Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 1 of 60
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACO DIVISION
`
`*
`
`* *
`
`MV3 PARTNERS, LLC
`
`VS.
`
`ROKU, INC.
`
`* CIVIL ACTION NO. W-18-CV-308
`*
`*
`
`July 19, 2019
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MARKMAN HEARING
`
`APPEARANCES:
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`For the Plaintiff:
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`For the Defendant:
`
`J. Mark Mann, Esq.
`Andy W. Tindel, Esq.
`Mann Tindel Thompson
`300 W. Main St.
`Henderson, TX 75652
`
`Jonathan K. Waldrop, Esq.
`Rodney R. Miller, Esq.
`Daniel C. Miller, Esq.
`Kasowitz Benson Torres LLP
`1349 West Peachtree Street N.W.
`Suite 1500
`Atlanta, GA 30309
`
`Craig D. Cherry, Esq.
`Haley & Olson, P.C.
`100 N Ritchie Road, Suite 200
`Waco, TX 76712
`
`Richard D. Milvenan, Esq.
`McGinnis Lochridge and Kilgore
`600 Congress Avenue, Suite 2100
`Austin, TX 78701
`
`Alexander J. Hadjis, Esq.
`Lisa M. Mandrusiak, Esq.
`Michael D. West, Esq.
`Oblon, McClelland, Maier &
` Neustadt, LLP
`1940 Duke Street, 11th Floor
`Alexandria, VA 22314
`
`ANCORA Ex. 2005, Page 1
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACO DIVISION
`
`*
`
`* *
`
`MV3 PARTNERS, LLC
`
`VS.
`
`ROKU, INC.
`
`* CIVIL ACTION NO. W-18-CV-308
`*
`*
`
`July 19, 2019
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MARKMAN HEARING
`
`APPEARANCES:
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`For the Plaintiff:
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`For the Defendant:
`
`J. Mark Mann, Esq.
`Andy W. Tindel, Esq.
`Mann Tindel Thompson
`300 W. Main St.
`Henderson, TX 75652
`
`Jonathan K. Waldrop, Esq.
`Rodney R. Miller, Esq.
`Daniel C. Miller, Esq.
`Kasowitz Benson Torres LLP
`1349 West Peachtree Street N.W.
`Suite 1500
`Atlanta, GA 30309
`
`Craig D. Cherry, Esq.
`Haley & Olson, P.C.
`100 N Ritchie Road, Suite 200
`Waco, TX 76712
`
`Richard D. Milvenan, Esq.
`McGinnis Lochridge and Kilgore
`600 Congress Avenue, Suite 2100
`Austin, TX 78701
`
`Alexander J. Hadjis, Esq.
`Lisa M. Mandrusiak, Esq.
`Michael D. West, Esq.
`Oblon, McClelland, Maier &
` Neustadt, LLP
`1940 Duke Street, 11th Floor
`Alexandria, VA 22314
`
`ANCORA Ex. 2005, Page 1
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 2 of 60
`
`2
`
`Court Reporter:
`
`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
`
`Proceedings recorded by mechanical stenography, transcript
`
`produced by computer-aided transcription.
`
`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
`
`ANCORA Ex. 2005, Page 2
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 3 of 60
`
`3
`
`(July 19, 2019, 9:20 a.m.).
`
`THE BAILIFF: All rise.
`
`THE COURT: Good morning, everyone. Thank you. You may
`
`be seated.
`
`DEPUTY CLERK: Court calls Waco Case 18-CV-308, MV3
`
`Partners, LLC vs. Roku, Inc. for Markman hearing.
`
`THE COURT: I apologize for the confusion on the time when
`
`we were getting started this morning.
`
`Am I on?
`
`DEPUTY CLERK: Yeah. It's just not picking up very well.
`
`THE COURT: I'm pretty sure that if you need any evidence
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`that the federal government goes with the low bidder on
`
`13
`
`everything when they're building...
`
`14
`
`At any rate, good morning everyone. If counsel for
`
`15
`
`plaintiff would stand up and introduce themselves and then same
`
`16
`
`for the defendant.
`
`17
`
`18
`
`Mr. Mann?
`
`MR. MANN: Thank you, Your Honor. Good morning. Mark
`
`19
`
`Mann for the plaintiffs, Your Honor, and my colleagues with me
`
`20
`
`today are John Waldrop, Andy Tindel, Dan Miller, Rodney Miller,
`
`21
`
`Craig Cherry, and then also in the gallery, Your Honor, we have
`
`22
`
`Wayne Barr who is the general counsel for MV3 here and Dr. Dan
`
`23
`
`Schoenfeld who is our expert for tutorial.
