1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`1
`IN THE
` UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`PALTALK HOLDINGS, INC. * August 26, 2024
`*
`VS. * CIVIL ACTION NO. 6: 21-CV-757
`*
`CISCO SYSTEMS, INC. *
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`TRIAL PROCEEDINGS
`Volume 1 of 4
`APPEARANCES:
`For
` the Plaintiff: Max L. Tribble, Jr., Esq.
`Ryan V. Caughey, Esq.
`Amber Brianna Magee, Esq.
`Susman Godfrey LLP
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002
`Kalpana Srinivasan, Esq.
`Susman Godfrey LLP
`1900 Avenue of the Stars, Ste 1400
`Los Angeles, CA 90067- 6029
`Mark Siegmund, Esq.
`Cherry Johnson Siegmund James, PLLC
`The Roosevelt Tower
`400 Austin Avenue, 9 th Floor
`Waco, Texas 76701
`For the Defendant: Sarah E. Piepmeier, Esq.
`Elise Edlin, Esq.
`Nate Sabri, Esq.
`Karl Johnston, Esq.
`Perkins Coie LLP
`505 Howard Street
`San Francisco, CA 94117
`Ryan Hawkins, Esq.
`Abigail Ann Gardner, Esq.
`Perkins Coie LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 1 of 343
`IPR2025-01589
`Intelligent Protection Mgmt Corp. v. Cisco Technology, Inc.
`Cisco's Exhibit 2004
`EX2004, Page 1
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`2
`Jessica J. Delacenserie, Esq.
`Perkins Coie LLP
`1201 Third Ave., Suite 4900
`Seattle, WA 98101
`Andrew T. Dufresne, Esq.
`Perkins Coie LLP
`33 E. Main Street, Suite 201
`Madison, WI 53703
`Michael E. Jones, Esq.
`Shaun William Hassett, Esq.
`Potter Minton PC
`102 North College, Suite 900
`Tyler, TX 75702
`Jonathan Irvin Tietz, Esq.
`Perkins Coie LLP
`700 13th St. NW, Suite 800
`Washington, DC 20005
`Court Reporter: Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702- 0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography,
`transcript produced by computer- aided transcription.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 2 of 343
`EX2004, Page 2
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:21
`08:36
`08:36
`08:36
`08:36
`08:36
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`08:37
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`3
`(Hearing begins.)
`THE BAILIFF: All rise.
`THE COURT: Good morning, everyone. You
`may be seated.
`DEPUTY CLERK: Court calls Case
`6:21-CV-757, Paltalk versus Cisco. Case called for a
`jury trial proceeding.
`THE COURT: Announcements from counsel,
`please.
`MR. SIEGMUND: Good morning, Your Honor.
`Mark Siegmund on behalf of the plaintiff. And we're
`ready to proceed.
`MR. JONES: Your Honor, Mike Jones on
`behalf of Cisco, and we're ready.
`THE COURT: And this seems as good a time
`as any to remind everyone how closing arguments work
`here, which -- by which I mean if in the mornings I
`have to deal with exciting things like slides and other
`objections, that's fine. You get 30 minutes for
`closing arguments, but in the event that I don't have
`to do a lot of things in the morning, then you get
`45 minutes per side. But that's entirely up to you all
`to deal with that.
`Having said that, what issues do you have
`for me to take up this morning?
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 3 of 343
`EX2004, Page 3
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:37
`08:37
`08:37
`08:38
`08:38
`08:38
`08:38
`08:38
`08:38
`08:38
`08:38
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`08:39
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`4
`MR. TRIBBLE: Your Honor, we have
`objections to some of their slides, and I believe they
`may have some objections to our slides.
`MR. SIEGMUND: Judge, can I approach and
`hand them to you?
`THE COURT: Sure.
`MR. TRIBBLE: Thank you, Your Honor. Max
`Tribble for the plaintiff.
`We object to Slide 8 in Cisco's opening
`slide deck. And this slide is titled Paltalk Rewrites
`the Patent. And then they proceed to write in and
`change where the word " each" appears to "one or more."
`And it's clear that they' re going to argue that each
`cannot mean one or more, and this Court has ruled a
`couple of times to the opposite effect.
