Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 1 of 27
`
`Exhibit 3
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 2 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 1 of 26
`
`PAGES 1 - 25
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`)
`ANCORA TECHNOLOGIES, INC.,
` )
` PLAINTIFF, ) NO. C-15-3659 YGR
` )
` VS. ) TUESDAY, MARCH 8, 2016
` )
`APPLE, INC., ) OAKLAND, CALIFORNIA
`)
`) MOTION FOR JUDGMENT
` ) ON THE PLEADINGS
` DEFENDANT. )
`____________________________)
`
`
`BEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`FOR PLAINTIFF: BROOKS KUSHMAN P.C.
` 1000 TOWN CENTER, 22ND FLOOR
` SOUTHFIELD, MISSOURI 48085
` BY: JOHN S. LEROY, ESQUIRE
` MARK A. JOTANOVIC, ESQUIRE
`
`ALSO PRESENT: MIKI MULLOR, INVENTOR
`
`FOR DEFENDANT: MORRISON & FOERSTER
` 425 MARKET STREET
` SAN FRANCISCO, CALIFORNIA 94105
` BY: RICHARD S. HUNG, ESQUIRE
` CHRISTOPHER F. JEU,, ESQUIRE
`
`
`
`
`REPORTED BY: DIANE E. SKILLMAN, CSR 4909, RPR, FCRR
` OFFICIAL COURT REPORTER
`
`
`TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION
`
`
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 3 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 2 of 26
`Cméfi:fls~mgwéRDmm§rfi@1 Fifémmldg/allél Pagéqzmizé? 2
`2
`
`
`TUESDAY, MARCH 8, 2016
`TUESDAY, MARCH 8, 2016
`
`3:22 P.M.
`
`P R O C E E D I N G S
`P R O C E E D I N G S
`
`THE CLERK:
`CALLING CIVIL ACTION 15—3659 ANCORA
`THE CLERK: CALLING CIVIL ACTION 15-3659 ANCORA
`
`TECHNOLOGIES VERSUS APPLE.
`TECHNOLOGIES VERSUS APPLE.
`
`COUNSEL, PLEASE STATE YOUR APPEARANCES.
`COUNSEL, PLEASE STATE YOUR APPEARANCES.
`
`MR. LEROY: GOOD AFTERNOON, YOUR HONOR. JOHN LEROY
`MR. LEROY:
`GOOD AFTERNOON, YOUR HONOR.
`JOHN LEROY
`
`FROM BROOKS KUSHMAN ON BEHALF OF THE PLAINTIFF ANCORA.
`FROM BROOKS KUSHMAN ON BEHALF OF THE PLAINTIFF ANCORA.
`
`MR.
`JOTANOVIC:
`MARK ——
`MR. JOTANOVIC: MARK --
`
`THE COURT:
`I CAN'T HEAR A WORD YOU'RE SAYING.
`THE COURT: I CAN'T HEAR A WORD YOU'RE SAYING.
`
`MR. JOTANOVIC: I APOLOGIZE, YOUR HONOR. MARK
`MR.
`JOTANOVIC:
`I APOLOGIZE, YOUR HONOR. MARK
`
`JOTANOVIC ON BEHALF OF ANCORA.
`JOTANOVIC ON BEHALF OF ANCORA.
`
`MR. LEROY: WE ALSO HAVE WITH US TODAY MIKI MULLOR,
`MR. LEROY:
`WE ALSO HAVE WITH US TODAY MIKI MULLOR,
`
`
`
`THE INVENTOR OF THE PATENT—IN—SUIT.
`THE INVENTOR OF THE PATENT-IN-SUIT.
`
`THE COURT:
`OKAY.
`THE COURT: OKAY.
`
`MR. HUNG: GOOD AFTERNOON, YOUR HONOR. RICHARD HUNG
`MR. HUNG:
`GOOD AFTERNOON, YOUR HONOR.
`RICHARD HUNG
`
`OF MORRISON & FOERSTER FOR APPLE.
`OF MORRISON & FOERSTER FOR APPLE.
`
`WITH ME TODAY IS CHRISTOPHER JEU ALSO WITH MORRISON &
`WITH ME TODAY IS CHRISTOPHER JEU ALSO WITH MORRISON &
`
`FOERSTER.
`FOERSTER.
`
`THE COURT: OKAY. GOOD AFTERNOON, GENTLEMEN.
`THE COURT:
`OKAY.
`GOOD AFTERNOON, GENTLEMEN.
`
`SO AS I THINK YOU HEARD IN MY LAST TWO CASES, I HAVE BEEN
`SO AS I THINK YOU HEARD IN MY LAST TWO CASES,
`I HAVE BEEN
`
`VERY DIRECTED IN MY ORAL ARGUMENT.
`I'M GOING TO BE LESS SO
`VERY DIRECTED IN MY ORAL ARGUMENT. I'M GOING TO BE LESS SO
`
`WITH YOURS, AND THAT IS BECAUSE I AM -- I THINK THIS IS A
`WITH YOURS, AND THAT IS BECAUSE I AM —— I THINK THIS IS A
`
`CLOSE CALL, FRANKLY.
`CLOSE CALL, FRANKLY.
`
`I, YOU KNOW, IN A POST-ALICE WORLD, THESE KINDS OF PATENTS
`I, YOU KNOW,
`IN A POST—ALICE WORLD, THESE KINDS OF PATENTS
`
`ARE FRANKLY MUCH LESS COMPELLING THAN THEY USED TO BE.
`THIS
`ARE FRANKLY MUCH LESS COMPELLING THAN THEY USED TO BE. THIS
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 4 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 3 of 26
`Cé‘égéfiflfi-WQWé‘RDMM4Ql FIFéMJERflQ/él PBQQQS 4310267 3
`3
`
`PARTICULAR PATENT, FOR ME, GOES BACK A LONG WAY. I THINK IT
`PARTICULAR PATENT, FOR ME, GOES BACK A LONG WAY.
`I THINK IT
`
`WAS THE FIRST PATENT CASE THAT I THINK I MAY HAVE GOTTEN,
`WAS THE FIRST PATENT CASE THAT I THINK I MAY HAVE GOTTEN,
`
`CERTAINLY THE ONE I THOUGHT ABOUT THE MOST IN TERMS OF THAT
`CERTAINLY THE ONE I THOUGHT ABOUT THE MOST IN TERMS OF THAT
`
`CLAIM CONSTRUCTION AND WHAT THE WORD "PROGRAM" MEANT.