`
`24
`
`THE COURT: Okay. Well, I appreciate your client being
`
`25
`
`here. I think that's always a great thing when that happens.
`
`ANCORA Ex. 2005, Page 3
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 4 of 60
`
`4
`
`And Mr. Milvenan?
`
`MR. MILVENAN: Thank you, Your Honor. Our lineup today
`
`includes myself Rick Milvenan from McGinnis Lochridge. I'm
`
`joined by Alex Hadjis and Lisa Mandrusiak and Michael West who
`
`are all from the Oblon firm in Alexandria, Virginia. Our
`
`client is here. That's Joe Hollinger. He's Roku's vice
`
`president of litigation and intellectual property and we're
`
`also joined by our expert witness Dr. Robert Akl.
`
`THE COURT: Very good. Again I appreciate the clients who
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`take the time to be here. I think that's a great thing.
`
`11
`
`Do we -- Mr. Mann, I'll call on you first. Who is
`
`12
`
`primarily going to be speaking just so I have a cheat sheet?
`
`13
`
`MR. MANN: Your Honor, we're going to have -- John Waldrop
`
`14
`
`will direct our tutorial if that's okay. And we planned on
`
`15
`
`doing it question and answer with the expert talking a lot more
`
`16
`
`than the lawyer.
`
`17
`
`18
`
`THE COURT: Okay.
`
`MR. MANN: And then Dan Miller and Rodney Miller will be
`
`19
`
`splitting time doing the terms.
`
`20
`
`THE COURT: I like it when more than one lawyer has the
`
`21
`
`same last name.
`
`22
`
`23
`
`(Laughter.)
`
`THE COURT: My chance of getting it wrong goes down a
`
`24
`
`little bit.
`
`25
`
`MR. MANN: That's why we lined it up this way, Your Honor.
`
`ANCORA Ex. 2005, Page 4
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 5 of 60
`
`5
`
`THE COURT: Wasn't there a movie where they show up and
`
`everyone has the same last name?
`
`MR. MANN: It was...
`
`THE COURT: Men in Black or --
`
`MR. MANN: Schwarzenegger and I forgot who was on the
`
`other side. Danny DeVito.
`
`THE COURT: I think it'd be great if everyone just had the
`
`same last name and I could --
`
`MR. MANN: I think that's how -- there was a boxer from
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Marshall who all his kids -- he named them all -- all of them
`
`11
`
`had the same name George Foreman.
`
`12
`
`So, anyway, and then Dr. Schoenfeld will be doing our
`
`13
`
`tutorial.
`
`14
`
`15
`
`THE COURT: Very good.
`
`MR. MILVENAN: Your Honor, in accordance with your
`
`16
`
`suggestions back in February in this case I'm going to
`
`17
`
`introduce Dr. Akl but then we were going to let him just not
`
`18
`
`proceed in Q and A fashion but just go through the slide show
`
`19
`
`to move things along.
`
`20
`
`THE COURT: Well, I'll miss getting to hear your voice,
`
`21
`
`but however you want to do it will be fine with me.
`
`22
`
`MR. MILVENAN: Thank you. And then in terms of the
`
`23
`
`Markman presentation -- and I guess we'll go by their -- so
`
`24
`
`that we can all go by the same name, Alex Milvenan, Lisa
`
`25
`
`Milvenan and myself will all handle different aspects of that.
`
`ANCORA Ex. 2005, Page 5
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 6 of 60
`
`6
`
`THE COURT: Well, I would go with a different name than
`
`Milvenan.
`
`(Laughter.)
`
`MR. MILVENAN: Smith then.
`
`THE COURT: Miller's a lot easier. Mann's a lot easier.
`
`Milvenan's tough, but your name hears more fame primarily
`
`because of your wife's success.
`
`(Laughter.)
`
`MR. MILVENAN: It's good to be known for something.
`
`THE COURT: Mr. Mann?
`
`MR. MANN: Yes, Your Honor.
`
`THE COURT: It's your turn.
`
`MR. MANN: Thank you, Your Honor. Mr. Waldrop I think
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`will start off with the tutorial if that's okay.
`
`15
`
`16
`
`17
`
`18
`
`THE COURT: Absolutely.
`
`MR. TINDEL: Your Honor, if I may approach.
`
`THE COURT: Sure.
