had that
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`we submitted to the Patent Office and that the Patent
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`No.
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`MR. DIEHL: Your Honor, at this point I do need
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`to seal the courtroom to begin talking about some of the
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`confidential documents.
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`THE COURT: Okay. Ladies and gentlemen of the
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`jury, at this point we're going to have people who are not
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`authorized to view certain confidential information that's
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`been exchanged in this case to leave the courtroom. So
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`please stay seated.
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`Ms. Garfinkel, can we seal the courtroom.
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`MR. UNIKEL: Can I ask a quick question?
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`THE COURT: Yes.
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`(A discussion was held off the record.)
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`MR. UNIKEL: We are just making sure that the
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`Office found themselves. I think that what the Patent
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`corporate representatives can stay for this.
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`MR. DIEHL: On behalf of Arendi, that's okay.
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`MR. UNIKEL: Thank you, Your Honor.
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`THE COURT: Okay. Can I see counsel at
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`sidebar.
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`-
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`- -
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`(Whereupon, the following discussion is held at
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`sidebar.)
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`THE COURT: I can tell all of you that the
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`gentleman sitting in the back of the courtroom is my law
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`clerk.
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`Is there anyone else that either side doesn't
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`because we are not sure, I'm happy to ask our corporate
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`business rep to be excused and keep corporate in-house.
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`MS. SRINIVASAN: That's fine. It is not our
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`objection. I know the Apple lawyer came here for that
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`purpose.
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`THE COURT: If what we are concerned about is
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`somebody coming in to court and raising objection in the
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`middle of testimony. I rather we take the easy path
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`forward if everybody agrees.
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`MR. UNIKEL: Yes.
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`MS. SRINIVASAN: Yes.
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`(Whereupon, the discussion at sidebar concludes.)
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`-
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`- -
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`recognize that we need to address?
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`MR. UNIKEL: I think everybody else is covered.
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`MS. SRINIVASAN: The only issue is there was an
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`Apple lawyer here. They exited the room. I don't know if
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`they maintain an option for Google corporate people being
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`here. She went outside. She came here for the express
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`purpose of making sure sealing was done right for their
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`confidential information. She left just before the issue
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`being Google in-house corporate people. They are not
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`expressly here for protective order.
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`MR. UNIKEL: In-house counsel is okay.
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`MS. SRINIVASAN: Yes.
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`MR. UNIKEL: If it's going to hold things up
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`THE COURT: The courtroom has been sealed.
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`* * *
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`(The following discussion is held under seal:
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`MR. DIEHL: Thank you, Your Honor.
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`BY MR. DIEHL:
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`Q.
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`Mr. Hedloy, what was the first time Arendi had to
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`bring a lawsuit to protect the '843 patent?
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`A.
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`Q.
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`A.
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`Q.
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`When we had to file suit against Microsoft.
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`What happened with that lawsuit?
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`Well, they took a license.
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`What did Microsoft pay for its license to Arendi's
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`patented technology?
`
`

