Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 1 of 10
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`Exhibit 26
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`
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`ANCORA TECHNOLOGIES, INC.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`LG ELECTRONICS INC. and LG
`ELECTRONICS U.S.A., INC.,
`
`
`Defendants.
`
`ANCORA TECHNOLOGIES, INC.,
`
`
`
`
`CIVIL ACTION NO. 1:20-CV-0034
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`CIVIL ACTION NO. 1:20-CV-0034
`
`
`JURY TRIAL DEMANDED
`
`
`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 2 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`Plaintiff,
`
`
`
`
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`
`v.
`
`Defendants.
`
`
`
`
`
`
`
`
`PLAINTIFF ANCORA TECHNOLOGIES, INC.’S
`DISCLOSURE OF EXTRINSIC EVIDENCE
`
`Pursuant to the Court’s Scheduling Order (Dkt. 32), Plaintiff Ancora Technologies, Inc.
`
`(“Ancora”) discloses the following extrinsic evidence by Bates number that Ancora may rely on with
`
`respect to claim construction or indefiniteness:
`
`DOCUMENT
`Opinion, Ancora Technologies, Inc. v. Apple, Inc., No.
`2013-1378, -1414 (Fed. Cir. 2014)
`Opinion, Ancora Technologies, Inc. v. HTC America, Inc.
`et al., No. 2018-1404 (Fed. Cir. 2018)
`
`BEGINNING BATES NO.
`ANCORA_00003015
`
`ANCORA_00003030
`
`7188812v2/102891
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`

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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 3 of 10
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`DOCUMENT
`Markman Order, Ancora Technologies, Inc. v. Apple, Inc.,
`No 11-cv-6357 (N.D. Cal. Dec. 31, 2012)
`Decision Denying Institution of CBM Review, HTC
`Corporation et al. v. Ancora Technologies Inc., CBM2017-
`00054 (P.T.A.B. Dec. 1, 2017)
`Inter Partes Reexamination File History, No. 90/010,560
`Declaration of Ian Jestice in Ancora Technologies, Inc. v.
`HTC America, Inc.
`Declaration of Ian Jestice in Ancora Technologies, Inc. v.
`Apple, Inc. (with exhibits)
`May 3, 2012 Deposition of Ian Jestice in Ancora
`Technologies, Inc. v. Apple, Inc. (with exhibits)
`
`September 11, 2019 Deposition of Ian Jestice in Ancora
`Technologies, Inc. v. HTC
`Merriam Webster’s Collegiate Dictionary (10th Ed.)
`Microsoft Press Computer User’s Dictionary
`Microsoft Computer Dictionary (4th Ed.)
`Newton’s Telecom Dictionary (16th Ed.)
`Encyclopedia of Computer Science (4th Ed.)
`Telecommunications Handbook
`The American Heritage Dictionary (4th Ed.)
`The New Oxford American Dictionary (2001)
`
`
`
`BEGINNING BATES NO.
`ANCORA_00003043
`
`ANCORA_00003064
`
`ANCORA_00003077
`ANCORA_00003334
`
`ANCORA_00000545
`
`ANCORA_00000594
`ANCORA_00000613
`ANCORA_00000622
`ANCORA_00000637
`ANCORA_00002967
`
`ANCORA_00003340
`ANCORA_00003344
`ANCORA_00003353
`ANCORA_00003357
`ANCORA_00003360
`ANCORA_00003367
`ANCORA_00003373
`ANCORA_00003376
`
`Additionally, Ancora provides the following summaries of expected expert testimony from
`
`Ian Jestice:
`
`CLAIM TERM
`using an agent to set up
`a verification structure
`in the erasable, non-
`volatile memory of the
`BIOS
`(claim 1)
`
`set up a verification
`structure
`(claim 1)
`
`BIOS
`(claim 1)
`
`SUMMARY OF EXPECTED TESTIMONY
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Jestice in Ancora v. HTC (see, e.g., ¶¶ 5-14), and
`the deposition of Ian Jestice in Ancora v. HTC (see, e.g., p. 16-77).
`
`
`
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Jestice in Ancora v. HTC (see, e.g., ¶¶ 5-14), and
`the deposition of Ian Jestice in Ancora v. HTC (see, e.g., p. 17-30, 57-
`59, 75-78).
`
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Justice in Ancora v. Apple (see, e.g., ¶¶ 4-13) and
`the deposition of Ian Jestice in Ancora v. HTC (passim). Mr. Jestice is
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 4 of 10
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`CLAIM TERM
`
`non-volatile memory of
`the BIOS
`(claim 1)
`
`
`
`Order of steps
`
`program
`(claim 1)
`
`
`license / license record
`(claim 1)
`
`
`
`verifying the program
`using at least the
`verification structure
`
`SUMMARY OF EXPECTED TESTIMONY
`also expected to opine that as a person of ordinary skill in the art at
`the time of the invention, viewing the claim language in the context
`of the claims, the specification, and the prosecution history, he would
`not understand the term “BIOS” to include a requirement that the
`BIOS be stored in any specific type of memory, such as ROM.