`
`MR. TINDEL: We've got some hard copies of our technology
`
`19
`
`tutorial in our PowerPoint presentation.
`
`20
`
`THE COURT: I was planning on not taking down the tutorial
`
`21
`
`unless you all -- we can, but Judge Yeakel doesn't. I'm happy
`
`22
`
`to or not to. I don't care.
`
`23
`
`MR. HADJIS: Your Honor, we'd be happy with no record on
`
`24
`
`the tutorial.
`
`25
`
`THE COURT: Well, then no record it will be.
`
`ANCORA Ex. 2005, Page 6
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 7 of 60
`
`7
`
`Let me put on the record -- I think I made this clear, but
`
`I have reviewed everything that you guys have submitted both in
`
`writing and in audio format. I mean, I'm sure that I'll find
`
`this very helpful, but I have really gone through everything
`
`that you all submitted so I'm pretty up to speed already.
`
`(Tutorial held from 9:27 to 10:25.)
`
`THE COURT: The Court has -- as I think I've told you I
`
`had the good fortune to go over this stuff a click ahead, and
`
`also, for better or worse, most of what we're dealing with here
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`falls within areas of cases that I got to handle for different
`
`11
`
`reasons and so I'm going to tell you all that with respect to
`
`12
`
`the following claim terms: Television signal, docking port,
`
`13
`
`accepted in and configured to accept, adaptive circuitry and
`
`14
`
`determining, which is G, determining, based on the validity of
`
`15
`
`the user, that the received first media content is permitted to
`
`16
`
`be provided to the display device, I'm going to apply a plain
`
`17
`
`and ordinary meaning to those claim terms.
`
`18
`
`I have -- the briefing was outstanding which is why I
`
`19
`
`don't know that it would help you all that much to do
`
`20
`
`arguments. I mean, it really was very good, but I've been
`
`21
`
`through it all really carefully and I would prefer to use our
`
`22
`
`time over the ones that I do have questions about. I think
`
`23
`
`that would be more helpful to the Court. Which are mobile set
`
`24
`
`top box, which is D. F which is determining -- I won't read
`
`25
`
`the whole thing, but it's the one that begins with determining
`
`ANCORA Ex. 2005, Page 7
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 8 of 60
`
`8
`
`the native display resolution. And H, which is multicast
`
`broadcasts.
`
`And I will point out to the parties that my concern with
`
`mobile set top box and with multicast broadcasts are the same
`
`which are -- is what I want to hear from you guys about is, as
`
`the doctor said from the witness stand, you know, mobile was
`
`known, set top box was known, but if mobile set top box is
`
`something I need to construe, then that's important, and I
`
`think less so with multicast broadcasts. I think it's more
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`likely I think that that's something that was probably pretty
`
`11
`
`well understood. But I'm not in that -- you know, I'm not a
`
`12
`
`Ph.D. so I don't know. I'm more likely -- well, I think I know
`
`13
`
`what multicast broadcasts means, but with regard to mobile set
`
`14
`
`top box, I definitely want to understand what -- I want to come
`
`15
`
`up with the correct claim construction of that, and then also
`
`16
`
`F, the determining the native display resolution.
`
`17
`
`I will point out as I -- the reason I called you all the
`
`18
`
`other day was it is the Court's opinion with respect to the
`
`19
`
`claim construction for Claim Term G that determining, based on
`
`20
`
`the invalidity of the user, that the received first media
`
`21
`
`content is permitted to be provided to display device, I think
`
`22
`
`all of those -- every bit of that I had some concern about
`
`23
`
`whether or not there was some fight that you all would raise
`
`24
`
`over what was meant by based on the validity of the user, but
`
`25
`
`you didn't, and so I think we should be in good shape on that
`
`ANCORA Ex. 2005, Page 8
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 9 of 60
`
`9
`
`and the jury should be able to understand that. I understand
`
`it for sure.
`
`So with that being said, I'll take up mobile set top box.
`
`Whoever would like to start is free to do so.
`
`And the first of the Mr. Millers?
`
`MR. DANIEL MILLER: I wouldn't say I'm first, but I'm one
`
`of the Mr. Millers. I'm the first one up here. I will say
`
`that.
`
`THE COURT: I'll say also after the trial I had this week
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`I hope there's no crying.
`
`11
`
`12
`
`13
`
`(Laughter.)
`
`MR. DANIEL MILLER: No guarantees, Your Honor.
