Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 1 of 12 PageID #: 33640
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`VIRNETX INC. AND SCIENCE * CIVIL ACTION NO. APPLICATIONS
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`INTERNATIONAL * 6:12-cv-855-RWS
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`CORPORATION, * (Lead Consolidated Case)
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` Plaintiffs, *
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`VS. *
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`APPLE INC., * Tyler, Texas
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` * February 3, 2016
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` Defendant. * 3:11 p.m.
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`---------------------------------------------------------------
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`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 8
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`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
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`UNITED STATES DISTRICT JUDGE
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`---------------------------------------------------------------
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`VIRNETX INC. AND SCIENCE * CIVIL ACTION NO. APPLICATIONS
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`INTERNATIONAL * 6:12-cv-855-RWS
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`CORPORATION, * (Lead Consolidated Case)
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` Plaintiffs, *
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`VS. *
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`APPLE INC., * Tyler, Texas
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` * February 3, 2016
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` Defendant. * 3:11 p.m.
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`---------------------------------------------------------------
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`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 8
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`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
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`UNITED STATES DISTRICT JUDGE
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`---------------------------------------------------------------
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 2 of 12 PageID #: 33641
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`APPEARANCES:
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` COURT REPORTER: BRENDA HIGHTOWER SMITH, CSR-FCRR
` Official Court Reporter
` Eastern District of Texas
` Texarkana Division
` 500 N. State Line Ave, Third Floor
` Texarkana, Texas 75501
` 903.794.1018
` brenda_smith@txed.uscourts.gov
`
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on CAT system.)
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`FOR THE PLAINTIFF: BRADLEY W. CALDWELL
` JASON D. CASSADY
` JOHN AUSTIN CURRY
` CALDWELL CASSADY & CURRY
` 2101 Cedar Springs Road, Suite 1000
` Dallas, Texas 75201
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` T. JOHN WARD, JR.
` WARD, SMITH & HILL, PLLC
` 1127 Judson Road, Suite 220
` Longview, Texas 75601
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` ROBERT CHRISTOPHER BUNT
` PARKER BUNT & AINSWORTH
` 100 East Ferguson, Suite 1114
` Tyler, Texas 75702
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`FOR THE DEFENDANT: GREGORY S. AROVAS
` ROBERT A. APPLEBY
` JEANNE M. HEFFERNAN
` JOSEPH A. LOY
` LESLIE M. SCHMIDT
` KIRKLAND & ELLIS LLP
` 601 Lexington Avenue
` New York, New York 10022
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` F. CHRISTOPHER MIZZO
` KIRKLAND & ELLIS LLP
` 655 Fifteenth Street, N.W.
` Washington, D.C. 20005
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 3 of 12 PageID #: 33642
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` AKSHAY S. DEORAS
` KIRKLAND & ELLIS LLP
` 555 California Street
` San Francisco, California 94104
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` MICHAEL E. JONES
` JOHN F. BUFE
` ALLEN F. GARDNER
` POTTER MINTON
` 110 North College Avenue, Suite 500
` Tyler, Texas 75702
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`******************************************
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 4 of 12 PageID #: 33643
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`(Open court, all parties present, jury not present.)
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Please be seated.
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`We have a note from the jury dated today at 3:05 p.m.
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`that they have reached a verdict.
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`Do we need to raise anything before we have the jury
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`brought in?
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`MR. AROVAS: No, Your Honor.
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`THE COURT: Okay.
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`MR. CALDWELL: No, Your Honor.
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`THE COURT: Very well.
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`Ms. Mayes, have the jury brought in.
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`COURT SECURITY OFFICER: All rise for the jury.
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`(Jury in.)
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`THE COURT: Please be seated.
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`Mr. Rich, I understand that the jury has reached a
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`verdict. Is that right?
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`JURY FOREPERSON: Yes, Your Honor, we have.
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`THE COURT: Is your verdict unanimous?
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`JURY FOREPERSON: Yes, sir, it is.
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`THE COURT: All right. Mr. Rich, I would ask that
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`you hand it to the Court Security Officer.
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`(Pause in proceedings.)
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`THE COURT: All right. I'll ask Ms. Schroeder to
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`read the verdict.
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 5 of 12 PageID #: 33644
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`COURTROOM DEPUTY: Question No. 1: Apple does not
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`contest that the Original Version of VPN On Demand feature (iOS
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`3 through 6, 2009 through 2013) infringed VirnetX's '135 and
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`'151 patents. What sum of money do you find from a
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`preponderance of the evidence would fairly and reasonably
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`compensate VirnetX for this infringement?
