UNITED STATES
`INTERNATIONAL TRADE COMMISSION
`
`Investigation No.2
`)
`In the Matter of:
`CERTAIN PORTABLE ELECTRONIC DEVICES ) 337-TA-994
`AND COMPONENTS THEREOF
`‘
`‘
`
`Pages: 1 - 36
`Place: Washington, D.C.
`Date: Wednesday, July 6, 2016
`
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`Ace-Federal Reporters, Inc.
`Stenotype Reporters
`1625 I Street, NW
`Suite 790
`Washington, D.C. 20006
`202-347-3700
`
`‘
`
`NationwideCoverage
`www acefederal com
`-
`-
`
`JUL 0 7
`
`2016
`
`
`INTERNATIONAL TRADE COMMISSION
`
`Investigation No.2
`)
`In the Matter of:
`CERTAIN PORTABLE ELECTRONIC DEVICES ) 337-TA-994
`AND COMPONENTS THEREOF
`‘
`‘
`
`Pages: 1 - 36
`Place: Washington, D.C.
`Date: Wednesday, July 6, 2016
`
`.
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`I‘
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`H
`
`Ace-Federal Reporters, Inc.
`Stenotype Reporters
`1625 I Street, NW
`Suite 790
`Washington, D.C. 20006
`202-347-3700
`
`‘
`
`NationwideCoverage
`www acefederal com
`-
`-
`
`JUL 0 7
`
`2016
`
`
`
`UNITED STATES OF AMERICA
`
`BEFORE THE
`
`INTERNATIONAL TRADE COMMISSION
`
`_
`
`_
`
`_
`
`_
`
`_
`
`_
`
`_
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`_
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`_
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`_
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`_
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`_
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`_
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`_
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`_
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`_
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`_
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`_ X
`
`IN THE MATTEROF:
`
`CERTAIN PORTABLE ELECTRONIC DEVICES
`
`:
`
`:
`
`Investigation
`
`Number
`
`337—TA—994
`
`AND COMPONENTS THEREOF
`
`____.______________X
`
`.
`
`PREHEARING
`
`Wednesday, July 6, 2016
`
`Courtroom C
`U.S. International Trade
`
`Commission
`
`500 E Street
`
`SW
`
`Washington, DC
`
`The Prehearing commenced,pursuant
`
`to notice of the Judge,
`
`at 9:59 a.m., before the Honorable David P. Shaw,
`
`Administrative LawJudge for the United States
`International
`Trade Commission.
`
`Ace-Federal Reporters,
`202-347-3700
`
`Inc.
`
`
`
`APPEARANCES:
`
`JONATHAN D. BAKER, ESQ.
`
`MICHAEL SAUNDERS, ESQ.
`
`TEJ SINGH, ESQ.
`
`Farney Daniels P.C.
`
`411 Borel Avenue, Suite 350
`
`San Mateo, California
`
`94402
`
`424-268-5210
`
`jbaker@farneydaniels.com
`
`msaunders@farneydaniels.com
`
`tsingh@farneydaniels.com
`
`On Behalf of Complainants, Creative Technology Limited
`and Creative Labs, Incorporated
`
`CARYN CROSS, ESQ.
`
`Farney Daniels P.C.
`
`98 Rockwell Place, 2nd Floor
`
`Brooklyn, New York 11217
`
`718-362-1709
`
`ccross@farneydanie1s.com
`
`On Behalf of Complainants, Creative Technology Limited
`
`and Creative Labs, Incorporated
`
`—continued
`
`Ace—FederalReporters,
`202-347-3700
`
`Inc.
`
`
`
`APPEARANCES(Continued):
`
`STEFANI E. SHANBERG, ESQ.
`
`JENNIFER J.
`
`SCHMIDT, ESQ.
`
`MADELEINE E. GREENE, ESQ.
`
`EUGENE MARDER, ESQ.
`
`Wilson Sonsini Goodrich & Rosati
`
`One Market Plaza
`
`Spear Tower, Suite 3300
`San Francisco, California
`
`94105
`
`415-947-2088
`
`_
`
`sshanberg@wsgr.com
`
`jschmidt@wsgr.com
`
`mgreene@wsgr.com
`
`emarder@wsgr.com
`
`On Behalf of Respondents BlackBerry, Motorola, Lenovo
`
`and for Intervenor Google, Inc.
`
`VERONICA S. ASCARRUNZ, ESQ.
`
`Wilson Sonsini Goodrich & Rosati
`
`1700 K Street, NW,Fifth Floor
`
`Washington, DC 20006
`
`202-973-8812
`
`vascarrunz@wsgr.com
`
`On Behalf of Respondents BlackBerry, Motorola, Lenovo
`
`and for
`
`Intervenor Google,
`
`Inc.
`
`—continued—
`
`Ace-Federal Reporters,
`202-347-3700
`
`Inc.
`
`
`
`APPEARANCES(Continued):
`
`MICHAEL N. RADER, ESQ.
`
`GERALD B. HRYCYSZYN, ESQ.
`
`CHRISTOPHER W. HENRY, ESQ.