`
`THE COURT: I think I'm going to have to impose a rule
`
`14
`
`that if anyone cries during opening or closing argument I'm
`
`15
`
`going to put them in jail. I should have said it before we
`
`16
`
`started and I didn't and that was my fault, but there'll be no
`
`17
`
`crying during the Markman hearing or during opening or
`
`18
`
`closings.
`
`19
`
`20
`
`MR. DANIEL MILLER: Even from boredom?
`
`THE COURT: Crying should be on the inside. And so if you
`
`21
`
`would be so kind, Mr. Miller, as to tell me in your PowerPoint
`
`22
`
`where mobile set top box is at, that would be helpful.
`
`23
`
`MR. DANIEL MILLER: Sure. So I think we'll begin on
`
`24
`
`Slide -- give me a second, Your Honor. I believe it's Slide 59
`
`25
`
`is where we begin with mobile set top box.
`
`ANCORA Ex. 2005, Page 9
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 10 of 60
`
`10
`
`(Off-the-record discussion.)
`
`MS. MANDRUSIAK: We don't have a copy.
`
`MR. DANIEL MILLER: Oh, come on, Andy.
`
`THE COURT: I could give you Judge Nowlin's copy.
`
`(Laughter.)
`
`MR. DANIEL MILLER: So I will say I'm looking at Slide 60,
`
`61 and 62. And I think this is probably just some sort of
`
`mixup, but we've had like three separate constructions from
`
`Roku. The first they offered I just highlight. You see they
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`offered it as television set. The second they offered in their
`
`11
`
`responsive claim construction brief where they said they would
`
`12
`
`be willing to replace the television set with display device,
`
`13
`
`but then in the joint claim construction brief, I don't know if
`
`14
`
`it was an intentional change or if it was just an omission, but
`
`15
`
`it says -- it says television set and then the second one is
`
`16
`
`display device. So I'm not sure which one we're --
`
`17
`
`THE COURT: Maybe I can find out from Roku which they're
`
`18
`
`going to be arguing or both.
`
`19
`
`20
`
`MR. DANIEL MILLER: Do you guys like one of them?
`
`MR. HADJIS: Your Honor, we made it very clear in our
`
`21
`
`brief after we submitted our initial proposed interpretation
`
`22
`
`that the point that had been made about television set versus
`
`23
`
`display device was a point of which we could agree with MV3 and
`
`24
`
`we changed that construction.
`
`25
`
`THE COURT: So that was the way I took it too was that you
`
`ANCORA Ex. 2005, Page 10
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 11 of 60
`
`11
`
`guys were saying essentially they're the same thing.
`
`MR. HADJIS: That is correct. We are happy to include in
`
`our proposed constructions --
`
`THE COURT: I got it.
`
`MR. HADJIS: -- the term "display device." So it
`
`shouldn't be an issue. It isn't an issue from our perspective
`
`other than there is certainly a history here where we started
`
`at one point, and to resolve an issue we ended up at the point
`
`where we are right now.
`
`THE COURT: Well, that's all I care about is --
`
`MR. DANIEL MILLER: Where we are.
`
`THE COURT: -- where we are. And so for purposes of -- if
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`I were to go with defendant's construction, the defendant and
`
`14
`
`the plaintiff are both agnostic as to whether the word "display
`
`15
`
`device" or "television set" is used. Is that fair?
`
`16
`
`17
`
`MR. DANIEL MILLER: So with --
`
`MR. HADJIS: That is correct. And I do want to check what
`
`18
`
`counsel is referring to when it comes to television signal.
`
`19
`
`MR. DANIEL MILLER: I thought in the joint claim
`
`20
`
`construction --
`
`21
`
`22
`
`(Conference between counsel.)
`
`MR. HADJIS: If this is in the joint claim construction
`
`23
`
`statement, it's somebody's typo. Okay? And it shouldn't be
`
`24
`
`there.
`
`25
`
`THE COURT: Well, you're saying if this is here, and I
`
`ANCORA Ex. 2005, Page 11
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 12 of 60
`
`12
`
`don't know what the "this" is.
`
`MR. HADJIS: Television set. It should be display
`
`universally through --
`
`THE COURT: That was the point Mr. Miller was making I
`
`think.
`
`MR. HADJIS: That's correct. And --
`
`THE COURT: And we want display.
`
`MR. HADJIS: Somehow that made it in as a typo.
`
`THE COURT: I bet it was the plaintiff's fault.
`
`MR. HADJIS: They did create the document and submit it.
`
`MR. DANIEL MILLER: I'm always happy to have it be my
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`fault. Most things are.