`In other words, we don't have to rewrite
`anything. The plain and ordinary meaning of "each" can
`be "one or more," as this Court has found. And so
`that's why we object to this slide that we're rewriting
`the language.
`THE COURT: A response?
`MR. JONES: Your Honor, may I hand up
`some slides to Your Honor?
`THE COURT: Uh-huh.
`MR. JONES: And they are opening slides.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 4 of 343
`EX2004, Page 4
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:39
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:40
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`5
`Your Honor, I -- considering the Court's
`admonishment, I think you can make one ruling here with
`regard to Slide 8, and you will also take care of the
`issues concerning Paltalk's opening Slide 25, Cisco's
`opening Slide 30, and the Paltalk Scott Schaefer slide,
`which is 34. And I' ll try to do this very
`expeditiously.
`Your Honor, with regard to "each," where
`I understand we are is that we lost a hearing with
`regard to a motion for summary judgment, and the Court
`said in denying that motion that " each" could mean one
`or more, but did not make a claim construction but
`expressly told us that it was a term that would be
`given as plain and ordinary meaning to a POSITA.
`Thereafter, there was a dispute between
`the parties as to whether or not that meant we could do
`exactly what we're doing now, and we made a motion to
`clarify and the C ourt said he had not -- excuse me.
`The Court said that a claim construction had not been
`issued, and that was an issue that could be argued. In
`other words, where we were was the Court had not
`construed the term " each." " Each" would get its plain
`and ordinary meaning.
`And as I understand the law -- and the
`Court knows much better than I do. You've been through
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 5 of 343
`EX2004, Page 5
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:41
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`08:42
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`6
`many more patent trials than I have. But my
`understanding was that at that point, " each" had its
`plain and ordinary meaning. That experts, based upon
`their reports, could testify as to how a person of
`ordinary skill in the art would interpret " each" as it
`was used in the claims.
`And that is exactly what we are doing.
`We are taking the position that a person of ordinary
`skill in the art, based upon our expert's report, would
`look at "each" there, and, as the Court told us with
`regard to our motion for clarification, would interpret
`it to mean " all" and " every."
`They are taking a different position.
`They are going to take the position that it could be
`interpreted one or more. But that's where we are.
`Now, they want -- and this is where
`you'll get to Schaefer's Slide 34. They want to tell
`the jury that the Court has ruled that they' re right,
`that it can include " one or more" -- excuse me -- that
`it can include " one or more." We think that's a claim
`construction which the C ourt said it was not doing. It
`was not making a claim construction.
`We even asked for a Markman at one point.
`Court said, no, I'm not going to give a Markman, and
`that it is going to be a fact issue, is what we
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 6 of 343
`EX2004, Page 6
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:42
`08:42
`08:42
`08:42
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:43
`08:44
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`7
`understood it to be.
`We understood that from the Court's
`original ruling. We understood that to be where we
`were after the motion to clarify after the last
`pretrial conference, and we think what we're doing is
`very consistent with the Court's ruling. We think what
`they' re trying to do in their slide when they cite the
`Court, when they cite the Court's ruling with regard to
`the motion for summary judgment, is a violation of your
`Motion in Limine No. 17, which says the parties shall
`be precluded from introducing evidence, testimony and
`arguments relating to the Court's claim construction
`order other than the actual adopted constructions.
`We have your constructions. That was not
`part of your constructions. That was part of your
`reasoning for overruling our motion for summary
`judgment. Their Slide 34 shouldn't come in. We think
`if you do that, Judge, it's like you've made a claim
`construction. We think if you do that with regard to
`this fact issue, that it's almost like -- you know,
`with regard to this particular fact issue, we think
`they' re encouraging the Court to put its thumb on the
`weight and say, well, one party or the other is right
`about this. So we believe --
`THE COURT: I got it.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 7 of 343
`EX2004, Page 7
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:44
`08:45
`08:45
`08:45
`08:45
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`8
`MR. JONES: Thank you.
`THE COURT: So what -- let me hear from
`plaintiff. What do you intend to say about " each"
`during your opening argument, and maybe that' ll help
`inform me what I should permit the defendant to...