`
`MARIE A. MCKIERNAN, ESQ.
`
`Wolf, Greenfield & Sacks
`
`600 Atlantic Avenue
`
`Boston, Massachusetts 02210-2206
`
`617-646-8370
`
`michael.rader@wolfgreenfield.com
`
`gerald.hrycyszyn@wo1fgreenfield.com
`christopher.henry@wolfgreenfield.com
`marie.mckiernan@wolfgreenfield.com
`
`On Behalf of Sony Respondents
`
`JAMES B. ALTMAN, ESQ.
`
`BARBARA A. MURPHY, ESQ.
`
`Foster, Murphy, Altman & Nickel,
`
`PC
`
`1899 L Street, NW, Suite
`
`1150
`
`Washington, DC 20036
`
`202-822-4103
`
`ja1tman@fostermurphy.com
`
`bmurphy@fostermurphy.com
`
`On Behalf of Sony Respondents
`
`—continued
`
`Ace-Federal Reporters,
`202-347-3700
`
`Inc.
`
`
`
`APPEARANCES(Continued):
`
`SCOTT A. ELENGOLD, ESQ.
`
`ZACHARY LONEY, ESQ.
`
`Fish & Richardson P.C.
`
`1425 K Street, NW, llth Floor
`
`Washington, DC 20005
`
`202-626-6427
`
`e1engold@fr.com
`
`1oney@fr.com
`
`On Behalf of
`
`the LG Respondents
`
`ALEXANDER D. CHINOY, ESQ.
`
`RICHARD RAINEY, ESQ.
`
`ALICE J. AHN, ESQ.
`
`Covington & Burling
`
`One CityCenter
`
`850 Tenth Street, NW
`
`Washington, DC 20001-4956
`
`202-662-5559
`
`achinoy@cov.com
`
`rrainey@cov.com
`
`aahn@cov.c0m
`
`On Behalf of the Samsung Respondents
`
`—continued—
`
`Ace-Federal Reporters,
`202-347-3700
`
`Inc.
`
`
`
`APPEARANCES(Continued):
`
`GREGORY S. NIEBERG, ESQ.
`
`Covington & Burling
`
`The New York Times Building
`
`620 Eighth Avenue
`
`New York, New York 10018-1405
`
`212-841-1170
`
`gnieberg@cov.com
`
`On Behalf of
`
`the Samsung Respondents
`
`LYLE B. VANDER SCHAAF, ESQ.
`
`Brinks, Gilson & Lione
`
`1775 Pennsylvania Avenue, NW, Suite
`
`900
`
`Washington, DC 20006
`
`202-296-6941
`
`lvanderschaaf@brinksgilson.com
`
`On Behalf of
`
`the ZTE Respondents
`
`-continued
`
`Ace—Federa1Reporters,
`
`Inc.
`
`202-347-3700
`
`
`
`APPEARANCES(Continued):
`
`JEFFREY CATALANO, ESQ.
`
`Brinks, Gilson & Lione
`
`NBC Tower
`
`455 N. Cityfront Plaza Drive
`
`Chicago, Illinois
`312-840-3281
`
`60611
`
`jcata1ano@brinksgi1son.com
`
`On Behalf of
`
`the ZTE Respondents
`
`FRED I. WILLIAMS, ESQ.
`
`Vinson & Elkins LLP
`
`2801 Via Fortuna, Suite 100
`
`Austin, Texas 78746-7568
`
`512-542-8430
`
`fwi1liams@velaw.com
`
`On Behalf of
`
`the HTCRespondents
`
`-continued
`
`Ace-Federal Reporters,
`202-347-3700
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`Inc.
`
`
`
`APPEARANCES(Continued):
`
`CYRUS T. FRELINGHUYSEN, ESQ.
`
`Winston & Strawn LLP
`
`1700 K Street,
`
`NW
`
`Washington, DC 20006-3817
`
`202-282-5890
`
`cfrelinghuysen@winston.com
`
`On Behalf of the Lenovo Respondents
`
`PETER SAWERT, ESQ.
`
`DAVID LLOYD, ESQ.
`United States
`International Trade Commission
`
`500 E Street,
`
`SW
`
`Washington, DC 20436
`
`202-205-3228
`
`peter.sawert@usitc.gov
`david.lloyd@usitc.gov
`On Behalf of U.S. International
`
`Trade Commission
`
`Ace—FederalReporters,
`
`Inc.
`
`202-347-3700
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`
`
`P R O C E E D I N G S
`
`JUDGE SHAW: Good morning.
`Please be seated.
`
`This is a prehearing conference in the matter of
`
`Certain.Portable Electronic Devices and ComponentsThereof,
`
`Investigation Number337-TA-994.
`Let's begin with appearances for the parties
`
`beginning with Complainants.
`
`MR. BAKER: Good morning,
`
`your Honor.
`
`Jonathan
`
`Baker on behalf of the Complainants, Creative Technology
`
`Limited and Creative Labs, Incorporated.