`
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Jestice in Ancora v. Apple, (see, e.g., ¶¶ 4-13, and
`the deposition of Ian Jestice in Ancora v. HTC (see, e.g., pp. 17-25,
`31, 36, 57-68). Mr. Jestice is also expected to opine that as a person
`of ordinary skill in the art at the time of the invention, viewing the
`claim language in the context of the claims, the specification, and the
`prosecution history, he would not understand the terms “BIOS” or
`“non-volatile memory of the BIOS” to refer to a memory that is not
`recognized by an operating system as a storage device and does not
`have a file system. Mr. Jestice is also expected to opine that a person
`of ordinary skill in the art, viewing the term in the context of the
`claims, the specification, and the prosecution history, would not
`understand “non-volatile memory of the BIOS” to be limited to
`“memory that stores BIOS” as it includes memory accessed by BIOS
`that BIOS uses.
`
`The expected expert testimony by Ian Jestice is summarized in the
`deposition of Ian Jestice in Ancora v. Apple, (see, e.g., pp. 33-36),
`and the deposition of Ian Jestice in Ancora v. HTC (see, e.g., p. 35).
`
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims, the specification, and the prosecution history,
`he would understand the term “program” to mean “a set of
`instructions for a computer.” A summary of Mr. Jestice’s expected
`testimony is also included in the deposition of Ian Jestice in Ancora v.
`Apple, (see, e.g., p. 32).
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims, the specification, and the prosecution history,
`he would understand the term “license” to carry its plain and ordinary
`meaning as an “authorization” or “permission.” A summary of Mr.
`Jestice’s expected testimony is also included in the deposition of Ian
`Jestice in Ancora v. HTC (passim).
`
`The expected expert testimony by Mr. Jestice is summarized in the
`deposition of Ian Jestice in Ancora v. HTC (see, e.g., pp. 17, 23-24,
`27-30, 49, 57-59, 74-78). Mr. Jestice is also expected to opine that as
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 5 of 10
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`CLAIM TERM
`(claim 1)
`
`
`
`
`acting on the program
`according to the
`verification
`(claim 1)
`
`
`
`the at least one
`established license-
`record locations – No
`antecedent basis
`(claim 8)
`
`
`
`using the key– No
`antecedent basis
`(claim 8)
`
`SUMMARY OF EXPECTED TESTIMONY
`a person of ordinary skill in the art at the time of the invention,
`viewing the claim language in the context of the claims and the
`specification, he would understand “verifying the program using at
`least the verification structure” as not being limited to verification by
`an operating system (OS) level application, and that nothing in the
`specification or the prosecution history indicates that this term
`precludes a user-level application or a BIOS-level application from
`confirming whether a program is licensed.
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims and the specification, he would not understand
`“acting on the program according to the verification” as being limited
`to only the options of either “(i) allowing the use of the program if
`licensed or (ii) restricting the program’s operation if not licensed,
`using an operating system (OS) level application.”
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims and the specification, he would understand “the
`at least one established license-record locations” to refer to “Setting
`up (18) the verification structure includ[ing] the steps of establishing
`or certifying the existence of a pseudo unique key in the first non-
`volatile memory area; and establishing at least one license-record
`location in the first or the second nonvolatile memory area.” See ’941
`Patent at 6:17-28. This understanding is supported by Claim 7 of the
`’941 Patent which refers to “establishing at least one license-record
`location in the first nonvolatile memory area or in the erasable, non-
`volatile memory area of the BIOS.”
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims, the specification, and the prosecution history,
`he would understand “using the key” to refer “using a pseudo-unique
`key,” as described in the specification. See ’941 Patent at 6:17-28
`(“Setting up (18) the verification structure includes the steps of
`establishing or certifying the existence of a pseudo unique key in the
`first non-volatile memory area; and establishing at least one license-
`record location in the first or the Second nonvolatile memory area.
`Establishing a license-record includes the Steps of: forming a license-
`record by encrypting of the contents used to form a license-record
`with other predetermined data contents, using the key; and
`establishing the encrypted license-record in one of the at least one
`established license record locations (e.g. 10-12 in FIG. 1).”). This
`understanding that “using the key” refers to the “pseudo-unique key”
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 6 of 10
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`CLAIM TERM
`
`first non-volatile
`memory area of the
`computer
`(claim 7)
`
`the erasable second non-
`volatile memory area of
`the BIOS – No
`antecedent basis
`(claim 16)
`
`
`“volatile memory”
`(claim 1)
`
`
`“non-volatile memory”
`(claim 1)
`
`
`“selecting a program
`residing in the volatile
`memory”
`(claim 1)
`
`SUMMARY OF EXPECTED TESTIMONY
`is supported by the prosecution history in which the examiner
`understands “using the key” as claimed in Claim 8 to refer to the
`“pseudo-unique key.” See, e.g., Oct. 18, 2000 Non-Final Rejection at
`7-8; Dec. 20, 2000 Non-Final Rejection at 7; June 22, 2001 Final
`Rejection at 11.