`
`13
`
`THE COURT: Okay. So just to make clear, our fight is
`
`14
`
`between plaintiff's position which is no construction is needed
`
`15
`
`and the defendant's position that I have -- I should assume I'm
`
`16
`
`going to hear the defendant say that the word should be display
`
`17
`
`device.
`
`18
`
`MR. HADJIS: So the dispute, there are two. One is about
`
`19
`
`whether a construction is needed or not.
`
`20
`
`21
`
`22
`
`23
`
`THE COURT: I got that.
`
`MR. HADJIS: And that's the first dispute.
`
`THE COURT: Uh-huh.
`
`MR. HADJIS: The second dispute is the definitional
`
`24
`
`interpretation of mobile set top box, and for that we are
`
`25
`
`agreeable to use display device in our proposed definition.
`
`ANCORA Ex. 2005, Page 12
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 13 of 60
`
`13
`
`Everything else about our proposed definition is proper and
`
`correct and should be the conclusion for that term, but
`
`television can be substituted with display device.
`
`THE COURT: Okay. We're on the record. Mr. Miller, it's
`
`your turn now. But I don't need any clarification beyond that.
`
`MR. DANIEL MILLER: All right. I think we're ready to go
`
`then. We don't believe construction's necessary in the context
`
`at least of Claims 1 and 32 where it just recites a mobile set
`
`top box comprising and then it lists how it works, all the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`components of it. If the Court does think that a construction
`
`11
`
`is necessary at least with regard to Claim 30, which is the
`
`12
`
`method claim, we believe that a broader construction is
`
`13
`
`required, at least as broad a construction as is necessary to
`
`14
`
`include all of the functionality defined in Claims 1 and 32 if
`
`15
`
`that makes sense.
`
`16
`
`THE COURT: Well, here is the Court's concern. It seems
`
`17
`
`to me that -- do you have any debate -- you probably don't,
`
`18
`
`Mr. Miller. Maybe the defendant does. I doubt you do -- that
`
`19
`
`as of the time of filing the patent set top box was pretty
`
`20
`
`well-known? That we wouldn't be fighting over what set top box
`
`21
`
`was?
`
`22
`
`23
`
`MR. DANIEL MILLER: That is correct.
`
`THE COURT: And so what the fight is over, as your
`
`24
`
`professor said, he knew what mobile meant. I know what mobile
`
`25
`
`means. He knew what set top box was. I know what a set top
`
`ANCORA Ex. 2005, Page 13
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 14 of 60
`
`14
`
`box is. The question is what is a mobile set top box? And so
`
`my concern about the plaintiff's position that no construction
`
`is needed, if your person didn't know -- didn't believe in --
`
`I'm sorry. That in 2009 that it was known in the industry what
`
`that meant, why wouldn't I need to give a construction?
`
`MR. DANIEL MILLER: I think at least with regards to Claim
`
`1 and 32 the claim itself defines what it is.
`
`THE COURT: Okay. Then let's look at that and have you
`
`walk me through that. Because before your professor said that,
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`I thought I did know what it was as well. And so -- because,
`
`11
`
`you know, the way I look at things is, you know, there's
`
`12
`
`someone who's probably a friend of mine right now sitting
`
`13
`
`drafting these claims not knowing what y'all are going to be
`
`14
`
`fighting over when they're trying to say they don't infringe
`
`15
`
`and you're trying to say they do and later when they're trying
`
`16
`
`to say something is invalid and you're trying to say, no, it's
`
`17
`
`not because it -- and all that, but my guess is that when the
`
`18
`
`drafter of this wrote down a mobile set top box, I mean, he --
`
`19
`
`you know, I think he probably assumed that those words would be
`
`20
`
`pretty understandable.
`
`21
`
`MR. DANIEL MILLER: Yeah. And I think if you look at
`
`22
`
`Claim 1 it defines what is included within mobile set top box
`
`23
`
`or you have the docking port. You have the mobile device
`
`24
`
`input. You have television signal. You have a video processor
`
`25
`
`and then you -- it executes upconversion. It walks through
`
`ANCORA Ex. 2005, Page 14
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 15 of 60
`
`15
`
`what it does and what it is.