`MR. TRIBBLE: We're planning to tell the
`jury that the term " each" has its plain and ordinary
`meaning but not to you or me, to a person of ordinary
`skill in the art in light of reading the patent
`specification and claims. It's as simple as that.
`THE COURT: Do you intend to tell them,
`to say anything about it being one or more or not one
`or more?
`MR. TRIBBLE: Yes. I do.
`THE COURT: Well, in that case, I'm going
`to overrule your objection on their slide.
`What else do you have?
`MR. TRIBBLE: We object to Cisco's --
`THE COURT: And, Mr. Jones, does that
`take care of your problems with theirs as well?
`MR. JONES: I think it does. If you
`overruled objections to ours, I believe you're
`sustaining our objections to their Slide 8, Slide 30,
`and Schaefer's Slide 34.
`THE COURT: I don't think I am. So I'm
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 8 of 343
`EX2004, Page 8
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`08:45
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`9
`glad I asked.
`MR. JONES: I'm sorry, Your Honor. I
`didn't mean to be smart with the C ourt.
`THE COURT: I think I'm going with the
`hallowed good for the goose, good for the gander
`ruling, which is, I'm going to let them talk about it
`in opening, and we'll let you all talk about it in
`opening.
`MR. JONES: Could I ask one point on
`that?
`THE COURT: Sure.
`MR. JONES: And it particularly relates
`to Slide 34 because I think that's where we really
`joined this issue. Can they refer to what the Court
`said at the hearing on the motion for summary judgment
`and say that the Court has said that " each" can
`include?
`THE COURT: Yes.
`MR. JONES: They can?
`THE COURT: That's why I said it.
`MR. JONES: Just for the purposes of the
`record, Your Honor, we would object to that. I
`understand you're overruling my objection. We believe
`that's a claim construction. We would ask that a
`Markman hearing take place and that " each" be given a
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 9 of 343
`EX2004, Page 9
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`08:46
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`10
`claim construction, Your Honor.
`THE COURT: I think I' ve done that. And
`I'm -- I' ve stated -- that's why I stated at the
`hearing that " each" can include that.
`MR. JONES: Thank you, Your Honor.
`THE COURT: So if I didn't make that
`clear at the time, that's why I was taking the time to
`say it.
`Here are my rulings. I'm going to start
`with the first motion.
`I'm going to find the plain and ordinary
`meaning " each," " each" has a plain and ordinary meaning
`which can include one or more. That was the purpose of
`me saying that.
`MR. JONES: Okay. Thank you, Your Honor.
`I'm sorry for the misunderstanding.
`THE COURT: Mr. Tribble, anything else?
`MR. TRIBBLE: I believe this may already
`be covered by your ruling, but if you look at Slide 30.
`THE COURT: Okay.
`MR. TRIBBLE: We just think it overstates
`it in a misleading way because it's titled Specific
`Requirements of the ' 858 Patent. And what they' ve done
`is they' ve summarized -- in the right- hand column,
`they' ve summarized the claim language.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 10 of 343
`EX2004, Page 10
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:47
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`11
`And so they say it's a specific
`requirement and that it -- for example, the system
`creates a multiplexed stream in 5 and 6 of all active
`speakers. It sends it to all users' devices.
`I mean, if they want to say this is how
`our expert interprets it, I think that would be
`consistent with the Court's ruling. But to put it up
`there as a requirement of the patent, it just seems
`overstated.
`THE COURT: Got it.
`How is that slide going to be presented?
`Because I agree with Mr. Tribble that -- well, I feel
`like you all -- the defense is certainly able to make
`an argument that that's what you're going to argue, as
`long as you're not going to say that I' ve -- that I' ve
`construed it that way. If you're simply going to argue
`that that's what you're arguing, then I'm fine with it.
`MS. PIEPMEIER: Your Honor, good morning.
`Sarah Piepmeier. Good to see you again.
`That's exactly what I'm going to do,
`Your Honor. I'm not going to mention a claim
`construction ruling. I'm just going to walk through
`the claim and I'm going to say: The words of the claim
`are what govern. Here's a summary. But the words of
`the claim govern.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 11 of 343
`EX2004, Page 11
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:48
`08:49
`08:49
`08:49
`08:49
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`12
`THE COURT: Here's our position.
