UNITED STATES
`INTERNATIONAL TRADE COMMISSION
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`___________________________________
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`In the Matter of: ) Investigation No.
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`CERTAIN DIGITAL VIDEO-CAPABLE ) 337-TA-1224
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`DEVICES AND COMPONENTS THEREOF )
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` )
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`___________________________________
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`Pages:
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`Place:
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`Date:
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`644 through 960 (with excerpts)
`Washington, D.C.
`July 21, 2021
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`OPEN SESSIONS
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`HERITAGE REPORTING CORPORATION
`Official Reporters
`1220 L Street, N.W., Suite 206
`Washington, D.C. 20005
`(202) 628-4888
`contracts@hrccourtreporters.com
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`INTERNATIONAL TRADE COMMISSION
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`___________________________________
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`In the Matter of: ) Investigation No.
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`CERTAIN DIGITAL VIDEO-CAPABLE ) 337-TA-1224
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`DEVICES AND COMPONENTS THEREOF )
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` )
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`___________________________________
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`Pages:
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`Place:
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`Date:
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`644 through 960 (with excerpts)
`Washington, D.C.
`July 21, 2021
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`OPEN SESSIONS
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`HERITAGE REPORTING CORPORATION
`Official Reporters
`1220 L Street, N.W., Suite 206
`Washington, D.C. 20005
`(202) 628-4888
`contracts@hrccourtreporters.com
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` 644
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` 1 UNITED STATES INTERNATIONAL TRADE COMMISSION
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` 2 Washington, D.C.
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` 3 BEFORE THE HONORABLE CAMERON R. ELLIOT
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` 4 Administrative Law Judge
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` 5 ___________________________________
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` 6 In the Matter of: ) Investigation No.
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` 7 CERTAIN DIGITAL VIDEO-CAPABLE ) 337-TA-1224
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` 8 DEVICES AND COMPONENTS THEREOF )
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` 9 )
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` 10 ___________________________________
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` 11 Remote Hearing
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` 12
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` 13 International Trade Commission
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` 14 500 E Street, S.W.
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` 15 Washington, D.C.
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` 16
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` 17 Wednesday, July 21, 2021
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` 18
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` 19 Evidentiary Hearing, Volume III - Remote
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` 20
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` 21 The Hearing commenced remotely, pursuant to the
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` 22 notice of the Judge, at 9:00 a.m. EDT.
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` 23
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` 24
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` 25 Reported by: Karen Brynteson, FAPR, RMR, CRR
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` 645
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` 1 APPEARANCES:
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` 2 ** All parties appearing remotely **
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` 3 FOR COMPLAINANT KONINKLIJKE PHILIPS N.V. and PHILIPS
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` 4 NORTH AMERICA LLC:
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` 5 MICHAEL T. RENAUD, ESQ.
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` 6 JAMES W. WODARSKI, ESQ.
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` 7 ADAM S. RIZK, ESQ.
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` 8 ANDREW H. DeVOOGD, ESQ.
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` 9 COURTNEY HERNDON, ESQ.
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` 10 CATHERINE XU, ESQ.
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` 11 Mintz Levin Cohn Ferris Glovsky and Popeo PC
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` 12 One Financial Center
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` 13 Boston, MA 02111
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` 14
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` 15 PETER F. SNELL, ESQ.
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` 16 HAROLD S. LAIDLAW, ESQ.
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` 17 Mintz Levin Cohn Ferris Glovsky and Popeo PC
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` 18 666 Third Avenue
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` 19 New York, New York 10017
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` 646
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` 1 APPEARANCES (Continued):
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` 2
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` 3 FOR RESPONDENTS REALTEK SEMICONDUCTOR CORP.:
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` 4 STEVEN ROUTH, ESQ.
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` 5 JORDAN COYLE, ESQ.
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` 6 CHRISTOPHER HIGGINS, ESQ.
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` 7 Orrick, Herrington & Sutcliffe LLP
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` 8 Columbia Center
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` 9 1152 15th Street, N.W.
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` 10 Washington, D.C. 20005
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` 11 202-339-8400
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` 12
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` 13 ROBERT BENSON, ESQ.
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` 14 HSIWEN LO, ESQ.