`
`THE COURT: And so perhaps the better question I should
`
`have asked your person but he was just doing a tutorial and it
`
`wouldn't -- is, you know, whether one skilled in the art in
`
`your opinion would be able by reading Claim 1 which does
`
`exactly what you said a mobile set top box comprising, and I'm
`
`always -- I'm always concerned about giving a claim
`
`construction when the inventor's taken the time to say -- to
`
`explain what the mobile set top box -- or not in this case. It
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`could be anything, but in this case he has told the world what
`
`11
`
`a mobile set top box is it seems to me in pretty great detail.
`
`12
`
`And so -- but maybe that -- I'm sure I'll hear from the
`
`13
`
`defendant that that still doesn't help explain what a mobile
`
`14
`
`set top box is. It comprises the following, but what doesn't
`
`15
`
`need -- I guess I'm rambling, but I'm trying to figure this
`
`16
`
`out. Maybe go all the way back to does mobile set top box, is
`
`17
`
`it -- is it ambiguous in a manner that needs to be construed?
`
`18
`
`MR. DANIEL MILLER: We don't believe it is, but if you
`
`19
`
`want to construe it because there is a Claim 30. I mean, I
`
`20
`
`don't want -- I want the Court to understand there's a Method
`
`21
`
`Claim 30 that separately calls out a mobile set top box in the
`
`22
`
`first element. And so if the Court does want to construe it,
`
`23
`
`our concern with Roku's construction is that it -- it seems to
`
`24
`
`be limiting in some ways that we think is too limited. We
`
`25
`
`think it imports limitations into -- into an understanding of a
`
`ANCORA Ex. 2005, Page 15
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 16 of 60
`
`16
`
`mobile set top box. We think our definition --
`
`THE COURT: Where in 30 is there a mobile set top box?
`
`MR. DANIEL MILLER: So if you read 30, the first element
`
`says --
`
`THE COURT: Oh, here it is. Querying a display. I
`
`thought -- I just saw mobile computing device, but it goes down
`
`and says querying a -- so the court reporter knows what I'm
`
`saying -- I don't how to say it exactly. Querying, if that's
`
`it. Or querying a display device that is separate from the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`mobile set top box the display device and then it goes on.
`
`11
`
`Okay.
`
`12
`
`MR. DANIEL MILLER: It's also in the first element where
`
`13
`
`it says receiving first media content from a mobile computing
`
`14
`
`device.
`
`15
`
`16
`
`THE COURT: That's correct. Yes.
`
`MR. DANIEL MILLER: So our definition, if the Court seeks
`
`17
`
`to construe it, is that it be hardware and/or software that
`
`18
`
`combines functionality of a set top box and a mobile
`
`19
`
`communication system. And you'll see that -- you remember back
`
`20
`
`to when you asked Dr. Schoenfeld his understanding, he said
`
`21
`
`that he knew what mobile was. He knew what a set top box was
`
`22
`
`and he knew the combined functionality of those two things.
`
`23
`
`THE COURT: If -- I want to ask you about the defendant's
`
`24
`
`position and then I'll let them respond to this. If we took
`
`25
`
`away the word "mobile," would -- let me see how I can break
`
`ANCORA Ex. 2005, Page 16
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 17 of 60
`
`17
`
`this down. For the defendant's position -- and this is hard
`
`because maybe I should go with the defendant first and ask him
`
`and then -- why don't we do this? Let me let the defendant
`
`counsel -- let me ask him and then I'll let you respond.
`
`MR. DANIEL MILLER: Thank you, Your Honor.
`
`THE COURT: Because I think I know what I'm trying to ask.
`
`MR. HADJIS: So, Your Honor, we split up the terms and
`
`with your initial statements I think you've Xed me out from
`
`today's argument.
`
`THE COURT: Well, because those were the really hard ones.
`
`MR. HADJIS: Well, I'd love to talk about them.
`
`THE COURT: I understand.
`
`MR. HADJIS: Ms. Mandrusiak will be handling this term.
`
`THE COURT: Yes, ma'am.
`
`MS. MANDRUSIAK: Good morning.
`
`THE COURT: So do I understand your position with regard
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`to mobile set top box -- here's the way I read it, and you can
`
`18
`
`correct me, that the first half of it is a device that converts
`
`19
`
`an input television signal to an output signal to display
`
`20
`
`device. Is that what the set top box is -- is that your
`
`21
`
`construction of set top box?
`
`22
`
`MS. MANDRUSIAK: That's exactly right, Your Honor. The
`
`23
`
`first half of the construction is directed to traditional set
`
`24
`
`top box functionality.