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`$334,908,773.73.
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`No. 2: Did VirnetX prove by a preponderance of the
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`evidence that Apple's 2013 Version of VPN On Demand feature
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`(iOS 7 through 8, 2013 through the present) infringes the
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`following claims of VirnetX's '135 and '151 patents?
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`'135 patent: Claim No. 1, yes. Claim No. 7, yes.
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`'151 patent: Claim 13, yes.
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`Question No. 3: Did VirnetX prove by a preponderance
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`of the evidence that Apple's Original Version of the FaceTime
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`system (iOS 4 through 6 and OS X 10.7 through 10.8, 2010
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`through 2013) infringed the following claims of VirnetX's '504
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`and '211 patents?
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`'504 patent: Claim 1, yes. Claim 2, yes. Claim 5,
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`yes. Claim 27, yes.
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`The '211 patent: Claim 36, yes. Claim 47, yes.
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`Claim 51, yes.
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`Question No. 4: Did VirnetX prove by a preponderance
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`of the evidence that Apple's 2013 Version of the FaceTime
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`system (iOS 7 through 8 and OS X 10.9 through 10.10, 2013
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 6 of 12 PageID #: 33645
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`through the present) infringes the following claims of
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`VirnetX's '504 and '211 patents.
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`'504 patent: Claim 1, yes. Claim 2, yes. Claim 5,
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`yes. Claim 27, yes.
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`The '211 patent: Claim 36, yes. Claim 47, yes.
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`Claim 51, yes.
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`Question No. 5: Did VirnetX prove by a preponderance
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`of the evidence that Apple's iMessage feature infringes the
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`following claims of VirnetX's '504 and '211 patents?
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`'504 patent: Claim 1, yes. Claim 2, yes. Claim 5,
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`yes. Claim 27, yes.
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`The '211 patent: Claim 36, yes. Claim 47, yes,
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`Claim 51, yes.
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`No. 6: To the extent you found infringement in
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`Questions 2, 3, 4, or 5, what additional sum of money over and
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`above what you awarded in response to Question 1, if paid now
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`in cash, do you find from a preponderance of the evidence would
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`fairly and reasonably compensate VirnetX for this infringement
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`through the time of trial?
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`$209,725,067.31 [sic].
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`Question No. 7: To the extent you found infringement
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`of Apple's 2013 Version of VPN On Demand (iOS 7 through 8, 2013
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`through the present) in Question 2 above, did VirnetX prove by
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`clear and convincing evidence that Apple's infringement was
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`willful?
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 7 of 12 PageID #: 33646
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`The '135 patent: Claim 1, yes. Claim 7, yes.
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`The '151 patent: Claim 13, yes.
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`To the extent --
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`Question No. 8: To the extent you found infringement
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`of Apple's Original Version of the FaceTime system (iOS 4
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`through 6 and OS X 10.7 through 10.8, 2010 through 2013) in
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`Question 3 above, did VirnetX prove by clear and convincing
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`evidence that Apple's infringement was willful from the prior
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`verdict, November 6, 2012, until April 2013?
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`The '504 patent: Claim 1, yes. Claim 2, yes. Claim
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`5, yes. Claim 27, yes.
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`The '211 patent: Claim 36, yes. Claim 47, yes.
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`Claim 51, yes.
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`Question No. 9: To the extent you found infringement
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`of Apple's 2013 Version of the FaceTime system (iOS 7 through 8
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`and OS X 10.9 through 10.10, 2013 to the present) in Question 4
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`above, did VirnetX prove by clear and convincing evidence that
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`Apple's infringement was willful?
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`The '504 patent: Claim 1, yes. Claim 2, yes. Claim
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`5, yes. Claim 27, yes.
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`The '211 patent: Claim 36, yes. Claim 47, yes.
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`Claim 51, yes.
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`Dated today and signed by the foreperson.
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`THE COURT: Ms. Schroeder, may I see it.
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`Okay. Is there a request to poll the jury --
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 8 of 12 PageID #: 33647
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`jury?
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`Ms. Schroeder.
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`Okay. Is there a request by either party to poll the
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`MR. AROVAS: No, Your Honor.
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`MR. CALDWELL: No, Your Honor.
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`THE COURT: Very well. The verdict will be filed by
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`the Clerk of the Court.