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` 15 Orrick, Herrington & Sutcliffe LLP
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` 16 2050 Main Street
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` 17 Suite 1100
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` 18 Irvine, CA 92614
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` 647
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENT HP, INC.:
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` 3 ANDREW R. KOPSIDAS, ESQ.
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` 4 RUFFIN B. CORDELLL, ESQ.
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` 5 JAMES V. COLAIANNI, JR., ESQ.
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` 6 RICHARD STERBA, ESQ.
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` 7 AHMED J. DAVIS, ESQ.
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` 8 LINHONG ZHANG, ESQ.
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` 9 THOMAS S. FUSCO, ESQ.
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` 10 JARED HARTZMAN, ESQ.
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` 11 Fish & Richardson P.C.
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` 12 1000 Main Avenue, S.W.
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` 13 Suite 1000
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` 14 Washington, D.C. 20024
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` 15 202-783-5070
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` 16
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` 17 LAWRENCE JARVIS, ESQ.
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` 18 ASHLEY BOLT, ESQ.
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` 19 Fish & Richardson P.C.
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` 20 1180 Peachtree Street, NE
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` 21 21st Floor
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` 22 Atlanta, GA 30309
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` 23 404-892-5005
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` 648
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENTS DELL TECHNOLOGIES INC., and DELL INC.:
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` 3 ADAM D. SWAIN, ESQ.
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` 4 BRIAN D. HILL, ESQ.
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` 5 Alston & Bird LLP
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` 6 950 F Street, N.W.
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` 7 Washington, D.C. 20004
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` 8 202-239-3300
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` 9
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` 10 MICHAEL J. NEWTON, ESQ.
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` 11 BRADY COX, ESQ.
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` 12 Alston & Bird LLP
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` 13 Chase Tower
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` 14 2200 Ross Avenue
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` 15 Suite 2300
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` 16 Dallas, TX 75201
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` 17 214-922-3400
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` 18
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` 19 MONIQUE D. MEAD, ESQ.
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` 20 MONICA MANNING, ESQ.
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` 21 Alston & Bird LLP
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` 22 1201 West Peachtree Street
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` 23 Suite 4900
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` 24 Atlanta, GA 30309
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` 25 404-881-7000
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` 649
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENT LENOVO GROUP LTD., and LENOVO (UNITED
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` 3 STATES) INC.:
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` 4 SEAN C. CUNNINGHAM, ESQ.
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` 5 ERIN P. GIBSON, ESQ.
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` 6 DAVID KNUDSON, ESQ.
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` 7 DLA Piper LLP (US)
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` 8 401 B Street, Suite 1700
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` 9 San Diego, CA 92101
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` 10 819-699-2700
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` 11
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` 12
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` 13 BRENT YAMASHITA, ESQ.
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` 14 SANGWON SUNG, ESQ.
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` 15 MONICA De LAZZARI, ESQ.
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` 16 DLA Piper LLP (US)
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` 17 2000 University Avenue
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` 18 East Palo Alto, CA 94303
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` 19 650-833-2000
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` 650
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENTS HISENSE CO., LTD., et al.:
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` 3 TIMOTHY C. BINKHAM, ESQ.
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` 4 MATTHEW N. BATHON, ESQ.
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` 5 HUI SHEN, ESQ.
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` 6 Steptoe & Johnson LLP
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` 7 1330 Connecticut Avenue, N.W.
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` 8 Washington, D.C. 20036
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` 9 202-429-3000
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` 10
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` 11 FOR RESPONDENT INTEL CORPORATION:
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` 12 JAMES B. COUGHLAN, ESQ.
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` 13 Perkins Coie LLP
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` 14 700 Thirteenth Street, N.W.
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` 15 Suite 800
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` 16 Washington, D.C. 20005
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` 17
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` 18 CHAD CAMPBELL, ESQ.
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` 19 Perkins Coie LLP
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` 20 2901 North Central Avenue
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` 21 Suite 2000
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` 22 Phoenix, AZ 85012
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` 23 602-331-8000
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` 25
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` 651
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENT INTEL CORPORATION (Continued):
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` 3 SARAH PIEPMEIER, ESQ.