`THE
`CLAIM CONSTRUCTION AND WHAT THE WORD "PROGRAM" MEANT. THE
`
`FEDERAL CIRCUIT DIDN'T AGREE WITH ME, BUT ALICE HAS CHANGED
`FEDERAL CIRCUIT DIDN'T AGREE WITH ME, BUT ALICE HAS CHANGED
`
`THE LANDSCAPE.
`SO PLAINTIFF'S RELIANCE ON PRE—ALICE DECISIONS
`THE LANDSCAPE. SO PLAINTIFF'S RELIANCE ON PRE-ALICE DECISIONS
`
`ON PATENT OFFICE COMMENTS REALLY CARRY MUCH LESS WEIGHT.
`ON PATENT OFFICE COMMENTS REALLY CARRY MUCH LESS WEIGHT.
`
`SO I WILL HEAR FROM YOU FOR A MOMENT.
`I'LL GIVE YOU A FEW
`SO I WILL HEAR FROM YOU FOR A MOMENT. I'LL GIVE YOU A FEW
`
`MINUTES, UNLIKE I DID NOT GIVE THE OTHER LAWYERS THAT YOU
`MINUTES, UNLIKE I DID NOT GIVE THE OTHER LAWYERS THAT YOU
`
`LISTENED TO MUCH TIME BECAUSE AS YOU COULD TELL, FRANKLY, IN
`LISTENED TO MUCH TIME BECAUSE AS YOU COULD TELL, FRANKLY,
`IN
`
`THE LAST ONE, IF YOU LET LAWYERS GO, THEY JUST KEEP GOING ON
`THE LAST ONE,
`IF YOU LET LAWYERS GO, THEY JUST KEEP GOING ON
`
`AND ON AND ON AND ON.
`AND ON AND ON AND ON.
`
`BUT I WILL TELL YOU THAT, THAT I THINK IT IS A CLOSE CALL.
`BUT I WILL TELL YOU THAT, THAT I THINK IT IS A CLOSE CALL.
`
`AND AS A CONSEQUENCE, I DON'T KNOW -- YOU KNOW, I'LL GET AN
`AND AS A CONSEQUENCE,
`I DON'T KNOW —— YOU KNOW,
`I'LL GET AN
`
`ORDER OUT HERE SHORTLY. BECAUSE AS I SAID, I'M TRYING TO
`ORDER OUT HERE SHORTLY.
`BECAUSE AS I SAID,
`I'M TRYING TO
`
`CLEAR MY DECKS.
`AND I SUSPECT THAT WHOEVER I RULE IN —— THE
`CLEAR MY DECKS. AND I SUSPECT THAT WHOEVER I RULE IN -- THE
`
`ONE WHO DOESN'T -- WELL, IF I GRANT THE MOTION, THEN I
`ONE WHO DOESN'T —— WELL,
`IF I GRANT THE MOTION, THEN I
`
`SUSPECT, AS WITH THE LAST CASE, THE PLAINTIFFS WILL TAKE ME UP
`SUSPECT, AS WITH THE LAST CASE, THE PLAINTIFFS WILL TAKE ME UP
`
`TO THE FEDERAL CIRCUIT. AND IF I DENY IT, THEN THE CASE WILL
`TO THE FEDERAL CIRCUIT.
`AND IF I DENY IT, THEN THE CASE WILL
`
`
`
`GO ON.
`GO ON.
`
`I AM CURIOUS, AND MAYBE YOU CAN TELL ME AT THE END,
`I AM CURIOUS, AND MAYBE YOU CAN TELL ME AT THE END,
`
`WHETHER YOU HAVE AT ALL ATTEMPTED TO RESOLVE THIS CASE.
`WHETHER YOU HAVE AT ALL ATTEMPTED TO RESOLVE THIS CASE.
`
`MR. LEROY:
`WE HAVE.
`MR. LEROY: WE HAVE.
`
`MR. HUNG:
`INCLUDING RECENTLY.
`MR. HUNG: INCLUDING RECENTLY.
`
`THE COURT: BUT I DON'T KNOW, PERHAPS IT HELPS TO
`THE COURT:
`BUT I DON'T KNOW, PERHAPS IT HELPS TO
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 5 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 4 of 26
`Cméfi:fls~mgwéRDmm§rfi@1 Fifémmldg/allél PagéafimizQ? 4
`4
`
`KNOW THAT I THINK IT'S A CLOSE CALL.
`KNOW THAT I THINK IT'S A CLOSE CALL.
`
`MR. LEROY: IT DOES HELP, YOUR HONOR. AND I WOULD
`MR. LEROY:
`IT DOES HELP, YOUR HONOR.
`AND I WOULD
`
`LIKE TO HELP YOU NAVIGATE THROUGH THESE OPINIONS, BUT BE VERY
`LIKE TO HELP YOU NAVIGATE THROUGH THESE OPINIONS, BUT BE VERY
`
`SPECIFIC. BECAUSE WHAT I THINK IS ABSENT, PERHAPS, IN THE
`SPECIFIC.
`BECAUSE WHAT I THINK IS ABSENT, PERHAPS,
`IN THE
`
`BRIEFING ARE THE SPECIFICS.
`BRIEFING ARE THE SPECIFICS.
`
`ALICE TELLS US, JUST LIKE INFRINGEMENT AND INVALIDITY, THE
`ALICE TELLS US,
`JUST LIKE INFRINGEMENT AND INVALIDITY, THE
`
`ANALYSIS IS BASED ON THE CLAIMS.
`IT'S NOT BASED ON ATTORNEY
`ANALYSIS IS BASED ON THE CLAIMS. IT'S NOT BASED ON ATTORNEY
`
`ABSTRACTIONS. HERE, THE CLAIM DOES SOMETHING VERY SPECIFIC IN
`ABSTRACTIONS.
`HERE, THE CLAIM DOES SOMETHING VERY SPECIFIC IN
`
`COMPUTER HARDWARE THAT THE PATENT OFFICE EXPRESSLY TOLD US
`COMPUTER HARDWARE THAT THE PATENT OFFICE EXPRESSLY TOLD US
`
`HADN'T BEEN DONE BEFORE.
`HADN'T BEEN DONE BEFORE.