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`Ladies and gentlemen of the jury, I firmly believe,
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`as I told you when this trial began more than a week ago, that
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`serving on the jury or serving on a jury is one of the highest
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`forms of public service that you as a citizen can render to
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`your country.
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`Our judicial system, which is the cornerstone of
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`American democracy, the cornstone of our form of government,
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`simply could not function without the important role played by
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`the jury.
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`And your service in this matter has now concluded.
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`And I -- I dismiss you with the thanks of the Court and the
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`thanks of the parties and the attorneys involved and the
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`appreciation of the United States District Court for the
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`Eastern District of Texas and these outstanding lawyers that
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`have had the privilege of appearing before you over the last
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`week and a half.
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`I would ask that you at this time return to the jury
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`room. And if you would, wait there until someone comes to
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 9 of 12 PageID #: 33648
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`dismiss you.
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`One other thing, no one should contact you regarding
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`your involvement in this case without the permission of the
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`Court. And so I am instructing counsel now, and will instruct
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`them again, not to contact you, and the parties as well. If
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`someone should contact you, of course, you don't have to talk
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`to them, and I would appreciate it if you would notify me about
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`that.
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`So thank you again for your work.
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`Yes, sir, Mr. Rich.
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`JURY FOREPERSON: May I say one thing?
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`THE COURT: Yes.
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`JURY FOREPERSON: This was extremely hard for all
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`eight of us here. And every one of these guys worked really
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`hard, and we did the best we could.
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`And I want to thank these guys for helping me. They
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`elected me foreperson, I don't know why.
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`But we did the best we could. It was -- it was
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`difficult. And every one of these guys worked really hard.
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`THE COURT: Thank you very much, Mr. Rich.
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`Okay. You're dismissed.
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`COURT SECURITY OFFICER: All rise for the jury.
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`(Jury out.)
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`THE COURT: Okay. Please be seated.
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`I want to say just a couple of things. One is, you
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 10 of 12 PageID #: 33649
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`all -- all did an outstanding job presenting this case. You
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`all did a first-rate job. You worked well together; you worked
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`cooperatively together. I appreciated your patience with me.
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`I appreciated your professionalism, both inside the courtroom
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`and outside the courtroom. Really, an outstanding job done by
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`all of you.
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`We will -- I'm open to the parties' views about
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`post-trial briefing. We will -- we will set a post-trial
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`briefing schedule if you want on our own or I'll allow the
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`parties to meet and confer and propose us a schedule.
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`Whatever -- whatever the parties' preference is on that.
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`Any view at this time?
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`MR. AROVAS: I think it makes sense for us to meet
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`and confer and then try to set something, as opposed to the
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`Court --
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`THE COURT: Yeah. Why don't y'all try to do that and
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`submit something within seven days. And if you can't agree,
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`we'll -- we'll enter one ourselves.
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`I also do want to say one other thing. I instructed
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`the jury that nobody would -- would contact them, at least the
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`attorneys. And -- and I do -- and I mean that for now.
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`But I think after an appropriate period of time has
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`passed, maybe 30 days, if the parties desire to contact the
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`jury members for purposes of, you know, educational reasons, I
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`know -- you know, a number of you have some years of
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 11 of 12 PageID #: 33650
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`experience. But there were a number of people who appeared
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`before the jury who didn't have a whole lot of experience. And
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`to the extent that, you know, you would find it helpful to
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`visit with the jurors about how things went through the trial,
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`I would -- I would consider that request if it was made.
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`So let's let 30 days or some period like that pass.
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`And if one or the other party wants to contact me and file a
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`request, I will certainly consider it. And I will -- I will
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`encourage them to -- to consider doing that as well.
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`So thank you all very much.
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`COURT SECURITY OFFICER: All rise.
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`(Court adjourned.)
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`*********************
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`Case 6:12-cv-00855-RWS Document 446 Filed 02/04/16 Page 12 of 12 PageID #: 33651
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`CERTIFICATION
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` I HEREBY CERTIFY that the foregoing is a correct
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`transcript from the stenographic notes of the proceedings in
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`the above-entitled matter to the best of my ability.
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`
`
`/s/ Brenda Hightower Smith February 3, 2016
`BRENDA HIGHTOWER SMITH, CSR, Date
`RPR, FCRR
`Official Court Reporter
`Eastern District of Texas
`Texarkana Division
`State of Texas No.: 3107
`Expiration Date: 12/31/16
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