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` 4 Perkins Coie LLP
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` 5 505 Howard Street, Suite 1000
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` 6 San Francisco, CA 94105
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` 7 415-344-7000
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` 8
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` 9 RYAN J. McBRAYER, ESQ.
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` 10 CHRISTINA J. McCULLOUGH, ESQ.
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` 11 Perkins Coie LLP
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` 12 1201 Third Avenue, Suite 4900
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` 13 Seattle, WA 98101
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` 14 206-359-8000
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` 15
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` 16 KOURTNEY MUELLER MERRILL, ESQ.
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` 17 Perkins Coie LLP
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` 18 1900 16th Street
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` 19 Suite 1400
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` 20 Denver, CO 80202
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` 652
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` 1 APPEARANCES (Continued):
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` 2 FOR RESPONDENT TCL INDUSTRIES HOLDINGS, CO., LTD, MOKA
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` 3 INTERNATIONAL LTD., TCL MOKA MANUFACTURING S.A. de C.V.,
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` 4 TCL SMART DEVICE (Vietnam) COMPANY LTD., TCL KING
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` 5 ELECTRICAL APPLIANCES (Huizhou) CO., LTD., TTE TECHNOLOGY,
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` 6 INC., and TCL ELECTRONICS HOLDINGS LTD.:
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` 7 JOHN P. SCHNURER, ESQ.
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` 8 KEVIN PATARIU, ESQ.
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` 9 YUN LU, ESQ.
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` 10 EMILY GREB, ESQ.
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` 11 BRANDAN M. LEWIS, ESQ.
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` 12 JOHN ESTERHAY, ESQ.
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` 13 Perkins Coie LLP
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` 14 11452 El Camino Real, Suite 300
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` 15 San Diego, CA 92130
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` 16
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` 17 FOR ITC OFFICE OF UNFAIR IMPORT INVESTIGATION:
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` 18 VU BUI, ESQ.
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` 19 DAVID LLOYD, ESQ.
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` 20 Office of Unfair Import Investigation
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` 21 U.S. International Trade Commission
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` 22 500 E Street, S.W.
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` 23 Washington, D.C. 20436
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` 653
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` 1 APPEARANCES (Continued):
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` 2
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` 3 ATTORNEY-ADVISOR:
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` 4 MARY JANE BOSWELL, Esq., Attorney-Advisor
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` 5 U.S. International Trade Commission
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` 6 500 E Street, S.W.
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` 7 Washington, D.C. 20436
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` 8
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` 9 ** Index appears at end of Transcript **
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` 654
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` 1 P R O C E E D I N G S
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` 2 (9:01 a.m.)
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` 3 JUDGE ELLIOT: Let's go on the record. We're
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` 4 here in the matter of Certain Digital Video-Capable Devices
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` 5 and Components Thereof, United States International Trade
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` 6 Commission Investigation No. 337-TA-1224.
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` 7 My name is Cameron Elliot, Presiding
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` 8 Administrative Law Judge. May I have appearances from
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` 9 counsel, please.
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` 10 MR. SNELL: Peter Snell from Mintz on behalf of
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` 11 the Philips Complainants.
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` 12 MR. COUGHLAN: This is Jim Coughlan from Perkins
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` 13 Coie for Intel.
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` 14 MR. COYLE: Good morning, Your Honor. This is
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` 15 Jordan Coyle at Orrick for Realtek.
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` 16 MR. KOPSIDAS: Good morning, Your Honor. Andrew
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` 17 Kopsidas from Fish & Richardson on behalf of Respondent HP.
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` 18 MR. COX: Good morning, Your Honor. Brady Cox
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` 19 from Alston & Bird on behalf of the Dell Respondents.
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` 20 MR. SUNG: Good morning, Your Honor. Sangwon
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` 21 Sung from DLA Piper on behalf of Lenovo. I'm joined by
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` 22 summer associates under DLA attorneys' supervision.
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` 23 JUDGE ELLIOT: Very good.
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` 24 MR. SCHNURER: John Schnurer of Perkins Coie
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` 25 representing the TCL Respondents. Good morning, Your
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` 1 Honor.