`
`And with me today
`
`at counsel
`
`table are my colleagues Michael Saunders, Caryn
`
`Cross and Tej Singh. Also with me today are
`representatives
`from our clients, AnanSivananthan,
`director of legal services
`from Creative Technology, Keh
`
`financial officer of Creative Technology,
`LongNg, chief
`and Russell Swerdon,director of intellectual
`property at
`Creative Labs.
`
`JUDGE SHAW; Welcome.
`
`Thank you, Mr. Baker.
`
`MR. BAKER: Also sitting
`
`next
`
`to them is our
`
`expert professor,
`
`Jim Foley,
`
`from Georgia Tech.
`
`Thank you, your Honor.
`
`JUDGE SHAW: Thank you.
`
`For Respondents and Intervenor?
`
`Ace—Federa1Reporters,
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`10
`
`MS. SHANBERG; Good morning,
`
`your Honor.
`
`Stefani Shanberg from Wilson Sonsini Goodrich & Rosati
`
`for
`
`Respondents BlackBerry, Motorola, Lenovo. And for
`
`Intervenor Google, Inc. With me today are my colleagues
`
`Veronica Ascarrunz, Eugene Marder and Jennifer Schmidt, as
`
`well as my colleague Madeleine Greene, our expert witness,.
`
`Dr. Kevin Jeffay,
`Patrick Weston.
`
`and a client
`
`representative
`
`from Google,
`
`JUDGE SHAW: Thank you very much.
`And for the Staff?
`
`MR. SAWERT: Your Honor, Peter Sawert
`
`for
`
`the
`
`CommissionInvestigative
`
`Staff. With me today is David
`
`Lloyd.
`
`Your Honor, I believe there maybe additional
`
`Respondents counsel who want to enter an appearance.
`
`JUDGE SHAW: Yes.
`
`MR. RADER: Your Honor, Michael Rader
`
`from Wolf,
`
`Greenfield & Sacks on behalf of Sony. Mycolleague Jerry
`
`Hrycyszyn is with me here at counsel
`
`table. Mycolleagues
`
`Chris Henry and Marie McKiernan are also here.
`
`Jim Altman
`
`and Barbara Murphy from the Foster, Murphy, Altman & Nickel
`
`law firm, also representing Sony, and our client
`
`representative
`
`is Mr. Peter Todo, in-house counsel at Sony.
`
`JUDGE SHAW: Welcome.
`
`Thank you.
`
`MR. ELENGOLD: Good morning,
`
`your Honor.
`
`Scott
`
`Ace-Federal Reporters,
`202-347-3700
`
`Inc.
`
`
`
`ll
`
`Elengold from Fish & Richardson on behalf of the LG
`
`Respondents. And with me is my colleague Zachary Loney.
`
`From LG Electronics
`
`I have Chang Kim, who is general
`
`counsel,
`
`IP, Mr. YoungminKim, director,
`
`and Mr. Seekjoo
`
`Kim, manager,
`
`IP.
`
`JUDGE SHAW: Thank you. Welcome.
`
`MR. CHINOY: Good morning,
`
`your Honor.
`
`Alexander Chinoy with Covington and Burling on behalf of
`
`Samsung Respondents. With me are my partner Richard
`
`Rainey, also our associates Alice Ahn and Greg Nieberg, as
`
`well as additional
`
`in—houserepresentatives
`
`from Samsung.
`
`JUDGE SHAW: Thank you. Welcome.
`
`MR. VANDERSCHAAF: Good morning,
`
`your Honor.
`
`Myname is Lyle Vander Schaaf
`
`from Brinks, Gilson & Lione
`
`on behalf of the ZTERespondents.
`
`I am accompanied this
`
`and a summer
`Jeff Catalano,
`morning by my partner,
`associate,
`Ji Lee, and client
`representatives
`from ZTE,
`
`Maggie Xu and Jim Wang. Thank you.
`
`JUDGE SHAW: Thank you. Welcome.
`
`MR. WILLIAMS; Good morning.
`
`Fred Williams
`
`for
`
`the HTCRespondents.
`
`And along with me is
`
`in—h0use counsel
`
`for HTC, David Wiggins.
`
`JUDGE SHAW: Thank you.
`
`Is that all Respondents? Oh, we're crossing the
`I see.
`
`aisle,
`
`Ace-Federal Reporters,
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`
`MR. FRELINGHUYSEN: Good morning,
`
`your Honor,
`
`Cyrus Frelinghuysen from Winston & Strawn also on behalf of
`
`the Lenovo Respondents.
`
`JUDGESHAW; I have a seating
`
`chart
`
`here,
`
`and
`
`I've had to expand it a little
`
`bit.
`
`I thought I knewwho
`
`Okay.
`everyone was, but I don't.
`Well, you'll
`identify yourselves for the record
`
`anyway, I'm sure, whenyou speak, and I'll
`
`appreciate that.
`
`As I'm sure most of you know we have a CBI sign,
`
`public sign,
`
`that
`
`I can moveback and forth, my attorney
`
`advisor,
`
`depending upon what record we're on.
`
`If we need
`
`let me knowwhose
`just
`record,
`to go on the confidential
`confidential
`information it
`is and we'll switch the sign.