`
`
`
`AND, YOUR HONOR, IT IS A DIFFERENT LANDSCAPE. I HAVE READ
`AND, YOUR HONOR,
`IT IS A DIFFERENT LANDSCAPE.
`I HAVE READ
`
`YOUR HONOR'S OPINIONS ON, YOU KNOW, POST-ALICE. WE CITE THE
`YOUR HONOR'S OPINIONS ON, YOU KNOW, POST—ALICE.
`WE CITE THE
`
`PTO AND THE OTHER MATERIALS BECAUSE THEY ARE THOUGHTFUL, NOT
`PTO AND THE OTHER MATERIALS BECAUSE THEY ARE THOUGHTFUL, NOT
`
`BECAUSE —— WE SAID THEY ARE NOT BINDING.
`WE UNDERSTAND THAT.
`BECAUSE -- WE SAID THEY ARE NOT BINDING. WE UNDERSTAND THAT.
`
`BUT THERE WAS AN EXAMPLE PERTAINING TO BIOS.
`BUT THERE WAS AN EXAMPLE PERTAINING TO BIOS.
`
`BUT IF I MAY TALK A LITTLE BIT ABOUT THE INVENTION
`BUT IF I MAY TALK A LITTLE BIT ABOUT THE INVENTION
`
`SPECIFICALLY ——
`SPECIFICALLY --
`
`THE COURT: WELL, LET'S -- I HAVE TO -- AND I WILL
`THE COURT: WELL, LET'S —— I HAVE TO —— AND I WILL
`
`SAY THAT THE ONE THING THAT I DID WHEN I STARTED READING YOUR
`SAY THAT THE ONE THING THAT I DID WHEN I STARTED READING YOUR
`
`OPPOSITION BRIEF IS I STRUCK ALMOST THE WHOLE FIRST PAGE.
`OPPOSITION BRIEF IS I STRUCK ALMOST THE WHOLE FIRST PAGE.
`
`IN THE NORTHERN DISTRICT, WE DO TUTORIALS WITH THE EXPRESS
`IN THE NORTHERN DISTRICT, WE DO TUTORIALS WITH THE EXPRESS
`
`UNDERSTANDING THAT THEY ARE NOT TO BE USED.
`AND CITING THE
`UNDERSTANDING THAT THEY ARE NOT TO BE USED. AND CITING THE
`
`TUTORIAL TRANSCRIPT AND ATTACHING IT TO YOUR OPPOSITION WAS
`TUTORIAL TRANSCRIPT AND ATTACHING IT TO YOUR OPPOSITION WAS
`
`ENTIRELY INAPPROPRIATE.
`ENTIRELY INAPPROPRIATE.
`SO I LOOKED
`ENTIRELY INAPPROPRIATE. ENTIRELY INAPPROPRIATE. SO I LOOKED
`
`FOR THE NEXT CITE, AND THAT'S WHEN I STARTED READING. IT IS
`FOR THE NEXT CITE, AND THAT'S WHEN I STARTED READING.
`IT IS
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 6 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 5 of 26
`Cé‘égéfiflfi-WQWé‘RDMQM4Ql FIFéMJERflQ/él PBgég‘éPQW 5
`5
`
`NOT APPROPRIATE.
`NOT APPROPRIATE.
`
`MR. LEROY: I APOLOGIZE, YOUR HONOR.
`MR. LEROY:
`I APOLOGIZE, YOUR HONOR.
`
`AT THAT TUTORIAL, THE INVENTOR TESTIFIED. HE PARAPHRASED
`AT THAT TUTORIAL, THE INVENTOR TESTIFIED.
`HE PARAPHRASED
`
`WHAT WAS IN THE INTRINSIC RECORD.
`SO I'M ——
`WHAT WAS IN THE INTRINSIC RECORD. SO I'M --
`
`THE COURT: FOCUS ON THE INTRINSIC RECORD, BUT JUST
`THE COURT:
`FOCUS ON THE INTRINSIC RECORD, BUT JUST
`
`AS A PRACTICE POINTER, YOU KNOW, IT'S NOT APPROPRIATE.
`AS A PRACTICE POINTER, YOU KNOW,
`IT'S NOT APPROPRIATE.
`
`MR. LEROY:
`AND I APOLOGIZE.
`IT WASN'T INTENDED TO
`MR. LEROY: AND I APOLOGIZE. IT WASN'T INTENDED TO
`
`BE INAPPROPRIATE.
`IT WAS INTENDED TO GIVE THE COURT SOME
`BE INAPPROPRIATE. IT WAS INTENDED TO GIVE THE COURT SOME
`
`CONTEXT.
`CONTEXT.
`
`
`
`IF YOU WILL ALLOW ME, I WANT TO TALK ABOUT THE --
`IF YOU WILL ALLOW ME,
`I WANT TO TALK ABOUT THE ——
`
`SPECIFICALLY WHAT THE CLAIM INVENTION DOES AND HOW THAT PLUGS
`SPECIFICALLY WHAT THE CLAIM INVENTION DOES AND HOW THAT PLUGS
`
`INTO THE TWO PARTS OF ALICE AS CONCISELY AS I CAN.
`INTO THE TWO PARTS OF ALICE AS CONCISELY AS I CAN.
`
`AS IS STATED IN THE BACKGROUND OF THE INVENTION, THERE
`AS IS STATED IN THE BACKGROUND OF THE INVENTION, THERE
`
`WERE PRE—EXISTING WAYS TO VERIFY THAT A PARTICULAR COMPUTER
`WERE PRE-EXISTING WAYS TO VERIFY THAT A PARTICULAR COMPUTER
`
`PROGRAM WAS LICENSED TO RUN A COMPUTER.
`THERE ARE TWO
`PROGRAM WAS LICENSED TO RUN A COMPUTER. THERE ARE TWO
`
`EXAMPLES GIVEN IN THE BACKGROUND.
`THERE WERE OTHER EXAMPLES
`EXAMPLES GIVEN IN THE BACKGROUND. THERE WERE OTHER EXAMPLES
`
`ADDRESSED IN THE INTRINSIC RECORD.
`AND THIS PATENT WAS
`ADDRESSED IN THE INTRINSIC RECORD. AND THIS PATENT WAS
`
`EXAMINED TWICE, AGAIN IN 2010, THERE WAS ANOTHER EXAMPLE THAT
`EXAMINED TWICE, AGAIN IN 2010, THERE WAS ANOTHER EXAMPLE THAT
`
`WAS PRESENTED TO THE PATENT OFFICE THERE.