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` 2 MR. BICKHAM: Good morning, Your Honor. Timothy
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` 3 Bickham, Steptoe & Johnson, representing the Hisense
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` 4 Respondents.
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` 5 JUDGE ELLIOT: All right. I think that's
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` 6 everyone for Respondents. So, Staff?
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` 7 MR. BUI: Good morning, Your Honor. Vu Bui for
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` 8 the Staff. And with me this morning is my supervisor,
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` 9 David Lloyd.
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` 10 JUDGE ELLIOT: All right. Good morning,
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` 11 everyone. So anything I need to be made aware of that
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` 12 happened overnight?
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` 13 I'll start with Complainants. Mr. Snell?
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` 14 MR. SNELL: Nothing from Complainants, Your
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` 15 Honor.
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` 16 JUDGE ELLIOT: All right. Let's see. I'll pick
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` 17 the first person on my screen. That would be Mr. Coughlan.
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` 18 Anything for Respondents?
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` 19 MR. COUGHLAN: No, Your Honor. We're ready to
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` 20 get started.
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` 21 JUDGE ELLIOT: Very well. So I'm assuming that
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` 22 Ms. McCullough is going to be handling objections for
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` 23 Dr. Jeffay. Is that the case?
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` 24 MR. COUGHLAN: That is correct, Your Honor, and
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` 25 Dr. Jeffay is here and we're ready to go.
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` 1 JUDGE ELLIOT: All right. Very well.
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` 2 Dr. Jeffay, let me just remind you, you're still
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` 3 under oath.
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` 4 Whereupon--
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` 5 KEVIN JEFFAY,
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` 6 a witness, called for examination, having previously been
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` 7 duly sworn, was examined and testified further as follows:
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` 8 THE WITNESS: Yes, Your Honor.
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` 9 JUDGE ELLIOT: All right. Mr. Snell, go ahead.
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` 10 MR. SNELL: Thank you, Your Honor.
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` 11 CROSS-EXAMINATION
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` 12 BY MR. SNELL:
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` 13 Q. You testified at length about patent file
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` 14 histories yesterday, didn't you, Dr. Jeffay?
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` 15 A. I did.
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` 16 Q. And at the time, you were talking about the Traw
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` 17 reference, wasn't it?
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` 18 A. Yes.
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` 19 Q. By my count, you and Ms. McCullough referenced
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` 20 the Traw publication 35 times in a little over an hour.
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` 21 Does that sound about right?
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` 22 A. I'll take your representation.
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` 23 Q. The conversation you had on the record yesterday
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` 24 was entirely different than the conversation you and I had
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` 25 at your deposition. At your deposition, you couldn't even
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` 1 remember the Traw reference and you certainly didn't rely
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` 2 on it like you did yesterday. Can we agree on that?
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` 3 A. It certainly was the case that I hadn't reviewed
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` 4 the Traw reference in much detail at my deposition.
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` 5 Q. Your testimony was inconsistent, wasn't it, sir?
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` 6 A. I don't believe it was.
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` 7 Q. Let me refresh your memory about the
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` 8 conversation we had to put yesterday's conversation in
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` 9 context.
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` 10 Mr. Berk, can we please bring up page 160, lines
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` 11 7 through 9, of Dr. Jeffay's deposition.
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` 12 "Question: Have you reviewed the Traw '877
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` 13 patent?
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` 14 "Answer: I don't recall. I'd have to take a
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` 15 look at it."
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` 16 Was that the question and did you provide that
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` 17 answer?
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` 18 A. Yes.
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` 19 Q. Mr. Berk, page 165, lines 14 to 17.
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` 20 "Question: When is the last time you reviewed
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` 21 the Traw '877 patent?
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` 22 "Answer: I couldn't tell you, but it's been --
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` 23 but it's certainly been a while."
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` 24 Did I read that correctly?
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` 25 A. You did.
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` 1 Q. Mr. Berk, page 167, lines 8 through 21.
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` 2 "Question: You can't point me to any location
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` 3 in any of the Kamperman file histories where the applicant
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` 4 stated that Traw's use of a digital certificate signed by a
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` 5 licensing authority is different than the applicant's
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` 6 claimed feature of using a certificate to determine
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` 7 compliancy with one or more compliance rules, can you?