`

`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 6 of 35 PageID #: 56789
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`A.
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`Q.
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`Yes.
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`And I think that the questions were -- you filed a
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`litigation against Microsoft; is that correct?
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`A.
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`Yes.
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`Q.
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`And then the question was: How did it end? And you
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`said you -- they took a license; is that right?
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`A.
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`Yes, I did.
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`Q.
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`There was a lot of litigation that happened between
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`those two things, correct?
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`A.
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`Yes.
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`Q.
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`There was at least one trial that went on, correct?
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`number of recitals, correct?
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`A.
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`We do.
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`Q.
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`And in particular, let's look at Recital D,
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`"Microsoft has denied infringement of the Asserted Patents
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`and the European Patent and has also challenged the
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`validity thereof. Microsoft has also filed, on 26
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`July 2006, an opposition in the EPO for the European
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`Patent (the EPO proceeding)." Unquote.
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`Do you see that?
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`A.
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`I do.
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`Q.
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`So am I correct that at the time this agreement was
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`A.
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`I didn't hear you.
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`signed, Microsoft was both denying infringement of the
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`There was at least one trial that went on between you
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`and Microsoft?
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`A.
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`Q.
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`We had one trial against Microsoft, correct.
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`And you had filed -- you had -- how long was the
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`litigation going on before you signed an agreed --
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`settlement agreement with Microsoft?
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`A.
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`This agreement is -- was based on -- was after suit
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`against -- filing against Microsoft 2009.
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`Q.
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`So, approximately two years of litigation had been
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`going on when you signed this agreement with Microsoft; is
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`that correct?
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`A.
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`Yes. No trial in that litigation.
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`patents and challenging the validity of the patents?
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`A.
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`Agree what it says there, yes.
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`MR. UNIKEL: And if we can look at Subpart A of
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`the recitals, please.
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`BY MR. UNIKEL:
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`Q.
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`Am I correct we see there three U.S. patent numbers
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`listed, correct?
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`A.
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`Yes.
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`Q.
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`A.
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`One of those is the '843 patent, right?
`
`Correct.
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`Q.
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`And then there's also at least one European patent
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`that's mentioned in that paragraph, correct?
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`Q.
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`And on the front page of this agreement, we see a
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`A.
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`There's one European patent, right.
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`Q.
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`Do you recall how many total patents were licensed by
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`Arendi to Microsoft as part of this agreement?
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`A.
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`Everything that's in the agreement. So those
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`patents, I don't know if there's an appendix with more. I
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`don't know.
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`Q.
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`And do you happen to know which of the patents
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`Microsoft was most interested in or concerned about when
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`they signed this agreement?
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`A.
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`Nothing we discussed.
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`Q.
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`And, sir, Microsoft paid you $30 million under this
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`agreement, correct?
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`A.
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`Correct.
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`MR. DIEHL: Your Honor, just as a note on that,
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`on redirect, I can go right back into his licenses and we
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`can unseal after that. I am happy to have it unsealed now
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`and I can talk about other things and then go into
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`licenses, but if we are going to redirect soon, it could
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`make sense just to keep it sealed.
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`THE COURT: Let's unseal the courtroom. Thank
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`you, Counsel.
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`MR. DIEHL: Yes.
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`* * *
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`(Whereupon, the sealed discussion concludes.)
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`THE COURT: The courtroom is unsealed.
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`And you don't know how much of that $30 million was
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`attributable to the '854 patent which is listed up there;
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`is that right?
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`A.
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`Correct.
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`Q.
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`You don't know how much of that $30 million was
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`attributable to the European patent that is listed up
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`there, correct?
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`A.
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`Correct.
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`MR. UNIKEL: I have only a few questions left,
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`but we can unseal the courtroom if you would like,
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`Your Honor.
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`THE COURT: Thank you very much.
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`Ms. Garfinkel, unseal the courtroom.
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`Please proceed.
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`BY MR. UNIKEL:
`
`Q.
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`Sir, am I correct that at no time before filing this
`
`lawsuit in 2013 did you ever tell Google that they were
`
`infringing any patents of Arendi's?
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`A.
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`That's correct.
`
`Q.
`
`The first time that you would have alerted Google to
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`the fact that you thought they were infringing any patents
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`was when you filed the lawsuit in 2013; is that right?
`
`A.
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`Correct.
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`Q.
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`And you made a conscious decision not to reach out to
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`Google; is that right?
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`A.
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`Yes.
`
`