`WAS PRESENTED TO THE PATENT OFFICE THERE.
`
`THIS IS A DIFFERENT APPROACH.
`THIS CLAIM DOES NOT SEEK
`THIS IS A DIFFERENT APPROACH. THIS CLAIM DOES NOT SEEK
`
`NOR DID THE PATENT OFFICE DECIDE THAT IT CAPTURES ALL STEPS TO
`NOR DID THE PATENT OFFICE DECIDE THAT IT CAPTURES ALL STEPS TO
`
`CONFIRM THAT A PARTICULAR COMPUTER PROGRAM IS LICENSED TO RUN
`CONFIRM THAT A PARTICULAR COMPUTER PROGRAM IS LICENSED TO RUN
`
`ON A PARTICULAR COMPUTER.
`THIS IS A DIFFERENT WAY TO SKIN THE
`ON A PARTICULAR COMPUTER. THIS IS A DIFFERENT WAY TO SKIN THE
`
`CAT.
`CAT.
`
`SPECIFICALLY, THE INVENTION GOES INTO A COMPUTER, AND IT
`SPECIFICALLY, THE INVENTION GOES INTO A COMPUTER, AND IT
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 7 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 6 of 26
`Cé‘égéfiflfi-WQWé‘RDMM4Ql FIFéMJERflQ/él PBQQQ 610267 6
`6
`
`CREATES SOMETHING, SOMETHING THAT THE CLAIM CALLS A
`CREATES SOMETHING, SOMETHING THAT THE CLAIM CALLS A
`
`VERIFICATION STRUCTURE. IT CREATES THIS SPACE; NOT ANYWHERE,
`VERIFICATION STRUCTURE.
`IT CREATES THIS SPACE; NOT ANYWHERE,
`
`BUT IN A SPECIFIC KIND OF BIOS.
`BUT IN A SPECIFIC KIND OF BIOS.
`
`YOUR HONOR, IF YOU CAN RECALL, THE BASIC INPUT/OUTPUT
`YOUR HONOR,
`IF YOU CAN RECALL, THE BASIC INPUT/OUTPUT
`
`SYSTEM IS SOMETHING THAT EVERY COMPUTER HAS HAD HISTORICALLY
`SYSTEM IS SOMETHING THAT EVERY COMPUTER HAS HAD HISTORICALLY
`
`USED TO START THE COMPUTER. MR. MULLOR RECOGNIZED HE COULD
`USED TO START THE COMPUTER. MR. MULLOR RECOGNIZED HE COULD
`
`USE IT FOR THAT AND MORE.
`AND SO HE DEFINED AN INVENTION THAT
`USE IT FOR THAT AND MORE. AND SO HE DEFINED AN INVENTION THAT
`
`GOES INTO A COMPUTER'S BIOS, CREATES A VERIFICATION STRUCTURE.
`GOES INTO A COMPUTER'S BIOS, CREATES A VERIFICATION STRUCTURE.
`
`YOU CAN THINK OF A CONTAINER.
`AND IN THAT GOES A LICENSE
`YOU CAN THINK OF A CONTAINER. AND IN THAT GOES A LICENSE
`
`RECORD.
`IT'S A RECORD THAT DEFINES THAT A PARTICULAR PROGRAM
`RECORD. IT'S A RECORD THAT DEFINES THAT A PARTICULAR PROGRAM
`
`IS LICENSED.
`IS LICENSED.
`
`IT'S NOT ANY LICENSED RECORD.
`IT'S NOT ANYTHING.
`YOUR
`IT'S NOT ANY LICENSED RECORD. IT'S NOT ANYTHING. YOUR
`
`HONOR, IF YOU RECALL, CONSTRUED THE TERM "LICENSE RECORD" TO
`HONOR,
`IF YOU RECALL, CONSTRUED THE TERM "LICENSE RECORD" TO
`
`BE A PARTICULAR TYPE OF LICENSE RECORD.
`SO WE HAVE A SPECIFIC
`BE A PARTICULAR TYPE OF LICENSE RECORD. SO WE HAVE A SPECIFIC
`
`TYPE OF BE STRUCTURE IN A SPECIFIC PIECE OF HARDWARE THAT
`TYPE OF BE STRUCTURE IN A SPECIFIC PIECE OF HARDWARE THAT
`
`CONTAINS A VERY SPECIFIC THING.
`CONTAINS A VERY SPECIFIC THING.
`
`AND IT IS USED ——
`AND IT IS USED --
`
`
`
`THE COURT: WHAT DO YOU MEAN THEN BY "STRUCTURE"?
`THE COURT: WHAT DO YOU MEAN THEN BY "STRUCTURE"?
`
`BECAUSE THE PARTIES STIPULATED THAT THE CONSTRUCTION OF
`BECAUSE THE PARTIES STIPULATED THAT THE CONSTRUCTION OF
`
`"VERIFICATION STRUCTURE" WAS A DATA STRUCTURE FOR VERIFYING.
`"VERIFICATION STRUCTURE" WAS A DATA STRUCTURE FOR VERIFYING.
`
`AND SO NOW YOU'RE TALKING ABOUT —— YOU'VE USED THE WORD
`AND SO NOW YOU'RE TALKING ABOUT -- YOU'VE USED THE WORD
`
`"CONTAINER".
`"CONTAINER".
`
`MR. LEROY:
`I AM TRYING TO ——
`MR. LEROY: I AM TRYING TO --
`
`THE COURT:
`I UNDERSTAND.
`BUT WE HAVE A CONSTRUCTION
`THE COURT: I UNDERSTAND. BUT WE HAVE A CONSTRUCTION
`
`THAT SAYS THAT THE STRUCTURE IS JUST A DATA STRUCTURE.
`THAT SAYS THAT THE STRUCTURE IS JUST A DATA STRUCTURE.
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 8 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 7 of 26
`Cméfi:fls~mgwéRDmm§rfi@1 Fifémmldg/allél Pagéer WM? 7
`7
`
`MR. LEROY: AND IT IS, BUT IT'S SET UP. AND THAT
`MR. LEROY:
`AND IT IS, BUT IT'S SET UP.