`
`I have to say,
`this being a 101 case and having
`looked over the prehearing briefs,
`I don't anticipate much,
`
`if any, CBI. But if we do go into confidential
`
`session,
`
`people whoare not under the protective order or are not
`authorized to see certain confidential
`information will
`
`have to leave the room during those times.
`
`Wedon't allow any recording in this
`
`room. That
`
`includes
`sound, photography or video.
`If you want a
`transcript,
`they are available.
`If you need to take a
`
`photograph, such as to make a demonstrative exhibit,
`
`let me
`
`know and we'll
`
`find a way to take a photograph so that you
`
`can preserve the record.
`
`Ace—Federal Reporters,
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`
`The hours are 10:00 to 6:00.
`
`That means that
`
`I'll
`
`be holding court 10:00 to 6:00, and so you should have
`
`that
`
`time filled up with witnesses or argument or whatever
`
`it
`
`is you wanted to do.
`lunch,
`Between 12:00 and 1:00, we'll break for
`last at
`least an hour, a little
`bit more if we
`
`which will
`
`can. And probably in the morning we won't need a break,
`but
`in the afternoon we'll have at
`least one long break,
`
`maybe we'll
`
`even have two breaks, we'll
`
`see how things go.
`
`. Myattorney advisor will keep time beginning
`this conference, and he'll work with you so that you
`
`after
`
`get a daily tally of the time. Of course, here we're only
`
`two days of tally
`looking at maybe one,
`that's our normal procedure.
`
`for you. But
`
`Time is kept pretty muchcontinuously.
`
`So for
`
`your
`your benefit, have your witnesses ready whenit's
`turn, because time will be kept. Time is kept during
`
`housekeeping and the offering of evidence.
`then no party
`If I question a witness at
`length,
`is charged for that.
`That's not likely to happen, but, you
`
`know, if
`
`I have a long question or something for the
`
`witness, no one will be charged.
`
`Normally exhibits are offered at
`
`the end of each
`
`testimony, and if you have a lot of exhibits, you
`witness's
`can makea list,
`rather
`than reading a long list of numbers
`
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`14
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`into the record.
`
`Now, in some cases, we might defer
`
`the exhibits
`
`the parties have an opportunity to work things out.
`so that
`That's especially true with experts. But it's
`really easy
`to get behind on exhibits, particularly in a short hearing
`like this.
`So we have to be careful
`to get everything into
`
`the record that belongs in the record.
`
`One exception to the normal practice
`
`is that you
`
`the witness statement before handing the witness
`mayoffer
`over for cross-examination,
`if
`that's what you'd like to
`
`do, and most people do.
`
`Wealready have a posthearing schedule in place.
`
`The main briefs
`20th.
`
`are due July l4 and replies
`
`are due the
`
`Be sure to follow my Ground Rule ll on the
`
`comprehensive joint outline. Now,usually at
`
`this point,
`
`I
`
`explain in great detail or in somedetail what I want
`vis-a-vis
`products and infringement, and I understand we
`don't have all of those issues in this proceeding, but I
`still
`think the parties need to get together and talk about
`what needs to be addressed in the briefs.
`
`The citations
`
`in your posthearing briefs have to
`
`be good because I don't have a separate findings document.
`The cites
`should be in the text, not in the footnotes, and
`
`not in brackets or parentheses.
`
`Ace—FederalReporters,
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`15
`
`I use Times New Roman 12, and I just
`
`ask that
`
`it
`you don't use a smaller font, even in the footnotes,
`should be in the same size as your text. Although your
`
`footnotes may be single—spaced.
`
`Use reasonable margins and leave two spaces
`between sentences, not one.
`It's difficult
`to read when
`there's only one.
`The main brief,
`
`as we discussed during the
`
`preliminary conference, I believe the parties agreed to
`this,
`50 pages for the main and 30 for the reply.
`If
`that's still
`the parties’ expectations, that's fine with
`
`me.
`
`No incorporation by reference in the briefs,
`though. So except for legal citations,
`transcript cites
`and cites to exhibits,
`I shouldn't have to look outside
`
`your briefs to see what it
`The main briefs
`
`is you're talking about.
`are to cover all
`issues. We
`
`don't have staggered briefing.
`So -- that should be easy
`for you, especially because you've done the joint outline,
`so you knowdefinitely what all
`the issues are upfront.
`After the ID issues,
`if it contains confidential
`
`information, we'll need your help in doing the public
`
`version,
`
`and so please use bold red brackets when
`
`submitting your proposed public version to indicate any CBI
`that might be there.
`
`Ace—Federal Reporters,
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`16
`
`Consult the Commission's rules,
`
`though,
`
`in the
`
`ground rules when you start marking CBI so you don't overdo
`
`it. Again, there maynot be any in this opinion, we'll
`see.
`
`this conference
`What I have on my schedule for
`is to address the HPOs. I want to talk a little
`bit about
`
`although I think the parties have worked
`order of trial,
`that out, and then I'll
`just open the floor to anything
`that you'd like to discuss before we get
`into the main
`
`hearing.
`
`"
`
`Looking at Creative‘s HPOs, it
`Creative has two as far as I can see here.