`

`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 7 of 35 PageID #: 56790
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`And you made that conscious decision together with
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`your lawyers not to alert Google; is that right?
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`A.
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`Yes.
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`MR. UNIKEL: Your Honor, that's all I have.
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`THE COURT: Thank you very much.
`
`Redirect.
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`MR. DIEHL: Your Honor, I will start with the
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`licenses, since that was the last thing I did.
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`THE COURT: Okay.
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`MR. DIEHL: I'm sorry to do it.
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`THE COURT: I'm going to ask Ms. Garfinkel to
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`seal the courtroom.
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`A.
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`Yes.
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`Q.
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`And Apple, despite denying infringement invalidity,
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`still paid
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`; is that correct?
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`A.
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`That is correct.
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`MR. DIEHL: Now, I want to move to the Samsung
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`agreement that was PX-76, if we can put that on the
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`screen. I'm sorry, not 76. Let's take that down. PX-77.
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`Yes. PX-77.
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`BY MR. DIEHL:
`
`Q.
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`Now, conspicuously, when Google was walking you
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`through this document, did Google happen to point out any
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`denial of infringement by Samsung?
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`A.
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`The courtroom has been sealed.
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`* * *
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`(The following discussion is held under seal:
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`MR. DIEHL: Thank you, Your Honor.
`
`REDIRECT EXAMINATION
`
`BY MR. DIEHL:
`
`Q.
`
`Mr. Hedloy, I want to start talking about the license
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`agreements that counsel for Google just walked you
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`through. I'll start with the Apple license.
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`Do you recall that counsel for Google pointed out a
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`clause in there -- I think it was two clauses -- where
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`Apple denied infringing the '843 patent and denied the
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`validity of the '843 patent?
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`Not that I recall.
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`Q.
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`Did Google happen to point out any denial of validity
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`by Samsung?
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`A.
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`Not that I can remember.
`
`Q.
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`Now, do you recall during the opening statement that
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`Google gave, it said that all of the licensees who took a
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`license from Arendi actually did deny infringement and
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`validity?
`
`A.
`
`Q.
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`I do.
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`So was Google accurate when it was saying that
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`Samsung as one of the licensees, denied infringement and
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`denied validity?
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`A.
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`No.
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`Q.
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`That was incorrect?
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`A.
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`That was incorrect.
`
`Q.
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`Now, in your experience, Google pointed out that some
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`of these licenses related to multiple patents.
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`Do you recall that?
`
`A.
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`I do.
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`Q.
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`In your experience, is it normal when two companies
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`come together for a license agreement, to have that
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`license applied to the full portfolio of intellectual
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`property that the licensing entity owns?
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`Yes.
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`A.
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`Q.
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`retailers, and customers to sell or use any licensed
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`product."
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`My question is, did Arendi intend to extend this
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`license that it entered with Samsung to Google as either a
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`customer or a retailer or a reseller or a wholesaler or a
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`distributer?
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`A.
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`No.
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`Q.
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`That was not your intent at the time of entering the
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`Samsung agreement?
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`A.
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`No, of course not. We had only sued Google the way
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`to license that to Samsung.
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`Q.
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`And let's move to the other one that Google looked at
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`Now, I want to look at Section 2.1 of the Samsung
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`agreement. Again, that was 77, PX-77. Mr. Hedloy, this
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`is a grainy version of this document, but I think we can
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`make due.
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`Do you recall Google asking you about this provision?
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`A.
`
`Yes.
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`MR. DIEHL: Thank you, Mr. Boles.
`
`BY MR. DIEHL:
`
`Q.
`
`And Google in particular pointed out a sentence here
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`that begins on the fourth line, toward the end of fourth
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`line, "Licensor, on behalf of itself and its affiliates,
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`agrees that the license granted to licensee and its
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`affiliates under this section permits licensee and its
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`affiliates and their distributers, wholesalers, resellers,
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`with you, which was Section 3.1 of the agreement.
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`Now, Google emphasized a particular wording here
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`"supplier," and here, this says that -- so we'll start on
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`the second line: "Arendi hereby releases forever
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`discharges licensee and its affiliates, including their
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`officers, directors, attorneys, employees, and together
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`with their suppliers, distributers, wholesalers,
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`resellers, retailers, and customers from any or all claims
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`in connection with any licensed product."
`
`My question, again, here, did Arendi intend to
`
`license Google when it was doing this agreement with
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`Samsung as a supplier of Samsung?
`
`A.
`
`No.
`
`