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` 8 "Answer: I mean, I don't -- the file history is
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` 9 quite voluminous here. I don't have it memorized. I
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` 10 really -- I can't really answer that question."
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` 11 Did I read that correctly?
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` 12 A. You did.
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` 13 Q. Page 168, lines 11 through 24.
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` 14 "Question: And in your analysis of the file
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` 15 histories of the six Kamperman file histories you reviewed
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` 16 in this investigation, you did not identify anywhere in
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` 17 those file histories where the applicant stated that Traw's
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` 18 use of a digital certificate signed by a licensing
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` 19 authority is different than the applicant's claimed feature
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` 20 of using a certificate to determine compliance with one or
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` 21 more compliance rules, did you?
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` 22 "Mr. McBrayer: Objection, form.
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` 23 "Answer: I don't think I pointed to any passage
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` 24 where the applicant said those words."
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` 25 Did I read that correctly?
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` 1 A. You did.
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` 2 Q. Your testimony at your deposition was
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` 3 inconsistent with the testimony you provided yesterday, was
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` 4 it not, sir?
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` 5 A. I don't believe it was. I simply was saying at
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` 6 that deposition that I hadn't reviewed Traw recently and I
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` 7 wasn't able to answer your detailed questions about Traw
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` 8 because of that.
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` 9 Q. This isn't the first time, Dr. Jeffay, for you,
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` 10 is it? You've testified in over 100 patent matters, have
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` 11 you not?
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` 12 A. By deposition or trial, that's correct.
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` 13 Q. And some of them have been high-profile patent
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` 14 litigations like the one you're testifying in today, Google
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` 15 v. Sonos; is that correct?
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` 16 A. Yes.
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` 17 Q. And Apple v. Samsung, is that another one, Dr.
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` 18 Jeffay?
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` 19 A. Yes.
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` 20 Q. And in the -- the Samsung case, you provided
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` 21 testimony on behalf of Samsung, did you not?
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` 22 A. I did.
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` 23 Q. And isn't it true that in discussing your
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` 24 testimony from that case, the Federal Circuit stated, "We
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` 25 leave credibility issues to the jury. We note that the
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` 1 district court repeatedly mentioned that Samsung's expert,
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` 2 Dr. Jeffay, gave inconsistent testimony about a particular
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` 3 limitation."
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` 4 That's what the Federal Circuit said. Do you
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` 5 understand that?
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` 6 A. That is my understanding.
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` 7 Q. The Federal Circuit cited the District Court's
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` 8 holding that "Dr. Jeffay has been all over the map about
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` 9 what the plain and ordinary meaning of this term is. He
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` 10 has been all over the map."
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` 11 That's what the District Court said, correct?
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` 12 A. Yes, that's correct.
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` 13 Q. And then the Federal Circuit went on to say:
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` 14 "The district court also scolded Dr. Jeffay in its JMOL
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` 15 order for 'misleadingly' attempting to argue he had used
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` 16 the Motorola constructions 'since the very first day I
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` 17 worked on this case.'"
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` 18 The Federal Circuit stated that directly in its
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` 19 order, correct?
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` 20 A. Yes.
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` 21 Q. And then the Federal Circuit concluded: "A
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` 22 reasonable jury could have concluded that such
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` 23 inconsistencies negatively impacted the persuasiveness of
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` 24 Dr. Jeffay's opinions."
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` 25 Do you understand that that is what the Federal
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` 1 Circuit concluded about your testimony in the Apple v.
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` 2 Samsung case?
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` 3 A. Yes.
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` 4 Q. CDX-16.2, please.
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` 5 Dr. Jeffay, let's have the conversation about
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` 6 Traw that you were unprepared to have at your deposition.
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` 7 Let's do that today.
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` 8 Will you agree with me that Traw states, at
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` 9 column 7, lines 53 to 56, and this is RX-17, "device A
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` 10 verifies device B's certificate by computing VlBcert in a
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` 11 step 128. If the license authority signature is not valid,
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` 12 device B does not have a valid certificate and thus is not
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` 13 a compliant system"?
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` 14 Did I read that correctly?
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` 15 A. I believe you did.