`
`looks like -
`It
`looks like
`
`the first one is likely moot, that has to do with
`deposition transcripts.
`I'll
`find out if that's true, but
`I think it
`is from having read the parties‘ papers on this.
`
`The second HPOhas to do with case law analysis
`
`and some RXswith patents
`
`in them.
`
`I think you already
`
`know my ruling from my motion in limine rulings
`as far as
`the case law analysis
`is concerned, but I think the Staff
`raised a good point
`in its response, which is that
`there
`maybe reason to bring in the patents themselves,
`they're
`not patents in this case,
`they're patents that, you know,
`
`you might -—that
`
`some parties might want to analyze,
`
`and
`
`so if
`
`the ——if
`
`the patents
`
`are offered on their own, I
`
`might let
`
`them in, but you already know how I feel about
`
`Ace—FederalReporters,
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`17
`
`the content of the witness statement.
`
`high
`Turning to Respondents‘ and Intervenors'
`priority objections, first of all,
`it's morethan likely
`I'll
`say Respondents as a shorthand, and unless I say
`otherwise,
`that
`includes Intervenor.
`I wouldn't want
`
`I
`I'm not including Intervenor if
`anyone to think that
`don't say "Intervenor."
`So if
`I just say "Respondents," I
`
`probably mean everybody over there,
`
`and sort of over there.
`
`There are three HPOsfrom Respondents.
`The
`three track pretty muchthe MILs, and I don't really
`first
`think I need to do any other rulings on those issues at
`this time.
`
`Now, the fourth one has to do with affirming
`
`I'm not going to strike them. But it's
`expert reports,
`important
`to follow the ground rules and make sure there
`are no misunderstandings and to follow them closely.
`
`Number 5 has to do with testimony that may be
`outside the scope of expert reports.
`
`You know, as Complainants pointed out,
`this
`is a
`one—paragraphobjection covering potentially
`a lot,
`so at
`this time, I'm not going to strike anything.
`
`I did look at
`
`the first
`
`couple few of the Q&As,
`
`and I went back to the expert
`reports
`and compared it.
`didn't
`see anything egregious, so with that
`in mind, if
`there is something egregious later, you could bring it out
`
`I
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`the hearing. But at
`in briefing or on your owntime at
`this
`time,
`I'm not striking
`any Q&As.
`
`And then finally,
`we have HPOnumber 6, which I
`believe I've already effectively ruled on whenI denied the
`
`motion for —-or request
`
`for receipt of evidence without a
`
`there's
`sponsoring witness. But if
`can let me know. But I think that
`been handled.
`
`anything left over, you
`it's
`pretty muchalready
`
`So that
`
`is the end of the HPOdiscussion.
`
`And
`
`as I promised, I just want to discuss order of trial.
`It seems to me from the correspondence of the
`
`is a short or
`that what we're probably looking at
`parties
`relatively
`short opening argument from each side, and then
`
`we begin with Complainants‘ case—in-chief, which is the
`standard way of doing things.
`I just wasn't completely
`sure, because I knowthat
`there is opportunity in this
`
`_
`
`proceeding for lengthy counsel argument, if you wish to
`
`present
`
`that.
`
`So I just want to make sure that, you know,
`
`we weren't
`
`looking at a five—hour opening argument followed
`
`by a 10-minute opening argument, something very imbalanced.
`I wouldtry to straighten that out.
`But it
`looks like we have two kind of
`
`standard—sized opening arguments, and right
`
`to
`
`Complainants‘ case—in—chief, and that
`
`that
`
`is —-I don't
`
`knowif Staff has an opening argument, but I think that's
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`the normal way things go and that's what the parties
`expecting.
`
`are
`
`So let me begin with Complainants and see;
`that correct?
`
`is
`
`MR. BAKER: Yes, your Honor.
`
`The parties
`
`have
`
`their opening statement
`agreed Complainants will present
`first,
`followed by the Respondents‘ opening statement, and
`
`then the Staff's
`
`opening statement
`
`if
`
`they have any. And
`
`then the Complainants will put on their witnesses,
`
`followed
`
`by any witnesses of the Respondents.
`With respect
`to the length of the opening
`
`statement, my sense is
`
`from, you know, our slides we
`
`prepared and from the slides
`that we have seen from the
`Respondents, that
`I think it will be longer than a short
`
`opening statement.
`
`JUDGE SHAW: Okay.
`
`MR. BAKER: I
`hour or so potentially.
`
`think
`
`it
`
`could be, you know, an
`
`JUDGESHAW: Okay.
`
`So this
`
`is maybe a little
`
`bit of a hybrid. Andthat's
`
`fine, because I said you could
`
`have a lot of argument in front of me in this case.
`
`So
`
`long opening argument,
`
`long ——that's
`
`okay with me.
`
`Ms. Shanberg, how do things
`perspective?
`
`look from your
`
`MR. SHANBERG:He's estimated
`
`our opening length
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`I anticipate it will be about an hour.
`just about right.