`AND THAT
`
`MAY, YOU KNOW, UNLESS YOU REALLY GET INTO THE RECORD AND READ
`MAY, YOU KNOW, UNLESS YOU REALLY GET INTO THE RECORD AND READ
`
`WHAT THE PATENT OFFICE WROTE, IT'S A STRUCTURE THAT IS SET UP
`WHAT THE PATENT OFFICE WROTE,
`IT'S A STRUCTURE THAT IS SET UP
`
`THAT WASN'T THERE BEFORE.
`THAT'S THE INNOVATION.
`THAT WASN'T THERE BEFORE. THAT'S THE INNOVATION.
`
`IT'S NOT —— THE STATE OF THE —— WE ACKNOWLEDGE THAT THERE
`IT'S NOT -- THE STATE OF THE -- WE ACKNOWLEDGE THAT THERE
`
`WAS WHAT WE CALL PRIOR ART IN WHICH THE BIOS HAD INFORMATION
`WAS WHAT WE CALL PRIOR ART IN WHICH THE BIOS HAD INFORMATION
`
`IN IT.
`LICENSE INFORMATION.
`BUT IT COULDN'T ——
`IN IT. LICENSE INFORMATION. BUT IT COULDN'T --
`
`THE COURT: DIDN'T THE PRIOR ART ALSO HAVE STORAGE IN
`THE COURT: DIDN'T THE PRIOR ART ALSO HAVE STORAGE IN
`
`THE BIOS? WASN'T THERE PRIOR ART THAT IDENTIFIED STORAGE
`THE BIOS? WASN'T THERE PRIOR ART THAT IDENTIFIED STORAGE
`
`CAPACITY IN THE BIOS?
`CAPACITY IN THE BIOS?
`
`MR. LEROY:
`YES.
`MR. LEROY: YES.
`
`THE COURT:
`SO HOW IS IT DIFFERENT THEN?
`THE COURT: SO HOW IS IT DIFFERENT THEN?
`
`MR. LEROY:
`GOOD QUESTION.
`MR. LEROY: GOOD QUESTION.
`
`
`
`AND THIS, YOU DON'T FIND IN APPLE'S BRIEF. IT WASN'T
`AND THIS, YOU DON'T FIND IN APPLE'S BRIEF.
`IT WASN'T
`
`ERASABLE.
`YOU COULDN'T WRITE TO IT.
`ERASABLE. YOU COULDN'T WRITE TO IT.
`
`THE EWERTZ -- APPLE, FOR ALICE STEP TWO, WHICH IS THEIR
`THE EWERTZ —— APPLE, FOR ALICE STEP TWO, WHICH IS THEIR
`
`INVENTIVE STEP, THEY POINTED TO THE EWERTZ REFERENCE, WHICH
`INVENTIVE STEP, THEY POINTED TO THE EWERTZ REFERENCE, WHICH
`
`HAS WHAT YOUR HONOR JUST DESCRIBED.
`I WAS SURPRISED BECAUSE
`HAS WHAT YOUR HONOR JUST DESCRIBED. I WAS SURPRISED BECAUSE
`
`THE EWERTZ REFERENCE IS ONE OF THE REFERENCES THE PATENT
`THE EWERTZ REFERENCE IS ONE OF THE REFERENCES THE PATENT
`
`OFFICE EXPRESSLY TALKED ABOUT IN THE CONTEXT OF OUR INVENTION.
`OFFICE EXPRESSLY TALKED ABOUT IN THE CONTEXT OF OUR INVENTION.
`
`AND IN EWERTZ, THERE WAS BIOS, THERE WAS LICENSE
`AND IN EWERTZ, THERE WAS BIOS, THERE WAS LICENSE
`
`INFORMATION CONTAINED IN IT, BUT IT WAS NOT REWRITABLE. YOU
`INFORMATION CONTAINED IN IT, BUT IT WAS NOT REWRITABLE.
`YOU
`
`COULDN'T SET —— YOU COULDN'T DEPLOY A LICENSE THERE.
`YOU HAD
`COULDN'T SET -- YOU COULDN'T DEPLOY A LICENSE THERE. YOU HAD
`
`TO PHYSICALLY BUILD THE BIOS WITH THAT INFORMATION IN IT.
`TO PHYSICALLY BUILD THE BIOS WITH THAT INFORMATION IN IT.
`
`MR. MULLOR CAME UP WITH AN INVENTION WHERE HE CAN DEPLOY
`MR. MULLOR CAME UP WITH AN INVENTION WHERE HE CAN DEPLOY
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 9 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 8 of 26
`Cé‘égéfiflfi-WQWé‘RDMM4Ql FIFéMJERflQ/él PBQQQ $10267 8
`8
`
`LICENSES.
`YOU WANT TO BUY SOFTWARE ON TUESDAY AND YOU BOUGHT
`LICENSES. YOU WANT TO BUY SOFTWARE ON TUESDAY AND YOU BOUGHT
`
`YOUR COMPUTER LAST WEEK? HIS INVENTION WILL WORK.
`EWERTZ
`YOUR COMPUTER LAST WEEK? HIS INVENTION WILL WORK. EWERTZ
`
`WON'T.
`YOU'D HAVE TO TAKE YOUR COMPUTER BACK TO THE
`WON'T. YOU'D HAVE TO TAKE YOUR COMPUTER BACK TO THE
`
`MANUFACTURER, HAVE THEM TAKE OUT THE BIOS AND PUT A NEW BIOS
`MANUFACTURER, HAVE THEM TAKE OUT THE BIOS AND PUT A NEW BIOS
`
`IN.
`IN.
`
`AND WHEN YOU'VE SPENT ENOUGH TIME WITH THE FILE HISTORY
`AND WHEN YOU'VE SPENT ENOUGH TIME WITH THE FILE HISTORY
`
`AND THE BACK AND FORTH BETWEEN THE PATENT OFFICE AND
`AND THE BACK AND FORTH BETWEEN THE PATENT OFFICE AND
`
`MR. MULLOR, IT'S THE SAME PAGE AS, YOU KNOW, THAT DEAL WITH
`MR. MULLOR,
`IT'S THE SAME PAGE AS, YOU KNOW, THAT DEAL WITH
`
`THE PROGRAM CONCEPT, YOU REALIZE IT'S THE SET UP OF THE
`THE PROGRAM CONCEPT, YOU REALIZE IT'S THE SET UP OF THE
`
`VERIFICATION STRUCTURE THAT WASN'T THERE BEFORE THAT IS THE
`VERIFICATION STRUCTURE THAT WASN'T THERE BEFORE THAT IS THE
`
`INNOVATION.