`MS. PIEPMEIER: Yes. Thank you.
`THE COURT: That's fine.
`Anything else?
`MR. TRIBBLE: No, Your Honor.
`THE COURT: And anything else?
`MR. JONES: Thank you. I think there are
`some objections from us, Your Honor.
`THE COURT: Yes.
`MR. JONES: And this objection. And if I
`would, I'd hand this up to Your Honor.
`This objection is really very simple,
`Your Honor. There are certain licenses that Paltalk
`has with Microsoft, Activision, and Sony. These
`licenses include the ' 858 patent.
`Both experts have said they are not
`comparable, they are not relevant, they are not
`probative.
`Usually in my experience, those type of
`licenses come in. They want to refer to those licenses
`I really think to just show Paltalk has some licenses
`with regard to patents.
`We have told them that's great. If y' all
`want to refer to them, good. But if you refer to them,
`then we get to talk about them in the evidence and talk
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 12 of 343
`EX2004, Page 12
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:49
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`13
`about their terms, talk about their amounts, talk about
`how they treat the ' 858 patent and in circumstances
`through which they were entered into.
`Our position is just if y' all get to use
`them and y' all get to use them to bolster your client,
`then we get to explain the terms of them. And
`either -- we think they should either stay out
`completely or come in completely.
`Thank you, Your Honor.
`THE COURT: A response?
`MR. SIEGMUND: Yes, Your Honor.
`As Mr. Jones said, they are considered in
`the expert reports by both experts. They are
`technically comparable, although both experts said they
`are not economically comparable. And we are not going
`to talk about the circumstances of the licenses, if
`they were the litigation or anything like that, but
`Cisco has a big slide that says " the ' 858 patent" going
`across the top of their timeline; we didn't derive
`anything from this patent at all. Well, that's plainly
`not true. There's licenses to that.
`So we were just going to simply say, you
`know, Paltalk has received licenses for its technology.
`Here they are: Microsoft, Activision, Sony. And
`that's it, Your Honor.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 13 of 343
`EX2004, Page 13
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:50
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`14
`THE COURT: Well, but I think what
`Mr. Jones is saying is that if you talk -- you say
`that, then they get to tell -- talk to the jury about
`that.
`MR. SIEGMUND: Understood.
`THE COURT: And so that which is my --
`the way I see the world too.
`So if the plaintiff wants to discuss in
`opening argument that Microsoft, Activision, and Sony
`licenses for some reason -- is this -- then they get to
`talk about them during trial. I'm not excluding -- I'm
`not going to prohibit you from talking about them
`during opening argument, but then they' re in.
`MR. SIEGMUND: Understood.
`THE COURT: Okay. Does that satisfy you?
`MR. JONES: Yes, Your Honor. I
`understand.
`THE COURT: Any other issues?
`MR. JONES: Just two more. I think
`they' ll be rather brief.
`This deals with Slides 32, 33, and 34,
`and if you'll look at 34, sir, I think you'll
`understand exactly what we're talking about here. And
`this is clearly a discovery issue.
`In discovery in Interrogatory 17, we
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 14 of 343
`EX2004, Page 14
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:51
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`08:52
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`15
`asked whether they knew of any embodiments of the
`patent, and they said they did not by either them or
`anyone else. HearMe, the predecessor owner of the
`patent, was expressly dealt with in the interrogatory
`answer and they did not know.
`Mr. Katz is their 30(b)(6) deponent. He
`also did not know of any products that avoid -- embody
`the patent when he was deposed.
`What they are doing here is they' re
`taking an exhibit from the prior owner of the patent,
`HearMe, Plaintiff's Exhibit 9, and they are comparing
`it to the patent. The middle bar is comparing it to
`the patent and then comparing it to a Cisco product.
`Here, the implication is clearly that
`it's an embodiment, and they' re using it for that
`purpose. There' ll be no expert that says it's an
`embodiment, and the discovery we have has denied that
`any embodiments existed.
`And even further than that, worse than
`that, is when their corporate representative was asked
`about this particular document, he said he didn't know
`anything.