`One other
`thing to note, your Honor, is that
`
`I'll
`
`be presenting the opening argument on the section 101
`
`issues and Jerry Hrycyszyn on behalf of Sony is going to be
`
`presenting the opening argument on any claim construction
`issues that your Honor wants to hear about.
`I think he's
`
`probably got about 15 minutes after my opening, so we're
`
`probably looking at about an hour and a quarter.
`But to the extent
`that we're talking about
`
`scheduling and the lunch break, I think that splitting mine
`and his wouldn't be —-wouldn't be a bad thing to do.
`
`the way it will
`JUDGESHAW: That's
`probably
`fine.
`workout, we'll
`just see. Well, that's
`So really,
`it's
`-- it's
`argument.
`I don't knowwhether we would call
`
`it opening argument. This is an opportunity for you to
`
`argue, you to argue, but
`
`then we'll have witnesses and then
`
`Respondents’ witnesses.
`And Staff,
`
`do you have an opening statement or
`
`argument that you'd like to make in sequence with theirs?
`MR. SAWERT: Yes, your Honor,
`the Staff
`does
`
`anticipate making a very brief opening argument.
`
`JUDGESHAW: I'm sorry, what was that?
`
`MR. SAWERT: Yes, your Honor,
`
`the Staff
`
`does
`
`anticipate making a very brief opening argument.
`
`JUDGESHAW: Are you fine with waiting
`
`until
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`they have done their
`
`arguments?
`
`MR. SAWERT: Yes, your Honor,
`
`I think
`
`that would
`
`actually be the most effective way of proceeding.
`
`JUDGE SHAW: Okay.
`
`That's
`
`good.
`
`And then I had only one other question.
`
`I don't
`
`knowthat
`
`there's
`
`any controversy about that, but I know
`
`Complainants have a rebuttal witness;
`
`is that correct? Are
`
`you going to present
`
`that
`
`in the normal sequence, or are
`
`testimony all at once?
`you going to take your witnesses‘
`I'm very liberal on this.
`Sometimespeople ask
`
`to do it out of sequence.
`
`MR. BAKER: Yes, your Honor,
`
`the parties‘
`
`plans
`
`their witness up one time on the stand and to
`were to put
`present both the direct witness statement and rebuttal
`witness statement at
`the same time while the witness is on
`the stand.
`
`JUDGESHAW: That's
`
`fine.
`
`So in other words,
`
`we'll have Complainants’ arguments, Respondents’ arguments
`
`in two parts, Staff's
`arguments. We'll have Complainants‘
`witnesses, Respondents‘ witnesses and then we anticipate
`that
`that would probably be the close of the hearing at
`that point;
`is that correct?
`
`MR. BAKER: That's
`
`correct,
`
`your Honor.
`
`JUDGESHAW: Okay. Very good.
`
`All
`
`right.
`
`Is there anything that you would like to do
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`during this prehearing phase before we get
`event?
`
`into the main
`
`MR. ELENGOLD: With regard
`
`to some housekeeping
`
`been somediscussion amongthe counsel
`there's
`issues,
`about whether or not the witness statements that are
`
`offered up to the witnesses should be redacted in
`
`they should,
`compliance with Order Number 8. Wefeel
`so the witnesses don't have in front of them testimony
`that's already been stricken, so they don't
`inadvertently
`refer
`to it and for their ownconvenience.
`
`just
`
`But I believe we wanted to get your thoughts on
`
`that.
`
`JUDGE SHAW: Mr. Baker?
`
`MR. BAKER: Yes, your Honor, we agree we wanted
`
`In view of the
`the Court's guidance on that.
`to get
`Court's order excluding parts of the testimony, while
`
`recognizing they want to preserve the original
`
`testimony
`
`for purposes of any review or appeal, does the Court want
`us to prepare redacted versions of the witness statements
`that black out the parts that are excluded, or should we
`
`just go ahead and proceed with the original versions but
`just understand that
`the parties cannot cite to or rely on
`any parts
`that were excluded?
`
`JUDGESHAW: Well,
`
`I mean,
`
`there's
`
`no one right
`
`way to do this.
`
`The way that most people do it,
`
`and I
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`is to go ahead and prepare a redacted
`think it works best,
`version. Youcan retain the original version if you want,
`
`for appeal.
`if you want to retain it
`I understand that you may not have redacted
`
`versions
`
`ready at
`
`this moment, depending what your
`
`expectations were and, you know, you got
`
`the -—it's
`
`all
`
`been on a compressed schedule.
`
`So if you don't have a redacted version ready
`
`fine, we can proceed, because everyone in the
`that's
`today,
`room knows what should be redacted and what's not and what
`
`you need to cross on and what you don't.
`But eventually,
`I think it would be good to
`
`provide redacted versions for the record, which will be
`done electronically
`anyway, so you can prepare them at
`that
`time.
`
`that's
`If you have them ready today,
`can take the book with the redactions in it.
`
`great,
`
`I
`
`So the answer is yes and yes. We should have
`
`but I'm not going to stop someonefrom
`redacted versions,
`testifying today if the redacted version isn't correct -
`isn't
`ready.