`INNOVATION.
`
`IF I MAY QUOTE, THIS IS DOCKET 42-3 AT PAGE 5 OF 8 ON
`IF I MAY QUOTE, THIS IS DOCKET 42—3 AT PAGE 5 OF 8 ON
`
`PACER.
`THIS IS THE PATENT EXAMINER.
`PACER. THIS IS THE PATENT EXAMINER.
`
`
`
`"IT IS WELL—KNOWN TO THOSE OF ORDINARY SKILL IN THE
`"IT IS WELL-KNOWN TO THOSE OF ORDINARY SKILL IN THE
`
`ART THAT A COMPUTER BIOS IS NOT SET UP TO MANAGE A
`ART THAT A COMPUTER BIOS IS NOT SET UP TO MANAGE A
`
`SOFTWARE LICENSE VERIFICATION STRUCTURE.
`THE PRESENT
`SOFTWARE LICENSE VERIFICATION STRUCTURE. THE PRESENT
`
`INVENTION OVERCOMES THIS DIFFICULTY BY USING AN AGENT
`INVENTION OVERCOMES THIS DIFFICULTY BY USING AN AGENT
`
`TO SET UP A VERIFICATION STRUCTURE IN THE ERASABLE,
`TO SET UP A VERIFICATION STRUCTURE IN THE ERASABLE,
`
`NONVOLATILE MEMORY OF THE BIOS."
`NONVOLATILE MEMORY OF THE BIOS."
`
`THIS IS A VERY SPECIFIC KIND OF BIOS.
`AND THIS IS —— YOUR
`THIS IS A VERY SPECIFIC KIND OF BIOS. AND THIS IS -- YOUR
`
`HONOR, THIS IS JUST THREE SENTENCES AFTER THE PATENT OFFICE
`HONOR, THIS IS JUST THREE SENTENCES AFTER THE PATENT OFFICE
`
`EXPRESSLY ADDRESSES EWERTZ.
`EXPRESSLY ADDRESSES EWERTZ.
`
`SO YOUR QUESTION IS A VERY GOOD ONE, BUT IT BEGS THE
`SO YOUR QUESTION IS A VERY GOOD ONE, BUT IT BEGS THE
`
`QUESTION.
`WE NEED TO UNDERSTAND THAT THERE WERE MULTIPLE
`QUESTION. WE NEED TO UNDERSTAND THAT THERE WERE MULTIPLE
`
`PRIOR ART APPROACHES.
`THIS IS A DIFFERENT ONE.
`THIS
`PRIOR ART APPROACHES. THIS IS A DIFFERENT ONE. THIS
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 10 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 9 of 26
`CQSQséiZQIQVcQWRDQEUH‘LfifiéMQZl FHWIE Wgefl 9
`9
`
`INVENTION DOES NOT PREEMPT.
`INVENTION DOES NOT PREEMPT.
`
`APPLE SAYS WE ARE PREEMPTING —— THEY ARE PAINTING WITH A
`APPLE SAYS WE ARE PREEMPTING -- THEY ARE PAINTING WITH A
`
`BROAD BRUSH. ALICE SAYS LOOK AT THE CLAIM.
`WE LOOK AT THE
`BROAD BRUSH. ALICE SAYS LOOK AT THE CLAIM. WE LOOK AT THE
`
`CLAIM. YOU KNOW, IN ALICE YOU HAD INTERMEDIATED SETTLEMENT TO
`CLAIM.
`YOU KNOW,
`IN ALICE YOU HAD INTERMEDIATED SETTLEMENT TO
`
`AVOID RISK AS A BUSINESS PROCESS.
`BILSKI ALSO HAD A BUSINESS
`AVOID RISK AS A BUSINESS PROCESS. BILSKI ALSO HAD A BUSINESS
`
`FINANCIAL INSTRUMENT TO AVOID RISK.
`THOSE WERE ABSTRACT
`FINANCIAL INSTRUMENT TO AVOID RISK. THOSE WERE ABSTRACT
`
`IDEAS.
`IDEAS.
`
`AT SOME POINT, YOUR HONOR, SOMETHING IS PATENTABLE. AND,
`AT SOME POINT, YOUR HONOR, SOMETHING IS PATENTABLE.
`AND,
`
`YOU KNOW -- WELL, I THINK THAT IS STEPS ONE AND TWO. STEP ONE
`YOU KNOW —— WELL,
`I THINK THAT IS STEPS ONE AND TWO.
`STEP ONE
`
`IS WE ARE —— WE CLAIM A SPECIFIC FUNCTION THAT PERFORMS A
`IS WE ARE -- WE CLAIM A SPECIFIC FUNCTION THAT PERFORMS A
`
`SPECIFIC —— HAS A MATERIAL AND IDENTIFIABLE IMPACT ON A
`SPECIFIC -- HAS A MATERIAL AND IDENTIFIABLE IMPACT ON A
`
`PHYSICAL COMPUTER THAT YOU CAN TOUCH.
`PHYSICAL COMPUTER THAT YOU CAN TOUCH.
`
`WE DON'T JUST USE A COMPUTER. THESE OTHER CASES, THEY
`WE DON'T JUST USE A COMPUTER.
`THESE OTHER CASES, THEY
`
`RECITE EITHER A BUSINESS PROCESS OR A MATHEMATICAL ALGORITHM;
`RECITE EITHER A BUSINESS PROCESS OR A MATHEMATICAL ALGORITHM;
`
`THAT'S THE OTHER CLASS OF ABSTRACT WHICH ISN'T THIS CASE.
`AND
`THAT'S THE OTHER CLASS OF ABSTRACT WHICH ISN'T THIS CASE. AND
`
`IN THOSE SCENARIOS, THE COMPUTER'S JUST USED TO EXECUTE. WE
`IN THOSE SCENARIOS, THE COMPUTER'S JUST USED TO EXECUTE.
`WE
`
`ARE CHANGING THE COMPUTER.
`WE ARE NOT JUST USING THE
`ARE CHANGING THE COMPUTER. WE ARE NOT JUST USING THE
`
`COMPUTER.
`YOU CAN'T USE A CONVENTIONAL COMPUTER AND HAVE OUR
`COMPUTER. YOU CAN'T USE A CONVENTIONAL COMPUTER AND HAVE OUR
`
`INVENTION. NO, BECAUSE OUR INVENTION HAS TO GO AND PHYSICALLY
`INVENTION.