`And he could read it, say what was on it,
`but he didn't know anything about it and couldn't
`authenticate it. He certainly couldn't tell us that
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 15 of 343
`EX2004, Page 15
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:52
`08:52
`08:52
`08:52
`08:52
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:53
`08:54
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`16
`the product worked the way they said in the document.
`And for that reason, we believe it should not be used,
`Your Honor.
`THE COURT: A response?
`MR. SIEGMUND: Your Honor, we think this
`is kind of a nonissue, and we are not going to argue
`that what is depicted on Slide 30 and 31 was
`practicing -- sorry -- was practicing the patent. We
`aren't going to make that argument whatsoever.
`We're simply saying, hey, we bought this
`company. This is the technology that they had. And
`this is kind of how hybrid systems came to be evolved.
`So it's more of a proffer.
`THE COURT: What I have -- I think
`Mr. Jones is unhappy about on 32 and 33, it looks like
`it came from a patent. So I'm not sure how that lines
`up with what you just argued.
`MR. SIEGMUND: So just to be clear,
`Your Honor, you're talking about Slide 32?
`THE COURT: I am.
`MR. SIEGMUND: Okay. And -- okay. We
`aren't trying to compare it and say that this practiced
`the patent, Judge. We're just --
`THE COURT: Well, what is the purpose of
`having the -- what's in this middle of the -- what is
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 16 of 343
`EX2004, Page 16
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:54
`08:55
`08:55
`08:55
`08:55
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`17
`the purpose of having this here?
`MR. SIEGMUND: The evolution and
`chronology of how hybrid technology has come about.
`THE COURT: By showing out of the -- out
`of this -- I mean, this looks like it's out of the
`patent.
`MR. SIEGMUND: Oh, that's Slide 30,
`Judge?
`THE COURT: That's Slide 32.
`MR. JONES: Your Honor, if I --
`THE COURT: Maybe I'm just not --
`MR. JONES: Maybe I wasn't clear.
`THE COURT: Maybe I'm having a hard time.
`MR. JONES: If you'll go to 34, what's
`out of the patent, middle line of 34, those -- and it's
`the comparison of those -- that document which is
`Plaintiff Exhibit 9 of the patent that we're objecting
`to.
`THE COURT: I'm going to keep 34 out.
`Now, I think 34 -- sorry. I wasn't
`following. I think 34 is the prior two slides and then
`it adds Cisco.
`MR. JONES: Right. It adds the patent.
`Yes. That's correct, Your Honor.
`THE COURT: I'm going to exclude that.
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 17 of 343
`EX2004, Page 17
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`08:55
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`18
`MR. SIEGMUND: And that's this slide
`right here, Your Honor?
`THE COURT: Right.
`MR. SIEGMUND: Got it. Understood.
`THE COURT: Do you have an objection to
`the other two slides?
`MR. JONES: No.
`THE COURT: Okay. And that -- I didn't
`understand why you had --
`MR. JONES: As long as they' re not going
`to refer to it as "preferred embodiment," and counsel's
`told me he will not.
`THE COURT: I was on the wrong slide.
`Yes, ma'am.
`MS. PIEPMEIER: May I make one point
`about that? Not to step on my colleague's toes.
`We're fine with that with regard to those
`two slides. We will have an issue with regard to the
`underlying document, which I believe is PX-9, which I
`assume they intend to introduce with Mr. Katz.
`So I just want to make it clear, we don't
`have a problem for demonstrative purposes, but I don't
`want that to be seen as waiving an objection to PX-9,
`which we will have.
`THE COURT: What is the objection you're
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 18 of 343
`EX2004, Page 18
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:55
`08:55
`08:55
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`08:56
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`19
`going to have?
`MS. PIEPMEIER: The objection that we're
`going to have -- pardon me, Your Honor.
`The objection that we're going to have to
`PX-9, Your Honor, is that the witness has absolutely no
`idea what it is. Mr. Katz was not able to answer any
`questions about it in deposition. He was designated as
`the person to talk about this and had no idea what it
`was.
`And for them to now admit that through
`him -- when I asked him, I believe he said he'd never
`seen it before. And so now two years later, he's the
`only person who's going to be able to put it in.
`They' ve put it on the exhibit list for him. And
`there's a whole bunch of other documents that are in a
`similar vein to PX-9.