`MR. ELENGOLD: We do have redacted
`
`versions
`
`ready, your Honor.
`
`MR. BAKER: Your Honor, we believe we will
`
`be
`
`able to have redacted versions ready before the witnesses
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`testify,
`
`so thank you for that clarification.
`
`JUDGESHAW: That's
`
`great.
`
`Okay.‘ Fine.
`
`MR. ELENGOLD: A couple
`
`of our housekeeping
`
`things, your Honor, just on the high priority objections.
`
`In light of Order Number8.on Dr. Jeffay's
`case law
`analysis,
`in Dr. Foley's rebuttal, which is CX-44,there's
`a series of questions from 30 to 37 that are directly
`responsive to the parts of Dr. Jeffay's
`testimony that were
`
`stricken
`
`by Order Number 8.
`controversial, but I
`I don't knowif it's
`believe those should also be stricken as well.
`
`JUDGE SHAW: Well,
`
`let me see.
`
`Mr. Baker?
`
`MR. BAKER: Yes, your Honor.
`
`I guess
`
`there's
`
`two points. One is since those were responsive to
`Professor Jeffay's
`testimony, we don't plan to rely on that
`
`in any way.
`
`In terms of striking them, there's no motion to
`strike them or anything like that.
`
`JUDGESHAW: Right.
`
`I was thinking where is my
`
`motion. Whydidn't
`
`I do it? Because no one asked.
`
`MR. BAKER: They didn't move for
`that because
`their position was that was all proper testimony.
`So I guess we're fine leaving it
`in. We're not
`planning to cite to it or rely on it. But if the Court
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`thinks it should be likewise redacted out, we can try to do
`
`that
`
`today.
`
`MR. ELENGOLD: Your Honor,
`
`happy to move for
`
`those to be removedat
`
`this point.
`
`I apologize for the
`
`that, you know, as counsel pointed out, we did not
`fact
`think that case law analysis would run afoul of the ground
`
`But, you know, we think just
`rules on legal analysis.
`a clean record,
`it makes sense,
`in light of those -
`
`testimony being out,
`Dr. Jeffay's
`testimony regarding the cases.
`
`for us to removeall
`I
`
`for
`
`that
`
`and Mr. Baker
`JUDGESHAW: Well,
`that's
`fine,
`fine.
`has offered to do so, I believe, and that's
`Now,if
`there's
`controversy in the redactions -
`just makesure there isn't
`any. The parties
`
`well,
`
`let's
`
`can make sure they are on the same page and that
`
`there
`
`isn't
`
`any problem with, you know, what is directly
`
`responsive to the other testimony. And it would probably
`be,
`like you said,
`for a clean record, sure,
`in a perfect
`world,
`that should be redacted as well.
`
`But in the meantime, no one is going to be
`
`examining on those portions of Mr. Baker's witness's
`
`testimony because everybody understands what my ruling was,
`so that's fine.
`
`MR. BAKER: Thank you,
`
`your Honor.
`
`MR. ELENGOLD: Thank you,
`
`your Honor.
`
`And two
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`other quick points on the HPOs,if possible.
`
`Respondents’ high priority
`
`objection number2,
`
`which just goes to expert opinions from fact witnesses.
`
`And I apologize that
`
`in the MILs, maybeperhaps inartfully,
`
`together with legal conclusions.
`we lumped that
`But there are a few statements
`in Mr. McHugh‘s
`
`such as did
`and Mr. Egan's testimony that go to questions
`Creative sell portable mediaplayers that practice the
`claimed inventions? Howdo you know the device practiced
`the claimed invention?
`
`That type of testimony we don't
`
`think is proper
`
`from a fact witness,
`
`and so I -- without, you know,
`
`that Order Number8 ruled on the MILs, I just
`realizing
`wanted to highlight
`for the Court that
`issue.
`
`JUDGESHAW; Well,
`
`if
`
`this
`
`is
`
`just
`
`a redo of
`
`what
`
`I saw in the MIL, people who work ——you're
`
`talking
`
`about people whowork for companies thinking their products
`do certain things;
`is that
`right, Mr. Elengold?
`
`MR. ELENGOLD:I think it's more that
`
`it goes to
`
`an actual claim analysis.
`
`So Complainants could have
`
`chosen to have an independent technical
`
`expert evaluate
`
`in claim charts and make this an
`various products and put
`evidentiary issue, but they didn't.
`So instead we have fact statements stating the
`
`product practice the claims. Mr. Egan has a question that
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`goes to can you think of any interface method ~
`
`JUDGESHAW: I'm sorry,
`
`are you near your mike?
`
`I'm not hearing you very well.
`
`I
`
`MR. ELENGOLD: I apologize.
`
`Mr. Egan has a
`
`question, can you think of interface methods that are not
`covered by the claims,
`trying to get at
`the legal
`issue of
`
`think these are proper
`preemption. Andwe just don't
`things for fact
`testimony, your Honor.
`
`JUDGE SHAW: Well,
`
`I ——I'm not
`
`striking
`
`anything here at
`
`this conference.
`
`MR. ELENGOLD :
`
`Okay .