`
`25
`
`THE COURT: Okay. And then you are saying that to make it
`
`ANCORA Ex. 2005, Page 17
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 18 of 60
`
`18
`
`a mobile set top box that it also permits content from a mobile
`
`computing device to be displayed on the same display device to
`
`which a device is connected. That's what makes it mobile.
`
`MS. MANDRUSIAK: Yes, Your Honor.
`
`THE COURT: And where do you -- specifically could you
`
`point out where -- you probably have it in your Markman
`
`presentation. Could you get me to that page and explain to me
`
`where -- because I'm going to ask when I get Mr. Miller -- the
`
`first Mr. Miller up here to find out whether or not what his
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`arguments are about the half of your construction is that deals
`
`11
`
`with set top box and then I'm going to ask him to respond to
`
`12
`
`your argument of why I need to add all the verbiage that you
`
`13
`
`have for what makes it a mobile set top box. So can you get me
`
`14
`
`to where that would be in your PowerPoint?
`
`15
`
`16
`
`17
`
`MS. MANDRUSIAK: Certainly. I'll direct you to Slide 54.
`
`THE COURT: Okay. Okay. I'm there.
`
`MS. MANDRUSIAK: And so as described in the patent, the
`
`18
`
`mobile set top box is --
`
`19
`
`20
`
`THE COURT: You need to slow down just a little bit.
`
`MS. MANDRUSIAK: Is part traditional set top box, and our
`
`21
`
`construction simply spells out what the functionality of that
`
`22
`
`set top box is. And our construction is entirely consistent
`
`23
`
`with how set top boxes were known in the art. And Dr. Akl's
`
`24
`
`declaration, which was Exhibit 3 to our opening brief at
`
`25
`
`Paragraph 90, explains what set top box is with dictionary
`
`ANCORA Ex. 2005, Page 18
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 19 of 60
`
`19
`
`definitions, but, more importantly, Roku's construction is
`
`directly consistent with how the patent itself describes
`
`functionality of set top box, and that's the second column on
`
`Slide 54 here. The patent says that the set top box receives
`
`the television signal. It reformats it and then sends it to
`
`television for display.
`
`THE COURT: Okay. But what I -- okay. What I really care
`
`about is what in the patent specification you are relying on
`
`that -- I want you to address two things: One, what -- why --
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`and I'll ask them in reverse order. I do want -- I want you to
`
`11
`
`address second why Claim 1 doesn't teach well enough what a
`
`12
`
`mobile set top box is, but first I'd like you to address what
`
`13
`
`it is in the patent that tells me I've got to construe, to turn
`
`14
`
`a set top box into a mobile set top box, I have to turn that
`
`15
`
`device into something that also permits content from a mobile
`
`16
`
`computing device to be displayed on the same display device to
`
`17
`
`which the device is connected. Where does that come from in
`
`18
`
`the patent?
`
`19
`
`MS. MANDRUSIAK: Okay. So I think that that most clearly
`
`20
`
`comes from the claims themselves.
`
`21
`
`22
`
`23
`
`THE COURT: Okay.
`
`MS. MANDRUSIAK: We can look at Claim 1.
`
`THE COURT: Okay. Well, if it's in Claim 1, then why do I
`
`24
`
`need to tell it to the jury?
`
`25
`
`MS. MANDRUSIAK: Because as Dr. Schoenfeld said, a mobile
`
`ANCORA Ex. 2005, Page 19
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 20 of 60
`
`20
`
`set top box was an unknown term at the time.
`
`THE COURT: Well, but he -- but the point of Claim 1 is to
`
`teach those skilled in the art what it is and so -- and I know
`
`I sound like I'm arguing with you. I'm trying to help myself
`
`out here. I don't mean to sound like I'm arguing. But again
`
`what I -- you want me to -- for example, the way I'm reading
`
`this now is if we take out the first half of yours -- your
`
`proposed construction and just said a mobile set top box is a
`
`set top box that -- because you've told me that's what you
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`meant by the first half, that also permits content, where does
`
`11
`
`that come from? Why do I have to define it to mean that? And
`
`12
`
`if it is in Claim 1, then I'm going to ask the plaintiff if
`
`13
`
`it's in Claim 1 why they're unhappy with it.
`
`14
`
`MS. MANDRUSIAK: Okay. So I think the reason that you
`
`15
`
`have to do it is that mobile set top box defines itself by
`
`16
`
`using the term "mobile set top box." It's included twice in
`
`17
`
`the body that is described in the functioning.