`But when you're designated on that topic,
`when you say you've never spoken to anyone from HearMe
`and then you've never seen a document and then you're
`the one who brings it in two years later at trial, that
`feels like a violation of Rule 26.
`THE COURT: Well -- and again, I'm a
`little bit at a loss here because I don't really know
`what this document is yet and y' all lived with it.
`But it appears to me to be, I mean, just
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 19 of 343
`EX2004, Page 19
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:57
`08:58
`08:58
`08:58
`08:58
`08:58
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`20
`a document produced by HearMe from May of 2000. I get
`that this guy may or may not know.
`Mr. Siegmund, can you sit down?
`MR. SIEGMUND: Yes.
`MS. PIEPMEIER: I have the document,
`Your Honor, if you'd like to see it, and I can give you
`just a very brief summary.
`THE COURT: I don't want them talking
`about it if it's not going to come in.
`MS. PIEPMEIER: Yeah. May I approach,
`Your Honor?
`THE COURT: Of course.
`MS. PIEPMEIER: This is PX-9. I believe
`this is the one where there's a picture on the back.
`Just the PX-9.
`THE COURT: And let me ask this: I mean,
`it seems to me this would be a relatively easy
`document, just a document to get in. But is your
`problem with the document coming in at all or the fact
`that they don't have anyone who -- did the person that
`they' re going to put up here, that there's no one they
`can put on to explain what's in the document any better
`than I could do, you know, if I read it and tried to
`explain it? Or is it both?
`MS. PIEPMEIER: So, Your Honor, it's
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 20 of 343
`EX2004, Page 20
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:58
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`21
`both. And let me just set the stage very, very
`briefly.
`HearMe was the prior company, the assets
`were acquired by Paltalk. The only Paltalk witness
`who's going to testify, Mr. Katz, testified he never
`spoke to anyone at HearMe and knew nothing about it.
`He was designated on these topics, which is why I put
`these documents in front of him during his deposition.
`And when I put PX-9 in front of him during his
`deposition, I asked him, you know:
`Can you see this document?
`Well, it looks like the HearMe website.
`Is there a date?
`Yeah. There's a date on the document.
`Do you have any knowledge at all of what
`types of products or services are depicted in that
`diagram? That is the diagram they put on the slide.
`Only to the extent I can read it.
`VoiceNETWORK host live voice services for your network
`application servers.
`So he reads from the document.
`And do you know if at the time that this
`document I guess was printed in 2000, if one of the
`products or services that HearMe was offering permitted
`a user or users to participate in an audioconference
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 21 of 343
`EX2004, Page 21
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`08:59
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`22
`that included both computer and telephone connections?
`Answer: I don't know.
`I can only see the picture has a plain
`old telephone plus computers that seem to indicate
`that, but I don't know.
`So the picture on the HearMe document
`from May 15th appears to indicate that the HearMe
`VoiceNETWORK permitted users to have a combined
`audioconference using phone and computer; is that
`right?
`That's what it looks like. But again,
`I'm no expert, and I'm not an engineer.
`Your Honor, I put those in front of him
`because he was designated on whether any products
`practiced the patent. He didn't know. And for them to
`now come back and suggest to the jury that HearMe had
`products that looked like the patent, were part of the
`evolution towards the patent is -- Your Honor, that's
`just completely inappropriate.
`And I don't know how to cross- examine him
`on that because if he says, oh, yeah. I didn't know at
`my deposition, but I spent the past two years studying
`it, that's completely inappropriate, Your Honor.
`So I guess I don't have a problem with
`him showing a slide, but I do have a problem with PX-9
`Case 6:21-cv-00757-ADA Document 217 Filed 09/27/24 Page 22 of 343
`EX2004, Page 22
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:00
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`09:01
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`23
`and its progeny. There's about five more of these same
`documents where I went through the exact same exercise
`with Mr. Katz.
`Your Honor, I very, very carefully
`questioned Mr. Katz in deposition to find out what he
`would say here at trial today, and it really is
`manifestly improper for him to know nothing about it
`and then to sponsor those same exhibits at trial.
`Thank you, Your Honor.
`THE COU