`
`JUDGE SHAW: So if
`it was covered
`by a MIL and I
`didn't strike it,
`I didn't strike it,
`I'm not changingmy
`
`ruling now, so ~
`
`MR. ELENGOLD; Thank you,
`
`your Honor.
`
`And the
`
`last
`
`one was on MIL number 3 on commercial
`
`success.
`
`You
`
`did rule on the testimony. There were some exhibits
`
`in the
`
`HPOthat were not addressed by the MIL.
`
`JUDGESHAW; And that was on purpose,
`
`because
`
`I
`
`wasn't
`
`sure about what life
`
`they may have.
`
`I mean, I know
`
`the testimony isn't
`
`coming in.
`
`If
`
`that was the only way to
`
`get
`
`them in,
`
`then they're not going to be accepting in
`
`evidence anyway.
`
`If they have another life,
`just find out.
`
`we'll
`
`I don't know, so
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`they're going to try to movethe
`I mean, if
`exhibits in without a witness, that will be interesting.’
`
`If
`
`there's
`
`another witness
`
`in some ——I mean, I just wasn't
`
`sure what life
`
`those exhibits
`
`had if —-but
`
`I would assume
`
`if
`
`that was it,
`
`I won't see them offered into evidence.
`
`MR. ELENGOLD: Thank you, your Honor.
`
`That's
`
`all we had on the HPOs.
`
`JUDGESHAW: Anything
`
`else
`
`from any of
`
`the
`
`Respondents? Okay.
`
`Mr. Baker?
`
`MR. BAKER: Yes, your Honor,
`
`I had a follow-up
`
`the end there
`question regarding your Honor‘s commentat
`about exhibits that are essentially only mentionedwithin
`
`the testimony that was excluded.
`
`Wewould -- our understanding
`
`is that
`
`the MIL
`
`ruling wouldapply to those exhibits as well,
`only place that
`those exhibits are used.
`AndI just wanted a clarification whether the
`Court wants us to formally offer
`them into evidence and
`
`if that's
`
`the
`
`have them formally rejected or would the Court's ruling
`constitute the formal rejection of those exhibits that are
`
`only used in that excluded testimony?
`
`JUDGE SHAW: Well,
`
`it depends
`
`on why you want
`
`the rejection.
`
`If you want the rejection because you want
`
`the Commission to let
`
`them in anyway, then you need to
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`form ——I mean,
`
`I
`
`just
`
`don't
`
`know how many -- what
`
`the
`
`universe is of exhibits and paragraphs. There maybe a lot
`of different scenarios there.
`
`telling Mr. Elengold that
`I mean, I was just
`I struck someone's testimony but I didn't
`strike the
`
`if
`
`I'm
`in the exhibit,
`exhibit, you have no other way to get
`not expecting you're going to offer it. But if there's
`some other
`reason why you want to get
`the exhibit
`in,
`
`individually.
`you're going to have to argue the exhibit
`For example, I think I just struck a legal
`
`the patents might comein anywayfor
`analysis but said that
`some other
`reason. You know, in that
`situation,
`I was
`
`picking up on what the Staff said.
`
`I didn't
`
`like what
`
`was ——the analysis
`
`that was provided, but
`
`I understand
`
`there may be other
`legal
`reasons why lawyers might want
`those patents to have in their briefs.
`I don't know. But
`if
`that's
`the case, you can movethem in. But you'll have
`to argue them in, because they're not attached to anything
`
`anymore.
`
`MR. BAKER; Okay.
`
`Thank you for
`
`that
`
`explanation,
`
`your Honor.
`
`I did have a couple more -
`
`JUDGESHAW: I mean,
`I was just
`trying
`to make
`it practical.
`I wasn't trying to bring up any arcane
`principle of law.
`It's
`just
`if they're not attached to any
`
`testimony —-normally you'd move them in with the
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`testimony. That testimony won't be coming in, so you'll
`
`have to move them in on their own, argue them otherwise.
`
`looking at practically,
`I'm just
`could come in.
`
`I don't knowhowelse they
`
`MR. BAKER: Thank you, your Honor.
`
`That makes
`
`sense .
`
`issues.
`
`I did have a couple of additional housekeeping
`
`JUDGE SHAW: Yes.
`
`MR. BAKER: One is with respect
`
`to physical
`
`exhibits. Wehave two physical exhibits
`
`that we're
`
`planning to use in the case. These are physical samples of
`
`the Creative NOMADJukebox product.
`
`And, your Honor, we wanted to confirm whether,
`than leaving the physical exhibit with the Court, if
`
`rather
`
`leave a photograph of it
`we could just
`devices will be available for use later
`
`these
`so that
`in the case as
`
`discovery hopefully continues.
`
`JUDGESHAW: Well,
`
`it's
`
`kind of a two—pronged
`
`for mypurposes.
`sufficient
`question. Oneis whether it's
`I suspect
`that
`it would be, as this
`is not an infringement
`or domestic industry case and so forth.
`But then is how
`
`properly to mark them and what's acceptable to Respondents.
`
`To make a long story short, people do this
`in
`these cases sometimes, but sometim
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