`
`18
`
`THE COURT: No, ma'am. I asked a bad question. Why do
`
`19
`
`I -- why do I have to use what you have suggested? Where does
`
`20
`
`the patent limit me to say that that -- your proposed
`
`21
`
`construction for what turns a set top box into a mobile set top
`
`22
`
`box, why do I have to use your proposed construction to do
`
`23
`
`that? Where does that come from in the patent? And if my
`
`24
`
`question isn't clear, it may not be, but I'll ask it a
`
`25
`
`different way.
`
`ANCORA Ex. 2005, Page 20
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 21 of 60
`
`21
`
`MS. MANDRUSIAK: Okay. Well, I mean, I think I kind of
`
`have to repeat the same answer that mobile set top box combines
`
`that functionality and our construction explains that combined
`
`functionality.
`
`THE COURT: Okay. Anything else?
`
`MS. MANDRUSIAK: Not at this time.
`
`THE COURT: And then if you would also go through and
`
`explain why the Claim 1 the way it claims a mobile set top box
`
`comprising isn't sufficient to teach one skilled in the art
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`what it means such that it would have its plain and ordinary
`
`11
`
`meaning within the context of the entire Claim 1.
`
`12
`
`MS. MANDRUSIAK: Okay. Well, I think that the reason
`
`13
`
`there that we can't go on plain and ordinary meaning is because
`
`14
`
`it is used in the claim itself, which makes it challenging to
`
`15
`
`understand, and the fact that plaintiffs have suggested that
`
`16
`
`it's plain and ordinary meaning but there's a dramatic
`
`17
`
`difference between the two parties' constructions illustrating
`
`18
`
`that plain and ordinary meaning is not sufficient here. It
`
`19
`
`would not resolve the dispute. And the primary problem there
`
`20
`
`is that plaintiffs have suggested that a mobile set top box can
`
`21
`
`be hardware and/or software, but the specification explains
`
`22
`
`that it is a device.
`
`23
`
`24
`
`THE COURT: Well, the set top box is a device.
`
`MS. MANDRUSIAK: So that illustrates the problem with
`
`25
`
`trying to adopt the plain and ordinary meaning because
`
`ANCORA Ex. 2005, Page 21
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 22 of 60
`
`22
`
`plaintiff is going to say it's software.
`
`THE COURT: But it doesn't because the plaintiff's
`
`proposal says hardware and/or software that combines the
`
`functionality of a set top box which is the set top box part
`
`and a mobile communication system.
`
`MS. MANDRUSIAK: Our concern with that is that the or
`
`software means it could be software alone.
`
`THE COURT: Okay. So your position is that it could
`
`not -- it could not be software that combines the functionality
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`of a set top box and a mobile communication system?
`
`11
`
`12
`
`MS. MANDRUSIAK: Correct. Not software alone. No.
`
`THE COURT: Okay. I'll raise that with the -- and so do
`
`13
`
`you have anything else you'd like to say about why Claim Term 1
`
`14
`
`doesn't sufficiently teach one skilled in the art of what a
`
`15
`
`mobile set top box is? Do you have any other argument you'd
`
`16
`
`like to make with respect to that?
`
`17
`
`MS. MANDRUSIAK: Well, the specification does explain that
`
`18
`
`the mobile set top box combines functionality of the set top
`
`19
`
`box a mobile communication system which is entirely consistent
`
`20
`
`with Roku's proposal.
`
`21
`
`22
`
`THE COURT: Okay. Anything else?
`
`MS. MANDRUSIAK: I would just reiterate that plain and
`
`23
`
`ordinary meaning can't apply here because Dr. Schoenfeld and
`
`24
`
`both parties agree that this is an unknown term. So plain and
`
`25
`
`ordinary meaning for an unknown term just doesn't exist.
`
`ANCORA Ex. 2005, Page 22
`
`
`
`Case 6:18-cv-00308-ADA Document 83 Filed 07/22/19 Page 23 of 60
`
`23
`
`THE COURT: Well, I don't know that that's actually true.
`
`I mean, certainly I think -- I find it hard to believe that an
`
`expert couldn't, and I'm not going to ask either of the experts
`
`because I don't want -- I mean, it wouldn't be fair, but my
`
`guess is that your expert who's super bright and super
`
`experienced would be able based on a mobile set top box
`
`comprising and have all these elements here -- y'all haven't
`
`argued that it's indefinite which tells me that your -- both
`
`experts believe they could build it based on how it's -- how it
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`is here or I would have gotten an argument that it's
`
`11
`
`indefinite.
`
`12
`
`13
`
`MS
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