`NO, BECAUSE OUR INVENTION HAS TO GO AND PHYSICALLY
`
`MANIPULATE THE BIOS.
`AND THE SPECIFICATION EXPLAINS THAT YOU
`MANIPULATE THE BIOS. AND THE SPECIFICATION EXPLAINS THAT YOU
`
`USE BIOS MANIPULATION COMMANDS.
`THAT'S WHAT IT EXPRESSLY
`USE BIOS MANIPULATION COMMANDS. THAT'S WHAT IT EXPRESSLY
`
`STATES IN THE BOTTOM OF COLUMN 1, BRIDGING OVER TO COLUMN 2,
`STATES IN THE BOTTOM OF COLUMN 1, BRIDGING OVER TO COLUMN 2,
`
`
`
`IT SAYS THIS IS HOW YOU DO IT.
`IT SAYS THIS IS HOW YOU DO IT.
`
`THE COURT:
`ALL RIGHT.
`THE COURT: ALL RIGHT.
`
`MR. HUNG, LET'S HEAR FROM YOU.
`MR. HUNG, LET'S HEAR FROM YOU.
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 11 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 10 of 26
`CméfiwmgwesRDmm‘fil FiTéMJERYQ/allél PBQQQGbPQW 1 0
`10
`
`MR. HUNG: YOUR HONOR, THERE'S TWO PRONGS IN ALICE.
`MR. HUNG:
`YOUR HONOR, THERE'S TWO PRONGS IN ALICE.
`
`YOUR HONOR IS VERY AWARE OF THE FIRST PRONG, WHETHER THERE'S
`YOUR HONOR IS VERY AWARE OF THE FIRST PRONG, WHETHER THERE'S
`
`AN ABSTRACT IDEA.
`AN ABSTRACT IDEA.
`
`THIS IS A SIX—COLUMN PATENT OF WHICH THE ENTIRE
`THIS IS A SIX-COLUMN PATENT OF WHICH THE ENTIRE
`
`SPECIFICATION IN THE DETAILED DESCRIPTION IS TWO COLUMNS LONG.
`SPECIFICATION IN THE DETAILED DESCRIPTION IS TWO COLUMNS LONG.
`
`IN THE BACKGROUND OF THE INVENTION, THEY DESCRIBE --
`IN THE BACKGROUND OF THE INVENTION, THEY DESCRIBE ——
`
`THE COURT:
`SO WHAT?
`THE COURT: SO WHAT?
`
`MR. HUNG: THE REASON WHY I MENTION THIS, YOUR HONOR,
`MR. HUNG:
`THE REASON WHY I MENTION THIS, YOUR HONOR,
`
`IS BECAUSE THIS GOES TO THE HEART OF THE FACT THAT THERE IS AN
`IS BECAUSE THIS GOES TO THE HEART OF THE FACT THAT THERE IS AN
`
`ABSTRACT IDEA. IF YOU LOOK AT COLUMN 3, IT SAYS THE ISSUE IS
`ABSTRACT IDEA.
`IF YOU LOOK AT COLUMN 3,
`IT SAYS THE ISSUE IS
`
`THAT IT'S JUST HARDER TO CRACK THE BIOS.
`THAT'S WHAT IT SAYS.
`THAT IT'S JUST HARDER TO CRACK THE BIOS. THAT'S WHAT IT SAYS.
`
`IT'S A MORE SECURE LOCATION.
`IT'S A MORE SECURE LOCATION.
`
`IT SAYS, "THE REQUIRED LEVEL OF SYSTEM PROGRAMMING
`IT SAYS,
`"THE REQUIRED LEVEL OF SYSTEM PROGRAMMING
`
`
`
`EXPERTISE THAT IS NECESSARY ——
`EXPERTISE THAT IS NECESSARY --
`
`THE COURT:
`SLOW DOWN.
`THE COURT: SLOW DOWN.
`
`MR. HUNG: -- "TO INTERCEPT, TO MODIFY COMMANDS
`MR. HUNG:
`—— "TO INTERCEPT, TO MODIFY COMMANDS
`
`CONTINUES IS SUBSTANTIALLY HIGHER."
`CONTINUES IS SUBSTANTIALLY HIGHER."
`
`SO THE BACKGROUND OF THIS INVENTION IS THE FACT IN
`SO THE BACKGROUND OF THIS INVENTION IS THE FACT IN
`
`COLUMN 3 THAT THE BIOS IS ALLEGEDLY MORE SECURE.
`COLUMN 3 THAT THE BIOS IS ALLEGEDLY MORE SECURE.
`
`THEN YOU JUMP FORWARD TO COLUMNS 5 AND 6, THE ENTIRE
`THEN YOU JUMP FORWARD TO COLUMNS 5 AND 6, THE ENTIRE
`
`DISCUSSION, AND IT BASICALLY SAYS WHAT WE ARE GOING TO DO IS
`DISCUSSION, AND IT BASICALLY SAYS WHAT WE ARE GOING TO DO IS
`
`STICK THE VERIFICATION STRUCTURE IN THE MEMORY OF THE BIOS.
`STICK THE VERIFICATION STRUCTURE IN THE MEMORY OF THE BIOS.
`
`THAT'S THE ABSTRACT IDEA, FINDING A MORE SECURE LOCATION,
`THAT'S THE ABSTRACT IDEA, FINDING A MORE SECURE LOCATION,
`
`PUTTING SOMETHING IN A MORE SECURE LOCATION.
`PUTTING SOMETHING IN A MORE SECURE LOCATION.
`
`THE COURT:
`IT HAD NEVER BEEN DONE.
`NO ONE HAD EVER
`THE COURT: IT HAD NEVER BEEN DONE. NO ONE HAD EVER
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 12 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 11 of 26
`CméfiQSWflWGRDMW‘fil FiTéMJMQ/allél PBQQQfl-ZJPQQ7 1 I
`11
`
`THOUGHT TO DO IT.
`ARE YOU SUGGESTING THAT IT IS NOT AS
`THOUGHT TO DO IT. ARE YOU SUGGESTING THAT IT IS NOT AS
`
`SECURE?
`SECURE?
`
`MR. HUNG: TWO COMMENTS. YOUR HONOR, FIRST, YES, IT
`MR. HUNG:
`TWO COMMENTS.
