1
`
`VS.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`INTELLECTUAL VENTURES I LLC
`)(
`
`)(
`CIVIL ACTION NO.
`)(
`2:17-CV-577-JRG
`)(
`MARSHALL, TEXAS
`)(
`JANUARY 3, 2019
`)(
`10:11 A.M.
`)(
`PRE-TRIAL HEARING
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`
`T-MOBILE USA, INC., ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 1
`
`
`
`VS.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`INTELLECTUAL VENTURES I LLC
`)(
`
`)(
`CIVIL ACTION NO.
`)(
`2:17-CV-577-JRG
`)(
`MARSHALL, TEXAS
`)(
`JANUARY 3, 2019
`)(
`10:11 A.M.
`)(
`PRE-TRIAL HEARING
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES CHIEF DISTRICT JUDGE
`
`T-MOBILE USA, INC., ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 1
`
`
`
`95
`
`resource involves the publisher putting a mylar jacket on
`the reference and then sending it to the library. And
`these sorts of delays simply don't result in a two-year
`delay, which is what we have here between the reference
`being received by the library and its availability.
`And so even if we take IV's theoretical
`possibilities to their logical conclusion, there's simply
`no basis for a reasonable juror to conclude that any delay
`between the date on the MARC record and the item's
`publicity availability results in the reference post-dating
`the patent.
`It's additionally not the case that Dr. Hall-Ellis
`analyzed the incorrect MARC records. There is only one
`MARC record for the reference in its different forms, and
`that ensures that the reference is authoritative. And,
`though, it can be updated, Dr. Hall-Ellis testified that
`this enter date that shows July 8th, 1997, upon which she
`relies is machine automated and cannot be changed or
`updated.
`And, finally, the bias that IV -- alleged bias
`that IV refers to with respect to Dr. Hall-Ellis, the PTAB
`testimony they refer to are simply written declarations
`which don't fall within the scope of Federal Rule of Civil
`Procedure 26, and hence was not included in her report.
`And, finally, Dr. Hall-Ellis testified that she
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 2
`
`
`
`96
`
`didn't know the priority dates for the patents in
`investigating these records. And so she didn't know in
`finding that Dyson was cataloged and indexed no later than
`July 8th, 1997, that in so finding that meant that -- that
`Dyson would be prior art.
`THE COURT: All right. Anything further?
`MS. BUTLER: Nothing further, Your Honor.
`THE COURT: All right. Thank you, Ms. Butler.
`The Court's persuaded that the copyright date is
`adequate to establish publication during the year of the
`copyright, which is indisputably in advance of the priority
`dates these would be used in connection with.
`Given that there's no contravening declaration
`from an expert by the Plaintiffs, I'm inclined to accept on
`its face the statements by Defendants' declarant that these
`were publicly available in a library prior to the time they
`were placed online by the IEEE.
`The fact that these may be part and parcel of a
`conference as opposed to a serial publication is of no
`import in the Court's view. They are clearly IEEE
`publications.
`There is indicia of reliability here that doesn't
`exist in different context or situations with other
`publications or publishers.
`The arguments by Plaintiff that Defendants'
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 3
`
`
`
`97
`
`declarant is not reliable, while they may be -- while they
`may be persuasive, if you can defeat this motion for
`summary judgment without offering contravening summary
`judgment evidence, no competing declaration, and merely say
`the Defendants' declarant might not be believed, then I
`don't think you could ever grant a summary judgment motion.
`I'm going to grant the motion. I think on -- on
`balance, there's no reason why these should not be treated
`as prior art. They've been addressed by the experts.
`We've got competing opinions from the experts about their
`effect. The Court's going to grant the motion with regard
`to these prior art references.
`Okay. That brings us to Defendants' Daubert
`motion regarding Williams. That's Document 209. And
`that's what we'll take up next.
`Let me hear from the Defendants, please.
`MR. BECKER: Your Honor, may I approach with
`copies of the slides?
`THE COURT: You may. Counsel, we've got four more
`of these motions, including this one, and then we've got to
`get to motions in limine. Let's see if we can't -- I've
`tried to give everybody a lot of latitude on how much
`argument they want to present. But let's see if we can't
`pick up the pace a little bit.
`Go ahead, counsel.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 4
`
`
`
`98
`
`MR. BECKER: Thank you, Your Honor. My name is
`Jeff Becker for Defendants Ericsson and T-Mobile. I'm here
`to -- I'm going to be arguing Defendants' Daubert motion to
`strike portions of IV's validity report which is Docket
`209, and this relates to the exclusion of certain claim
`construction opinions which are present in that -- in that
`report which were never disclosed through the claim
`construction process in this case.
`If you'd please go to Slide 2.
`So these terms -- there's four terms that I'd like
`to talk about, and I'll try to get through them quickly.
`There's no dispute that there was no claim
`construction offered by IV for any of these terms during
`the claim construction process that took place in this
`case.
`
`"Packet" was a term that was involved in several
`disputed claim terms. Neither party proposed a specific
`construction for that term.
`And then the term "packet-centric" was not
`addressed during claim construction.
`"Reservation algorithm," not addressed except
`through a -- I guess collaterally through some
`means-plus-function terms that were addressed in a patent
`that has been -- since been found invalid.
`And then the "scheduling" term which is recited by
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 5
`
`
`
`201
`
`CERTIFICATION
`
`I HEREBY CERTIFY that the foregoing is a true and
`correct transcript from the stenographic notes of the
`proceedings in the above-entitled matter to the best of my
`ability.
`
` /S/ Shelly Holmes
`SHELLY HOLMES, CSR, TCRR
`OFFICIAL REPORTER
`State of Texas No.: 7804
`Expiration Date: 12/31/20
`
` 01/14/2019
`Date
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Ericsson Exhibit 1037
`Ericsson v. IV1, IPR2018-00727
`Page 6
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