`
`Mr. Jestice is expected to opine that this term should be given its
`plain and ordinary meaning, and that a person of ordinary skill in the
`art, viewing the claim language in the context of the claims, the
`specification, and the prosecution history, would not understand “first
`non-volatile memory area of the computer” to be limited to a “read
`only memory area” as non-volatile memory may include erasable
`programmable memory.
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims and the specification, he would understand “ the
`erasable second non-volatile memory area of the BIOS” as referring
`to “another (second) non-volatile section of the BIOS.” See, e.g., ’941
`Patent at 1:59–2:9; 2:10-11; 2:62–3:3; 3:18-42; 3:62–4:5; 4:49–54.
`
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Jestice in Ancora v. Apple, (see, e.g., ¶¶ 4-8), and
`the deposition of Ian Jestice in Ancora v. Apple (see, e.g., pp. 7-10,
`12-13, 15, 21, 26-32).
`
`The expected expert testimony by Ian Jestice is summarized in the
`declaration of Ian Jestice in Ancora v. Apple, (see, e.g., ¶¶ 4-8), and
`the deposition of Ian Jestice in Ancora v. Apple (see, e.g., pp. 7-10,
`12-13, 15, 21, 26-32).
`
`Mr. Jestice is expected to opine that as a person of ordinary skill in
`the art at the time of the invention, viewing the claim language in the
`context of the claims and the specification, he would not understand
`“selecting a program residing in the volatile memory” as being
`limited to “running a program in the volatile memory.” Nothing in the
`specification or the prosecution history supports Defendants’
`proposed construction, and a person of ordinary skill in the art would
`not understand the act of “selecting a program residing in the volatile
`memory” to require “running a program in the volatile memory.”
`
`
`
`
`
`
`The above list of evidence and summary of expert testimony is based on information that is
`
`currently available to Ancora. Ancora reserves the right to supplement, amend, and/or modify this
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 7 of 10
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`identification of extrinsic evidence and testimony, including as a result of Defendants’ extrinsic
`
`evidence and/or arguments or contentions.
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 8 of 10
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`Date: March 6, 2020
`
`/s/
`
`Steven M. Seigel
`
`
`
`Charles Ainsworth
`State Bar No. 00783521
`Robert Christopher Bunt
`State Bar No. 00787165
`PARKER, BUNT & AINSWORTH, P.C.
`100 E. Ferguson, Suite 418
`Tyler, TX 75702
`903/531-3535
`E-mail: charley@pbatyler.com
`E-mail: rcbunt@pbatyler.com
`
`Lexie G. White (Texas 24048876)
`SUSMAN GODFREY LLP
`1000 Louisiana Street, Suite 5100
`Houston, Texas 77002
`Tel: (713) 651-9366
`Fax: (713) 654-6666
`lwhite@susmangodfrey.com
`
`Andres Healy (pro hac vice)
`Steven M. Seigel (pro hac vice)
`SUSMAN GODFREY LLP
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101
`Tel: (206) 516-3880
`Fax: 206-516-3883
`ahealy@susmangodfrey.com
`sseigel@susmangodfrey.com
`
`Zachary B. Savage (pro hac vice)
`SUSMAN GODFREY LLP
`1301 Avenue of the Americas, 32nd Floor
`New York, New York 10019
`Tel: (212) 336-8330
`Fax: (212) 336-8340
`zsavage@susmangodfrey.com
`
`
`COUNSEL FOR PLAINTIFF ANCORA
`TECHNOLOGIES, INC.
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`7188812v2/102891
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 9 of 10
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 6th day of March, 2020, I electronically served the foregoing
`
`by email to the counsel of record listed below:
`
`Winstol D. Carter, Jr.
`Texas Bar No. 03932950
`winn.carter@morganlewis.com
`Thomas R. Davis
`Texas Bar No. 24055384
`thomas.davis@morganlewis.com
`
`Elizabeth M. Chiaviello
`Texas Bar No. 24088913
`elizabeth.chiaviello@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002-5006
`T. 713.890.5000
`F. 713.890.5001
`
`Collin W. Park
`collin.park@morganlewis.com
`District of Columbia Bar No. 470486
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004-2541
`T. 202.739.3000
`F. 202.739.3001
`
`Attorneys for Defendants LG Electronics
`Inc. and LG Electronics U.S.A., Inc.
`
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Phone: (903) 934-8450
`Fax: (903) 934-9257
`
`Robert T. Haslam (rhaslam@cov.com)
`Anupam Sharma (asharma@cov.com)
`COVINGTON & BURLING LLP
`
`7188812v2/102891
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`Case 1:20-cv-00034-ADA Document 49-3 Filed 04/10/20 Page 10 of 10
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`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306-2112
`Phone: (650) 632-4700
`Fax: (650) 632-4800
`
`Richard L Rainey (rrainey@cov.com)
`Jared Frisch (jfrisch@cov.com)
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street, NW
`Washington, DC 20001-4956
`Phone: (202) 662.6000
`Fax: (202) 662-6291
`
`Attorneys for Defendants Samsung
`Electronics Co., Ltd., and Samsung
`Electronics America, Inc.
`
`
`
`
`
`
`/s/ Steven M. Seigel
`Steven M. Seigel
`
`
`
`
`
`7188812v2/102891
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`9
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