`YOUR HONOR, FIRST, YES,
`IT
`
`HAD BEEN DONE AND, TWO, ARGUABLY, IN FACT, IT IS NOT MORE
`HAD BEEN DONE AND, TWO, ARGUABLY,
`IN FACT,
`IT IS NOT MORE
`
`SECURE THAN STICKING IT SOMEWHERE ELSE.
`SECURE THAN STICKING IT SOMEWHERE ELSE.
`
`TO ADDRESS THE FIRST POINT AS TO WHETHER, IN FACT, IT HAS
`TO ADDRESS THE FIRST POINT AS TO WHETHER,
`IN FACT,
`IT HAS
`
`BEEN DONE BEFORE, THE EWERTZ REFERENCE IS DEAD ON POINT FOR
`BEEN DONE BEFORE, THE EWERTZ REFERENCE IS DEAD ON POINT FOR
`
`THIS ISSUE. IT IS INTRINSIC EVIDENCE. IN OUR BRIEF, WE CITED
`THIS ISSUE.
`IT IS INTRINSIC EVIDENCE.
`IN OUR BRIEF, WE CITED
`
`TO COLUMNS 5 AND 12 AND ALSO FIGURE 2.
`TO COLUMNS 5 AND 12 AND ALSO FIGURE 2.
`
`WHAT COLUMNS 5 AND 12 AND ALSO FIGURE 2 REFER TO IS THE
`WHAT COLUMNS 5 AND 12 AND ALSO FIGURE 2 REFER TO IS THE
`
`FACT THAT YOU HAVE BIOS MEMORY, YOU HAVE THE SECTION 103 THAT
`FACT THAT YOU HAVE BIOS MEMORY, YOU HAVE THE SECTION 103 THAT
`
`HAS FLASH MEMORY.
`THE SPECIFICATION SAYS THAT IS EE PRONG
`HAS FLASH MEMORY. THE SPECIFICATION SAYS THAT IS EE PRONG
`
`THAT IS ELECTRONICALLY ERASABLE.
`AND YOU CAN STICK IN
`THAT IS ELECTRONICALLY ERASABLE. AND YOU CAN STICK IN
`
`LICENSING NUMBERS INTO THAT PORTION.
`THAT'S EXACTLY WHAT THE
`LICENSING NUMBERS INTO THAT PORTION. THAT'S EXACTLY WHAT THE
`
`EXAMINER RECOGNIZED DURING PROSECUTION.
`EXAMINER RECOGNIZED DURING PROSECUTION.
`
`SO IN TERMS OF WHETHER IT'S BEEN DONE BEFORE, CERTAINLY IT
`SO IN TERMS OF WHETHER IT'S BEEN DONE BEFORE, CERTAINLY IT
`
`HAS BEEN DONE BEFORE. MR. MULLOR AND ——
`HAS BEEN DONE BEFORE. MR. MULLOR AND --
`
`THE COURT:
`BUT THE PATENT OFFICE DIDN'T STRIKE THIS
`THE COURT: BUT THE PATENT OFFICE DIDN'T STRIKE THIS
`
`FOR BEING OBVIOUS.
`I MEAN IT GRANTED THE PATENT FOR A REASON.
`FOR BEING OBVIOUS. I MEAN IT GRANTED THE PATENT FOR A REASON.
`
`
`
`MR. HUNG: YES, YOUR HONOR. AND THIS GOES BACK,
`MR. HUNG:
`YES, YOUR HONOR.
`AND THIS GOES BACK,
`
`UNFORTUNATELY, TO OUR PRIOR APPEAL BEFORE YOUR HONOR.
`UNFORTUNATELY, TO OUR PRIOR APPEAL BEFORE YOUR HONOR.
`
`WE SUBMIT THAT THE FAIR READING OF THE RECORD IS WITH
`WE SUBMIT THAT THE FAIR READING OF THE RECORD IS WITH
`
`RESPECT TO THE —— IT DISCUSSED ABOUT HOW MISRA RELATED TO
`RESPECT TO THE -- IT DISCUSSED ABOUT HOW MISRA RELATED TO
`
`APPLICATIONS THAT RUN ON TOP OF THE OPERATING SYSTEM, AND THAT
`APPLICATIONS THAT RUN ON TOP OF THE OPERATING SYSTEM, AND THAT
`
`EWERTZ DISCUSSED A BIOS-LEVEL PROGRAM, SUCH AS THE OPERATING
`EWERTZ DISCUSSED A BIOS—LEVEL PROGRAM, SUCH AS THE OPERATING
`
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 1:20-cv-00034-ADA Document 148-1 Filed 02/09/21 Page 13 of 27
`Case 4:15-cv-03659-YGR Document 52 Filed 04/05/16 Page 12 of 26
`CméfiwmgwesRDmm‘fil FiTéMJERYQ/allél Pagéqzébpizé? 12
`12
`
`SYSTEM.
`SO THERE WERE TWO LAYERS OF PROGRAMMING.
`SYSTEM. SO THERE WERE TWO LAYERS OF PROGRAMMING.
`
`AND THE FEDERAL CIRCUIT SAYS, THERE IS NO MOTIVATION TO
`AND THE FEDERAL CIRCUIT SAYS, THERE IS NO MOTIVATION TO
`
`COMBINE THE TWO OF THOSE, AND THEREFORE GRANTED -- ALLOWED THE
`COMBINE THE TWO OF THOSE, AND THEREFORE GRANTED —— ALLOWED THE
`
`PATENT TO ISSUE.
`PATENT TO ISSUE.
`
`IN THE NOTICE OF ALLOWANCE, WHICH THEY HAVE AGREED THE
`IN THE NOTICE OF ALLOWANCE, WHICH THEY HAVE AGREED THE
`
`COURT CAN TAKE JUDICIAL NOTICE OF, IT TALKS ABOUT HOW EWERTZ
`COURT CAN TAKE JUDICIAL NOTICE OF,
`IT TALKS ABOUT HOW EWERTZ
`
`DISCLOSES LICENSING NUMBERS INSIDE OF THE BIOS MEMORY.
`DISCLOSES LICENSING NUMBERS INSIDE OF THE BIOS MEMORY.
`
`THERE'S NO DISPUTE ABOUT THIS.
`THERE'S NO DISCUSSION IN THE
`THERE'S NO DISPUTE ABOUT THIS. THERE'S NO DISCUSSION IN