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` 16 Q. It specifically refers to a certificate with a
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` 17 license authority signature. Do you see that?
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` 18 A. I do.
`
` 19 Q. And that's what the DCP, LLC signature is,
`
` 20 correct? It is a license authority signature in the
`
` 21 context of the HDCP 2+ technology. Do you agree?
`
` 22 A. I do.
`
` 23 Q. And you'll agree that DCP, LLC is a licensing
`
` 24 authority, is it not?
`
` 25 A. It is.
`
`
`
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`Heritage Reporting Corporation
`(202) 628-4888
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` 1 Q. RDX-4C.30, please.
`
` 2 This is your demonstrative from yesterday, is it
`
` 3 not?
`
` 4 A. Yes.
`
` 5 Q. And this identifies the form of the DCP, LLC
`
` 6 certificate that is made, in use in the HDCP 2+ technology,
`
` 7 correct?
`
` 8 A. Yes.
`
` 9 Q. And towards the bottom left of Table 2.1 in
`
` 10 RX-379, there is a specific reference to a DCP, LLC
`
` 11 signature. Do you see that?
`
` 12 A. I do.
`
` 13 Q. So it's not just any signature. It can't just
`
` 14 be any signature. It has to be a DCP, LLC signature. And,
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` 15 again, DCP, LLC is a licensing authority, correct?
`
` 16 A. So there's two questions there. The latter
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` 17 answer is yes, DCP is a licensing authority.
`
` 18 Q. And what was the answer to my first question?
`
` 19 A. So if I recall --
`
` 20 Q. Is that also yes?
`
` 21 A. The first question you were saying it has to be
`
` 22 signed by an authority? Yes, like all certificates, it has
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` 23 to be signed by a specific authority.
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` 24 Q. But this certificate has to be signed by DCP,
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` 25 LLC, correct?
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`Heritage Reporting Corporation
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` 1 A. Yes.
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` 2 Q. If a receiver presents a certificate that is not
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` 3 signed by DCP, it will not receive HDCP 2+ protected
`
` 4 content, correct?
`
` 5 A. That's correct. All -- all certificates are
`
` 6 always specific to a specific trusted authority.
`
` 7 Q. Let's go back to Traw. It did come up in the
`
` 8 patent's file histories, correct?
`
` 9 A. Traw, yes.
`
` 10 Q. Okay. CDX-16.4, please. For the record, this
`
` 11 is CX-497. It is the '819 patent file history. It's an
`
` 12 August 31, 2012 office action.
`
` 13 Did you review this in your analysis?
`
` 14 A. Yes.
`
` 15 Q. In this -- and did you discuss the substance of
`
` 16 what is shown on this page of CX-497 at all in your
`
` 17 testimony yesterday?
`
` 18 A. I don't believe we did.
`
` 19 Q. Okay. Starting at the top, this is an office
`
` 20 action, and the examiner states, "Traw teaches said
`
` 21 identification being based on a certificate in the second
`
` 22 device."
`
` 23 Did I read that correctly?
`
` 24 A. You did.
`
` 25 Q. And at the bottom, the examiner refers to
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` 1 validating compliancy of each device and cryptographically
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` 2 tying the device identification information to the device
`
` 3 itself via a digital certificate, as is taught by Traw."
`
` 4 Did you see that?
`
` 5 A. I do.
`
` 6 Q. And you didn't mention this in your testimony
`
` 7 yesterday, correct?
`
` 8 A. That's correct.
`
` 9 Q. Let's go to CDX-16.5, please.
`
` 10 And you mentioned some dates in your testimony
`
` 11 yesterday. For the record, CX-499 is a PTAB decision
`
` 12 denying institution of an IPR filed against the Kamperman
`
` 13 '819 patent.
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` 14 Did you review this in your analysis in your
`
` 15 investigation?
`
` 16 A. I believe I did.
`
` 17 Q. And you also did not mention this during your
`
` 18 testimony yesterday on direct, correct?
`
` 19 A. That's correct.
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` 20 Q. And so when the PTAB was denying the
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` 21 petitioner's request for inter partes review, the examiner
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` 22 referred to -- well, excuse me, the PTAB stated "examiner
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