`

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`Draft Transcript
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`)
`ARENDI S.A.R.L.,
` )
` )
` Plaintiff, )
` ) C.A. No. 13-919-JLH
`v. )
` )
`GOOGLE LLC,
`)
` )
` Defendant. )
`
`
`
`
`
`
`
`
`Tuesday, April 25, 2023
`8:33 a.m.
`Jury Trial
`
`Volume II
`
`
`
`844 King Street
`Wilmington, Delaware
`
`BEFORE: THE HONORABLE JENNIFER L. HALL
`United States Magistrate Judge
`
`
`
`
`APPEARANCES:
`
`
` SMITH, KATZENSTEIN & JENKINS LLP
` BY: NEAL C. BELGAM, ESQ.
`
` -and-
`
` 274
`
`
`
`P R O C E E D I N G S
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`APPEARANCES CONTINUED:
`
`
`
` SUSMAN GODFREY, LLP
` BY: JOHN LAHAD, ESQ.
` BY: KEMPER DIEHL, ESQ,
` BY: MAX STRAUS, ESQ.
` BY: SETH ARD, ESQ.
` BY: KALPANA SRINIVASAN, ESQ.
` Counsel for the Plaintiff
`
`
`
`
`
` POTTER ANDERSON & CORROON
` BY: DAVID ELLIS MOORE, ESQ.
`
`
`-and-
`
`
` PAUL HASTINGS
` BY: ROBERT W. UNIKEL, ESQ.
` BY: CHAD J. PETERMAN, ESQ.
` BY: MATTHIAS A. KAMBER, ESQ.
` BY: ANDREA ROBERTS, ESQ.
` Counsel for the Defendant
`
`
`
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`
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`
`
`_ _ _ _ _ _ _ _ _ _
`
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`evidence of an IPR to rebut Arendi's willfulness claim.
`
`Google wanted to show, for example, that the PTAB found
`
`Arendi's claims were unpatentable before it was reversed
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`(Proceedings commenced in the courtroom beginning at
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`8:33 a.m.)
`
`THE COURT: Okay. We're here for the second
`
`morning of trial.
`
`Let me start with the letters I got last night
`
`and this morning about introducing evidence of the IPR.
`
`Before I launch into my ruling, I take it
`
`there's been no further agreement on this issue?
`
`MR. UNIKEL: There has not, Your Honor.
`
`MS. SRINIVASAN: No, Your Honor.
`
`THE COURT: Okay. I carefully considered the
`
`letters and, in particular, I considered all of the ways
`
`that Arendi says in its letter that the IPR evidence is
`
`relevant to issues in the case. And I stand by my
`
`previous ruling that evidence of IPR should be excluded
`
`under Rule 403.
`
`Arendi made a point in its letter last night,
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`and it's the same point it made yesterday, that Google
`
`asked to exclude evidence regarding the IPR proceeding
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`late in the day. I just wanted to put something on the
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`record about that. That is true. Even by the end of last
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`week, Google had previously thought to include limited
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`by the Federal Circuit in 2016.
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`I was sceptical of introducing any evidence of
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`an IPR, but since both sides appeared to want it at that
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`time, I was willing to entertain it solely to be used on
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`the willfulness question even though the IPR didn't
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`concern the public use art that Google is now raising for
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`its invalidity case.
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`But at that time, Arendi's willfulness
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`infringement case included the time period of 2013 to
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`2018. And this weekend, Arendi dropped most of those
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`years and now only accuses products from 2017 and 2018.
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`In light of that, whatever minimal probative value the IPR
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`might have had on willfulness had decreased even more and
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`so I add that to the record that I've already made on why
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`I believe that evidence should be excluded under Rule 403.
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`Let's move on to the deposition designations.
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`Does someone have a copy for me, and we can start going
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`through these?
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`MR. UNIKEL: Yes, Your Honor. I provided the
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`exhibit in hard copy form, if that's all right.
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`THE COURT: That's fine.
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`MR. UNIKEL: May I approach, Your Honor?
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`

`

`Case 1:13-cv-00919-JLH Document 554-1 Filed 05/25/23 Page 9 of 35 PageID #: 56792
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`up Plaintiff's Demonstrative Exhibit 3F, Slide 150. Thank
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`you.
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`(Video plays.)
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`BY MR. STRAUS:
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`Q.
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`So can you walk us through what we've seen in the
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`first clip in PDX-3F?
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`A.
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`Sure the way that updating the Contacts database with
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`a phone number worked on the Pixel 2, is you have a phone
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`number, tap or double tap, brings up the menu. Then you
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`tap on "Call," and it brings up this window where now you
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`have the prompts to either create a new contact or add a
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`new contact.
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`side of PDX-3F?
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`A.
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`Yes. That's what I have seen in my testing. T